Supreme Court hands down key ruling on care orders and 'significant harm'

The Supreme Court has upheld a High Court order that a two-year-old girl should be permanently removed from her parents’ care and placed for adoption over fears for her emotional or psychological harm.

The case of In the matter of B (a child) [2013] UKSC 33 centred on the application of the criteria for making a care order under s. 31 of the Children Act 1989 and the role of the appellate courts once the trial judge has made an order.

The background to the case was that:

• The girl, ‘Amelia’, had been removed from her parents at birth under an interim care order.
• The mother had been for many years in an abusive relationship with the stepfather. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which sees multiple complaints made to medical professionals for which no adequate physical explanation can be found.
• The mother was in the course of proceedings also diagnosed with the related condition of factitious disorder. This involves the deliberate exaggeration or fabrication of symptoms and the recitation of a false medical history.
• In 2009 the mother escaped the abusive relationship with her stepfather, leaving behind her 10-year-old daughter. She then formed a relationship with the father of the two-year-old.
• The father had been convicted of many serious offences. He had four older daughters, with whom he had an amiable relationship. However, that involvement had been limited, in particular because of his time in prison.
• During the interim care period, the parents visited frequently and formed a good relationship with the daughter. They had shown their commitment to her ‘in spades’.

The trial judge found that, if placed in the parents’ care, there was a risk that the child would be presented for and receive unnecessary medical treatment. The judge concluded that the girl might grow up to copy her mother’s behaviour, and be confused at the difference between the real world and her mother’s presentation of it.

The judge went on to find that there would have to be a multi-disciplinary programme of monitoring and support to avoid those risks. The parents would not have been able to cooperate with this programme because of their attitudes towards social workers and other professionals.

The only way therefore to avert the prospective harm was through a care order with a view to adoption, the judge ruled. This was upheld at the Court of Appeal.

The parents took the case to the Supreme Court. However, the care order has now been upheld by a majority of 4:1.

The Supreme Court concluded that the High Court judge had been entitled to conclude that the threshold conditions for the making of a care order had been satisfied.

Lord Wilson said the judge had been well aware that, before he could even consider whether to make a care order, s. 31 required him to be satisfied (a) that, when she was first taken into care, namely at birth, Amelia had been ‘likely’ to suffer ‘significant harm’ and (b) the harm or likelihood of harm was attributable to the care likely to be given to her if a care order were not made, not being what it would be reasonable to expect a parent to give her.

Lord Wilson added that it was common ground that a ‘likelihood’ of significant harm meant no more than a real possibility that it would occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities.

“In the context of the present case it is also noteworthy that, by section 31(9), ‘harm’ means ‘ill-treatment or the impairment of health or development…’ and ‘development’ includes ‘emotional development’,” the Supreme Court judge said.

Lord Wilson concluded that whereas the concept of ‘ill-treatment’ was absolute, the concept of ‘impairment of health or development’ was relative to the health or development which could reasonably be expected of a similar child.

He went on to say that courts should avoid attempting to explain the meaning of the word ‘significant’. “It would be a gloss; attention might then turn to the meaning of the gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from the word itself.”

However, the severity of the harm was inversely correlated with the likelihood of the harm, ie the less likely the harm was to occur the more serious the harm would need to be. Article 8 of the ECHR was not engaged when a court assessed whether or not harm was ‘significant’ for these purposes; that provision would only be engaged in a case such as this if there were an interference with the right to respect for family life, which could only occur at the stage of determining whether or not a care or supervision order should be made.

Lord Wilson said the character of the parents was relevant at every stage of the inquiry whether to make a care order only to the extent that it affected their quality of parenting.

The conduct of the parents giving rise to harm or the likelihood of harm was not required to be intentional or deliberate. “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,” Lord Wilson said. “Such is a requirement only of causation as between the care and the harm.”

The Supreme Court concluded that a determination as to whether the threshold conditions for a care order had been satisfied depended on an evaluation of the facts of the case as found by the judge at first instance; it was not an exercise of discretion.

Lord Wilson said he agreed with all other members of the Supreme Court that appellate review of a determination whether the threshold was crossed should be conducted by reference simply to whether it was wrong. It need not have been “plainly wrong”.

In determining whether the threshold conditions for a care order were satisfied and whether it was appropriate to grant a care order, an appellate court must have regard to the advantages which the judge at first instance had over an appellate court, Lord Wilson said.

This included the judge’s ability to assess what may happen to the child in the future on the basis of the oral evidence given by the candidates for the care of the child.

The Supreme Court decided that the High Court judge in this case was also entitled to conclude that the making of a care order in relation to Amelia, with a view to her being adopted was necessary and did not violate the rights of Amelia, M, or F to respect for their family life under article 8 of the ECHR.

Lord Wilson stressed that a high degree of justification was needed under article 8 if a determination was to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the child’s parents.

He added that domestic law ran broadly in parallel with the demands of article 8. “The same thread runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order.” A care order in a case such as this must be a last resort.

Lord Neuberger – with whom Lord Wilson and Lord Clarke agreed – concluded that s. 6 of the Human Rights Act 1998 did not mandate fresh appellate determination of a Convention-related issue. An appellate court, including the Supreme Court, was required only to conduct a review of the lower court’s decision.

The making of a care order, however, was not a purely discretionary decision; a trial judge had an obligation under s. 6 of the 1998 Act to ensure that he/she did not violate article 8 of the ECHR.

Accordingly, it was not appropriate for an appellate court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, ie whether the lower court exceeded the generous ambit within which reasonable disagreement was possible. The appropriate test was whether the lower court was “wrong”.

Lady Hale and Lord Kerr disagreed with this analysis. They took the view that an appellate court reviewing whether a care order violated article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court).

Lord Wilson said there were a number of features relative to the personalities of Amelia’s parents, and to the psychiatric conditions of the mother, which raised “a real possibility that, in their care, Amelia would suffer impairment of her emotional development”.

He highlighted the trial judge’s key conclusion that the characters of the parents disabled them from offering the elementary cooperation with professionals which Amelia’s safety in their home would require.

“Family courts regularly make allowance for the negative attitude of parents towards the social workers who personify their employers’ applications for care orders,” Lord Wilson said. “But the level of the dishonest, manipulative, antagonistic obstructionism of the parents in this case was of a different order.”

Lord Wilson said the trial judge’s view that adoption was the only viable option for Amelia’s future should be upheld.

The dissenting judgment came from Lady Hale. She took the view that it had not been sufficiently demonstrated that it was necessary to bring the relationship between Amelia and her parents to an end.

“In the circumstances of this case, it cannot be said that ‘nothing else will do’ when nothing else has been tried,” Lady Hale said. “The harm that is feared is subtle and long term. It may never happen. There are numerous possible protective factors in addition to the work of social services.”

Lady Hale said the care order was not a proportionate response to the risks which the trial judge had identified.

This article is based on the Supreme Court’s press summary.