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Re B (A Child) – Social Engineering or Proportionate Response to Risk of Future Harm?

Janet Bazley QC and Eleri Jones of 1 Garden Court consider the Supreme Court’s decision in Re B (A Child) [2013] UKSC 22

Janet Bazley QC, 1 Garden Court

Eleri Jones, barrister, 1 Garden Court

 

 

 

 

 



Janet Bazley QC and Eleri Jones, barrister, both of 1 Garden Court Chambers

By a majority of 4:1 (Lady Hale dissenting) the Supreme Court in Re B (A Child) [2013] UKSC 33 dismissed the appeal of the parents against a final care order, with a view to adoption, in relation to their child, now 3, who had been removed at birth on the basis of risk of future significant emotional and psychological harm.

Key Issues
The Supreme Court's judgment addresses the following issues:

  1. Threshold: significant harm, causation and likelihood 
  2. The impact of ECHR Article 8 in relation to threshold and the proportionality of a care order with view to adoption 
  3. The role of the appellate court and the test to be applied 
  4. Whether in the circumstances of this particular case, the judge was right to find that threshold was crossed and to make a final care order.

Facts
The mother had had significant difficulties in her early life and had been abused physically, mentally and sexually by her step-father, with whom she had had a relationship and a child.  That child was subject to private and public law proceedings and later removed from the family.

The mother had been assessed by a psychiatrist as a very vulnerable and damaged individual with multiple psychological problems, including severe somatisation disorder, compulsive lying and deception of others.  She also had a criminal history in relation to fraud and perverting the course of justice and had been imprisoned.  The father had a very long history of criminality and drug abuse.  He has four other children by another woman but has had marginal involvement with them.

The child, A, was removed at birth and placed into foster care, and the parents had supervised contact with her five days a week.  It was not asserted that the child had suffered harm attributable to the parents' care, rather that the child was likely to suffer significant harm due to the risks posed by the parents.   The local authority's care plan was for adoption (although the placement application was not yet before the court). 

The expert and professional advice differed: an expert in social work and A's guardian, with some support from the Lucy Faithfull Foundation, recommended placement with the parents, with support.  The local authority, the two psychiatrists and an assessor from the Marlborough Family Service all considered that this should not happen due to the significant risk of harm to A.

The judge found that the threshold was crossed in that, at the time A was taken into care, there was a risk of significant harm to A from the care likely to be given to her by her parents.  The risks were of harm to A, likely to be caused by the mother's somatisation disorder and factitious illness disorder, i.e. that the mother might present A for medical treatment and that A might receive medical treatment that was unnecessary, that A might grow up to believe the way the mother presented herself for treatment was appropriate, and might model herself on it.

The judge further found that safeguarding packages would need to be put in place if A were to be reunited with her parents but that they did not have the capacity to engage with professionals in such a way that an environment could be brought about where A would be protected from harm.  Neither parent accepted the need for any therapeutic intervention.  The judge found that the father would not be able to protect A from harm by the mother and therefore that A could not be placed in his sole care.

The judge did not doubt that the parents love A, they were committed to her 'in spades' and had formed a good relationship with her. He also noted that neither parent had been seen to put a foot wrong in relation to their direct dealings with A.  However, in weighing up the balance, the judge endorsed the local authority's care plan and made a care order. 

Court of Appeal
On appeal (B (A Child) [2012] EWCA Civ 1475), it was argued that the risks identified were not sufficient to constitute significant harm, that they were not imminent, and that it was disproportionate to respond to them by permanent removal of the child.  Various criticisms were made of the judge's treatment of the evidence and for not allowing the father to be assessed as a sole carer.  Black LJ, in the leading judgment, after careful analysis of the evidence and criticisms made, concluded that the judge had been right and dismissed the appeal.  Lewison and Rix LJJ concurred but were deeply troubled by the case.  Lewison LJ associated himself with Rix LJ's concluding sentence:

"I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk." [150]

It was on the basis of the public importance and concern about the point made by Rix LJ that permission to appeal to the Supreme Court was given.

Supreme Court
The overall judgment of the Supreme Court is a collection of five individual decisions, four concluding that the appeal should be dismissed, and that of Lady Hale, who would have allowed the appeal.  The key issues identified above are each addressed in turn below with a summary of the guidance provided in the various decisions.

1. Threshold
Lady Hale provides a guide (endorsed by Lord Neuberger [56]) for courts to consider where threshold is disputed [193].  In summary, the guidance is as follows:

i) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.

ii) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.

iii) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in which respects the harm is significant.  This may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

iv) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of the child and/or parents.  The court should identify the respects in which parental care is falling (or likely to fall) short of what it would be reasonable to expect.

v) Where actual harm has not been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will constitute a lack of reasonable care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9.

Deciding whether threshold is crossed is not a question of law, nor one of primary fact, rather a decision involving the exercise of judgment, an 'appraisal' or 'evaluation', and therein lies the value of the trial judge's experiences in the courtroom [57]-[58], [109].  The judge does not exercise discretion in determining whether threshold is crossed, it is a value judgment [44], made on the import of the facts found [109], [199].

(i)  Threshold: the gateway
Threshold, once crossed, is a 'gateway' [129].  It must be opened before a care order is possible.

The now well known words of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at 2063 are repeated by Lord Wilson at [27], Lord Neuberger at [67] and Lady Hale at [179]-[181]] (and indeed Black LJ at [116] of her decision in the Court of Appeal).  Hedley J begins by citing the words of Lord Templeman in In re KD [1988] 1 AC 806 that 'It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger.  Public authorities cannot improve on nature'.  Hedley J continues that 'society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent ... it is not the provenance of the state to spare children all the consequences of defective parenting'.  Hedley J then cites the words of Lord Nicholls of Birkenhead in Re H [1996] AC 563 that 'threshold may be comparatively low.  However it is clear that it must be something unusual; at least something more than commonplace failure or inadequacy.'

(ii) The nature of the harm and (iii) 'significant harm'
The court must consider the nature of the harm and whether it is significant [206]. 

Pursuant to section 31(9), 'harm' means 'ill-treatment or the impairment of health or development...' and 'development' includes 'emotional...development'.  Section 31(10) states that 'Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child', albeit with sensitivity to the cultural, social and religious circumstances of the child and family [178].  Lord Wilson concludes that, whereas the concept of 'ill-treatment' is absolute, the concept of 'impairment of health or development' is relative to the health or development which could reasonably be expected of a similar child (described  as little more than common sense) [25].  Otherwise, the court wished to avoid an attempt at explaining the word 'significant' and did not wish to add a gloss to the statute [26].  Lady Hale considered the dictionary definition of 'significant' helpful, namely 'considerable, noteworthy or important', stating that there would be no point in a threshold if it could be crossed by trivial or unimportant harm [185].  Her Ladyship offers further guidance as to 'harm' at [192].

(iv)  Likelihood and causation
Lord Wilson reiterated that which was reaffirmed in Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, that a likelihood of significant harm means 'a real possibility, a possibility that cannot be ignored having regard to the nature and gravity of the feared harm in the particular case' [187], but a conclusion to that effect must be based on a fact or facts established on a balance of probabilities [24].  This will include assessment of parental character, likely behaviour and attitudes [66], [71]. 

Lady Hale notes that the Children Act does not set limits upon when the harm may be likely to occur [189].  There may be protective factors and so the degree of likelihood must be such as to justify compulsory intervention now [190].

Lord Wilson further rejected the notion that there was a requisite mental element to accompany the actions or inactions which have caused, or are likely to cause, the significant harm to the child.  Section 31(2)(b)(i) requires only that the harm or likelihood of harm should be 'attributable' to the care given, or likely to be given, to the child not being what it would be reasonable to expect a parent to give to the child.  The causation required is only as between the care and the harm [31].  The court should be able to identify what that deficiency in care might be and how it is likely to happen [191].

(v)  Degree of likelihood
Lord Neuberger emphasised at [56] that 'significant harm' is interrelated with the likelihood of it being suffered, so the more significant the harm, the less the required level of likelihood and vice versa (see also Re S-B [2009] UKSC 17, [2010] 1 AC 678 at [9]).  Lady Hale supports this at [188] and is clear that a court must indicate how likely it is that the harm will materialise [210].

2. ECHR Article 8 
(a)  Threshold
Article 8 of the European Convention on Human Rights ('the Convention') addresses 'interference' with the right to respect for family life.  A decision about the threshold does not engage Article 8 since a conclusion that the threshold is crossed merely opens the gateway to the making of orders [29], [62], [129], [186]. Once the court proceeds to make statutory orders, Article 8 comes into play.

(b)  Proportionality of care order with view to adoption
The care order with a view to adoption represented an interference with the exercise by A, the mother and the father, of their rights to respect for their family life.  It could only be justified if it was in accordance with law and 'necessary' in a democratic society for the protection of the right of A to grow up free from harm.  However the interference must be proportionate to identified risks. Johansen v Norway (1996) 23 EHRR 33 and YC v United Kingdom (2012) 55 EHRR 967 were cited, albeit the latter uses the language of 'justification' rather than 'proportionality' [32]-[33], [75].  Domestic law runs broadly in parallel to this and makes clear that:

(i) It is not enough that it would be better for the child to be adopted than not [34]; see also Re S-B [2009] UKSC 17;

(ii) Parental consent can be dispensed with for adoption but only if the child's welfare requires this, and the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support to help the parents discharge their responsibility to the child [105], [197]-[198]; and

(iii) The interests of the child must render it necessary to make an adoption order (at [34], [76], [82], [135], [195]-[196], [215]) i.e. 'where nothing else will do' [130], [145], [198], it is a 'last resort' [74], [77].

Lord Neuberger makes further reference to this issue [103]-[104] when considering the principle of adoption.  His Lordship reminds us that 'a court must never lose sight of the fact that [the child's interests] include being brought up by her natural family, ideally her natural parents, or at least one of them'.

Lord Neuberger also stresses that the Adoption and Children Act 2002 must, if possible, be construed and applied bearing in mind the provisions of the UN Convention on the Rights of the Child 1989 [73], [78]. 

3. The appellate court
(a)  The test to be applied
The Supreme Court is unanimous in its decision that the test to be applied by the court is whether or not the decision below was 'wrong', or where there was a serious irregularity, the wording found in CPR 1998 r52.11(3) [44]-[46], [61], [91], [110], [138]-[139], [203].  The adverb 'plainly' was considered to add nothing to the test.  However Lord Wilson suggests that the principles of Lord Fraser in G v G [1985] are not to be jettisoned, as the factors which often vitiate the exercise of a discretion – namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle – may well generate a conclusion that the determination was 'wrong' and should be set aside and reversed, or remitted for consideration afresh.  By contrast, a judge's failure to give adequate reasons for his determination is likely to lead to its being set aside as 'unjust' within the meaning of rule 52.11(3) [46]. 

We are reminded that the appellate court should not interfere just because it would itself have preferred a different answer [38], [112]-[114], [202].  

An appellate court must factor into its review of a trial judge's determination the advantages which the judge had over it in appraising the case, namely in seeing and hearing the parties and other witnesses,  (Biogen Inc v Medeva plc [1997] RPC 1 and Piglowska v Piglowski [1999] 1 WLR 1360 at 1372) [41], [108].  In cases concerning children, this is all the more important, as decisions require the judge to have regard to the future and multi-factorial possibilities [42], [59], [200]. 

(b)  Decisions where Convention rights are engaged
Lord Wilson made it clear that the task of the trial judge in applications for care (or supervision) orders – and equivalent applications for private law orders where there is a suggested inference with Article 8 rights – is more than just an exercise of discretion [45].  The judge is obliged by section 6(1) of the Human Rights Act to determine the application in a way which is compatible with those rights.  Therefore the review which falls to be conducted by the appellate court is two-fold: it must focus not just on the judge's exercise of discretion but also on his compliance or otherwise with an obligation.  A contrast is drawn with, for example, the review of a case management decision within care proceedings, see Re TG (A Child) [2013] EWCA Civ 5 at [38]). 

In respect of such decisions involving Convention rights, the Supreme Court was divided.  The majority –  Lord Wilson, Lord Neuberger and Lord Clarke – all considered that the appellate court simply undertakes a 'review' of the decision in relation to proportionality.  The Convention itself does not require a right of appeal, just that any hearing must be fair and impartial in accordance with Article 6 [85], and it is accordingly a matter for Parliament how the court discharges its domestic duty under section 6(1).  Therefore the approach should be in line with CPR rule 52.11(1), namely a review, unless in the circumstances it is in the interests of justice to hold a re-hearing [35]-[36], [86], [136].  The appellate court is not required to re-hear all the evidence relevant to the Convention issue [36] nor to decide de novo whether the requirements of Article 8 were satisfied [83].  This is to be contrasted with situations in which a court entertains a challenge to an administrative decision i.e. a decision of the executive rather than one of a judge [84], [204]. 

Once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessment, the standard to be applied by the appellate court in determining whether the trial judge was entitled to reach his conclusion on proportionality is the same: was the conclusion 'wrong' [46], [91]?

Lord Kerr and Lady Hale disagree with the majority in relation to the issue of addressing the breach of a Convention right.  Lord Kerr's view is that the decision-maker, at whatever level the decision is made, must starkly confront the question, 'is this necessary': if the appellate court decides that it would not have concluded that it was necessary, even though it can understand the reasons the first instance court believed it to be so or if it considered that the decision of the lower court was perfectly tenable, it cannot say that the decision was proportionate [115].  It is not a matter of a review of the trial judge's decision on proportionality rather the appellate court reaching its own conclusion on the issue [120]. 

Lady Hale concurs with Lord Kerr and states that, whilst the court must give due weight to the enormous benefit of the trial judge in reading and hearing the evidence and beware of being over-critical of the way in which a judge has expressed himself, the court which makes the final decision is the public authority which is responsible for the invasion of Convention rights.  Accordingly the appellate court must decide for itself whether the order is compatible with those rights [205].  However, Her Ladyship considers that it will only make a difference in cases where the appellate court cannot state whether the judge was right or wrong.

4. The circumstances of this case
(a)  Threshold
Although Lady Hale expressed some hesitation [214], [211], the Justices were unanimous in their conclusion that the judge was right to consider that threshold was crossed [48], [64], [98], [131]-[132], [134].

Lord Neuberger stated that it was a question of fact and degree in this case as to whether the defective parenting which A would receive if she remained with her parents fell outside the wide spectrum of the acceptable 'very diverse standards' (see above, Re L [2007]) and the judge's conclusions in this respect His Lordship could not fault.  It was not just the harm, however, but the fact that the parents would, or appeared very likely to, impede the professional people who would need to access A to mitigate the risk or effect of any harm she might suffer.  This was considered defective parenting which a judge could reasonably conclude satisfied the section 31(2) threshold [71].

(b)  The care order
 All save Lady Hale considered that the judge was right to have made the care order with a view to A's adoption [48], [106], [133], [134].  Lord Wilson stated that the principal reasons for this were:

In contrast, Lady Hale considered that there was little evidence about what was meant by a 'plan and strategy' which would need to be devised to protect A if she were returned to her parents' care.  It was noted that there was a degree of cooperation by the parents [217]-[218], more so with professionals than social services [219].  Lady Hale was particularly concerned that no pre-proceedings letter had been sent to the parents.  Ultimately Lady Hale considered that it had not been sufficiently demonstrated that it was necessary to bring the relationship between A and her parents to an end.  In the circumstances of this case, Lady Hale felt that it could not be said that 'nothing else will do' when nothing else had been tried. The harm that was feared was subtle and long term and may never happen. There was a need for some protective work, but precisely what that might entail, and how the parents might engage with it, had not been properly examined [223]. 

Accordingly it was Lady Hale's view that the judge was indeed wrong to hold that his decision was a proportionate response to the risks which he had identified.  Lady Hale would have allowed the appeal and sent the case back for a fresh and in-depth enquiry by the new guardian as to the necessity for, and viability of, the sort of measures which were only beginning to be explored by the previous guardian [224].

Lord Neuberger understood the concern which Lady Hale expressed [67] but did not view the enquiries Lady Hale wished to be made on any remission as realistically open to an appellate court in light of the various conclusions reached by the judge [99] and considered that there was also a 'floodgates' argument: to allow the appeal on the ground that the parties should be given a second chance to explore matters more fully with a view to achieving a different result, would justify remittal for fuller consideration in any case where a party was dissatisfied with a trial judge's decision based on the assessment of the future.  Finality is important, not just in the public interest, but for the good of A (and her parents) [101].  Lord Wilson also cautions against delay [48].

Conclusions and practical considerations
The decision in Re B will undoubtedly have an effect at all levels.  Useful guidance has been provided in relation to the approach to be taken to threshold, when the State should intervene, the issue of proportionality and the role of the appellate court. 

In relation to threshold, the nature of the significant harm should be clearly identified, particularly where the child has not suffered such harm and where the harm is emotional or psychological.  A common sense approach should be taken to 'significant harm'; there is no mental element or intention required – the causation required is only as between the care and the harm.  The court should also consider the degree of likelihood of harm in the context of the severity of the harm feared. 

Article 8 of the Convention is not engaged when deciding whether threshold is crossed, this being based on an evaluation of facts found.  When considering whether or not to make a care order, especially with a view to adoption, Article 8 rights of the parent(s) and child(ren) are engaged and the interference must be necessary i.e. proportionate to the risks identified.  Adoption is a last resort and the court must be satisfied that there is no practical way for the authorities or others to provide the support required to enable the parents to care for the child. 

On appeal from decisions which do not engage the Convention, the test is that in CPR rule 52.11(3), i.e. whether the decision was 'wrong' or there was a 'serious irregularity'.  Where the decision engages a Convention right and the appellate court must consider the issue of proportionality, the Supreme Court was divided.  The majority concludes that the appellate court simply undertakes a review of the decision as per CPR rule 52.11(1) and the test is whether the decision was 'wrong' (or there was a serious irregularity).  Lord Kerr and Lady Hale consider that each court has its own independent duty to consider whether the decision was proportionate and whether the Convention right was breached.  Lord Neuberger notes the difference of approach by Lord Kerr and Lady Hale but considers it would be a very rare case that their approach would result in a different outcome [95].  Lady Hale agrees that it will only make a difference in limited circumstances [205].

The Supreme Court reiterates the advantage the first instance judge has in hearing and reading all the evidence, of 'living and breathing the case' and the limited extent to which an appellate court will interfere, given that a judge's expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance, of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.  Whether the re-stating of the test as 'wrong' rather than 'plainly wrong' will have a practical effect remains to be seen. 

On the facts of this case and in view of the findings of the judge, all concluded that threshold was crossed and all but Lady Hale considered that the appeal should be dismissed.  Lady Hale felt more should be done to identify and put the right support in place (and to make it work). 

What is notable from the various judgments is the unease with which the ultimate decision has been reached.  A very clear message is given that adoption is the last resort and everything else possible must be tried to see if there is an alternative; the court must not engage in any form of 'social engineering'. 

Given the new 26 week deadline for cases, steps taken pre-proceedings will be all the more important, as emphasised recently by the President of the Family Division.  It will be crucial that parents are given a pre-proceedings letter so as to get legal advice early on and consider their position in relation to cooperation with social services. [For an article on this aspect see Care Proceedings: the Operation and Effect of Pre-Proceedings – What do lawyers need to know? written by Professor Judith Masson and Dr Jonathan Dickens.] The 'inescapable difficulty' in Re B was the problem with parental cooperation.  If there had been evidence of a way to lower the barriers erected by the parents, Lord Wilson suggests the judge might have directed an adjournment – even only a few months – to explore the possibility and that such an approach 'might have been the proportionate response to the positive features of the parents' case'.  

Janet Bazley QC and Eleri Jones

15/6/13