Re B (A Child)
The Supreme Court has dismissed an appeal by the parents against a care order made in respect of their daughter on the basis of there being a risk to her of future psychological and emotional harm.
The child was removed from her parents at birth and made the subject of an interim care order. The parents attended contact with the child 5 days a week and all observations of contact showed that neither parent had been viewed to put a foot wrong in respect of their direct dealings with their daughter. There was no suggestion that the child had suffered harm, rather that it was likely that the child was likely to suffer significant harm due to the risks posed by the parents. The local authority care plan was for adoption.
The mother was assessed as a very vulnerable and damaged individual with multiple psychological problems, including severe somatisation disorder, compulsive lying and deception of others. She had a criminal history in relation to fraud and perverting the course of justice and had been to prison. The father had a very long history of criminality and drug misuse.
The trial Judge concluded that if the child remained in her parents care, there was a risk that as a result of her mother’s various medical conditions she would be presented for unnecessary medical appointments and may receive unnecessary medical treatment, she might grow up to copy her mother’s behaviour and at the very least be confused at the difference between the real world and her mother’s false presentation of it. There would have to be a multi-disciplinary programme of monitoring and support to avert the concerns and the parents would not be able to co-operate with the programme due to their dishonest and manipulative approach towards professionals. The trial Judge held that there was no other way in which the harm feared to the child could be prevented than by the making of a care order with a view to adoption.
The parents appealed to the Court of Appeal suggesting that the risks identified were not sufficient to be construed as significant harm, they were not imminent and that it was disproportionate to respond to them with the permanent removal of the child. After careful analysis of the evidence and criticisms made, Lord Justice Black concluded that the trial Judge had been right and dismissed the appeal. Lord Justices Lewison and Rix concurred but were deeply concerned and Rix concluded his remarks with the following:
“I also wonder 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”
It was on the basis of the public importance and concern made about the point made by Lord Justice Rix that permission to appeal to the Supreme Court was given.
Four out of five of the Supreme Court Judges held that the appeal should be dismissed; only Lady Hale would have allowed the appeal.
The Supreme Court Judgement commented on a number of areas and provided guidance.
The Judgement commented upon threshold, the right to family life, the role of the appellate court and as well as the particular circumstances of the particular case.
Although Lady Hale expressed some hesitation, the Justices were unanimous in their conclusion that the Judge was right to consider that the threshold was crossed.
All save Lady Hale considered that the Judge was right to have made the care order with a view to the child being adopted. 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. 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 and she would have allowed the appeal.
The decision in Re B will certainly have an impact at all levels. Guidance has been provided in respect of the approach to be taken to threshold, when the State should intervene, the issue of proportionality and the role of the appellate Court.
Psychological harm and threshold criteria in children law
The nature of the significant harm should be clearly identified, particularly where the child has not suffered such harm and the harm is emotional or psychological. The Court should consider the degree of likelihood of harm in the context of the severity of the harm feared.
Article 8 European Court of Human Rights
This is not invoked 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 children and the parents are engaged and the inference 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.
Role of the Supreme Court
On appeal from decisions which do not engage the Convention, the test is whether the decision was ‘wrong’ or there was a ‘serious irregularity’ (CPR rule 52.11(3)). 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 and the test is whether the decision was ‘wrong’ (or there was a serious irregularity). Lady Hale and Lord Kerr 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 Lady Hale and Lord Kerr but considers it would be a very rare case that their approach would result in a different outcome. Lady Hale agrees that it will only make a difference in limited circumstances.
The Supreme Court reiterates the advantage the first instance Judge has in hearing and reading all the evidence and the limited extent which an appellate court will interfere given that a judges expressed findings are always surrounded by the uncertainty of 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 judges overall evaluation.
A very clear message was 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’.
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