(Supreme Court, Lords Wilson, Neuberger, Kerr, Clarke, Lady Hale, 12 June 2013)
The mother, who had a disturbed history of physical and sexual abuse, appealed a final care order in relation to her 3-year-old child. She had been removed at birth and spent her entire life in foster care with only supervised contact with her parents due to local authority concerns that she was at risk of emotional harm while in their care.
The parents both suffered from psychological, personality and anger management issues including a propensity to lie or act dishonestly which the local authority asserted would be likely to impair their ability to provide good enough physical and emotional care of their daughter. In particular two consultant psychiatrists diagnosed the mother as suffering from a somatisation disorder which caused her to misuse physical symptoms in order to elicit care from others. In addition she suffered from a related psychiatric disorder in which the she was driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories. There was, therefore, a deceptive dimension to the disorder which was replicated in a mass of other evidence before the judge, unrelated to her medical condition, which raised questions about her ability to behave honestly with professionals.
During contact the parents' behaviour and interaction with the child was positive and it was clear they had a loving relationship with her. During the care hearing the experts involved with the family were divided in their opinions as to whether the child should be permanently removed from her parents' care but the judge, partly in reliance on findings made in previous judgments in relation to an older child, found in favour of the local authority, found that the threshold under s 31 of the Children Act 1989 had been crossed, albeit not in the most extreme way that was seen in some cases, and approved the care plan for adoption. The mother appealed that decision.
The Court of Appeal dismissed the appeal on the basis that the judge had been entitled to find the threshold criteria satisfied on the evidence available and that the child's need for a permanent home had become urgent. The mother, supported by the father, appealed to the Supreme Court.
The Supreme Court dismissed the appeal by a majority of 4:1, Lady Hale dissenting. One of the key issues for consideration was the meaning of the word significant but the justices were in agreement that the court should avoid attempting to provide what would only be a gloss on the definition in s 31(10) which provided 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'.
The character of the parents was relevant to each stage of the inquiry whether to make a care order only to the extent that it affected the quality of their parenting. There was no requisite mental element to accompany the actions or inactions which had caused, or were likely, to cause, significant harm to the child. Section 31(2)(b)(i) required 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 him
The importance of a cautious approach, particularly in relation to child cases, to overturning the trial judge's decision was once again reiterated, along with the requirement of finding that the judge was wrong before the appellate court interfered. All justices agreed that the addition of the word ‘plainly' was unnecessary and could cause further confusion.
The crossing of the threshold pursuant to s 31 of the Act did not, in itself, engage Art 8 of the European Convention which addressed the interference with the exercise of the right to respect for family life. No interference occurred when a judge concluded that the threshold was crossed. The interference occurred only if, at the welfare stage, the judge proceeded to make a care or supervision order; and it was that order which must, therefore, not fall foul of Art 8. Section 31(2) was an admirable domestic provision which, by setting a threshold, made it more likely, although far from inevitable, that any care or supervision order would not fall foul of Art 8.
The European Convention itself did not require appellate courts to address issues arising under it with any particular degree of intensity. Appellate courts had to discharge their domestic duty under section 6(1) of the Human Rights Act 1998 but the manner in which they sought to do so was a matter for Parliament or for rules made under its authority. There was no suggestion that the appellate court should itself rehear all the evidence relevant to a European Convention issue. On any view, it would adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operated in accordance with CPR 52.11, made pursuant to the Civil Procedure Act 1997. Such courts should seek to discharge their duty under s 6 of the 1998 Act by determining a European Convention issue in accordance with that paragraph.
Per Lord Kerr and Lady Hale, dissenting on the issue of how an appellate court should approach the question of proportionality: In the present case both appellate courts, the Court of Appeal and the Supreme Court, had to decide whether the making of a care order was proportionate. Neither court was required to conduct a complete re-hearing of the evidence. But both courts had to address directly the question whether they had been satisfied that the making of a care order was proportionate. They may not do so by reference only to the defensibility of the trial judge's decision. What the appellate courts were required to decide, therefore, was not whether the judge's conclusion was wrong. What they had to decide was whether the decision was proportionate and that was a matter for their judgment, not one on which they could defer to the judgment of others. The decision by an appellate court on whether the making of an adoption order was proportionate could not be determined by an approach which was geared solely to testing the adequacy of the trial judge's assessment of the proportionality issue. That was impermissible because it removed the appellate court from the area of responsibility which it had to ensure that a European Convention right was not infringed.
Per Lady Hale, dissenting: It had not been sufficiently demonstrated that it was necessary to bring the relationship between the child and her parents to an end. In the circumstances of this case, 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. It may never happen. There were numerous possible protective factors in addition to the work of social services. There was a need for some protective work, but precisely what that might entail, and how the parents might engage with it, had not yet been properly examined. The judge had been wrong to conclude that a final care order was a proportionate response to the identified risks.