Out of harm's way

Supreme Court Main Entrance 03521C press office supplied  146x219Hard cases may make bad law, but in the case of Re B (A Child), unusual circumstances have led the Supreme Court to provide some extremely helpful guidance on a range of child protection issues writes Cherry Harding

The recent Supreme Court decision in Re B (A Child) [2013] is a very important decision for Child care practitioners, particularly those of us who have struggled with how to advise in cases where there has been no actual harm to a child, but harm is predicted or feared.

The child had been in foster care from birth and the parents had taken up all the contact offered, had made it enjoyable for her and developed a very good relationship with her. The fact that Lord Wilson and Lady Hale reached different conclusions on the appeal demonstrates how finely balanced the court considered the case to be.

Although the actual decision is dependent upon the unusual facts of the case, the wide-ranging consideration of the law will provide a wealth of guidance when analysed. Those looking to understand the jurisdiction will be rewarded by a careful study of the reasoning in the judgments, including the dissenting judgment of Lady Hale, and the careful analysis of the case law and philosophy behind state interference in family life to remove children. Lady Hale was, after all instrumental in the drafting of the Children Act 1989 and can speak of the policy issues and alternative definitions that were considered and illustrate why those chosen were enacted.

The court identified the key issues as

1.    Threshold: how high is the standard to be set, the nature and gravity of the harm feared and the degree of likelihood of that harm being suffered in the future

2.    Article 8; what is the relevance of the Article to threshold and in relation to the outcome is it proportional to make a care order with a plan for adoption in this sort of case

3.    The role of the appeal court; is the test whether the judge must be shown to have been plainly wrong or just wrong

4.    Was the judge right in this case to find the threshold crossed and to make a care order

The judge at first instance H.H.J. Cryan had extensive experience of the family through three long trials. He was concerned with A, a three year old girl, the daughter of M, and F who had four older daughters, living with their mother and with whom he had had little contact. What contact he had had been benign, if distant.

M was herself the victim of years of physical, sexual and emotional abuse by her step-father, E, which began when she was 15, and by whom she had a child, T ; and six other pregnancies, ending in abortion. When she left him, M did not take T with her and she remained exposed to the sort of abuse M had suffered, with the result that after private law and public law litigation during which she remained with E, her father and, under his malign influence had no contact with her mother.  

E had so influenced M that she had been led into a criminal behaviour with convictions for fraud and perverting the course of justice and a sentence of imprisonment of four years and three months.  She was diagnosed by a psychiatrist in the criminal proceedings as exhibiting a severe somatisation disorder

The judge found that she was a compulsive liar and deceitful. It was further a serious criticism of M that she had left T in the care of E.

F has a long criminal record and a history of drug use.

The parents were united in their desire to work together to care for A. The fact that the parents’ behaviour with A had been unimpeachable made the judge’s decision a very difficult one. He made a Care Order on the basis of a Care plan for adoption. In doing so he made a very large number of careful findings of fact, which were no longer challenged in the Supreme Court, although whether the judge had been entitled to make them had been the subject of extensive argument and consideration by Black, Rix and Levinson LJJ.

Rix LJ identified the important issue for the Supreme Court as “whether this case illustrates a powerful but also troubling example of the state exercising 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.”

H.H.J. Cryan was told by a psychiatrist that, in addition to somatisation, M suffered from moderate factitious disorder. The risks of harm identified by him were of psychological and emotional harm. The mother might expose the child to the effects of her somatisation disorder  and factitious disorder. The judge did not discount some risk of physical harm from over treatment or inappropriate treatment.

Both parents  were unable to co-operate with social services and other authorities. They had demonstrated over many years of hostility.
In the Court of appeal Black LJ identified as a separate issue whether  harm may actually flow from a failure to co-operate sufficiently with the local authority, whilst carefully acknowledging that such is not automatically an element of threshold.

There was a serious split between the experts advising the judge as the appropriate outcome. The Marlborough Family Service assessment was negative due to the parents’ lack of co-operation, the psychiatrist advised that management of future risk from M’s psychological problems would require a plan and strategy and that she needed psychotherapy of one year’s duration, provided she accepted the need and engaged. On the other hand, the Children’s Guardian was first supportive of a supervision order and then a care order at home (which must have meant that she believed the threshold to have been crossed) and a specialist social work consultant thought that risk management would need to be put in place.

As ever, the court’s concern is how any expert can provide the court with a sufficiently accurate analysis of future risk with all its variables?

The judge decided that the management of risk would go beyond the GP and involve Social Services and the parents would not be able to engage with a plan to keep A safe because of their history of non-co-operation, combat and dishonesty and refusal to accept that therapeutic intervention was necessary.

Lord Wilson adumbrated the analysis the judge must follow when asked to make a Care order. He reminded us that the “likelihood of significant harm” means “a real possibility” based on facts established on the balance of probabilities. He defined “harm” as ill-treatment or the impairment of health or development including emotional development. That development is to be compared to the development of a similar child.

As to the seriousness of the harm required he cited with approval the decision in Re C and B [2001] that a comparatively small risk of serious harm can justify interference whereas a virtual certainty of slight harm might not. Significant harm must be something unusual “at least something more than the commonplace human failure or inadequacy”.

As to the attribution of harm or risk of harm, what if it relates to the character of the parents and not to deliberate or intentional acts? Of course character is only relevant in so far as it affects the quality of parenting.

Argument was addressed to the Supreme Court, as in the Court of Appeal, that Article 8 is engaged when considering whether the threshold has been crossed, in order  to test the facts upon which that consideration is based, so that they are tested as to significance and relevance and provide sufficient reason to decide that it has been crossed.  Lord Wilson decided that the Article is not in fact engaged in relation to threshold, although it is important that the threshold is not too low.  

That the threshold is low is justified by the fact that some harm is so catastrophic that even a small degree of likelihood is enough to justify state intervention, whereas, the more serious the harm the more likely it has to be.

Article 8 is relevant to the interference with family life, that is, the decision whether to make an order, at which point the Article demands “a high degree of justification”. Permanent removal is proportionate if it is the only way of avoiding the identified risk of harm. Domestic law is roughly parallel to the demands of Article 8 and it is important to bear the test for an adoption order in mind when considering an application for a care order based on such a plan.  The judge asked the much-considered question, particularly for local authority advisers, how far does a local authority have to go to support a family to have their child returned?

In her dissenting judgment, Lady Hale  illustrated the risk of circularity in the definition of significant harm at para 185 and defined the threshold expectations as the objective reasonable parent, who sets the standard to be expected of their care of a particular child, whose development is then judged subjectively, “a child like him”.

The risk of harm

She found extensive evidence that M had kept T in an abusive environment and went on to find a risk that her psychological difficulties might cause her to

a)    expose A to unnecessary medical attention.

b)    present a moral risk to her daughter due to her lying and deceitfulness

c)    said that the appeal court can interfere if satisfied the judge was wrong.

When can the appeal court interfere?

If satisfied the judge was wrong.

When can a judge make a Care order with a plan for adoption?

 A judge can only separate a child from its parents if “nothing else will do”

Cherry Harding is a barrister at  1 King’s Bench Walk Cherry Harding specialising in Family Law. She has long experience in all aspects of the field; Adoption, including inter-country adoption, Care proceedings, acting for parents, local authorities and the children, Child abduction, Removal from jurisdiction, Private law applications, Ancillary relief, and Co-habitation and Divorce.