JUDGMENT
In the matter of B (a Child) (FC)
before
Lord Neuberger, President
Lady Hale
Lord Kerr
Lord Clarke
Lord Wilson
JUDGMENT GIVEN ON
12 June 2013
Heard on 25 February 2013
Appellant Respondent
Frank Feehan QC Alison Russell QC
Anna McKenna Hannah Markham
Kate Tompkins
(Instructed by Moss and (Instructed by HB Public
Coleman Solicitors) Law, Joint Legal Services
for Barnet and Harrow
Councils)
Respondent
Paul Storey QC
Sheila Phil-Ebosie
(Instructed by Baxter
Harries Solicitors)
Respondent
Alex Verdan QC
Elizabeth Woodcraft
(Instructed by Munro
Solicitors)
LORD WILSON
INTRODUCTION
1. This challenge to the making of a care order, made with a view to the
child’s adoption, requires the court to consider
(a) aspects of the threshold to the making of a care order set by section
31(2) of the Children Act 1989;
(b) the application to the decision whether to make a care order of the
requirement under article 8 of the European Convention on Human
Rights 1950, “the Convention”, that the nature of any interference
with the exercise of the right to respect for family life should be
proportionate to its legitimate aim, “the proportionality
requirement”; and, perhaps in particular,
(c) the boundaries beyond which it is wrong for this court, or any other
appellate court, to set aside the grant or dismissal by a trial judge of a
local authority’s application for a care order.
2. The mother, “M”, supported by the father, “F”, with whom she lives,
appeals against an order of the Court of Appeal (Rix, Black and Lewison LJJ)
dated 14 November 2012. By its order, the Court of Appeal dismissed M’s appeal
against an order made by HHJ Cryan in the Principal Registry of the Family
Division dated 14 June 2012. By his order, the judge made a care order in relation
to the daughter of M and F upon the basis of a care plan that she should be placed
for adoption. Amelia (being the name which Lady Hale proposes that we should
attribute to the daughter) was born in April 2010 so is now aged three. At birth she
was placed with a foster mother on what was intended to be a short- term basis;
she remains living with her pending the determination of this appeal.
3. M is aged 42 and F is aged 45. The applicants for the care order are the
London Borough of Barnet, where the parents were living when Amelia was born.
Since then they have moved to Islington. M and F each have other children. M has
another daughter, aged 14, whom, in accordance with Lady Hale’s proposal, I will
call Teresa and with whom M has no contact. F has four other daughters aged
between 17 and six. They live with their mother; F has an amiable relationship
with them but, for reasons which I will explain in para 15 below, his has not been a
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stable or responsible presence in their lives and, on a practical level, his
involvement with them has been marginal.
4. Teresa’s father is M’s step-father, “Mr E”, with whom M lived for many
years. In 2010, following her separation from him, M applied for a residence order
in relation to Teresa. It was in that application that Judge Cryan first became
acquainted with the family. He conducted a fact-finding hearing over 20 days
which led in April 2011 to his handing down a judgment of 180 paragraphs. The
relevant local authority, West Sussex, thereupon issued care proceedings in
relation to Teresa, in which the judge conducted three further substantial hearings.
With M’s support, he ordered the removal of Teresa from the home of Mr E into
foster care, where she remains.
5. The hearing which led to the making of the care order in relation to Amelia
also proceeded for 20 days and led to the judgment under challenge, which extends
to 203 paragraphs. It follows that, in arriving at his conclusion that it was not safe
for Amelia to be placed with the parents and that it was necessary in her interests
that she should be adopted, Judge Cryan drew on extensive exposure to the
problems of the family. Indeed the extent of it is beyond my own experience of
service for 12 years in the Family Division. M scarcely challenged the judge’s
findings of fact in the Court of Appeal; and her challenge to them in this court is,
inevitably, so faint that there is no need to add to the reasons which Black LJ gave
for rejecting them in her judgment in the Court of Appeal, [2012] EWCA Civ
1475, at paras 133 to 136.
6. What follows represents as brief a summary as possible of the facts found
by Judge Cryan. Greater detail is to be found in the judgment of Black LJ.
THE FACTS
7. M is the victim of grave misfortune. Her life has been hugely dysfunctional.
In 1975, when she was aged four, the marriage of her parents broke down and,
with her sisters, she moved to live with her grandparents. Several years after her
mother’s marriage to Mr E in 1977, M and her sisters moved to live with them.
The family was enlarged by the birth of two sons born to M’s mother by Mr E in
1985 and 1986.
8. Mr E’s influence on the family in general, and on M in particular, was
malign in almost every sense. He is egocentric; aggressive; domineering and
dishonest. By 1986, although married to her mother, Mr E was having sexual
relations with M, then aged 15; in that year she became pregnant by him and had
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an abortion. Prior to 1999, when she gave birth to Teresa, M was to have six
further abortions consequent upon her relationship with him.
9. Mr E also inflicted grave and protracted physical abuse on one of M’s
sisters. When in 1989 the family went to live in Greece, of which Mr E was a
citizen, they left the sister behind. In due course the sister was taken permanently
into care. Meanwhile the family had returned from Greece.
10. In 1990 M’s mother left Mr E. For the following 19 years the family in
effect comprised Mr E, M, her two half-brothers and, once born, Teresa. On
numerous occasions until 2002, when they settled in West Sussex, the family
moved home. In the early years, when the half-brothers were still minors and prior
to the birth of Teresa, local authorities and police forces became concerned about
their safety at the hands of Mr E; and for a month in 1997 they were taken into
care.
11. In 2003 M was found guilty of a series of frauds, which had yielded
£30,000 and for which she was sentenced to imprisonment for two years. Her
defence had been that the prosecuting officer had conspired with a man who had
allegedly raped one of her half-brothers to present a false case against her. In this
regard she was later found guilty of attempting to pervert the course of justice and
sentenced to a further term of 27 months. Judge Cryan found that, in perpetrating
the frauds and concocting the false defence, she had been heavily influenced by Mr
E. Nevertheless the convictions, the gravity of which was reflected in the sentences
passed upon her in respect of them, represent the first example of conduct on the
part of M which, taken together, was to lead the judge to describe her as an
habitual and purposeful liar.
12. For the purposes of her second criminal trial M’s solicitors invited a
consultant psychiatrist, Dr Taylor, to assess her fitness to plead. His conclusion
was that she was fit to do so; but, following examination of her extensive medical
records, he concluded that she suffered from a somatisation disorder. This is a
chronic psychiatric disorder, of which the main features are multiple complaints
about physical symptoms and requests for medical investigations in circumstances
in which, if organic disorder is present at all, it fails to account for the symptoms
or for the extent of the sufferer’s pre-occupations. In short it is a condition which
drives the sufferer to misuse physical symptoms in order to elicit care from others
or for other purposes. For use in the proceedings before Judge Cryan, another
consultant psychiatrist, Dr Bass, was instructed to appraise M’s psychological
condition in the light of her more recent medical records. Dr Bass, who has
considerable expertise in this area, confirmed Dr Taylor’s diagnosis that M suffers
a somatisation disorder; and in effect it became an agreed fact. But, as I will
explain in para 17 below, Dr Bass went further.
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13. While investigating the allegations of fraud against M, the police
discovered paedophilic images in a computer in the family home. Mr E contended
that the police had planted them there. In 2004 Mr E complained to the General
Medical Council that the family GP had sexually assaulted one of the halfbrothers, then aged 18. The complaint was dismissed. Following her ultimate
release from prison in 2004, M made various complaints to probation officers,
hospitals and social workers that Mr E was abusing her physically and sexually.
By June 2009 her life in the home had become intolerable and she left. She did not
take Teresa with her; no doubt Mr E would not have allowed her to do so. In effect
it marked the end of her relationship with Teresa who, under Mr E’s influence, has
refused to have any further dealings with her. Judge Cryan’s conclusion was that,
within her long relationship with Mr E, M could fairly be regarded as his victim
but that her role had not been entirely inert and that she had actively conspired
with him in the many lies, deceptions and false accusations which had been
generated in the household.
14. In the summer of 2009 M met F. They began a relationship which continued
following M’s move to Barnet late in 2009; but they did not fully cohabit until late
in 2011.
15. F has a long criminal history and has spent about 15 years of his adult life in
prison. He was convicted of 52 offences between 1980 and 2008. Some related to
drugs; some included violence but most were offences of dishonesty. In the 1990s
he sustained three convictions for robbery, for each of which he received sentences
of imprisonment of between two and three and a half years. In 2001 he was
sentenced to four years for burglary. In 2007 he was sentenced to three years for
further burglary; and the pre-sentence report recorded his admission of a crack
cocaine habit and of the occasional use of heroin. But, following his release on
licence in May 2009, F has sustained no further convictions. For the first year
following his release he was subjected to regular drug tests, of which two proved
positive. At a hearing in June 2010 into whether an interim care order in relation to
Amelia should be continued, F refused a judge’s invitation to submit strands of his
hair to drug-testing; and he later announced that Barnet could “kiss [his] arse”
when they next wanted to test him. Ultimately, in July 2011, he underwent a test
which showed use of cannabis but not of Class A drugs; and there was no evidence
before Judge Cryan that, although admitting to the continued use of cannabis, F
was then also using Class A drugs.
16. I turn to an important part of the history which, it is clear, made Judge
Cryan’s decision particularly difficult. It relates to the amount and quality of the
contact which M and F have had with Amelia following her removal, at birth, into
care. From May 2010 until the judge’s decision in June 2012, contact took place
under supervision for one and a half hours on five days a week; since the decision
it has taken place for the same duration on three days a week. M and F have been
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assiduous in attending, in effect, all the periods of contact; and the supervisors’
reports of its quality have been uniformly positive. The judge found that:
(a) The most striking feature of the relationship between the parents was
the strength of their united wish that Amelia should be placed in their
care.
(b) They had put a massive effort into making a success of the periods of
contact.
(c) They were devoted to Amelia.
(d) They each had a warm and loving relationship with her.
(e) During contact periods they had “not put a foot wrong” and had
given her child-centred love and affection “in spades”.
17. It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond
abnormal personality traits and in addition to, and more significantly than, her
somatisation disorder, M suffers a factitious disorder of mild to moderate intensity.
This is a related psychiatric disorder in which the sufferer is driven repeatedly to
exaggerate symptoms or altogether to fabricate them and to offer false histories.
There is therefore a deceptive dimension to the disorder which was replicated in a
mass of other evidence before the judge, unrelated to M’s medical condition,
which raised questions about her ability, and for that matter also the ability of F, to
behave honestly with professionals. Dr Bass stressed that M’s psychiatric disorders
required psychotherapy which might last for a year and which could be undertaken
only if she were to acknowledge the problems and to engage honestly with the
therapist.
THE JUDGE’S CONCLUSIONS
18. There was debate before Judge Cryan about the effect on Amelia of being
placed in the care of M in the event that she was to continue to suffer somatisation
and factitious disorders. In the event the judge found that there were risks that she
would suffer harm in that regard. They were that M might present Amelia for
medical treatment, and, worse, that she might receive medical treatment which was
unnecessary; and that in any event Amelia might grow up to believe that the way
in which M presented herself for treatment was appropriate and might model
herself on it.
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19. But Judge Cryan’s concerns went far wider than that. It was his wider
concerns which drove him to the key conclusion that it was not safe for Amelia to
be placed with the parents. The wider concerns related to the mass of evidence that
each of the parents was fundamentally dishonest, manipulative and antagonistic
towards professionals. The expert evidence before the judge as to whether Amelia
could safely be placed with the parents was in conflict: Ms Summer, of
Marlborough Family Service, and Dr Bass both agreed with Barnet that she could
not safely be so placed. Dr Dale, who has a background in social work and is not a
medical doctor, suggested otherwise; and the Children’s Guardian, whose
contribution, constrained by lack of resources at CAFCASS, was described by the
judge as superficial and who sadly died within weeks of the hand-down of his
judgment, agreed with Dr Dale. But, importantly if inevitably, all the experts
agreed that Amelia could not conceivably be placed in the care of the parents other
than pursuant to a programme of multi-disciplinary monitoring and support, which
could be implemented only in the event of honest cooperation on the part of the
parents. It was, in particular, their cooperation with the local authority which was
described by Dr Taylor as very important and by Dr Bass as critical. The judge’s
key conclusion was that their honest co-operation with professionals would not be
forthcoming; and his subsidiary conclusion was that it might in any event be
damaging for a child to grow up in a household permeated by dishonesty and
animosity towards professionals in that she would find such attitudes confusing
even assuming that she did not find them attractive.
20. It would not be usual, at this level, to descend into the mass of evidence by
reference to which Judge Cryan sought to justify his key conclusion. But I consider
that I need to cite 16 examples of it:
(i) When late in 2009 she moved to London, M told a local authority
housing department that her violent step-father was responsible for her
pregnancy and that he was a solicitor.
(ii) Later M successfully claimed housing benefit and child benefit
on the basis that Amelia was living with her.
(iii) In April 2010, when Barnet first became involved with the
family, M obstructed their attempts to find out about Teresa by lying about
where she lived.
(iv) She also falsely told them that her mother was dead.
(v) F, for his part, refused to provide them with his surname.
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(vi) Each parent refused to provide them with a genogram.
(vii) In August 2010 F refused further to participate in Barnet’s
intended assessment of the capacity of the parents to care for Amelia.
(viii) In November 2010 F told a social worker that, if Amelia died, it
would be on her head and he would go to prison.
(ix) In 2011 M falsely told an officer of the Lucy Faithfull
Foundation that her father had raped her when she was aged 12.
(x) F told Ms Summer that, if he was concerned about Amelia, there
was no way in which he would call social services but that he might call the
police.
(xi) Ultimately both parents withdrew their cooperation with Ms
Summer in the production of a viability assessment; during the final session
with Ms Summer M played a game on her mobile telephone.
(xii) When he learnt that his half-sister had told Barnet that she
would try to explain their concerns to him, F’s response was to threaten to
punch her.
(xiii) When later M learnt that the half-sister had withdrawn her
candidacy to care for Amelia, she was so angry that she made an
anonymous call designed to obstruct the half-sister’s adoption of a child
whom she was fostering.
(xiv) F falsely told Dr Dale that he had ceased to take hard drugs in
2002.
(xv) It was the practice of the parents to wash Amelia’s laundry but,
when Barnet told her that cigarette butts had been found in the laundry
returned to the foster-mother, M responded that Barnet had planted them
there.
(xvi) Between April 2010 and December 2011 M made 23 complaints
about professionals attempting to work with her (and about the foster
Page 8
mother) including to the General Social Care Council, to the Local
Authority Ombudsman, to the Patient Advice and Liaison Service of the
NHS and to her MP.
21. In relation to her habitual making of false complaints of a highly unpleasant
character about professionals, Judge Cryan described M as an accomplished pupil
of Mr E. He accepted the following evidence of Dr Bass:
“I have major concerns about the capacity of [M] to protect any child
in her care because of ongoing concerns about her capacity for
deception because it is such a dominant feature of her personality,
allied to this lack of insight and this lack of acknowledgment and
evasiveness and inconsistency.”
The judge observed:
“Provided whoever [M] is dealing with appears to be going along
with her without challenge, she will cooperate to achieve her ends.
If she is questioned, challenged or thwarted, cooperation is
abandoned and entirely unacceptable hostility begins.”
22. The judge concluded:
“Ultimately, I find that I am persuaded… that what the evidence
clearly demonstrates is that these parents do not have the capacity to
engage with professionals in such a way that their behaviour will be
either controlled or amended to bring about an environment where
[Amelia] would be safe… In short I cannot see that there is any
sufficiently reliable way that I can fulfil my duty to [Amelia] to
protect her from harm and still place her with her parents. I
appreciate that in so saying I am depriving her of a relationship
which, young though she is, is important to her and depriving her
and her parents of that family life which this court strives to
promote.”
The judge ended by stating that in those circumstances adoption was “the only
viable option” for Amelia’s future care.
Page 9
THE THRESHOLD SET BY SECTION 31(2)
23. Judge Cryan was well aware that, before he could even consider whether to
make a care order, section 31(2) of the 1989 Act 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) that the likelihood was “attributable” to the
care likely to be given to her if the order were not made not being what it would be
reasonable to expect a parent to give to her. But little separate attention was paid to
these threshold requirements in submissions to the judge. Mr Feehan QC, on
behalf of the mother, submitted to him that “the evidence barely crosses the
threshold”. The guardian presumably considered that the threshold was crossed
because at one stage she was advocating a supervision order. But counsel for the
father disputed that it was crossed. In the event the judge expressed himself
satisfied “that the threshold has been crossed, not perhaps in the most extreme way
that is seen in some cases, but crossed it has been”. And, following brief
explanation, he turned to the welfare stage of the inquiry.
24. But in the Court of Appeal, and in particular in this court, much greater
attention has been paid to what the threshold requires. It is common ground that, as
recently reaffirmed by this court in In re J (Children) (Care Proceedings:
Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649, a likelihood of
significant harm means no more than a real possibility that it will occur but a
conclusion to that effect must be based upon a fact or facts established on a
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”. Beyond
this, however, the debate surrounds two matters.
25. The first matter is the meaning of the word “significant”. In this regard
Parliament chose to help the court to a limited extent by providing in section
31(10) as follows:
“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.”
When we read this subsection together with the definition of “harm” in the
preceding subsection, we conclude 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. This
is helpful but little more than common sense.
Page 10
26. In my view this court should avoid attempting to explain 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. Nevertheless it might be worthwhile to
note that in the White Paper which preceded the 1989 Act, namely The Law on
Child Care and Family Services, Cm 62, January 1987, the government stated, at
para 60:
“It is intended that “likely harm” should cover all cases of
unacceptable risk in which it may be necessary to balance the chance
of the harm occurring against the magnitude of that harm if it does
occur.”
It follows that when, in Re C and B (Care Order: Future Harm) [2001] 1 FLR
611, Hale LJ (as my Lady then was) said, at para 28, that “a comparatively small
risk of really serious harm can justify action, while even the virtual certainty of
slight harm might not”, she was faithfully expressing the intention behind the
subsection. But the other interesting feature of the sentence in the White Paper is
the word “unacceptable”. I suggest that it was later realised that whether the risk
was “unacceptable” was a judgement which fell to be made at the welfare stage of
the inquiry; and so a different adjective was chosen.
27. In Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA
Civ 1282, [2007] 1 FLR 1068, the Court of Appeal allowed an appeal by parents
against a judge’s conclusion that their children had suffered and were likely to
suffer significant harm and it remitted the issue for re-hearing. The professional
evidence had been that the parents’ deficiencies had had “subtle and ambiguous
consequences” for the children; and it was not difficult for me, at para 31(a) of my
judgment in that court, to conclude that such consequences could not amount to
significant harm. The rehearing was conducted by Hedley J and, by his judgment
reported as Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, he declined to
hold that the threshold was crossed. He observed, at para 50, that “society must be
willing to tolerate very diverse standards of parenting, including the eccentric, the
barely adequate and the inconsistent”; and, at para 51, that “significant harm is
fact-specific and must retain the breadth of meaning that human fallibility may
require of it” but that “it is clear that it must be something unusual; at least
something more than the commonplace human failure or inadequacy”.
28. In the present case Mr Feehan seeks to develop Hedley J’s point. He
submits that:
Page 11
“many parents are hypochondriacs, many parents are criminals or
benefit cheats, many parents discriminate against ethnic or sexual
minorities, many parents support vile political parties or belong to
unusual or militant religions. All of these follies are visited upon
their children, who may well adopt or ‘model’ them in their own
lives but those children could not be removed for those reasons.”
I agree with Mr Feehan’s submission; but the question arises whether, in the light
of the judge’s key conclusion, it misses the point.
29. Mr Feehan proceeds to submit that the proportionality requirement under
article 8 of the Convention applies, albeit perhaps only very obliquely, to whether
harm is significant for the purposes of the subsection; and he cites observations by
Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, at
para 54, that, although it has more relevance to the welfare stage of the inquiry,
article 8 “does, none the less, inform the meaning of ‘significant’ and serves to
emphasise that there must be a ‘relevant and sufficient’ reason for crossing the
threshold”. I consider that, with respect to him, Ward LJ there introduced an
inappropriate layer of complexity to the inquiry whether harm is significant. It is
the “interference” with the exercise of the right to respect for family life which
article 8 addresses. No interference occurs when a judge concludes that the
threshold is crossed. The interference occurs only if, at the welfare stage, the judge
proceeds to make a care or supervision order; and it is that order which must
therefore not fall foul of article 8. I regard section 31(2) as an admirable domestic
provision which, by setting a threshold, may make it more likely, although far
from inevitable, that any care or supervision order will not fall foul of article 8.
But I conclude that the crossing of the threshold does not, of itself, engage the
article; and I am fortified in my conclusion by the fact that Lord Neuberger, at para
62, Lady Hale, at para 186, and Lord Clarke at para 134, agree with it and that
Lord Kerr, at para 129, tends to agree with it.
30. The second matter relates to Mr Feehan’s submission that the threshold set
by section 31(2) is not crossed if the deficits relate only to the character of the
parents rather than to the quality of their parenting. His alternative submission is
that harm suffered or likely to be suffered by a child as a result of parental action
or inaction may cross the threshold only if, in so acting or failing to act, the parent
or parents were deliberately or intentionally to have caused or to be likely to cause
such harm. M is, of course, not responsible for her personality traits nor for her
psychiatric disorders; and in effect the submission is that the dishonesty,
animosities and obstructionism of the parents represent deficits only of character
and that, if and insofar as they might cause harm to Amelia, whom they love, the
harm is neither deliberate nor intentional.
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31. The first of these alternative submissions represents a false dichotomy: for
the character of the parents is relevant to each stage of the inquiry whether to make
a care order only to the extent that it affects the quality of their parenting. The
second of them is misconceived: for there is no requisite mental element to
accompany the actions or inactions which have caused, or are likely to cause,
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
him. Such is a requirement only of causation as between the care and the harm.
The provision was prefigured in the White Paper, Cm 62, cited above, also at para
60:
“The court will also have to make a decision as to whether the harm
was caused or will in future be caused by the child not receiving a
reasonable standard of care or by the absence of adequate parental
control. This is not intended to imply a judgment on the parent who
may be doing his best but is still unable to provide a reasonable
standard of care.”
ARTICLE 8
32. Judge Cryan’s care order in relation to Amelia with a view to her adoption
represented an interference with the exercise by Amelia, by M and by F of their
rights to respect for their family life. It was therefore lawful only if, within the
meaning of article 8(2) of the Convention, it was not only in accordance with the
law but also “necessary” in a democratic society for the protection of the right of A
to grow up free from harm. In Johansen v Norway (1996) 23 EHRR 33 the
European Commission of Human Rights observed, at para 83, that “the notion of
necessity implies that the interference corresponds to a pressing social need and, in
particular, that it is proportional to the legitimate aim pursued”.
33. In a number of its judgments the European Court of Human Rights, “the
ECtHR”, has spelt out the stark effects of the proportionality requirement in its
application to a determination that a child should be adopted. Only a year ago, in
YC v United Kingdom (2012) 55 EHRR 967, it said:
“134 The Court reiterates that in cases concerning the placing of a
child for adoption, which entails the permanent severance of family
ties, the best interests of the child are paramount. In identifying the
child’s best interests in a particular case, two considerations must be
borne in mind: first, it is in the child’s best interests that his ties with
his family be maintained except in cases where the family has
Page 13
proved particularly unfit; and secondly, it is in the child’s best
interests to ensure his development in a safe and secure environment.
It is clear from the foregoing that family ties may only be severed in
very exceptional circumstances and that everything must be done to
preserve personal relations and, where appropriate, to ‘rebuild’ the
family. It is not enough to show that a child could be placed in a
more beneficial environment for his upbringing. However, where the
maintenance of family ties would harm the child’s health and
development, a parent is not entitled under article 8 to insist that
such ties be maintained.”
Although in that paragraph it did not in terms refer to proportionality, the court had
prefaced it with a reference to the need to examine whether the reasons adduced to
justify the measures were relevant and sufficient, in other words whether they were
proportionate to them.
34. In my view it is important not to take any one particular sentence out of its
context in the whole of para 134 of the YC case: for each of its propositions is
interwoven with the others. But the paragraph well demonstrates the high degree
of justification which article 8 demands of a determination that a child should be
adopted or placed in care with a view to adoption. Yet, while in every such case
the trial judge should, as Judge Cryan expressly did, consider the proportionality of
adoption to the identified risks, he is likely to find that domestic law runs broadly
in parallel with the demands of article 8. Thus domestic law makes clear that:
(a) it is not enough that it would be better for the child to be adopted than to
live with his natural family (In re S-B (Children) (Care Proceedings:
Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 7); and
(b) a parent’s consent to the making of an adoption order can be dispensed
with only if the child’s welfare so requires (section 52(1)(b) of the
Adoption and Children Act 2002); there is therefore no point in making
a care order with a view to adoption unless there are good grounds for
considering that this statutory test will be satisfied.
The same thread therefore runs through both domestic law and Convention law,
namely that the interests of the child must render it necessary to make an adoption
order. The word “requires” in section 52(1)(b) “was plainly chosen as best
conveying…the essence of the Strasbourg jurisprudence” (Re P (Placement
Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125).
Page 14
35. What is the proper approach of an appellate court to a challenge to the
proportionality of a care order made with a view to adoption? Section 6(1) of the
Human Rights Act 1998 makes it unlawful for public authorities, which include
appellate courts, to act in a way which is incompatible with a Convention right. So
the question becomes whether, as the mother submits, section 6(1) dictates that an
appellate court should depart from its normal function of secondary review and
instead should make a fresh determination of its own when the allegation is that
the order made below has violated a Convention right. An analogous submission
was made in MT (Algeria) v Secretary of State for the Home Department [2009]
UKHL 10, [2010] 2 AC 110, in which two Algerian nationals and a Jordanian
national appealed to the Court of Appeal, and from there to the House of Lords,
against the dismissal by the Special Immigration Appeals Commission of their
appeals against orders for deportation. Their case was that deportation would
infringe their rights under article 3 of the Convention; and, by reference to section
6 of the 1998 Act, they claimed to be entitled to a fresh determination of their case
both in the Court of Appeal and in the House of Lords. The appellate committee
rejected their claim. Lord Phillips pointed out, at paras 67 and 69, that, by section
7 of the Special Immigration Appeals Commission Act 1997, appeal lay from the
Commission to the Court of Appeal only on a point of law and that, for the
purposes of section 6(2)(a) of the 1998 Act, Parliament had therefore precluded the
Court of Appeal from conducting any such fresh determination as the appellants
sought. More broadly, however, Lord Hoffmann observed:
“190. There is nothing in the Convention which prevents the United
Kingdom from according only a limited right of appeal, even if the
issue involves a Convention right. There is no Convention obligation
to have a right of appeal at all. If there is a right of appeal, then of
course it must offer a fair hearing before an independent and
impartial tribunal in accordance with article 6. But there is no
obligation to provide an appeal against the determination of a
Convention right. The only concern of the European court with the
court structure of the member state is that it should provide a remedy
for breach of a Convention right in accordance with article 13. If a
SIAC hearing does so, that is an end of the matter and the extent of
the right of appeal, if any, is irrelevant.”
36. It is therefore clear that the Convention itself does not require appellate
courts to address issues arising under it with any particular degree of intensity.
Appellate courts must discharge their domestic duty under section 6(1); but the
manner in which they seek to do so is a matter for Parliament or for rules made
under its authority. No one suggests, for example, that the appellate court should
itself rehear all the evidence relevant to a Convention issue. On any view it will
adopt much of the relevant material from the survey conducted by the trial judge.
Civil appellate courts other than the Supreme Court operate in accordance with
Page 15
rule 52.11 of the Civil Procedure Rules 1998, made pursuant to the Civil
Procedure Act 1997. Paragraph 1 of the rule provides that “every appeal will be
limited to a review of the decision of the lower court unless…(b) the court
considers that in the circumstances of an individual appeal it would be in the
interests of justice to hold a re-hearing”. Such courts should in my view seek to
discharge their duty under section 6 of the 1998 Act by determining a Convention
issue in accordance with this paragraph.
37. In paras 83 to 90 of his judgment Lord Neuberger provides fuller reasons
for concluding that section 6 of the 1998 Act does not mandate fresh appellate
determination of a Convention-related issue. Like Lord Clarke, at para 136 of his
judgment, I agree with Lord Neuberger’s reasons as well as with his conclusion; it
follows that, with respect, I do not agree with the contrary opinions expressed by
Lady Hale at para 205 and by Lord Kerr at paras 116 to 127 of their judgments.
Although the view of the majority is therefore that the requisite appellate exercise
is that of conventional review, a question still remains about the criterion for
review apt to appeals against determinations made in care proceedings.
APPELLATE REVIEW OF DETERMINATIONS MADE IN CARE
PROCEEDINGS
38. G v G [1985] 1 WLR 647 was a dispute between parents as to which of
them should have residence of the children. Lord Fraser gave the classic exposition
of the role of the appellate court in reviewing a trial judge’s order in a dispute
between members of a family about arrangements for a child. He described the
order, at p 649, as having been made in the exercise of the judge’s discretion. This
classification, which was not controversial, is hard-wired into the mind-set of
family lawyers in England and Wales; and, although in Kacem v Bashir, [2011] 2
NZLR 1, the Supreme Court of New Zealand made an interesting suggestion, at
para 32, that the decision in such a case was evaluative as opposed to
discretionary, this is not the moment to consider whether – subject to para 45
below – to depart from the conventional classification or the consequences, if any,
of doing so. Lord Fraser said at p 651:
“The Jurisdiction in such cases is one of great difficulty, as every
judge who has had to exercise it must be aware. The main reason is
that in most of these cases there is no right answer. All practicable
answers are to some extent unsatisfactory and therefore to some
extent wrong, and the best that can be done is to find an answer that
is reasonably satisfactory. It is comparatively seldom that the Court
of Appeal, even if it would itself have preferred a different answer,
can say that the judge’s decision was wrong, and unless it can say so,
it will leave his decision undisturbed.”
Page 16
He added, at p 652:
“Certainly it would not be useful to inquire whether different shades
of meaning are intended to be conveyed by words such as ‘blatant
error’ used by the President in the present case, and words such as
‘clearly wrong’, ‘plainly wrong’, or simply ‘wrong’ used by other
judges in other cases. All these various expressions were used in
order to emphasise the point that the appellate court should only
interfere when they consider that the judge of first instance has not
merely preferred an imperfect solution which is different from an
alternative imperfect solution which the Court of Appeal might or
would have adopted, but has exceeded the generous ambit within
which a reasonable disagreement is possible.”
The concept of the generous ambit of reasonable disagreement was derived from
the judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite
[1948] 1 All ER 343, at p 345, which Lord Fraser had already quoted.
39. Lord Fraser proceeded, at p 653, to quote with approval from the judgment
of Bridge LJ in In re F (A Minor)(Wardship: Appeal) [1976] Fam 238. This was a
dispute between a father and a grandmother about the residence of a child. Bridge
LJ, at p 266, reminded himself that, in granting residence to the grandmother, the
trial judge had been exercising a discretion. He observed that none of the factors
which often vitiate the exercise of a discretion and so require it to be re-exercised –
namely that the judge had considered an irrelevant matter, failed to consider a
relevant matter, erred in law or applied a wrong principle – was present. The
judge’s error, according to Bridge LJ, was in the balancing exercise, in other words
that he had given too little weight to the factors favourable to the father’s case or
too much weight to those adverse to them. Bridge LJ went on to hold that, where a
judge’s conclusion was not justified by his advantage in seeing and hearing the
witnesses and was vitiated by an error in the balancing exercise, an appellate court
could set it aside.
40. It is clear, however, that, in quoting with approval the proposition of Bridge
LJ that even only an error in the balancing exercise might justify appellate
intervention, Lord Fraser was not intending to redraw any part of his earlier
delineation of the boundaries of intervention. Thus an error in the balancing
exercise justifies intervention only if it gives rise to a conclusion that the judge’s
determination was outside the generous ambit of reasonable disagreement or
wrong within the meaning of the various expressions to which he had referred.
Page 17
41. Into its review of a trial judge’s determination of a child case an appellate
court needs to factor the advantages which the judge had over it in appraising the
case. In Piglowska v Piglowski [1999] 1 WLR 1360 Lord Hoffmann said, at p
1372:
“The appellate court must bear in mind the advantage which the first
instance judge had in seeing the parties and the other witnesses. This
is well understood on questions of credibility and findings of primary
fact. But it goes further than that. It applies also to the judge’s
evaluation of those facts. If I may quote what I said in Biogen Inc v
Medeva plc [1997] RPC 1, 45:
The need for appellate caution in reversing the trial
judge’s evaluation of the facts is based upon much
more solid grounds than professional courtesy. It is
because specific findings of fact, even by the most
meticulous judge, are inherently an incomplete
statement of the impression which was made upon him
by the primary evidence. His 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.”
42. Lord Hoffmann’s remarks apply all the more strongly to an appeal against a
decision about the future of a child. In the Biogen case the issue was whether the
subject of a claim to a patent was obvious and so did not amount to a patentable
invention. Resolution of the issue required no regard to the future. The Piglowska
case concerned financial remedies following divorce and the issue related to the
weight which the district judge had given to the respective needs of the parties for
accommodation. In his assessment of such needs there was no doubt an element of
regard to the future. But it would have been as nothing in comparison with the
need for a judge in a child case to look to the future. The function of the family
judge in a child case transcends the need to decide issues of fact; and so his (or
her) advantage over the appellate court transcends the conventional advantage of
the fact-finder who has seen and heard the witnesses of fact. In a child case the
judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each
of the candidates for the care of the child. Throughout their evidence his function
is to ask himself not just “is this true?” or “is this sincere?” but “what does this
evidence tell me about any future parenting of the child by this witness?” and, in a
public law case, when always hoping to be able to answer his question negatively,
to ask “are the local authority’s concerns about the future parenting of the child by
this witness justified?” The function demands a high degree of wisdom on the part
Page 18
of the family judge; focussed training; and the allowance to him by the justice
system of time to reflect and to choose the optimum expression of the reasons for
his decision. But the corollary is the difficulty of mounting a successful appeal
against a judge’s decision about the future arrangements for a child. In In re B (A
Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258, Lord
Nicholls said:
“16. … There is no objectively certain answer on which of two or
more possible courses is in the best interests of a child. In all save
the most straightforward cases, there are competing factors, some
pointing one way and some another. There is no means of
demonstrating that one answer is clearly right and another clearly
wrong. There are too many uncertainties involved in what, after all,
is an attempt to peer into the future and assess the advantages and
disadvantages which this or that course will or may have for the
child.
…
19…Cases relating to the welfare of children tend to be towards the
edge of the spectrum where an appellate court is particularly
reluctant to interfere with the judge’s decision.”
43. In this appeal M challenges both Judge Cryan’s determination that the
threshold set by section 31(2) was crossed and, alternatively, his ultimate
determination that Amelia’s welfare demanded that he should make the care order.
The time has come for me to address the criterion for appellate review of each of
these determinations; but, whatever the criterion, the appellate court will factor
into its review the trial judge’s enjoyment of the advantages to which I have
referred.
44. On any view there is nothing discretionary about a determination of
whether the threshold is crossed. I consider that in the Court of Appeal Black LJ
was correct, at para 9, to categorise it as, instead, a value judgement, particularly,
but not only, when the court is surveying likelihood. Black LJ proceeded to adopt
the approach of Ward LJ in the Court of Appeal in Re MA (Care Threshold), cited
above, at para 56, that the question on an appeal against the refusal of a judge to
hold that the threshold had been crossed was whether it exceeded the generous
ambit of reasonable disagreement. In my judgment in that case, from the outcome
of which I dissented, I asked, at para 34, whether it had been “open” to the judge to
refuse to do so. In her judgment Hallett LJ asked, at para 44, whether the judge had
been “plainly wrong” to refuse to do so. Although these are matters of little more
than nuance, I consider in retrospect that in that case none of the three of us
afforded sufficient weight to the evaluative, as opposed to the discretionary, nature
Page 19
of a determination whether the threshold is crossed. Ward LJ’s reference to the
generous ambit of reasonable disagreement seems apt only to the review of an
exercise of discretion, as in G v G. My own reference to whether the judge’s
determination had been “open” to him now seems to me to have been singularly
uninformative. Perhaps Hallett LJ came closest to the appropriate test in her
reference to whether the determination had been “plainly wrong”. But it is
generally better to allow adjectives to speak for themselves without adverbial
support. What does “plainly” add to “wrong”? Either the word adds nothing or it
serves to treat the determination under challenge with some slight extra level of
generosity apt to one which is discretionary but not to one which is evaluative.
Like all other members of the court, I consider that appellate review of a
determination whether the threshold is crossed should be conducted by reference
simply to whether it was wrong.
45. I turn to the criterion for appellate review of the ultimate determination of
whether to make a care order. This is an order which the court “may” make
(section 31(1) of the 1989 Act), albeit that the determination is governed by the
paramountcy of the child’s welfare (section 1(1)) and can be made only following
regard to specified factors (section 1(3) and (4) (b)). The court’s apparent
discretion whether to make a care order has led family practitioners readily to
assume that the criterion for appellate review is identical to that applicable to
review of what are taken to be discretionary determinations relating to children in
private law, namely that explained by Lord Fraser in G v G cited above; and it was
not controversial when Sir Mark Potter P formally so ruled in Re C (Adoption:
Best Interests of Child) [2009] EWHC 499 (Fam), [2009] 2 FLR 1293, at para 33.
But, by contrast with the issue between the members of this court as to the impact
of section 6(1) of the 1998 Act upon the role of the appellate judge, there is no
issue that, since that Act came into force, the task of the trial judge in applications
for care (or supervision) orders – and indeed in such applications for private law
orders as can sensibly be said to represent a suggested interference with a person’s
right to respect for his or her family life – is more than to exercise a discretion. His
task is to comply with an obligation under the subsection not to determine the
application in a way which is incompatible with that right. It follows therefore that
the review which, according to the majority, falls to be conducted by the appellate
court must focus not just on the judge’s exercise of a discretion but on his
compliance or otherwise with an obligation. The criterion enunciated in G v G, in
particular the concept of the generous ambit of reasonable disagreement, is in my
view inapt to that review (as opposed, for example, to a review of a case
management decision made within care proceedings: see Re TG (A Child) [2013]
EWCA Civ 5, at para 38).
46. Lord Neuberger, at paras 90 and 91, and Lord Clarke, at para 139, suggest
that the criterion for appellate review of an ultimate determination to make (or to
refuse to make) a care order should, as in respect of the threshold, be whether it
Page 20
was wrong (or vitiated by serious irregularity). Just as in my view rule 52.11(1) of
the Civil Procedure Rules helps to identify the role of an appellate court in a
challenge to the determination of a Convention-related issue, so, as Lord Clarke
there suggests, rule 52.11(3) helps to identify the criterion which it should adopt in
that it provides: “The appeal court will allow an appeal where the decision of the
lower court was – (a) wrong; or (b) unjust because of a serious procedural or other
irregularity…” I agree. To be driven to jettison the principles in G v G in this
context is not to say that 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 – become irrelevant. On
the contrary they may well generate a conclusion that the determination was wrong
and should be set aside and either that it should be reversed or that the application
should be 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) (b).
47. There is therefore an attractive symmetry between the criterion for review
of a determination of whether the threshold is crossed and that for review of a
determination of whether a care order should be made. In each case it is no more
and no less than whether the determination is wrong. But the simplicity of the
criterion should not disguise the difficulty, in some cases, of its application.
CONCLUSION
48. As Mr Verdan QC on behalf of the new Children’s Guardian submits (in the
course of a series of submissions of a quality which partly compensates for the
deficiencies of the previous Guardian), Judge Cryan was not wrong to determine
that the threshold to the making of a care order in relation to Amelia, set by section
31 of the 1989 Act, was crossed. Nor in my view was he wrong to proceed to make
a care order in relation to her with a view to her adoption. In the present case the
reasons for each of the two determinations can be summarised together. There
were a number of features relative to the personalities of the 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. Nor is there
anything to suggest that, in principle, emotional harm is less serious than physical
harm. But Barnet realistically concede that, in the absence of one particular
feature, the court might not have concluded that the likely harm was significant
nor, alternatively, have felt driven to make the care order with a view to adoption.
That one feature relates to the 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. But the level of the
dishonest, manipulative, antagonistic obstructionism of the parents in this case was
Page 21
of a different order. Such attributes of course betokened a lack of insight into the
needs of Amelia which raised wider concerns; but more immediately, they
precluded the success of any rehabilitative programme, whatever its precise
composition. It would have been risking enough in terms of Amelia’s welfare for
the judge to have countenanced any further delay in her long-term placement
following what by then had already been two years in foster care; but, had there
been evidence that a way might be found of lowering the barriers erected by the
parents, he might have directed an adjournment, to be measured surely in no more
than a few months, in order to explore it. It might have been the proportionate
response to the positive features of the parents’ case and loyal to the decision of
the ECtHR in Kutzner v Germany (2002) 35 EHRR 653, at para 75, that it was
“questionable whether the domestic administrative and judicial authorities [had]
given sufficient consideration to additional measures of support as an alternative to
what is by far the most extreme measure, namely separating the children from their
parents”. In the present case, however, that avenue was not open to the judge. In a
concluding sentence which correctly reflected both domestic law and the
Convention’s proportionality requirement, he described adoption as “the only
viable option” for Amelia’s future care. “There was no halfway house”, said
Lewison LJ in his reluctant concurrence in the Court of Appeal’s dismissal of the
appeal. Its dismissal was in my view the disposal which accorded with principle.
This court should uphold it.
LORD NEUBERGER
Introductory
49. The point which His Honour Judge Cryan ultimately had to decide in this
case was whether to make a care order in respect of a child, Amelia, with a view to
her being adopted, against the wishes of her natural parents. To determine this
point, the Judge had to resolve two main issues. The first issue was whether, in the
light of the evidence, the threshold in section 31(2) of the Children Act 1989 (“the
1989 Act”) was satisfied. If he decided (as he did) that that threshold was crossed,
the second main issue for the Judge was whether it was appropriate to make a care
order.
The first main issue: the crossing of the section 31(2) threshold
50. Section 31(2) of the 1989 Act (“section 31(2)”) is set out in para 177 of
Lady Hale’s judgment. In order to determine whether it was crossed in this case,
the task the Judge faced can be analysed as involving three steps. He was required
(i) to determine the factual issues, which involved resolving a substantial amount
Page 22
of disputed evidence, (ii) to identify the nature of the threshold, which involved
construing section 31(2), and (iii) to decide whether on the primary facts he had
found and the assessments he had made, that threshold was crossed. Having
resolved the disputed primary facts, he decided that, in the light of those facts and
the assessments he had made of the various witnesses (including Amelia’s mother
and father, and a number of other factual and expert witnesses), the threshold had
been crossed, without expressly discussing its nature.
The threshold: findings of primary fact
51. As to the first step, Lady Hale, in paras 146-175, and Lord Wilson, in paras
2-22, have set out the unusual and troubling facts as agreed or as found by the
Judge, as well as the procedural history.
52. There is no question of this court interfering with, or indeed being asked to
interfere with, the findings of primary fact made by the Judge. Bearing in mind
that it is a second appeal tribunal, the Supreme Court is virtually never even asked
to reconsider findings of primary fact made by the trial judge. The Court of
Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a
trial judge’s findings of primary fact.
53. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively,
this is traditionally and rightly explained by reference to good sense, namely that
the trial judge has the benefit of assessing the witnesses and actually hearing and
considering their evidence as it emerges. Consequently, where a trial judge has
reached a conclusion on the primary facts, it is only in a rare case, such as where
that conclusion was one (i) which there was no evidence to support, (ii) which was
based on a misunderstanding of the evidence, or (iii) which no reasonable judge
could have reached, that an appellate tribunal will interfere with it. This can also
be justified on grounds of policy (parties should put forward their best case on the
facts at trial and not regard the potential to appeal as a second chance), cost
(appeals on fact can be expensive), delay (appeals on fact often take a long time to
get on), and practicality (in many cases, it is very hard to ascertain the facts with
confidence, so a second, different, opinion is no more likely to be right than the
first).
54. The second and third steps involved in the threshold issue can be combined
into the single question of whether the primary facts found and assessments made
by the Judge were capable of justifying the conclusion he reached that the
threshold contained in section 31(2) was satisfied.
Page 23
The threshold: the meaning of section 31(2)
55. The second step is to determine the meaning of section 31(2), which is an
issue of pure law. In relation to such an issue, the function of this Court (like that
of the Court of Appeal) is uninhibited by the fact that it is an appellate tribunal.
That is because there is a single “right or wrong” answer, which an appellate court
has to determine for itself, although it often derives assistance from the reasoning
of the court or courts below.
56. As to the meaning of section 31(2), and in particular the meaning of “likely
to suffer significant harm” and “care … likely to be given”, Lord Wilson is rightly
anxious not to encumber the comparatively simple wording of section 31(2), as
expanded somewhat by section 31(10), with too much judicial encrustation.
However, it seems to me that some authoritative guidance for judges and lawyers
in this very important and difficult area is appropriate, in order to ensure as much
predictability as possible and to minimise the likelihood of appeals. In my view,
such guidance may be found in the analyses of Lady Hale at paras 179–193, Lord
Wilson at paras 23-31, and Lord Kerr at para 108. I would not think it helpful to
expand on what constitutes “significant harm” save to emphasise that it is
interrelated with the likelihood of it being suffered, so that, as Lady Hale explains
in para 188 and as she said in In re S-B (Children) (Care Proceedings: Standard of
Proof) [2010] 1 AC 678, para 9, the more significant the harm, the less the
required level of likelihood, and vice versa.
The threshold: the Judge’s decision that it was crossed
57. The final step in relation to the section 31(2) threshold issue required the
Judge to address the question whether, on the primary facts he had found and
assessments he had made, the threshold was crossed in this case. The decision on
that question is certainly not one of law, but it is not one of primary fact either. It is
a type of decision which is often described as involving the exercise of judgement,
but it may fairly be said that this is not a very illuminating characterisation,
because the determination of an issue of law or of an issue of fact also involves the
exercise of judgement. As Lady Hale at para 199 and Lord Wilson at para 44 each
say, it can be categorised as a value judgment (as Ward LJ said in In re MA (Care:
Threshold) [2010] 1 FLR 431, para 56, and Black LJ said below, [2012] EWCA
Civ 1475, para 9). It can also be said to be an appraisal, as Lord Kerr describes it
in para 109, or an evaluation, to use Clarke LJ’s characterisation in Assicurazioni
Generali SpA v Arab Insurance Group [2003] 1 WLR 577, paras 16 and 17, cited
with approval by the House of Lords in Datec Electronics Holdings Ltd v United
Parcels Service Ltd [2007] 1 WLR 1325, para 46.
Page 24
58. In many cases, reversing the trial judge’s evaluation on an issue such as
whether the section 31(2) threshold has been crossed, would involve an appellate
court effectively disagreeing with (i) primary findings of fact made by the judge,
or (ii) the impressions he obtained from seeing the witnesses (eg in terms of
trustworthiness as to future conduct). In such cases, depending on the precise basis
on which the appeal is mounted, the reasons for giving primacy to the trial judge’s
conclusion (good sense, policy, cost, delay, and practicality) will either apply in
the same way as, or will apply with somewhat less force than, they do in relation to
findings of primary fact. This point is tellingly made by Lord Hoffmann in
Piglowska v Piglowski [1999] 1 WLR 1360, 1372 (citing his earlier remarks in
Biogen Inc v Medeva plc [1997] RPC 1, 45), in a passage quoted by Lord Wilson
at para 41. It is perhaps worth adding that, immediately after that passage, Lord
Hoffmann observed: “The exigencies of daily court room life are such that reasons
for judgment will always be capable of having been better expressed. This is
particularly true of an unreserved judgment … but also of a reserved judgment
based upon notes”.
59. In the following paragraph of his judgment, para 42, Lord Wilson suggests
that Lord Hoffmann’s remarks apply “all the more strongly” to an appeal against a
decision involving the future of a child, and that is supported by an observation of
Lord Nicholls quoted at the end of the paragraph. I agree: in a case such as this, the
court is concentrating its focus on future multi-factorial possibilities, as opposed to
present or past questions, such as the present needs of divorcing spouses (as in
Piglowska) or past likely opinions which would have been formed by skilled
people as in (Biogen).
60. When it comes to an evaluation, the extent to which the benefit of hearing
the witnesses and watching the evidence unfold will result in the trial judge having
a particular advantage over an appellate tribunal will vary from case to case.
Accordingly, it is not possible to lay down any single clear general rule as to the
proper approach for an appeal court to take where the appeal is against an
evaluation (see also in this connection Robert Walker LJ in Bessant v South Cone
Inc [2002] EWCA Civ 763, para 26, May LJ in EI du Pont de Nemours & Co v ST
Dupont [2003] EWCA Civ 1368, para 94, and Laws LJ in Subesh v Secretary of
State for the Home Department [2004] EWCA Civ 56, para 44). Accordingly, as
already explained, even where the issue raised is not one of law, the reasons which
justify a very high hurdle for an appeal on an issue of primary fact apply, often
with somewhat less force, in relation to an appeal on an issue of evaluation.
61. I therefore agree with what Lord Wilson and Lord Kerr say about the right
approach of an appellate court in relation to a question of evaluation in para 44 and
in paras 110 and 113 respectively.
Page 25
62. Whether article 8 of the European Convention on Human Rights (“the
Convention”) has a part to play in relation to the threshold seems to me to be rather
an arid issue: the important point is that the court acknowledges that no substantive
order is made without all Convention rights being taken into account. Having said
that, I consider that article 8 of the Convention (“article 8”) has no part to play in
deciding whether the threshold is crossed, although it obviously comes very much
into play when considering the issue of whether to make a care order. The
threshold merely represents a hurdle which has to be crossed before the court can
go on to consider whether to make a substantive order – i.e. an order which
actually has an effect on a child and her parents (and sometimes on others). It is, of
course, common ground that the court must consider any Convention rights before
deciding whether to make a substantive order.
63. In this case, Lady Hale in paras 206-214 considers the evidence and
findings in relation to this third step involved in this issue and concludes, albeit,
with “some hesitation”, that the Judge was entitled to reach the conclusion that, on
the primary factual findings and assessments of the parties which he had made, the
threshold had been crossed. Lord Wilson in para 48 has less hesitation in reaching
the same conclusion, as does Lord Kerr for the reasons he gives at paras 131-132.
64. In agreement with Lord Wilson and Lord Kerr, I consider that the Judge
was fully justified in coming to the conclusion that the threshold was crossed on
the primary facts as he had found them, and in the light of his assessment of the
witnesses and of the risks facing Amelia if she remained with her parents. I have in
mind in particular the ultimate views he formed (based on the primary facts he had
found and the opportunity he had had to assess the witnesses) which are identified
by Lady Hale at paras 169- 170 and by Lord Wilson at paras 20-22.
65. The nature of the harm which concerned Judge Cryan was (i) “the
emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation
disorder and factitious illness disorder”, (b) “concerns … about the parents’
personality traits”, (c) “her mother’s lying”, (d) her father’s “active, but less
chronic, tendency to dishonesty and vulnerability to the misuse of drugs”, and (ii)
“physical harm to [Amelia]” which “cannot be discounted, for example, by over
treatment or inappropriate treatment by doctors”. As to the possibility of such
harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s
parents did not have “the capacity to engage with professionals in such a way that
their behaviour will either be controlled or amended to bring about an environment
where [Amelia] would be safe”. He explained that the result of this was that he
could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”
to Amelia “to protect her from harm and still place her with her parents”.
Page 26
66. Those conclusions are concerned with what may be characterised as risks,
prospects or possible outcomes, and they are not, therefore, findings of primary
fact, let alone conclusions of law. As explained above, they are evaluations based
on the findings of primary fact, and on assessments of character and likely
behaviour and attitudes, made by the Judge as a result of many days of considering
oral and written evidence and also as a result of hearing argument. They are
evaluations which are also plainly dependant on the Judge’s overall assessment of
the witnesses, and in particular on his opinion as to the character and dependability
of Amelia’s mother and father, and as to the reliability of the assessments of the
expert witnesses. His conclusions appear to me to be ones to which, to put it at its
lowest, he was fully entitled to come on the evidence he had heard and assessed. In
other words, they were justified in terms of logic and common sense in the light of
his findings of primary fact and his assessment of the witnesses, and they were
coherently formulated. There is no basis in my view, for saying that they were
wrong.
67. I understand the concern which Lady Hale expresses in her judgment at
paras 208-222, which in many respects reflect the very wise remarks made by
Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, 2063. Although
they have been referred to by Lady Hale at paras 181-182 and Lord Wilson at para
27 and were set out in full by Black LJ in the Court of Appeal, [2012] EWCA Civ
1475, para 116, those remarks merit repetition, not least because they have
resonance in relation to both main issues in this case:
“50. What about the court’s approach, in the light of all that, to the
issue of significant harm? In order to understand this concept and the
range of harm that it’s intended to encompass, it is right to begin with
issues of policy. Basically it is the tradition of the UK, recognised in
law, that children are best brought up within natural families. Lord
Templeman, in In re KD (A Minor: Ward) (Termination of Access)
[1988] 1 AC 806, 812, said this:
‘The best person to bring up a child is the natural
parent. 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.’
… It follows inexorably from that, that society must be willing to
tolerate very diverse standards of parenting, including the eccentric,
the barely adequate and the inconsistent. It follows too that children
will inevitably have both very different experiences of parenting and
very unequal consequences flowing from it. It means that some
Page 27
children will experience disadvantage and harm, while others
flourish in atmospheres of loving security and emotional stability.
These are the consequences of our fallible humanity and it is not the
provenance of the state to spare children all the consequences of
defective parenting. In any event, it simply could not be done.
51. That is not, however, to say that the state has no role, as the 1989
Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging
though the court’s and social services’ powers may be, is to be
operated in the context of the policy I have sought to describe. Its
essence, in Part III of the 1989 Act, is the concept of working in
partnership with families who have children in need. Only
exceptionally should the state intervene with compulsive powers and
then only when a court is satisfied that the significant harm criteria in
section 31(2) is made out. …. It would be unwise to a degree to
attempt an all embracing definition of significant harm. One never
ceases to be surprised at the extent of complication and difficulty
that human beings manage to introduce into family life. Significant
harm is fact specific and must retain the breadth of meaning that
human fallibility may require of it. Moreover, the court recognises,
as Lord Nicholls of Birkenhead pointed out in In re H [1996] AC
563 that the threshold may be comparatively low. However, it is
clear that it must be something unusual; at least something more than
the commonplace human failure or inadequacy.”
68. It is true that much of the harm which the Judge considered could befall
Amelia in this case might be said to flow from “eccentric, … barely adequate [or]
inconsistent” parenting, and that it can also be said that the harm would result, to
an extent at any rate, from her mother’s and father’s characteristics rather than
from their parenting. There are, however, two answers to that.
69. The first is that it is a question of fact and degree whether the defective
parenting which Amelia would undergo if she remained with her parents fell
outside the wide spectrum of the acceptable “very diverse standards” (to quote
Hedley J) such as would justify the state stepping in. I agree with Black LJ when
she said at para 128 in her judgment in the Court of Appeal, that that was an issue
which the Judge was particularly well placed to assess, and, while he could have
discussed the issue more fully than he did, it seems to me that, particularly bearing
in mind the very unusual facts, the expert evidence, the combination of risks, and
the value of seeing the witnesses over a long hearing, it is impossible to fault the
Judge’s conclusion.
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70. The importance of a trial judge giving clear and coherent reasons for his
decision carries particular force where the judgment is very likely to result in a
child being adopted against her parents’ wishes. However, even in such a case, an
appellate court must be careful of placing an unrealistically high burden on the
trial judge. As Lord Hoffmann acknowledged in the passage quoted by Lord
Wilson from Piglowska (quoting from an earlier judgment he gave), “specific
findings of fact, even by the most meticulous judge are inherently an incomplete
statement of the impression which was made upon him by the primary evidence”.
In her recent judgment in In re L and B (Preliminary Findings: Power to Reverse)
[2013] 1 WLR 634, para 46, Lady Hale, while emphasising the importance of “a
fully and properly reasoned judgment”, as a means of achieving finality,
recognised the “vicissitudes” which can beset any judge.
71. Secondly, in so far as it is said that the threatened harm was attributable to
the character of Amelia’s parents rather than to their parenting activities, the
parents’ characteristics which concerned the Judge would inevitably be reflected in
the way they looked after, or “parented”, Amelia. In particular, it was not merely
the potential emotional (and even physical) harm to Amelia owing to her parents’
deficiencies which worried the Judge. It is of central importance to understanding
his conclusion that he was also concerned by the fact that the parents (especially
the mother) would, or at least appeared very likely to, impede the professional
people who would need access to Amelia in order to mitigate the risk or effect of
any harm she might suffer. That not only served to reinforce the degree of risk (or
at least to remove a way of mitigating the risk); it also amounted to a finding that,
by their activities the parents would actively impede an important and beneficial
source of mitigating and monitoring the harm which Amelia would face. That, on
any view, must amount to defective parenting, and, in the circumstances of this
case in the light of the risks which the Judge thought that Amelia would face, I
consider that it amounted to defective parenting which a judge could reasonably
conclude satisfied the section 31(2) threshold.
The second main issue: the Judge’s decision to make a care order
72. I turn, then, to the second main issue which the Judge had to decide,
namely, given his finding that the threshold had been crossed, whether he should
make a care order in respect of Amelia. He decided that he should do so, and, in
that connection, it seems to me that three potential questions arise on an appeal
against such a decision. Those questions are: (i) whether the judge applied the right
legal test when resolving to make the care order; (ii) if he applied the right test, the
correct approach of an appellate court on an appeal against the decision to make a
care order; and (iii) whether the judge’s decision can stand, if the appellate tribunal
subjects it to that test.
Page 29
The care order: the correct legal test
73. I turn to consider the first question, which involves first identifying the
correct test. The effect of section 1(1) of the 1989 Act is that, when considering
whether to make a care order, the court must treat the welfare of the child as the
paramount consideration, and this involves taking into account in particular the
factors identified in section 1(3), which includes, in para (g), the range of powers
available to the court As Lady Hale (who knows more about this than anybody)
says in para 194, the 1989 Act was drafted with the Convention in mind; in any
event, with the coming into force of the Human Rights Act 1998 (“the 1998 Act”),
the 1989 Act must now, if possible, be construed and applied so as to comply with
the Convention. So too the Adoption and Children Act 2002 (“the 2002 Act”)
must, if possible, be construed and applied so as to comply with the Convention. It
also appears to me that the 2002 Act must be construed and applied bearing in
mind the provisions of the UN Convention on the Rights of the Child 1989
(“UNCRC”).
74. A care order in a case such as this is a very extreme thing, a last resort, as it
would be very likely to result in Amelia being adopted against the wishes of both
her parents.
75. As already mentioned, it is clear that a judge cannot properly decide that a
care order should be made in such circumstances, unless the order is proportionate
bearing in mind the requirements of article 8.
76. It appears to me that, given that the Judge concluded that the section 31(2)
threshold was crossed, he should only have made a care order if he had been
satisfied that it was necessary to do so in order to protect the interests of the child.
By “necessary”, I mean, to use Lady Hale’s phrase in para 198, “where nothing
else will do”. I consider that this conclusion is clear under the 1989 Act,
interpreted in the absence of the Convention, but it is put beyond doubt by article
8. The conclusion is also consistent with UNCRC.
77. It seems to me to be inherent in section 1(1) that a care order should be a
last resort, because the interests of a child would self-evidently require her
relationship with her natural parents to be maintained unless no other course was
possible in her interests. That is reinforced by the requirement in section 1(3)(g)
that the court must consider all options, which carries with it the clear implication
that the most extreme option should only be adopted if others would not be in her
interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras
195-198 make it clear that such an order can only be made in “exceptional
circumstances”, and that it could only be justified by “overriding requirements
Page 30
pertaining to the child’s welfare”, or, putting the same point in slightly different
words, “by the overriding necessity of the interests of the child”. I consider that
this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in
Re C and B [2001] 1 FLR 611, para 34 quoted by Lady Hale in para 198 above),
but it is unnecessary to explore that point further.
78. The high threshold to be crossed before a court should make an adoption
order against the natural parents’ wishes is also clear from UNCRC. Thus,
Hodgkin and Newell, Implementation Handbook for the Convention on the Rights
of the Child, Unicef, 3rd ed (2007), p 296, state that “there is a presumption within
the Convention that children’s best interests are served by being with their parents
wherever possible”. This is reflected in UNCRC, which provides in article 7 that a
child has “as far as possible, the right to know and be cared for by his or her
parents”, and in article 9, which requires states to ensure that
“a child shall not be separated from his or her parents against their
will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that
such separation is necessary for the best interests of the child”.
79. Having identified the test, the other aspect of the first question is whether
the Judge purported to apply that test in this case. In my view, he did, or, to put it
at its lowest, his conclusions were expressed in a way which makes it clear that he
considered that the test was satisfied. In the passage to which I have already
referred, quoted by Lord Wilson in para 22, the Judge said that he could not see
“any sufficiently reliable way that [he could] fulfil [his] duty to [Amelia] to protect
her from harm and still place her with her parents”, and he immediately went on to
explain that this was despite the fact that “this court strives to promote” her
relationship with her parents and their family life together. He also described
adoption as “the only viable option” for Amelia’s future care. As a matter of
ordinary language, it seems to me clear that the Judge was there applying the test
laid down by the Strasbourg court, and concluding that it was satisfied.
The care order: the appellate court’s approach
80. It is next necessary to address the question of the approach to be adopted by
an appellate court when an appeal is brought against a judge’s decision to make a
care order in a case such as this, and where the judge has applied, or at least has
purported to apply, the correct test. As a matter of pure domestic law, this is an
evaluative exercise and therefore it might appear that the approach discussed in
paras 57-61 above applies. However, the issue is potentially complicated by the
fact that article 8 is engaged.
Page 31
81. There is no doubt but that Judge Cryan, as the trial judge, the first instance
tribunal, was required to decide for himself whether the care order which he was
proposing to make satisfied the test, which the Strasbourg jurisprudence
establishes is required by article 8. The issue to be addressed concerns the correct
approach of an appellate court when confronted by an appeal against the making of
such an order.
82. What the Strasbourg jurisprudence requires (and, I would have thought,
what the rule of law in a modern, democratic society would require) is that no
child should be adopted, particularly when it is against her parents’ wishes,
without a judge deciding after a proper hearing, with the interests of the parents
(where appropriate) and of the child being appropriately advanced, that it is
necessary in the interests of the child that she is adopted.
83. So far as any appeal against such a decision is concerned, as Lord
Hoffmann said in a passage quoted by Lord Wilson in para 35, “[t]here is no
Convention obligation to have a right of appeal at all”. However, to an extent at
any rate, that begs the question as to the correct approach for an appellate court to
adopt where there is a right of appeal. In that connection, I respectfully disagree
with Lady Hale’s view as expressed in para 204 that an appellate court is under a
positive obligation on every such appeal to assess the question of proportionality
for itself, if that means that the Court of Appeal in this case was required to decide
for itself, effectively de novo, whether the requirements of article 8, as explained in
the cases mentioned in paras 195-198 of Lady Hale’s judgment, were satisfied so
far as the making of a care order in respect of Amelia was concerned.
84. It is well established that a court entertaining a challenge to an
administrative decision, ie a decision of the executive rather than a decision of a
judge, must decide the issue of proportionality for itself – see the statements of
principle in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, paras
29-30 and 63, and in Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR
1420, paras 12-14, 24-27, 31, 42-46 and 89-91. However, this does not mean that
an appellate court entertaining a challenge to a judicial decision, as opposed to an
executive decision, must similarly decide the issue of proportionality for itself. If it
did, it would mean that (subject to obtaining permission to appeal) litigants would
be entitled to (or forced to undergo) two separate sequential judicial assessments of
proportionality. I do not consider that there is anything in the Strasbourg
jurisprudence or in the 1998 Act which suggests that such an entitlement should
exist, even where there is a right of appeal.
85. That is not to say that the fact that Convention rights are involved is
irrelevant if there is a right of appeal. The appeal process must “offer a fair hearing
before an independent and impartial tribunal in accordance with article 6” (to
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quote again from Lord Hoffmann in MT (Algeria)), and, if the appeal process
involves a challenge to the trial judge’s assessment of proportionality, that
challenge would have to be properly and fairly addressed. But in my view, the fact
that a Convention right is involved does not require an appellate domestic court to
consider again the issue of proportionality for itself. What it requires is that a court
considers the question of proportionality and that, if there is an appeal, any appeal
process involves a proper consideration of the question of proportionality. In other
words, the court system as a whole must fairly determine for itself whether the
requirement of proportionality is met, but that does not mean that each court up the
appeal chain does so.
86. I agree with Lord Wilson at para 36 that, subject to the requirements of
article 6 of the Convention, it must be a question of domestic law as to how the
challenge to proportionality is to be addressed on an appeal. There is, in my view,
no reason why the Court of Appeal in a case such as this should not have followed
the normal, almost invariable, approach of an appellate court in the United
Kingdom on a first appeal, namely that of reviewing the trial judge’s conclusion on
the issue, rather than that of reconsidering the issue afresh for itself.
87. That this is the normal function of the Court of Appeal is made clear by
CPR 52.11, which states that, save in exceptional cases, every appeal is limited to
a review rather than a rehearing and the appeal will be allowed only where the
decision of the lower court was “wrong” or “unjust because of a serious procedural
or other irregularity in the proceedings in the lower court”. The “exceptional
cases” are, as a matter of principle and experience, almost always limited to those
where the Court of Appeal (i) decides that the judge has gone wrong in some way
so that his decision cannot stand, and (ii) feels able to reconsider, or “rehear”, the
issue for itself rather than incurring the parties in the cost and delay of a fresh
hearing at first instance.
88. As I see it, this limitation on the function of an appellate court is based on
similar grounds as are set out in paras 53 and 57-61 above – see per Lord Diplock
in Hadmor Productions Ltd v Hamilton [1983] AC 191, 220 and per May LJ in EI
du Pont para 94. If, after reviewing the judge’s judgment and any relevant
evidence, the appellate court considers that the judge approached the question of
proportionality correctly as a matter of law and reached a decision which he was
entitled to reach, then the appellate court will not interfere. If, on the other hand,
after such a review, the appellate court considers that the judge made a significant
error of principle in reaching his conclusion or reached a conclusion he should not
have reached, then, and only then, will the appellate court reconsider the issue for
itself if it can properly do so (as remitting the issue results in expense and delay,
and is often pointless).
Page 33
89. Not only is this consistent with the normal practice of an appeal court in this
jurisdiction but it is also consistent with good sense. In many cases, and this is one,
the trial judge will have seen the witnesses and had a full opportunity to assess the
primary facts and to make relevant assessments (I refer again to what Lord Wilson
says at paras 41-42). Once one accepts that this means that the appellate court
should defer to the trial judge at least to some extent (as Lady Hale rightly does in
para 205), then, unless the appellate court is confined to a primarily reviewing
function, it will have some sort of half-way house role between review and
reconsideration. This would seem to me to be unprincipled and to be liable to
cause confusion to actual and potential litigants as well as to the judiciary.
Additionally, the introduction of a second layer of judicial assessment of
proportionality is likely to lead to increased cost and delay in many cases. Of
course, where the trial judge has not heard oral evidence or where his findings
have not depended on his assessment of the witnesses’ reliability or likely future
conduct, then the appellate court will normally be in as good a position as the trial
judge to form a view on proportionality.
90. The argument that the Convention or the 1998 Act requires the Court of
Appeal to form its own view in every case where a trial judge’s decision on
proportionality is challenged, appears to me to be wrong in principle and
potentially unfair or inconvenient. The argument is wrong in principle because, if
the function of the Court of Appeal is as I have described, then, in my view, there
can be no breach of the Convention or the 1998 Act, if it conducts a review of the
trial judge’s decision and only reverses it if satisfied that it was wrong. The only
basis for challenging that view is, on analysis, circular, as it involves assuming that
the Court of Appeal’s primary function is to reconsider not to review. The
argument is potentially unfair or inconvenient, because in cases where the appeal
court could not be sure whether the trial judge was right or wrong without hearing
the evidence and seeing the witnesses, it would either to have to reach a decision
knowing that it was less satisfactorily based than that of the judge, or it would have
to hear the evidence and see the witnesses for itself.
91. That conclusion leaves open the standard which an appellate court should
apply when determining whether the trial judge was entitled to reach his
conclusion on proportionality, once the appellate court is satisfied that the
conclusion was based on justifiable primary facts and assessments. In my view, an
appellate court should not interfere with the trial judge’s conclusion on
proportionality in such a case, unless it decides that that conclusion was wrong. I
do not agree with the view that the appellate court has to consider that judge’s
conclusion was “plainly” wrong on the issue of proportionality before it can be
varied or reversed. As Lord Wilson says in para 44, either “plainly” adds nothing,
in which case it should be abandoned as it will cause confusion, or it means that an
appellate court cannot vary or reverse a judge’s conclusion on proportionality of it
considers it to have been “merely” wrong. Whatever view the Strasbourg court
Page 34
may take of such a notion, I cannot accept it, as it appears to me to undermine the
role of judges in the field of human rights.
92. I appreciate that the attachment of adverbs to “wrong” was impliedly
approved by Lord Fraser in the passage cited from G v G (Minors: Custody
Appeal) [1985] 1 WLR 647, 652, by Lord Wilson at para 38, and has something of
a pedigree – see eg per Ward LJ in Assicurazioni [2003] 1 WLR 577, para 195
(although aspects of his approach have been disapproved – see Datec [2007] 1
WLR 1325, para 46). However, at least where Convention questions such as
proportionality are being considered on an appeal, I consider that, if after
reviewing the trial judge’s decision, an appeal court considers that he was wrong,
then the appeal should be allowed. Thus, a finding that he was wrong is a
sufficient condition for allowing an appeal against the trial judge’s conclusion on
proportionality, and, indeed, it is a necessary condition (save, conceivably, in very
rare cases).
93. There is a danger in over-analysis, but I would add this. An appellate judge
may conclude that the trial judge’s conclusion on proportionality was (i) the only
possible view, (ii) a view which she considers was right, (iii) a view on which she
has doubts, but on balance considers was right, (iv) a view which she cannot say
was right or wrong, (v) a view on which she has doubts, but on balance considers
was wrong, (vi) a view which she considers was wrong, or (vii) a view which is
unsupportable. The appeal must be dismissed if the appellate judge’s view is in
category (i) to (iv) and allowed if it is in category (vi) or (vii).
94. As to category (iv), there will be a number of cases where an appellate court
may think that there is no right answer, in the sense that reasonable judges could
differ in their conclusions. As with many evaluative assessments, cases raising an
issue on proportionality will include those where the answer is in a grey area, as
well as those where the answer is in a black or a white area. An appellate court is
much less likely to conclude that category (iv) applies in cases where the trial
judge’s decision was not based on his assessment of the witnesses’ reliability or
likely future conduct. So far as category (v) is concerned, the appellate judge
should think very carefully about the benefit the trial judge had in seeing the
witnesses and hearing the evidence, which are factors whose significance depends
on the particular case. However, if, after such anxious consideration, an appellate
judge adheres to her view that the trial judge’s decision was wrong, then I think
that she should allow the appeal.
95. I am conscious that the analysis in paras 80-90 appears to differ somewhat
from that of Lady Hale in paras 204-205 and of Lord Kerr in paras 116-127.
However, at least in my opinion, it would, essentially for two reasons, be a very
rare case where their approach would produce a different outcome from mine.
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First, it is only my category (iv) which gives rise to disagreement, in that they
would not, as I understand it, accept that such types of case exist. However, many,
probably most, cases that on my approach would fall into that category would, on
their approach (especially in the light of what they say about the weight to be
given to the trial judge’s assessment) be in category (iii), which would yield the
same outcome. Secondly, the advantage which the trial judge has in hearing the
evidence and seeing the witnesses will mainly apply to his findings of primary
fact, inferences of fact, and assessment of probable outcomes, which then feed into
his assessment of proportionality (and, in this case, necessity). When those factors
come to be weighed on the question of proportionality (or necessity), the
advantage the trial judge has will normally be of less significance, and sometimes
even of very little, if any, significance.
96. It is unnecessary to decide whether the approach described in paras 85-90 is
appropriate to any appeal concerning an evaluation even where no Convention
right is involved, including the sort of issue considered in G v G, in Bellenden
(formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 and in Assicurazioni.
I am not convinced that the approach is necessarily different from that advocated
in those cases, although the precise formulation is undoubtedly different. However,
it was not a topic on which we had any argument, as the submissions were limited
to the proper approach on an appeal on proportionality, or necessity, under the
Convention, and I say no more about it.
The care order: should it be upheld?
97. So I reach the final question on this second issue, and on this appeal: was
the Judge’s decision to make a care order in this case proportionate, in the light of
the conclusions he reached on the primary facts and on the assessments he made,
and bearing in mind the strong general desirability of maintaining the family unit,
and the possibility of other remedies? In other words, in the light of these factors,
was it necessary to make such order to protect Amelia, bearing in mind the
overriding necessity of the interests of the child?
98. In the light of the Judge’s findings, quoted by Lord Wilson in para 21, when
considered against the detailed findings of primary fact and assessment which he
made, it seems to me that he directed himself appropriately and came to a decision
which I cannot possibly characterise as wrong. I agree with Lord Wilson’s analysis
in para 48, as well as with what Lord Kerr says at paras 131-133.
99. While I understand, and have real sympathy with, the points made by Lady
Hale in paras 216-223, I do not view the enquiries she wishes to be made on any
remission as realistically open to an appellate court in the light of the various
Page 36
conclusions reached by the Judge. I take this view above all because of his finding,
which is admirably explained by Lord Kerr in para 132 as “the inescapable
difficulty … that the parents have been found to be incapable of co-operating to
the necessary extent with professionals whose intervention is considered to be
indispensable to the safeguarding of Amelia’s happy and fulfilled future”. That
was a finding plainly open to the Judge, not least in the light of all his
unchallenged findings of primary fact and his assessment of Amelia’s parents.
100. To put the point another way, if we were to remit the case on the basis
proposed by Lady Hale, it would be to enable another judge to draw conclusions as
to the future behaviour or attitude of Amelia’s mother and/or father, which were
inconsistent with the findings made by Judge Cryan. He concluded that the parents
would not co-operate with professionals whose access to Amelia, for whose wellbeing such access would be essential. But, as I have already said, those findings
were ones with which an appellate court had no grounds, in my opinion, for
interfering. It follows that I cannot accept that this case is one which could be
properly remitted.
101. In deference to Lady Hale’s conclusions, I see how it could be argued that
(i) the question of co-operation was given too much weight by the Judge or (ii) the
possibility of setting up a system whereby co-operation was assured could have
been more fully explored at the hearing. However, to allow the appeal on either
ground would, I think, be wrong, in principle and in practice. In principle, because
the Judge’s view was justified in the light of his findings as to the past behaviour
of the parents, the impression which he formed of the parents and other important
witnesses, and his assessment of the future likelihoods and risk, all of which were
open to him. In practice, it is almost always possible for parties who have lost a
case because of the judge’s assessment of their likely behaviour, to contend that
they should be given a second chance to explore matters more fully with a view to
achieving a different result. To allow this appeal on that ground would justify a
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. Of course, the issue in
the present case is particularly important and sensitive, but finality is important,
not just in the public interest, but for the good of Amelia (and her parents).
Concluding remarks
102. Having reached this conclusion, it is only right to refer to the very brief, but
important judgments of Rix and Lewison LJJ in the Court of Appeal, which
proleptically echo the concerns expressed by Lady Hale. They agreed with Black
LJ’s full and careful reasons for dismissing the appeal, but Lewison LJ, at para
147, was worried that the Judge might have fallen foul of Hedley J’s wise remarks
quoted in para 67 above, and Rix LJ wondered at para 150:
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“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.”
103. These observations are also reflected by concerns expressed more broadly
by Sloan, “Conflicting rights: English adoption law and the implementation of the
UN Convention on the Rights of the Child” [2013] CFLQ 40. That Article at pp
49-50, suggests that, whereas UNCRC is “neutral about the desirability of
adoption” (quoting Hodgkin and Newell, op cit p 294), the 2002 Act
“unashamedly aimed to bring about ‘more adoptions more quickly’ for children in
care” (quoting Harris-Short, “New Legislation: The Adoption and Children Bill –
A Fast Track to Failure?” [2001] CFLQ 405). More specifically, the Article
identifies a suggested inconsistency between the approach of the Court of Appeal
in Re C (A Child) (Adoption: Duty of Local Authority), reported as C v XYZ County
Council [2008] Fam 54, at para 15, and that of the High Court in Re A (A child)
(Disclosure of Child’s Existence to Paternal Grandparents, reported as
Birmingham City Council v S [2007] 1 FLR 1223, at paras 73 and 76. In Re C, it
was said that “the 2002 Act does not privilege the birth family over the adoptive
parents simply because they are the birth family”. In the Birmingham case, which
Sloan suggests is more in line with the policy of UNCRC, Sumner J described
adoption as “a last resort for any child” to be invoked only “when neither of the
parents nor the wider family and friends can reasonably be considered as potential
carers for the child”, and he went on to recognise a child’s “right to be brought up
by her own family”.
104. We were not addressed on this Article or on those two cases. However, they
all give added weight to the importance of emphasising the principle that adoption
of a child against her parents’ wishes should only be contemplated as a last resort –
when all else fails. Although the child’s interests in an adoption case are
“paramount” (in the UK legislation and under article 21 of UNCRC), a court must
never lose sight of the fact that those interests include being brought up by her
natural family, ideally her natural parents, or at least one of them.
105. Hodgkin and Newell, op cit, suggest that, under UNCRC, an “adoption can
only occur if parents are unwilling or are deemed by judicial process to be unable
to discharge” their responsibilities towards the child. The assessment of that ability
to discharge their responsibilities must, of course, take into account the assistance
and support which the authorities would offer. That approach is the same as that
suggested by Hedley J in the passage quoted in para 67 above, and I agree with it.
It means that, before making an adoption order in such a case, the court must be
satisfied that there is no practical way of the authorities (or others) providing the
requisite assistance and support.
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106. In this case, I revert to the melancholy fact that the Judge was satisfied that
(i) without such assistance and support, the parents would not discharge their
responsibilities to Amelia, (ii) that, as a result, there would be a grave risk of harm
to her, and, crucially, (iii) that the parents would seriously impede the authorities
in providing such essential assistance and support. There was ample evidence to
support that conclusion, and therefore the appeal must be dismissed.
LORD KERR
107. Three different types of judicial decision in care proceedings have been
authoritatively identified by Lady Hale in para 199 of her judgment. The first
concerns factual decisions on the evidence; the second involves consideration of
whether the statutory threshold has been crossed; and the third deals with decisions
as to the type of order that should be made. For the reasons that she has given, with
which I agree, it is important to recognise the different intellectual exercise which
is in play in each of these contexts because that will dictate the proper approach of
the appellate court to a challenge about the correctness of a judge’s decision.
108. A conclusion by a judge at first instance on which facts have been proved,
and which have not been, involves the judge sifting the evidence that has been led,
assessing it and then deciding whether it has brought him or her to the necessary
point of conviction of its truth and accuracy. Although an appellate court is
competent to hear appeals against the findings of fact that the judge has made, of
necessity, its review of those findings is constrained by the circumstance that,
usually, the initial fact-finder will have been exposed to a wider range of
impressions that influence a decision on factual matters than will be available to a
court of appeal. This is not simply a question of assessing the demeanour of the
witnesses who gave evidence on factual matters, although that can be important. It
also involves considering the initial impact of the testimony as it unfolds – did it
appear frank, candid, spontaneous and persuasive or did it seem to be contrived,
lacking in conviction or implausible. These reactions and experiences cannot be
confidently replicated by an analysis of a transcript of the evidence. For this reason
a measure of deference to the conclusions reached by the initial fact finder is
appropriate. Unless the finding is insupportable on any objective analysis it will be
immune from review.
109. The second species of decision in care proceedings (whether the threshold
has been crossed) is of a plainly different order from that of fact-finding. In
deciding whether a child is suffering or is likely to suffer significant harm, a judge
must exercise judgment. There may be factual elements to the decision such as, for
instance, whether a particular type of harm occurred. Ultimately, however, the
dominant character of the decision is that of an appraisal by the judge as to
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whether the harm is significant. With due respect to Hallett LJ’s contrary view in
Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, para 42, this
cannot be characterised as a finding of fact. It is a judgment made on the import of
the facts found, rather than a factual finding.
110. Given that the determination as to whether the threshold has been crossed is
one involving the exercise of judgment, what should the approach of the appellate
court be to a review of that decision? Leaving aside for the moment the question of
proportionality, there is much to be said for the proposition that the measure of
deference that an appellate court should show to this decision approximates to that
which is appropriate to a review of factual findings. Like Lord Neuberger,
however, I believe that to cast the test of reviewability in this sphere as an
examination of whether the judge was “plainly wrong” is potentially misleading.
A finding on whether the threshold has been crossed will, in many cases, be a
matter for fine judgment, however. The conclusion on this issue will be informed,
at least to some extent, on the judge’s impression of the evidence. While the
weight to be given to his or her conclusion as to whether the threshold has been
crossed operates in a different way from that where the judge reaches a conclusion
on disputed facts, since the assessment of the evidence is influential in the
threshold decision, a degree of reticence on the part of an appellate court on
whether to interfere with the decision is warranted. If the appellate court considers
that the judge was wrong, however, it should not shrink from reversing his or her
decision.
111. The third species of decision in care proceedings (the selection of the
appropriate disposal) is, as Lady Hale has said (in para 199), on the face of it, a
matter of discretion. One proceeds on the basis that there is a range of options
available to the judge, all of which are defensible, but that one is chosen, in the
exercise of the judge’s discretion, as that considered best to meet the judge’s
perception of what is needed to fulfil the requirements of the particular case. In
truth, of course, this decision partakes of the exercise of judgment as well as
discretion. The distinction (although it cannot be a sharp-edged one) between a
decision on disposal and the threshold decision is that in the latter case, the judge
must arrive at a firm conclusion as to whether the appropriate standard has been
met whereas, in the case of disposal, the judge can acknowledge that there is an
array of possible disposals from which he or she selects what is considered to be
the best.
112. Where what is under review by an appellate court is a decision based on the
exercise of discretion, provided the decision-maker has not failed to take into
account relevant matters and has not had regard to irrelevant factors and has not
reached a decision that is plainly irrational, the review by an appellate court is at
its most benign. Truly, in that instance, an appellate court which disagrees with the
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challenged decision of the judge will be constrained to say, even though we would
have reached a different conclusion, we cannot interfere.
113. Absent the proportionality dimension, that is probably also true of a review
of the decision on whether the threshold has been crossed. The judgment as to
whether there has been or is likely to be significant harm to the child must be
influenced to a large extent by what the judge finds to have been proved as a
matter of fact. To reverse a decision on this will almost invariably involve a review
of the correctness of the judge’s conclusion on some of the facts. For the reasons
given earlier, this is potentially perilous territory for the appellate court. So, even if
it feels that it would have reached a different conclusion, it should refrain unless it
concludes that the decision of the trial judge is simply insupportable.
114. Likewise – and obviously – where what is under challenge is the selection
of the order deemed by the judge to be required to meet the particular
circumstances of the individual case, the view of the appellate court that it would
have reached a different conclusion should not, apart from proportionality, prevail.
Although this decision consists of the exercise of judgment as well as discretion, it
is essentially one in which the judge is selecting one of a possible range of options
about what is best required to meet the requirements of a particular case. Because
that decision is inevitably influenced by, among other things, the judge’s
impression of the evidence, the appellate court should be slow to substitute its
view of what is best required.
115. Into all of this discussion, however, must come the question of
proportionality. Significantly different considerations are in play when the
proportionality of the decision is in issue. A decision as to whether a particular
outcome is proportionate involves asking oneself, is it really necessary. That
question cannot be answered by saying that someone else with whose judgment I
am reluctant to interfere, or whose judgment can be defended, has decided that it is
necessary. It requires the decision-maker, at whatever level the decision is made,
to starkly confront the question, “is this necessary”. If an appellate court decides
that it would not have concluded that it was necessary, even though it can
understand the reasons that 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.
116. Lord Wilson has said in para 36 that the European Convention on Human
Rights does not require appellate courts to address issues as to Convention rights
with any particular degree of intensity. He also says that it is not incumbent on
appellate courts to re-hear all the evidence relevant to a Convention issue. I agree
with both propositions. But an appellate court which is required to review the
proportionality of a decision may not discharge its duty under section 6(1) of the
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Human Rights Act 1998 by merely saying that the lower court has reached a
decision which is not wrong. The observations of Lord Phillips and Lord
Hoffmann in MT (Algeria) v Secretary of State for the Home Department [2009]
UKHL 10, [2010] 2 AC 110, which Lord Wilson quotes in para 35 of his
judgment, address the argument that an appellate court was required to conduct a
full-blown investigation of the facts surrounding the question whether a
Convention right had been violated. What was in issue was how an appellate court
should inquire into a claim that a Convention right had been breached. The
passages quoted were not concerned with the quite different question as to what
the appellate court had to decide. In the present case both appellate courts, the
Court of Appeal and this court, have to decide whether the making of a care order
was proportionate. Neither court is required to conduct a complete re-hearing of
the evidence. But both courts must address directly the question whether they have
been satisfied that the making of a care order is proportionate. They may not do so
by reference only to the defensibility of Judge Cryan’s decision. What the
appellate courts are required to decide, therefore, is not whether Judge Cryan’s
conclusion is wrong. What they must decide is whether the decision was
proportionate and that is a matter for their judgment, not one on which they may
defer to the judgment of others.
117. Deferring to the judgment of others is, of course, quite a different thing
from taking into account the judgment of others. An appellate court, tasked with
the function of deciding whether a decision is proportionate, may – indeed, should
– take into consideration any properly reasoned conclusion by a judge at first
instance as to proportionality. Each member of the appellate court must ask
whether he or she is satisfied that the decision is proportionate but that does not
mean that the first instance judge’s reasoning should be disregarded. The
distinction between examining a first instance judge’s decision to see whether it
falls within the “generous ambit of reasonable disagreement” and considering it in
order to decide what influence it should have on one’s own decision may seem
somewhat narrow but the two assessments are importantly different from each
other. In the first instance, one is not concerned (or at least not principally
concerned) with whether one would have reached a different conclusion. In the
second, that question is of critical importance but it can properly be influenced by
an earlier process of reasoning with which one can agree.
118. Another, perhaps more simple, way of expressing that concept is this:
where an appellate court is in the realm of review of a lower court’s decision
without the dimension of proportionality, if the decision is not one which the
appellate court would have reached, it is obliged to consider whether the lower
court’s conclusion nevertheless falls within the generous ambit of permissible
decisions. If it does, it should not be reversed. If, on the other hand, the review
must comprehend proportionality, that is not the approach. Generous ambit
considerations do not arise. But that does not mean that the appellate court may
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completely disregard the reasons given by the first instance judge for his or her
conclusion. These must be taken into account and given such weight as they
deserve, bearing in mind that the judge has had the advantage of seeing the
witnesses, hearing the evidence given in real time etc. Ultimately, however, the
appellate court must frankly address the question “is the challenged measure
proportionate”, “is it really necessary”. If the court of appeal concludes that it is
not, then, notwithstanding its consideration of the first instance judge’s view, the
decision must be reversed.
119. The decision by an appellate court on whether the making of an adoption
order is proportionate cannot be determined by an approach which is geared solely
to testing the adequacy of the trial judge’s assessment of the proportionality issue.
In my view this is impermissible because it removes the appellate court from the
area of responsibility which it has to ensure that a Convention right is not
infringed. Moreover, an approach that contemplates the endorsement by an
appellate court of a decision on proportionality which it does not affirmatively find
to be correct involves an abdication of the court’s statutory duty as a public
authority. Section 6 of the Human Rights Act makes it unlawful for a public
authority, including a court, to act in a way which is incompatible with a
Convention right.
120. The inaptness of review of the trial judge’s decision on proportionality
rather than the appellate court reaching its own conclusion on the issue can,
perhaps, be best illustrated by a series of sequential propositions:
(a) Where the parents do not consent, a court may only sanction the
adoption of a child (and any ancillary or preparatory steps) where that is
proportionate (necessary);
(b) Parents therefore enjoy a Convention right not to have their child ‘freed’
for adoption unless that course is proportionate/necessary;
(c) No public authority (including a court) may lawfully act in a way which
is incompatible with that right;
(d) In order to address the question whether it would be acting unlawfully
(in breach of section 6 of HRA) a court, at whatever level, which is called
on to sanction an adoption must ask itself whether this is a
proportionate/necessary interference with the parents’ Convention right;
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(e) The question in (d) cannot be answered by saying that another public
authority/court has said that the adoption is proportionate.
121. In my view, an appellate court cannot avoid the imperative of section 6 of
HRA by viewing the matter of proportionality through the prism of the
defensibility of the trial judge’s decision. An appeal in an adoption case requires
the appellate court to confront the possibility that its decision could involve the
infringement of a Convention right. The duty not to act in a way which is
incompatible with such a right gives rise to an inevitable, concomitant duty to
inquire whether the order that the court makes would have that consequence. That
is an inquiry which cannot be satisfactorily answered by the conclusion that
another agency has so decided. The inquiry must require the appellate court to
decide for itself if the freeing order is proportionate/necessary. It is simply not an
option for the appellate court to adopt a stance of agnosticism and say, well we
have not reached a firm conclusion ourselves but we cannot be sure that the trial
judge was wrong and therefore his decision on proportionality holds the field.
122. That is not to say that the trial judge’s decision is irrelevant. It is entirely
consistent with the proper discharge of the duty under section 6 of HRA for an
appellate court to give considerable weight to the decision of the first instance
judge, endowed as he is with the conspicuous advantage of having heard the
evidence unfold for the first and most pertinent time. But giving the trial judge’s
conclusion on the question of proportionality appropriate weight is a crucially
different exercise from saying that it withstands review because it is defendable.
Giving it weight because of the benefits it enjoys involves the appellate court
reaching its own decision, influenced by the conclusion of the trial judge.
Deferring to the judge’s decision because it is immune from review does not
require (or, indeed, permit) the appellate court to reach its own view except as a
test of the viability of the judge’s view.
123. Lord Neuberger considers that neither the HRA nor the ECHR requires in
terms that an appellate court must “decide proportionality for itself”. I agree. I also
agree that ECHR does not require that there be a system of appeals in every case.
What ECHR requires is that, where an appeal is available, it must be conducted in
a way which is “Convention-compliant”. What Convention-compliant means in the
context of this case is important and I will say something about that presently.
124. The critical point, it seems to me, is to identify what an appellate court is
about in deciding an appeal in a care proceedings case. Ultimately, its decision
comes down to the question whether to allow the parents’ wishes to be overridden.
It may only do so if that course is proportionate. The fact that the decision is taken
on an appeal from an earlier judicial finding does not detract from that central
element of the appellate court’s function. The difficult question of how, in the
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context of a decision on proportionality, an appeal court should exercise its
appellate role must begin at this fundamental starting point. In the final analysis,
the decision to allow the parents’ wishes to be overborne, by whatever court that
decision is taken, must be shown to be necessary.
125. The statement that an appeal must be conducted in a Convention compliant
way is normally made in relation to such issues as equality of arms, access to
relevant material, the ability to know the case against one etc. But it must also
mean that the appeal is conducted in a way that will mean that the Convention
right is vindicated in a way that is practical and effective. To have these attributes
the right must not be interfered with unless the interference is proportionate and
the court (any court) which deals with that question must be satisfied of that. And
satisfied of that “for itself”. So, although neither HRA nor ECHR requires in terms
that an appellate court has to decide proportionality for itself, the outworking of
the court’s duty under section 6 of HRA in particular makes a decision on the
proportionality of a freeing order unavoidable for any court deciding that question.
126. This does not mean, however, that the appellate court has to conclude that it
is “in as good a position” as the trial judge or that it has to order that the evidence
be heard again. The appellate court decides whether it is satisfied that the decision
is proportionate on the basis of the material that is put before it in accordance with
the normal rules that attend the hearing of an appeal. That material includes the
judge’s rehearsal of the evidence, the factual findings that he has made and the
reasoning which underpins his decision on the question of proportionality. All of
these go into the appellate mix. Ultimately, however, the appellate court has to say
to itself, are we persuaded that the decision was proportionate. I cannot see how
that question can be avoided or elided if faith is to be kept with the duty under
section 6 of HRA.
127. A suggested formulation for the test of reviewability in this area has been,
“was the first instance judge wrong”. As I understand the suggestion, this is
something which goes to result as well as process so that the appellate court is not
merely inquiring whether the lower court went about it the right way but also
whether it arrived at the right outcome. If that is so, the question arises, how does
the appellate court address the question, did the lower court get it right or wrong
(as opposed to did it follow the correct route to its conclusion)? It seems to me
that it can only do so by asking what is the right result; in other words, by deciding
the issue for itself.
128. Proportionality does not arise in relation to fact finding by the trial judge. It
plainly is relevant to the question of disposal in care proceedings. Does it arise in
relation to the crossing of the threshold? Lord Wilson thinks not. He considers that
proportionality becomes material only when interference with the right to respect
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for family life under article 8 is in prospect and this only occurs when the
threshold has been crossed and the making of a care order is in contemplation.
Ward LJ in Re MA (Care Threshold) [2010] 1 FLR 431, at para 54 thought that,
given the underlying philosophy of the Human Rights Act, the requirement in
article 8 to have respect for family life informed the meaning of significant harm
and emphasised the need for a sufficient reason for crossing the threshold.
129. I tend to agree with Lord Wilson that this may introduce an unnecessary
layer of complexity to the inquiry whether the harm was significant. The backdrop
to the decision whether sufficiently serious harm has occurred or is apprehended in
order to hold that the threshold has been crossed is that this opens the gateway to a
possible care order. Recognition that this is a draconian step provides sufficient
emphasis on the need for the harm to be significant without adding further colour
by recourse to article 8.
130. Whether or not article 8 has any part to play in the threshold decision, it
certainly comes into full flower at the disposal stage. Lady Hale and Lord Wilson
have both referred to emphatic statements by ECtHR in such cases as Johansen v
Norway (1996) 23 EHRR 33, K and T v Finland (2001) 36 EHRR 255, R and H v
United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236 and YC v United
Kingdom (2012) 55 EHRR 967 concerning the stringent requirements of the
proportionality doctrine where family ties must be broken in order to allow
adoption to take place. I agree with Lady Hale’s statement (in para 198 of her
judgment) that the test for severing the relationship between parent and child is
very strict and that the test will be found to be satisfied only in exceptional
circumstances and “where nothing else will do”. I also agree with what Lord
Wilson has said in para 34 of his judgment, that “a high degree of justification” is
required before an order can properly be made.
131. Both Lady Hale (with some reluctance) and Lord Wilson (more readily)
have accepted that the threshold in this case was crossed. I am happy to
acknowledge the great strength of their combined experience and expertise in this
area of the law. Quite apart from this, however, I am personally satisfied that the
threshold was indeed crossed.
132. The psychiatric conditions from which the mother has suffered and the way
in which the parents have reacted in the past must be set against the apparently
exemplary care and concern that they have exhibited towards Amelia (to use Lady
Hale’s pseudonym). But the latter does not, in my estimation, counteract the
former factors. Without rehearsing the facts which have been so extensively
reviewed in the judgments of Judge Cryan, Black LJ, Lady Hale and Lord Wilson,
it seems to me clear that there is a sufficient likelihood that the way in which,
however well-intentioned they may be, the parents’ care for Amelia would be
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blighted by their well-established difficulties and that her emotional well-being
and development would suffer significantly in consequence. The inescapable
difficulty in this case is that the parents have been found to be incapable of cooperating to the necessary extent with professionals whose intervention is
considered to be indispensable to the safeguarding of Amelia’s happy and fulfilled
future. Of course this was not a question to be judged solely by reference to
experience in previous relations with social services. As Lady Hale has pointed
out, the evidence in relation to this was not universally adverse. But the established
inability to co-operate, combined with the dishonesty and antagonism displayed by
the parents, unmistakably presaged the impossibility of ensuring that this child
would not suffer significant harm.
133. My conclusion on the threshold issue leads me inexorably to the same view
on the question of disposal. If the difficulties that the parents presented could not
be overcome – and, on my analysis of the evidence, there was no prospect of this –
there really was no alternative to the care order. While I do not entirely agree with
Lord Wilson on what I understand to be his view as to how an appellate court
should approach the question of proportionality, I do agree with him as to the
outcome of the appeal. I consider that it should be dismissed.
LORD CLARKE
134. I agree that this appeal should be dismissed for the reasons given by Lord
Wilson, Lord Neuberger and Lord Kerr. I do not detect any difference between
them save as to the correct test to be adopted by an appellate court in a case of this
kind. Which test is adopted does not, as I see it, affect the correct answer to each
of the questions for determination in the particular circumstances of this case,
namely the correct analysis of the facts, whether the section 31(2) threshold was
crossed and whether a care order with a view to adoption should have been made.
135. However, there is a difference in principle between the approaches of an
appellate court to the making of a care order adopted by Lord Wilson and Lord
Neuberger on the one hand and Lord Kerr and Lady Hale on the other. I suspect
that in the vast majority of cases that difference would not affect the ultimate
disposal of a case of this kind, in which it is agreed on all sides that a care order
cannot be made unless it is necessary in the best interests of the child. Nothing less
than necessity will do, either under our domestic law or under the European
Convention on Human Rights. Only in a case of necessity will an adoption order
removing a child from his or her parents be proportionate.
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136. The importance of this court addressing the difference is that one of its roles
is to give guidance to the courts below and it is, to my mind, critical that there
should, at the very least, be a clear majority for one approach. I agree with Lord
Neuberger and Lord Wilson that the correct approach of an appellate court to the
making of a care order is to treat the exercise as an appellate exercise and not as a
fresh determination of necessity or proportionality. On that basis the question
arises how the exercise should be approached by the appellate court. In the course
of argument there was some debate whether, absent some error of principle, the
Court of Appeal could only interfere with the decision of the judge if satisfied that
the judge was plainly wrong.
137. In England and Wales the jurisdiction of the Court of Appeal is set out in
CPR 52.11(3), which provides that “the appeal court will allow an appeal where
the decision of the lower court was (a) wrong; or (b) unjust because of a serous
procedural or other irregularity in the proceedings in the lower court”. The rule
does not require that the decision be “plainly wrong”. However, the courts have
traditionally required that the appeal court must hold that the judge was plainly
wrong before it can interfere with his or her decision in a number of different
classes of case. I referred to some of them in Assicurazioni Generali SpA v Arab
Insurance Group [2003] 1 WLR 577, to which Lord Neuberger refers at para 57, at
my paras 9 to 23. It seemed to me then and it seems to me now that the correct
approach of an appellate court in a particular case may depend upon all the
circumstances of that case. So, for example, it has traditionally been held that,
absent an error of principle, the Court of Appeal will not interfere with the exercise
of a discretion unless the judge was plainly wrong. On the other hand, where the
process involves a consideration of a number of different factors, all will depend
on the circumstances. As Hoffmann LJ put it in In re Grayan Building Services Ltd
[1995] Ch 241 at 254,
“generally speaking, the vaguer the standard and the greater the
number of factors which the court has to weigh up in deciding
whether or not the standards have been met, the more reluctant an
appellate court will be to interfere with the trial judge’s decision.”
In the present context, it seems to me, in agreement with Lord Neuberger at para
58, that the court should have particular regard to the principles stated by Lord
Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372, which are
quoted by Lord Wilson at para 41.
138. As I read their judgments, Lord Neuberger, Lord Kerr and Lord Wilson all
conclude that on the question whether the section 31 threshold was crossed the test
is whether the judge was wrong, not whether he was plainly wrong. Lord
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Neuberger and Lord Wilson have reached the same conclusion on the ultimate
question, namely whether a care order should be made.
139. I agree with them. CPR 52.11(3) provides that the appeal court will allow
an appeal where the decision of the lower court was “wrong”. As already
indicated, I appreciate that the courts have given the expression “wrong” a
different meaning in different contexts. However, in the context of care orders,
where the court must be satisfied that it is necessary make the order, the better
course is to ask whether the judge was wrong to make the order and not to ask
whether he was plainly wrong. In ordinary language there is a difference between
wrong and plainly wrong. If a plainly wrong test is adopted, it will be possible for
an appellate court to hold that the judge was wrong to make an adoption order but
was not plainly wrong to do so. How it might then be asked can it be said that it
was necessary to make the order? If it was a wrong order how can it have been a
necessary order? This consideration seems to me to argue strongly for the
approach adopted by Lord Neuberger and Lord Wilson. For simplicity, I would
apply the same test to decisions as to whether or not the threshold is crossed.
140. For the avoidance of doubt, as I see it, this does not mean that the judge will
only be held to be wrong if he or she has made a decision which no reasonable
judge could have come to. It means that the judge’s decision is wrong if the case is
in one of the three categories identified by Lord Neuberger in para 93 as (v), (vi)
or (vii). That is where the view expressed by the judge is one which the appellate
court is doubtful about but on balance concludes was wrong, or one which the
appellate court concludes was wrong or insupportable. These categories are to be
contrasted with Lord Neuberger’s categories (i), (ii), (iii) and (iv). They include
category (iv), where the appellate court cannot say whether the judge’s view was
right or wrong. In short, I agree with the approach proposed by Lord Neuberger in
paras 93 and 94.
141. I would only add that, as I read Lord Kerr’s judgment, he is of the opinion
that, if (contrary to his view) the exercise is that of an appellate court and not that
of a court determining the issue of necessity or proportionality for itself, the
correct test (absent an error of principle) is whether the decision of the judge was
wrong, not whether it was plainly wrong. If that is correct, there is a majority in
favour of the appellate approach (Lord Neuberger, Lord Wilson and myself) and,
on such an approach, a majority in favour of the test being whether the judge was
wrong (Lord Neuberger, Lord Kerr, Lord Wilson and myself).
142. This approach will simply mean that a care order can only be made where a
judge has held that such an order was necessary and the Court of Appeal (or this
court on appeal from the Court of Appeal) has declined to hold that the judge was
wrong. I would expect appeals to this court in adoption cases to be very rare
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indeed, since on this approach there will very rarely be any basis for a further
appeal to this court, with all the expense and delay such an appeal entails.
LADY HALE
143. This case raises some profound questions about the scope of courts’ powers
to take away children from their birth families when what is feared is, not physical
abuse or neglect, but emotional or psychological harm. We are all frail human
beings, with our fair share of unattractive character traits, which sometimes
manifest themselves in bad behaviours which may be copied by our children. But
the State does not and cannot take away the children of all the people who commit
crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses
or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in
Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that
the refusal of artificial insemination facilities to a convicted murderer and the wife
whom he had met while they were both in prison was a breach of their rights under
article 8 of the European Convention. How is the law to distinguish between
emotional or psychological harm, which warrants the compulsory intervention of
the State, and the normal and natural tendency of children to grow up to be and
behave like their parents?
144. Added to this is the problem that the harm which is feared may take many
years to materialise, if indeed it ever does. Every child is an individual, with her
own character and personality. Many children are remarkably resilient. They do
not all inherit their parents’ less attractive characters or copy their less attractive
behaviours. Indeed some will consciously reject them. They have many other
positive influences in their lives which can help them to resist the negative,
whether it is their schools, their friends, or other people around them. How
confident do we have to be that a child will indeed suffer harm because of her
parents’ character and behaviour before we separate them for good?
145. Perhaps above all, however, this case raises the issue of when it is proper
for an appellate court to interfere in the decisions of the trial judge who has heard
and read all the evidence and reached his conclusions after careful cogitation
following many days of hearing in court and face-to-face contact with the people
involved. We all agree that an appellate court can interfere if satisfied that the
judge was wrong. We also all agree that a court can only separate a child from her
parents if satisfied that it is necessary to do so, that “nothing else will do”. I have
come to the conclusion that the judge was indeed wrong to be so satisfied in this
case. As my fellow Justices have reached a different conclusion, I must explain
myself.
Page 50
The facts
146. We are concerned with a little girl, whom I shall call Amelia, who was born
on 22 April 2010 and is now nearly three years old. Her mother, Ms M, was born
in 1970 and is now 42 years old. M’s parents separated when she was around five
years old and when she was around seven years old her mother remarried Mr E,
who thus became M’s step-father. They had two sons, born in February 1985 and
1986, who are M’s half-brothers. In her early teens M, who had been living with
her grandparents, moved in with her mother and Mr E. In 1986, when M was 15
years old, Mr E began a sexual relationship with her, she became pregnant by him
and had an abortion. In 1987, M’s younger sister J, then aged 12, also moved in
with them. Within a remarkably short time J was the subject of care proceedings
arising from a major assault upon her in November 1987. The family left her
behind when they moved to Greece for several months in 1989. While there, M
again became pregnant by Mr E and had another abortion (she later had five
more). After the family returned to this country, M’s mother left Mr E and their
two sons, then aged five and three and a half, and she began divorce proceedings
in 1990. M (then 20) and the two boys remained living with Mr E.
147. On 17 March 1999, when M was aged 29, she and Mr E had a daughter,
whom I shall call Teresa. She is now nearly 14 years old. In 2003, M was
convicted of a series of frauds against financial institutions. She was sentenced to
two years’ imprisonment. In her defence, she alleged that the proceedings were a
conspiracy between a BT engineer and a police officer and that the police officer
had indecently assaulted her. She was prosecuted for and convicted of perverting
the course of justice and perjury in respect of the latter allegation and sentenced to
a further three years’ imprisonment, which was reduced to 27 months on appeal
because of her “serious psychological problems”. M now says that Mr E was the
prime mover behind all these offences, telling her how to accomplish the frauds,
taking her to the premises and waiting for her outside, and also concocting her
defence. Judge Cryan heard and accepted evidence from the barrister who
defended her at the time, to whom it was apparent that M was completely
dominated by Mr E. Judge Cryan held that Mr E “knew all along the nature of M’s
defence and, at least, was in league with her or, perhaps even, was the driving
force behind it” (Judgment of 27 April 2011, para 101). But he also held that M
was a “habitual and purposeful liar and an accomplished fraudster” (para 98).
148. In 2003, in the first criminal proceedings, Dr Spoto, presumably a
consultant forensic psychiatrist, prepared a report on M, suggesting a diagnosis of
Munchausen’s syndrome. We have not seen that report, but we do know from the
later reports that M has a long and complicated history of frequent complaints to a
large number of hospitals and medical practitioners for which a physical
explanation could not always be found. In 2004, there was a report in the second
criminal proceedings from Dr Taylor, who is a consultant forensic psychiatrist. M
Page 51
complained to him of sexual abuse by her own father but not by Mr E. His
diagnosis was somatisation disorder: that is, the repeated presentation of physical
symptoms, together with persistent requests for medical investigations, but where
any physical symptoms present do not explain the nature and extent of the
symptoms or the distress and preoccupation of the patient. M had had some real
disorders, but these were not such as to explain her repeated presentations with
complaints primarily of vaginal bleeding and abdominal pain. But he disagreed
with Dr Spoto: there was no definitive evidence that she had feigned or fabricated
symptoms, so he did not then diagnose Munchausen’s syndrome (or factitious
disorder as it is now known) still less Munchausen’s syndrome by proxy (which is
the reporting of feigned or fabricated symptoms in a child in order to secure
medical attention for the child).
149. In June 2009, M was admitted again to hospital for medical investigations
and this time she did not return to the family home with Mr E, her half-brothers
and her daughter, Teresa. She began to make serious allegations of abuse to the
Surrey police against Mr E. Mr E countered these with allegations against her. He
made an ex parte application to the court and obtained an interim residence order
in relation to Teresa. While M was accommodated in a refuge in Eastbourne, Mr E
traced her and harassed her by telephone call and text, necessitating her move to a
refuge in Hastings. While there, her younger half brother sought her out and
harassed her to come home, which Judge Cryan found highly likely to be a joint
exercise involving Mr E.
150. It was during this period that M met Amelia’s father, F, in Hastings and
soon began a relationship with him. He has a great many convictions for serious
criminal offences and has also used class A drugs. He has been a somewhat distant
father to his four older children. Amelia must have been conceived in August
2009. In November 2009, the couple moved with the support of the police to live
in the London Borough of Barnet. The first social work statement to the court
reports that M “accessed ante-natal care appropriately throughout her pregnancy”.
In January 2010, a midwife asked her about scarring on her body and M told
hospital staff that she was fleeing domestic violence, that she had a ten year old
daughter who was still living with her partner, and described 23 years of serious
abuse by Mr E.
151. In March 2010, Barnet midwifery services made a referral to Barnet social
services, because of their concerns about the wellbeing of M and the safety of
Teresa. Barnet began an initial assessment but although M gave information over
the phone she was reluctant to attend appointments or receive home visits. On 17
March 2010, West Sussex County Council held an initial child protection case
conference about Teresa. M’s solicitors later sent the Minutes of this case
conference to Barnet social services. From these they learned, not only of the
serious allegations which M was making against Mr E, but also of the (less
Page 52
serious) allegations which he was making against her, of her criminal record and
reported Munchausen’s syndrome.
152. Amelia was born on 22 April 2010 at only 32 weeks’ gestation and was
placed in the special baby care unit. On 6 May 2010, Barnet began care
proceedings in respect of her and asked for an interim care order. They did not
send the parents the usual pre-proceedings letter setting out their concerns and
asking for the parents’ response. But both the parents had been evasive and
obstructive with them. An interim care order was granted on 10 May 2010 and
Amelia was placed in foster care immediately on discharge from the hospital.
Greatly to her benefit, to the credit of the local authority and her foster carer, and
despite the barrage of complaints from the parents which they had to endure in the
early days, she has remained with the same foster carer ever since.
153. Given the complexity of the situation at that point, and the difficulties they
were having with the parents, it is understandable that the local authority applied
for an interim care order and that the court granted it. Their concerns will have
become even greater in September 2010, when Dr Bass, a consultant liaison
psychiatrist and renowned authority on somatisation and factitious illness
disorders, made his first report. He examined M’s medical history in great detail
and agreed with Dr Taylor that she satisfied the diagnostic criteria for somatisation
order. He also concluded from the “evidence that she exaggerates and possibly
fabricates her biographical history as well as her medical history” that she had
factitious disorder as well. So he wished to re-interview her after the fact-finding
hearing.
154. The fact-finding hearing began in March 2011 before Judge Cryan and
lasted 20 days. Technically, it was part of the private law proceedings concerning
Teresa, M having made a cross application for a residence order in October 2010.
West Sussex County Council took an active part in the proceedings but Barnet did
not. But it was contemplated that the care proceedings about Amelia would heard
together with the residence proceedings about Teresa. On 27 April 2011, Judge
Cryan delivered a long and detailed judgment considering the allegations made by
M against Mr E, by M’s mother against Mr E, by J against Mr E, and by Mr E
against M. He prefaced this judgment with a comment on “the forensic challenge”
with which we can all sympathise: “The history is chaotic and complex, and it is a
forensic challenge made all the more difficult by the unreliability of almost all of
the main witnesses, particularly [M and Mr E]” (para 7). In general, he concluded
that Mr E was a violent, controlling and bullying personality, who used violence
from time to time (para 172), and that M finally left home, not for fear of any
particular danger or increase in risk, but “rather the cumulative effect of highly
intolerable conduct” (para 175).
Page 53
155. His conclusions are summarised in a “Scott schedule” prepared by the
advocates, which the judge confirms is a reasonable reflection of his findings.
Items 1 – 14 are M’s allegations against Mr E. Items 1 – 3 are allegations of rape.
The judge found that there was a lengthy sexual relationship which began when M
was 15 years old, when she was not able to give her consent, she became pregnant
and had an abortion at his instigation to cover up that fact. After she reached 16,
their relationship was not to be characterised as rape “but was part of a
dysfunctional relationship in which he was the dominant partner”. Items 4 – 6 are
allegations of repeated violence towards her. No specific findings were made, save
where these were corroborated by other evidence (for example, of an assault
outside court during the criminal proceedings against her), but “Mr E was a
domineering, bullying and occasionally violent man who controlled the household
by these means”. He did not find that the extensive scarring to M’s body was
caused by the offensive actions of Mr E “but see above”. He did not find item 8,
that Mr E forced M to have sex with other people so that he could watch, proved.
But he did find proved item 7, that Mr E placed undue influence on M in respect of
the criminal proceedings; item 9, that Mr E made threats to kill M; item 10, that
Mr E would continue his abuse of M regardless of the presence of their child; item
11, that Mr E placed offensive material about M on her Facebook account; item
12, that Mr E constructed or used a website to post offensive photographs of M,
and make defamatory claims about her; item 13, that he harassed her after she left,
intending to “intimidate her into returning to the home of her child [Teresa] in
order that he could continue his abuse of her”; and item 14, that his actions “have
caused her physical and emotional injury, whilst living in his home she was in fear
for her own safety, and in fleeing from his home she has remained in fear for her
own safety as a result of his continuing threatening behaviour”.
156. Items 15 – 16 concerned his behaviour towards his wife, M’s mother; the
judge found that there was domination of and violence towards her, together with
some sexually aberrant behaviour. Items 17 – 26 concerned his very serious
physical and psychological abuse of J, all of which the judge found proved. In
addition the judge found that paedophile pornographic material had twice been
found on the family’s computer; on the second occasion M could not have been
involved as she had already left; on the first, he did not find that she had been
involved.
157. Items 27 to 34 consisted of Mr E’s allegations against M. Save for one (that
M had alleged that her brother had assaulted her in Hastings – which allegation
was true), none of these allegations were found to be proved. Mr E had engaged in
seriously dishonest conduct and lied to this and other courts, he had coached
[Teresa] into making false allegations against M, and persuaded his sons to give
false evidence on his behalf.
Page 54
158. The immediate result was that West Sussex County Council issued care
proceedings in relation to Teresa, initially seeking an interim supervision order,
but changing this to an interim care order in the light of Mr E’s attitude towards
them. In a second judgment, dated 24 May 2011, Judge Cryan granted that
application. The care proceedings relating to Teresa had not been completed when
the case came before us, but she has maintained the negative view of her mother
into which the judge found that she was coached by Mr E, and steadfastly refuses
to have anything to do with her. Dr Bentovim, a well-known child psychiatrist, has
produced two reports confirming the “brainwashing” of Teresa and the effect upon
her emotional development. Also in those proceedings there has been a report from
the Lucy Faithfull Foundation, dated 2 August 2011, pointing to the possible links
between the sexual and other abuse suffered by M and her somatisation disorder,
and taking the view that the risks of sexual abuse and of exposure to the effects of
the mother’s mental ill-health were currently low and could be managed.
159. Meanwhile, the care proceedings relating to Amelia continued. Dr Bass
produced his second report, in the light of the fact finding hearing, on 4 July 2011.
If M had ceased attending doctors with complaints of pelvic pain and vaginal
bleeding since September 2009, it did demonstrate an improvement. He confirmed
the diagnosis of somatisation disorder, but it was “difficult to be clear about”
evidence that she habitually exaggerates and lies about symptoms (para 5.2). His
main concern was that she had remained so long with an abusive partner and
reared her daughter in this abusive environment, so that he could not be confident
that she would keep a child in her care safe. There was also a risk that she might
expose Amelia to unnecessary medical attention and she could present a moral risk
to her child as a result of her habitual lying and deception (para 5.3).
160. Dr Taylor produced a second report on 12 July 2011. He accepted that there
were incidents providing some evidence of co-existing factitious disorder, but he
thought that her repeated presentations to doctors with unexplained symptoms
were “predominantly as a result of somatisation disorder rather than factitious
disorder” (para 7). He also had “some concerns extrapolating the presence of
factitious disorder to the risk of fabricated or induced illness in children” (para 8).
161. Dr Bass had said that a parenting assessment might help to identity any
abnormalities in M’s parenting style and attachment to her child. In September
2011, Barnet instructed the Marlborough Family Service to conduct a viability
assessment. Their parenting assessment co-ordinator, Ms Summer (a
psychologist), produced a report on 4 November 2011 concluding that further
assessment of either the mother or the father “would not assist the Court, because
neither of them can be relied upon to be honest in their reporting of events and to
work cooperatively with child protection workers and agencies”. The parents,
however, with the support of the child’s guardian, sought a further parenting
assessment from Dr Dale, an experienced social work consultant and researcher.
Page 55
He did not form such a negative view of the parents’ ability to co-operate. His two
reports, dated 20 January 2012 and 22 February 2012, concluded that Amelia
“should be reunified into the care of her parents in the context of a risk
management and family support programme without delay” (para 9.1). He
commented that “this case raises important social policy questions worthy of
public debate, about the nature and level of perceived risks of future emotional
harm required for a local authority to recommend to a court that an infant be
subject to compulsory adoption” (para 17.4).
162. The final hearing of these proceedings began on 5 March 2012. The
guardian, in her report dated 7 March 2012, was unable to make a recommendation
to the court. She understood the local authority’s concerns based upon the reports
of Dr Bass and Dr Taylor but she was unsure whether these were enough to
warrant permanent removal from the parents. She felt that Amelia had been lost in
the ongoing battle between the local authority and the parents. In an addendum
report after hearing the evidence of the experts and M, but not the father, she
concluded that adoption was too draconian and should only be utilised if there was
no alternative. She firmly believed that there was an alternative and recommended
a supervision order.
163. She acknowledged that M and F “may not be the very best parents”.
However, they had shown 100% commitment to contact, attending assiduously for
one and a half hours, five days a week. The quality of the contact was appropriate
and there were no major concerns from the supervisors. Amelia was clearly
attached to her parents and knows them as her mum and dad. The mother of the
father’s four daughters confirmed that he had always been a good, if often absent,
father. When he was with them he was caring, loving and attentive. There was also
nothing to suggest that M had taken Teresa to the doctor excessively.
The judgment
164. The hearing before Judge Cryan lasted some 15 days. Once again, his
judgment, dated 14 June 2012, is long (203 paragraphs), careful and detailed. He
reviews in detail the evidence about the father, about the relationship between the
father and the mother, about the conduct of the mother since Amelia’s birth, and
about the mother’s dishonesty. The most striking feature of the parents’
relationship was the strength of and consistency of their united wish to have their
daughter placed in their care. They had attended all the court hearings, all the
statutory meetings with the local authority, and every contact session. Throughout
the contact they had behaved unimpeachably towards their daughter. They each
have a warm and loving relationship with her. But M had not lost the tendency,
developed when living with Mr E, of seeking to “control by complaint” and make
Page 56
false allegations as a way of diverting attention. There were numerous examples of
the mother’s dishonesty throughout the evidence.
165. He then reviewed the expert evidence, beginning with that of Dr Bass and
Dr Taylor. Both maintained their diagnosis of somatisation disorder. Both
described the resulting risk to Amelia as “the intergenerational transmission of
abnormal health behaviour”. Dr Bass also considered that there was an
unquantifiable risk of Amelia being subject to excessive medicalisation (para 111).
However, there were no ongoing presentations at hospital or medicalisation of
stresses or emotional problems (para 114). Further, in cross examination, Dr Bass
had clearly modified his view of the mother’s factitious disorder and reached the
conclusion that it was “less severe than one normally sees”, putting it at mild to
moderate (para 117). But both experts agreed that her somatisation disorder
brought future risk and necessitated “a plan and strategy for the future to ensure
that all health care professionals are aware of [the mother’s] past and are able to
intervene to protect [Amelia] should the symptoms resurface” (para 114).
166. He next reviewed at length the evidence of risk management from Ms Nabi
of the Lucy Faithfull Foundation, Ms Summer of the Marlborough Family Service,
Dr Dale, and the guardian. He shared Ms Summer’s concerns about how any child
would cope with the high levels of dishonesty exercised by her mother (para 155).
He noted that “even [Dr Dale] considers that here there is a risk which would
require management by a risk management and family support programme” (para
177). The guardian, although firmly of the view that adoption was the wrong order
here, had modified her recommendation from a supervision order to placement
with the parents under a care order (paras 180, 182). Overall, he found the
guardian “an unimpressive witness whose input to this complex case was little
short of superficial” (para 188).
167. Turning to his conclusions, he found that the threshold required by section
31(2) of the Children Act 1989 “has been crossed, not perhaps in the most extreme
way that is seen in some cases, but crossed it has been” (para 189). He did not
there spell out the nature and degree of the future harm which Amelia would be
likely to suffer if an order were not made, or the degree of likelihood that such
harm would materialise, but referred back to the risk identified by Dr Bass and Dr
Taylor and to Ms Summer’s concerns about the mother’s willingness to leave
Teresa exposed to the risks of living with Mr E and her “quite exceptional
proneness to lie”.
168. Having found the threshold crossed, he went on to consider Amelia’s
welfare in terms of the checklist of factors set out in section 1(3) of the 1989 Act.
Under her “physical, emotional and educational needs” he set out the perceived
risks in clearer terms than he had done when finding the threshold crossed:
Page 57
“The concerns of the local authority focus primarily on the emotional
harm to [Amelia] likely to be caused by the Mother’s somatisation
disorder and the factitious illness disorder. Those emotional risks are
coupled with the concerns expressed by Drs Bass and Taylor and by
Ms Summer, which I have accepted, about the parents’ personality
traits, and her mother’s vulnerability to accommodation disorder, her
mother’s lying and her father’s active, but less chronic tendency to
dishonesty and vulnerability to the misuse of drugs. Whilst primarily
these are engines for emotional harm, it is submitted, and I accept,
that physical harm to [Amelia] cannot be discounted, for example by
over treatment or inappropriate treatment by doctors” (para 192).
169. As to what to do about it, he rejected the views of Dr Dale and the guardian.
Dr Dale’s criticisms of the local authority and Ms Summer had been unfair. He
considered that the parents were “controlling and wilful”. Their unacceptable
behaviour was not merely reactive to the mishandling of events by others. He
concluded (para 197):
“Ultimately, I find that I am persuaded by the other group of
witnesses that what the evidence clearly demonstrates is that these
parents do not have the capacity to engage with professionals in such
a way that their behaviour will be either controlled or amended to
bring about an environment where [Amelia] would be safe and
protected from emotional and/or physical harm identified by Drs
Bass and Taylor”.
170. The father would not be able to protect Amelia from the risks because he
simply did not accept them. Amelia could not be placed with her father alone
because there was a high probability that the parents would not separate in any
meaningful sense. There would be no way in which the situation could be
effectively monitored (para 199). In any event, he had very serious reservations
about the father, who “has lived a turbulent life with a very serious history of
criminality, imprisonment and drug abuse” (para 200). Adjournment to make
further enquiries of the extended paternal family would simply delay the inevitable
(para 201). So he was left with the local authority’s care plan as the only viable
option (para 203).
The Court of Appeal
171. On appeal, 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
Page 58
criticisms were made of the judge’s treatment of the evidence, in particular of his
failure to deal with the detailed criticisms of Dr Bass’s diagnosis of factitious
illness, with the numerous factual errors and invalid assumptions in Ms Summer’s
evidence, with the detailed rebuttal of and explanation of the allegations in relation
to M’s dishonesty and lack of cooperation, and on the other hand to refer to the
Lucy Faithfull Foundation’s view that M did not present a risk or to mention the
social worker’s evidence that there was no physical, sexual or educational risk to
the child, and no suggestion that the parents would not offer her adequate physical
care and emotional warmth, and that the parents’ attitude had never prevented her
from undertaking her work properly with Amelia. The father also had a number of
criticisms of the judge’s decision not to allow him to be assessed with a view to
caring for Amelia on his own.
172. It is no doubt an indication of the complex and troubling nature of this case
that Black LJ, who delivered the principal judgment, took enormous care in
reviewing the evidence and considering the detailed criticisms made by the parents
of the judge’s approach to that evidence: [2012] EWCA Civ 1475. She reminded
herself that the Court of Appeal must avoid approaching the case as if it were
making the determination at first instance (para 112). She took the view that the
judge was aware of the need to separate the issue of what harm there actually was
from the question of whether the parents would cooperate sufficiently with social
services. He had intervened to explain to the social worker that it did not matter
how unco-operative parents were with social services if there was no risk against
which social services needed to guard (para 121).
173. The harm was of two kinds: that stemming from the mother’s illness-related
behaviour (para 122) and that stemming from her chronic lying and the father’s
dishonesty (para 123). Black LJ attached particular importance to the mother’s
position in Mr E’s household, where she could not argue that her role had been
entirely inert – she was a habitual and purposeful liar and an accomplished
fraudster and her use of complaining tactics since she left Mr E had shown her to
be his “accomplished pupil”. Her vindictive behaviour when a relative of the father
had withdrawn her offer of help was “redolent of the E household” (para 125).
Counsel had argued that these non-medical risks were “not what the Children Act
was driving at”, but she agreed with the local authority that it was a question of
degree which the judge was best placed to assess and make the necessary value
judgment (para 128). She concluded “In short, the catalogue of problems identified
by the judge went beyond the routine; the problems were undoubtedly more than
commonplace human failure or inadequacy” (an echo of the words of Hedley J
quoted at para 182 below). The judge was entitled to conclude that any strategy to
manage the risks would have to go beyond the watchful eye of the GP and involve
social services and that the parents would not be able to engage with professionals
to ensure that Amelia was safe from harm (para 130). She went on to reject the
detailed criticisms made of the judge’s approach to some of the evidence.
Page 59
174. Lewison and Rix LJJ were clearly deeply troubled by the case. Lewison LJ
was concerned about proportionality: here was a child who had not suffered any
harm, who had a warm and loving relationship with her parents; the threshold had
not been crossed in the most extreme way, but the order made was the most
extreme that could have been made (para 142). But their task was not to make the
decision but to examine whether it fell “outside the generous ambit within which
reasonable disagreement is possible” so he would not push his doubts to dissent
(para 148). Rix LJ also acknowledged the difficulties in the case, but agreed that
one should trust the judge of trial.
175. 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” (para 150).
This appeal
176. It is not the task of this court to review the factual findings of the judge in
order to decide whether he was entitled to make them in the light of the evidence
before him. The Court of Appeal has already performed that task with conspicuous
care. This Court gave permission to appeal because of the general public
importance of, and concern about, the point made by Rix LJ. On giving
permission, the Court identified four specific, though inter-related, questions of
law:
(i) the meaning of significant harm;
(ii) the relationship between the nature and gravity of the harm which is
feared and the degree of likelihood of that harm being suffered in the future;
(iii) the proportionality of a care order with a care plan for adoption in a
case such as this; and
(iv) the proper approach of the Court of Appeal to a finding that the
threshold has been crossed, and (although this was not expressly referred to)
to the issue of proportionality.
Page 60
The first two questions relate to the “threshold criteria” in section 31(2) of the
Children Act 1989, the third relates to the approach of the court once the threshold
has been crossed, and the fourth to the appellate function.
The threshold
177. The threshold set by section 31(2) of the Children Act 1989 requires that
the court be satisfied:
“(a) that the child concerned is suffering, or is likely to suffer,
significant harm; and (b) that the harm, or likelihood of harm, is
attributable to – (i) the care given to the child, or likely to be given to
him if an order were not made, not being what it would be
reasonable to expect a parent to give to him; or (ii) the child’s being
beyond parental control.”
178. By section 31(9) “‘harm’ means ill-treatment or the impairment of health or
development, including, for example, impairment suffered from seeing or hearing
the ill-treatment of another”; “‘ill-treatment’ includes sexual abuse and forms of
ill-treatment which are not physical’”; “‘health’ means physical or mental health”;
and “‘development’ means physical, intellectual, emotional, social or behavioural
development”. There is no definition of “significant”, but section 31(10) provides
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”. Thus, while the
standard of parenting expected by section 31(2)(b) is the objective standard of a
reasonable parent, the level of development expected of the child is the subjective
level to be expected of a child like him. Furthermore, as Munby J said in In re K, A
Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at
para 26, “the court must always be sensitive to the cultural, social and religious
circumstances of the particular child and family”.
179. Since well before the Children Act came into force, the courts have
recognised that there is a line to be drawn between parents whose personal
characteristics mean that they may be less than perfect parents and parents who
may cause harm to their children. Lord Templeman put the point this way in his
well-known words in In re KD (A Minor)(Ward: Termination of Access) [1988]
AC 806, 812:
“The best person to bring up a child is the natural parent. It matters
not whether the parent is wise or foolish, rich or poor, educated or
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illiterate, provided the child’s moral and physical health are not
endangered. Public authorities cannot improve on nature.”
If, by that last sentence, Lord Templeman was making a factual statement, then
some might disagree: if local authorities remove children from unsatisfactory
parents at birth and swiftly place them with highly satisfactory adoptive parents
they can undoubtedly improve on nature. But in my view Lord Templeman was
making a normative statement: public authorities have no right to improve on
nature.
180. That thought has been followed through in numerous cases since. As Wall
LJ pointed out in Re L (Children) (Care Proceedings: Significant Harm) [2006]
EWCA Civ 1282, [2007] 1 FLR 1068, at 1084, “There are, of course, many
statements in the law reports warning of the dangers of social engineering”, citing
in particular Butler-Sloss LJ in Re O (A Minor) (Custody: Adoption) [1992] 1 FLR
77, 79:
“If it were a choice of balancing the known defects of every parent
with some added problems that this father has, against idealised
perfect adopters, in a very large number of cases, children would
immediately move out of the family circle and towards adopters.
That would be social engineering . . .”
181. Re L is an important case because it concerned parents with learning
difficulties, very considerable in the case of the mother. The judge had found
significant harm on the basis of the report of a psychologist who had not been
asked to assess this. She had acknowledged that there was no obvious harm, no
explicit malicious abuse or extreme abuse: “On the contrary my concern in this
family relates to the more subtle and ambiguous consequences on the children
flowing from parental deficiencies”. Wilson LJ commented: “So which was it?
‘Significant harm’ or ‘subtle and ambiguous consequences’? Speaking for myself,
I regard the two concepts as mutually exclusive” (para 31). For these and many
other concerns about the report, the case was sent back to be re-heard in the High
Court. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, at 2063, Hedley J,
having quoted Lord Templeman, continued (para 50):
“It follows inexorably from that, that society must be willing to
tolerate very diverse standards of parenting, including the eccentric,
the barely adequate and the inconsistent. It follows too that children
will inevitably have both very different experiences of parenting and
very unequal consequences flowing from it. It means that some
children will experience disadvantage and harm, while others
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flourish in atmospheres of loving security and emotional stability.
These are the consequences of our fallible humanity and it is not the
provenance [semble: province] of the state to spare children all the
consequences of defective parenting.”
182. But clearly we do remove some of those children. The difficulty is to
identify what it is that tips the case over the threshold. Although every parent,
every child, every family is different, and, as Hedley J put it, “significant harm is
fact specific and must retain the breadth of meaning that human fallibility may
require of it”, there must be some consistency in the approach of both local
authorities and the courts. Hedley J went on say that “it must be something
unusual; at least something more than commonplace human failure or
inadequacy”. It does appear that he considered that the children were suffering,
and likely to suffer, some harm to their intellectual development as a result of their
parents’ inadequacies, but that it was not of a character or significance to justify
the compulsory intervention of the state.
183. The Court of Appeal wrestled with the problem of separating “harm” from
“significant harm” in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1
FLR 431. The trial judge had found that although the parents had ill-treated
another child, whose presence in their household remained something of a
mystery, their own children were well cared-for, healthy, well-nourished and had
strong bonds with their parents. The eldest child had been slapped, kicked and hit
on the head by one or other of her parents. But that was not significant harm.
Wilson LJ, at para 29, quoted Booth J in Humberside County Council v B [1993] 1
FLR 257, at p 263:
“Significant harm was defined by Miss Black, in accordance with the
dictionary definition, first as being harm that the court should
consider was either considerable or noteworthy or important. Then
she expressed it as harm which the court should take into account in
considering a child’s future.”
Wilson LJ went on to comment that while “I might not have expressed myself in
quite such broad terms, they certainly foreshadow the view of Lord Nicholls,
expressed three years later, that, in relation to the likelihood of harm, the threshold
is set at a comparatively low level”.
184. At paragraph 51, Ward LJ emphasised, correctly in my view, that Lord
Nicholls’ remark, in In re H [1996] AC 563, was directed, not at the threshold as a
whole, nor at the threshold of significant harm, but at the threshold of likelihood of
harm in the future. Lord Nicholls said nothing in that case, or in any later case, to
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suggest that the threshold of significance was comparatively low. Ward LJ went
on, at para 54, to express the difference between “harm” and “significant harm”
thus:
“Given the underlying philosophy of the Act, the harm must, in my
judgment, be significant enough to justify the intervention of the
state and disturb the autonomy of the parents to bring up their
children by themselves in the way they choose.”
185. The point can fairly be made, both of this definition and of the second of the
two definitions suggested by Miss Black to Booth J (para 183 above), that they are
somewhat circular: the state is justified in intervening if the harm is sufficient to
justify the state’s intervening. But it serves to make the point that not all harm
which children may suffer as a result of their parents’ care falling short of what it
is reasonable to expect is significant for this purpose. The dictionary definition,
“considerable, noteworthy or important”, is to my mind more helpful. It chimes
with the Guidance given by the Department of Health and Social Security when
the Act first came into force: “It is additionally necessary to show that the illtreatment is significant, which given its dictionary definition means considerable,
noteworthy or important” (para 3.19). There would be no point in the threshold if it
could be crossed by trivial or unimportant harm.
186. As to the suggestion made by Ward LJ (at para 54), that article 8 of the
European Convention on Human Rights does “inform” the meaning of
“significant”, I agree that it is only the court’s order, and not its finding that the
threshold has been crossed, which constitutes an interference with the article 8
right. However, the reason why the threshold is crossed forms part of the court’s
reasons for making the order, and these must be “relevant and sufficient”. It is not
sufficient that the child would be better off in another family. That is the reason for
the existence of the threshold (which was substituted for the more precise criteria
laid down in the Children and Young Persons Act 1969 and the Child Care Act
1980). Furthermore, there is a relationship between this debate and the approach
taken to proportionality, discussed in paragraph 197 below, which I believe to be
common ground between us. If permanent removal is proportionate if it is the only
way of avoiding the identified risk of harm, then it is also important that the
threshold of harm is not set at too low a level, for otherwise the reasons for
removal will not be sufficient: say, for example, that it is highly likely that a child
will turn into an unhealthy couch potato like her parents, and only permanent
removal could reliably prevent this, it would nevertheless not be a justifiable
interference with family life to permit this.
187. Added to the difficult question of identifying significant harm is the
question of identifying the degree of likelihood that such harm will be suffered in
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the future which is necessary to take the case over the threshold. It was held, albeit
strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC
563 that “likely” does not mean “probable” or “more likely than not”. It means, in
Lord Nicholls’ well-known words, “a real possibility, a possibility that cannot
sensibly be ignored having regard to the nature and gravity of the feared harm in
the particular case” (at 585F). That standard has been adopted or approved in
numerous later cases, including recently in this court in In re J (Children) (Care
Proceedings: Threshold Criteria) [2013] UKSC 9; [2013] 2 WLR 649. It is in this
respect, and this respect alone, that Lord Nicholls observed that the threshold is
“comparatively low”.
188. The reason for adopting a comparatively low threshold of likelihood is
clear: some harm is so catastrophic that even a relatively small degree of
likelihood should be sufficient to justify the state in intervening to protect the child
before it happens, for example from death or serious injury or sexual abuse. But it
is clear that Lord Nicholls did not contemplate that a relatively small degree of
likelihood would be sufficient in all cases. The corollary of “the more serious the
harm, the less likely it has to be” is that “the less serious the harm, the more likely
it has to be”.
189. Of course, another reason for adopting a test of “real possibility”, rather
than “more likely than not”, is that it is extremely difficult to predict the future and
to do so with the sort of accuracy which would enable a court to say that it was
more likely than not that a parent would harm a child in the future. Once again,
this is a particular problem with emotional or psychological harm, which may take
many years to manifest itself. The Act does not set limits upon when the harm may
be likely to occur and clearly the court is entitled to look to the medium and longer
term as well as to the child’s immediate future.
190. However, the longer term the prospect of harm, the greater the degree of
uncertainty about whether it will actually happen. The child’s resilience or
resistance, and the many protective influences at work in the community, whether
from the wider family, their friends, their neighbourhoods, the health and social
services and, perhaps above all, their schools, mean that it may never happen. The
degree of likelihood must be such as to justify compulsory intervention now, for
there is always the possibility of compulsory intervention later, should the “real
possibility” solidify.
191. The second element in the threshold sheds some light upon these
questions. The harm, or the likelihood of harm, must be “attributable to the care
given to the child, or likely to be given to him if an order were not made, not being
what it would be reasonable to expect a parent to give to him” (s 31(2)(b)). This
reinforces the view that it is a deficiency in parental care, rather than in parental
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character, which must cause the harm. It also means that the court should be able
to identify what that deficiency in care might be and how likely it is to happen.
192. Allied to this is the definition of “harm” itself (see para 178 above). It is
wide, but it is not infinite. The focus is upon the child suffering that harm, so upon
the child suffering ill-treatment or suffering the impairment of her health or
development. Ill-treatment will generally involve some active conduct, whether
physical or sexual abuse, bullying or other forms of active emotional abuse.
Impairment may also be the result of active conduct towards the child, but it could
also be the result of neglecting the child’s needs, for food, for warmth, for shelter,
for love, for education, for health care. Generally speaking, however, the harm is
likely to be the result of some abusive or neglectful behaviour towards the child.
But this is not invariably the case, as is shown by the inclusion, by way of
example, “impairment suffered from seeing or hearing the ill-treatment of
another”. We now know that serious harm may be done to the development of
children who see or hear domestic violence between their parents.
193. I agree entirely that it is the statute and the statute alone that the courts
have to apply, and that judicial explanation or expansion is at best an imperfect
guide. I agree also that parents, children and families are so infinitely various that
the law must be flexible enough to cater for frailties as yet unimagined even by the
most experienced family judge. Nevertheless, where the threshold is in dispute,
courts might find it helpful to bear the following in mind:
(1) 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.
(2) 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.
(3) Significant harm is harm which is “considerable, noteworthy or
important”. The court should identify why and in what respects the harm is
significant. Again, 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.
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(4) The harm has to be attributable to a lack, or likely lack, of reasonable
parental care, not simply to the characters and personalities of both the child
and her parents. So once again, the court should identify the respects in
which parental care is falling, or is likely to fall, short of what it would be
reasonable to expect.
(5) Finally, where harm has not yet 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
amount to a lack of reasonable parental 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 In re J [2013] 2 WLR 649.
Proportionality
194. Once the threshold is crossed, section 1(1) of the Children Act requires that
the welfare of the child be the court’s paramount consideration. In deciding what
will best promote that welfare, the court is required to have regard to the
“checklist” of factors in section 1(3). These include, at (g), the range of powers
available to the court in the proceedings in question. By section 1(5), the court
must not make any order unless it considers that doing so would be better for the
child than making no order at all. The Act itself makes no mention of
proportionality, but it was framed with the developing jurisprudence under article
8 of the European Convention on Human Rights very much in mind. Once the
Human Rights Act 1998 came into force, not only the local authority, but also the
courts as public authorities, came under a duty to act compatibly with the
Convention rights.
195. It is well-established in the case law of the European Court of Human
Rights that “the mutual enjoyment by parent and child of each other’s company
constitutes a fundamental element of family life, and domestic measures hindering
such enjoyment amount to an interference with the right protected by article 8 of
the Convention” (Johansen v Norway (1996) 23 EHRR 33, among many others).
However, such measures may be justified if aimed at protecting the “health or
morals” and “the rights and freedoms” of children. But they must also be
“necessary in a democratic society”. The court has recently summed up the
principles in the context of an order freeing a child for adoption, in R and H v
United Kingdom (2011) 54 EHRR 28, [2011] 2 FLR 1236, at para 81:
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“In assessing whether the freeing order was a disproportionate
interference with the applicants’ article 8 rights, the court must
consider whether, in the light of the case as a whole, the reasons
adduced to justify that measure were relevant and sufficient for the
purposes of paragraph 2 of article 8 of the Convention (see, among
other authorities, K and T v Finland (2001) 36 EHRR 255, para 154).
. . . The court would also recall that, while national authorities enjoy
a wide margin of appreciation in deciding whether a child should be
taken into care, stricter scrutiny is called for as regards any further
limitations, such as restrictions placed by those authorities on
parental rights of access, and as regards any legal safeguards
designed to secure the effective protection of the right of parents and
children to respect for their family life. Such further limitations
entail the danger that the family relations between a young child and
one or both parents would be effectively curtailed (see Elsholz v
Germany (2000) 34 EHRR 1412, para 49, and Kutzner v Germany
(2002) 35 EHRR 653, para 67). For these reasons, measures which
deprive biological parents of the parental responsibilities and
authorise adoption should only be applied in exceptional
circumstances and can only be justified if they are motivated by an
overriding requirement pertaining to the child’s best interests (see
Aune v Norway (Application No 52502/07) 28 October 2010, para
66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis
mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para
118).”
196. The Strasbourg court itself has consistently applied a stricter standard of
scrutiny to the national courts’ decisions to restrict or curtail contact between
parent and child than it has to the decision to take a child into care in the first
place. This is because, as stated, for example, by the Grand Chamber in K and T v
Finland (2001) 36 EHRR 255, at para 178, there is:
“. . . the guiding principle whereby a care order should in principle
be regarded as a temporary measure, to be discontinued as soon as
circumstances permit, and that any measures implementing
temporary care should be consistent with the ultimate aim of
reuniting the natural parents and the child. The positive duty to take
measures to facilitate family reunification as soon as reasonably
feasible will begin to weigh on the responsible authorities with
progressively increasing force as from the commencement of the
period of care, subject always to its being balanced against the duty
to consider the best interests of the child.”
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197. Thus it is not surprising that Lewison LJ was troubled by the proportionality
of planning the most drastic interference possible, which is a closed adoption, in a
case where the threshold had not been crossed in the most extreme way (see para
174 above). However, I would not see proportionality in such a linear fashion, as if
the level of interference should be in direct proportion to the level of harm to the
child. There are cases where the harm suffered or feared is very severe, but it
would be disproportionate to sever or curtail the family ties because the authorities
can protect the child in other ways. I recall, for example, a case where the mother
was slowly starving her baby to death because she could not cope with the
colostomy tube through which the baby had to be fed, but solutions were found
which enabled the child to stay at home. Conversely, there may be cases where the
level of harm is not so great, but there is no other way in which the child can be
properly protected from it.
198. Nevertheless, it is quite clear that the test for severing the relationship
between parent and child is very strict: only in exceptional circumstances and
where motivated by overriding requirements pertaining to the child’s welfare, in
short, where nothing else will do. In many cases, and particularly where the feared
harm has not yet materialised and may never do so, it will be necessary to explore
and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at
para 34,
“Intervention in the family may be appropriate, but the aim should be
to reunite the family when the circumstances enable that, and the
effort should be devoted towards that end. Cutting off all contact and
the relationship between the child or children and their family is only
justified by the overriding necessity of the interests of the child.”
The appellate function
199. The judgments involved in care proceedings are of (at least) three different
types. First are the decisions on the facts: for example, who did what to whom and
in what circumstances. Second is the decision as to whether the threshold is
crossed, which involves the various questions set out in para 193 above. In In re
MA (Care: Threshold) [2010] 1 FLR 431, at para 56, Ward LJ was inclined to
think that this was a value judgment rather than a finding of fact; and in the Court
of Appeal in this case, Black LJ was also inclined to categorise it “as a value
judgment rather than as a finding of fact or an exercise of discretion” (para 9). I
agree and so, I think, do we all. It is certainly not a discretion and it will entail
prior findings of fact but in the end it is a judgment as to whether those facts meet
the criteria laid down in the statute. Third is the decision what order, if any, should
be made. That is, on the face of it, a discretion. But it is a discretion in which the
requirements, not only of the Children Act 1989, but also of proportionality under
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the Human Rights Act 1998, must be observed. What is the role of an appellate
court in relation to each of these three decisions?
200. As to the first, the position is clear. The Court of Appeal has jurisdiction to
hear appeals on questions of fact as well as law. It can and sometimes does test the
judge’s factual findings against the contemporaneous documentation and inherent
probabilities. But where findings depend upon the reliability and credibility of the
witnesses, it will generally defer to the trial judge who has had the great advantage
of seeing and hearing the witnesses give their evidence. The question is whether
the findings made were open to him on the evidence. As Lord Hoffmann explained
in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is “based
upon much more solid grounds than professional courtesy”. Specific findings of
fact are “inherently an incomplete statement of the impression which was made
upon him by the primary evidence. His expressed findings are always surrounded
by a penumbra of imprecision as to emphasis, relative weight, minor qualifications
and nuance . . .” In child cases, as Lord Wilson points out, there is the additional
very important factor that the court’s role is as much to make predictions about the
future as it is to make findings about the past.
201. As to the second, in Piglowska v Piglowski [1999] 1 WLR 1360, 1371, Lord
Hoffmann cautioned the same appellate restraint in relation to the trial judge’s
evaluation of the facts as to his factual findings themselves. In In re MA, Wilson
LJ would have allowed the appeal “on the stark basis that, on the evidence before
him, it was not open to Roderic Wood J, of all people, to reach the conclusion
which he did” (para 34). Hallett LJ considered the question to be one of fact and
was “not persuaded that the judge was plainly wrong” to decline to find that the
threshold has been crossed (para 44). Ward LJ, having inclined to the view that it
was a value judgment rather than a finding of fact, held that “it does not matter for
the test this court has to apply is essentially similar, namely whether he has
exceeded the generous ambit within which there is room for reasonable
disagreement” (para 56). In this case, Black LJ adopted the approach of Ward LJ
in In re MA (para 9).
202. In fact, the “generous ambit” or “plainly wrong” tests were developed, not
in the context of value judgments such as this but in the context of a true
discretion. In G v G (Minors: Custody Appeals) [1985] 1 WLR 647, Lord Fraser of
Tullybelton approved the statement of Asquith LJ in Bellenden (formerly
Satterthwaite) v Sattherthwaite [1948] 1 All ER 343, at 345:
“It is, of course, not enough for the wife to establish that this court
might, or would, have made a different order. We are here concerned
with a judicial discretion, and it is of the essence of such a discretion
that on the same evidence two different minds might reach widely
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different decisions without either being appealable. It is only where
the decision exceeds the generous ambit within which reasonable
disagreement is possible, and is, in fact, plainly wrong, that an
appellate body is entitled to interfere.”
203. In relation to evaluating whether the threshold has been crossed, we are all
agreed that the proper appellate test is whether the trial judge was “wrong” to
reach the conclusion he did. This is the test laid down in CPR 52.11(3) and there is
no reason why it should not apply in this context. “Plainly” adds nothing helpful,
unless it is simply to explain that the appellate court must be in one of the three
states of mind described by Lord Neuberger at paragraph 93 considering the trial
judge’s decision (v) on balance wrong, (vi) wrong or (vii) insupportable.
204. Lord Neuberger, Lord Clarke and Lord Wilson would adopt the same
approach to the question of proportionality. The question here is what section 6(1)
of the Human Rights Act requires of appellate courts. This is not a case such as R
(Daly) v Secretary of State for the Home Department [2001] 2 AC 532, in which
the courts were engaged in the careful scrutiny of the proportionality of a decision
which Parliament had given to the executive to make. The courts are the primary
decision makers in care cases. They are not conducting a judicial review of the
local authority’s decisions. Local authorities have a range of statutory duties to
help children in need and their families, to investigate and to take steps to protect
children from harm. It is right, it seems to me, that they should generally follow a
precautionary principle. But they do not have the power to intervene compulsorily
between parent and child without the sanction of a court order. The courts are the
guardians of the rights of both the children and their parents. Hence the courts, as
public authorities, have the statutory duty under section 6(1) not to act
incompatibly with the Convention rights. This means that the courts have the duty
to assess the proportionality of the proposed interference for themselves.
205. Does this mean that an appellate court has the same duty to assess the
proportionality of the proposed interference as does the court at first instance? This
is a difficult question, but it seems to me that if the court has the duty to assess the
proportionality of the decisions of a board of school governors, or of the Secretary
of State, or of the immigration appellate authorities, it must a fortiori have the duty
to assess the proportionality of the decisions of the trial judge in a care case. It
must of course give due weight to the enormous benefit which he has had of
reading and hearing all the evidence, of assessing not only the credibility and
reliability of the witnesses but also their characters and personalities and the
professionalism of the professional witnesses, of living and breathing the case over
so many days and weeks. And it must be alive to the risks of being over-critical of
the way in which a judge has expressed himself, bearing in mind the wise words of
Lord Hoffmann in Biogen quoted earlier. But the court which makes the final
decision is the public authority which is responsible for the invasion of Convention
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rights. I agree with Lord Kerr that it must decide for itself whether the order will
be compatible with those rights. But I also agree that this will only make a
difference in cases within Lord Neuberger’s category (iv), where the appellate
judge cannot say whether the trial judge was right or wrong.
Application to this case
206. The judge collected all his self-directions on the law at the beginning of his
judgment, including references to In re H, Re MA, Re L, Re B, and Re C and B. In
themselves these directions can scarcely be faulted. But when he gave his reasons
for concluding that threshold was crossed he did not clearly spell out (i) what the
feared harm was, (ii) whether it was significant, and (iii) how likely it was to
happen. Both in the Court of Appeal and in this court it was necessary for us to try
and do so.
(1) The nature of the harm feared
207. Black LJ was alive to the need to separate the nature of the harm feared
from the question of whether the parents would co-operate with social services
(para 121). The parents have no legal duty to co-operate with social services (as
opposed to the health and educational services) unless the threshold is crossed. She
identified two kinds of harm :
(i) that M’s medical behaviour would reassert itself and that Amelia would
therefore be harmed by the “intergenerational transmission of abnormal health
behaviour” and by “excessive medicalisation” (para 122); and
(ii) that Amelia would be confused and experience conflicting loyalties as a
result of her mother’s (and to a lesser extent her father’s) chronic lying and
dishonesty and her mother’s use of complaining tactics learned in the household of
Mr E (paras 123 to 125).
(2) Is it significant?
208. Black LJ considered that this was a matter of degree, which the trial judge
was best placed to assess (para 128). For my part, I would draw a distinction
between the harm stemming from over-medicalisation and the other harms
identified. A child whose mother actively feigns or fabricates symptoms
undoubtedly suffers significant harm, but that was not the harm which the judge
found here. A child whose mother exaggerates and sees the worst and thereby
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exposes her to unnecessary medical investigations and even treatment may well
suffer significant harm. But it will be a question of degree, depending upon its
frequency and severity. Many of us are anxious mothers and take our children to
the doctor far more often than we should. Some of us, of course, are not anxious
enough and do not take our children to the doctor when we should. There was
evidence that the mother was over-anxious during the early days when Amelia was
in foster care and that she over-dramatised an occasion when Amelia was taken to
hospital with breathing difficulties. On the other hand, there was no evidence at all
that her older daughter had been subject to excessive medicalisation, despite the
fact that the mother was then much more actively engaged in her own overmedicalisation. It is clear that the judge did not place a great deal of weight upon
this feature, simply commenting that “it cannot be discounted” (para 192).
209. The other harms, it seems to me, present much more of a problem. They are
indeed the harms which stem from parental character defects. In relation to the
mother’s somatisation disorder, the harm would be the emotional (and possibly
also physical) damage which Amelia would suffer from copying her mother’s
behaviour. In relation to the parents’ dishonesty and use of complaining tactics,
the harm would be the emotional damage which Amelia would suffer, either from
copying this behaviour, or from the confusion and divided loyalties resulting from
her growing realisation that her mother’s version of the truth differed from her
own. I accept entirely that the significance of such harms must be a question of
degree. I also accept that the mother’s problems are indeed out of the ordinary. But
then so were the learning difficulties of the parents in Re L. Put at their highest,
these do not seem to me to come very high in the hierarchy of bad behaviours
which children may learn from their parents. The father’s serious criminality,
including violence, and drug abuse would come much higher.
(3) How likely are they to be suffered?
210. The issue of significance and the issue of likelihood are inter-related. It is
very difficult, reading the judgment of the judge, to get any impression of how
likely he thought it was that these harms would materialise. I have the impression
that he did not think it very likely, though he could not discount, that Amelia
herself would be subject to over-medicalisation. It is difficult to gauge the
likelihood of the other risks materialising, bearing in mind that the mother’s
behaviour had been different since extricating herself from the household of Mr E,
and the other protective factors there might be in play. It is one thing to say that the
father does not take the local authority’s concerns seriously enough. It is another
thing to say that this father, who is a very different person from Mr E, would not
be able to counteract some of the prospective harm. In any event it is clear that
these are subtle and slowly developing harms which will only materialise, if they
materialise at all, in the longer term.
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211. It is possible to get too close to the trees. I have the gravest doubts as to
whether, properly analysed, the harm which is feared here is of sufficient
significance or sufficient likelihood to justify a finding that the threshold has been
crossed. It is difficult to discern whether the judge ever asked himself the question
of degree, particularly in relation to the degree of likelihood. It is one thing to find
that there are risks which the professionals have identified. It is another thing to
find that those risks amount to a sufficient likelihood of sufficiently significant
harm to meet the statutory threshold for compulsory intervention in the family.
212. However, I have to bear in mind that this extremely careful and
experienced judge spent many weeks with this case. He will undoubtedly have
acquired a “feel” for those questions of degree which no appellate judge could
possibly acquire however close her reading of the appellate papers. Provided that
we can be satisfied that he asked himself the right questions, it would be difficult
indeed to interfere with his assessment. The questions which the judge must ask
himself are different from the questions which the professionals must ask
themselves. I would have preferred him to spell out his conclusions more clearly
and confronted head on the question posed by Hedley J in Re L. But it has to be
accepted that the behaviours which caused concern were both extremely unusual
and unusually persistent.
213. No-one wants to compound the abuse which a parent, often a mother, has
suffered in her own childhood by finding that that abuse renders her unable to
parent her own children safely. It would be possible to see this mother wholly as a
victim – the victim of the abuse which she suffered in childhood, from which her
own mother was not able to protect her, and the victim of the relationship with her
wicked stepfather which was established while she was still a child and from
which she was unable to extricate herself for more than 20 years. But that is not
the whole picture. As Black LJ identified, although she deserves our sympathy for
what she has endured, “the judge’s findings disentitle her from arguing that she
was solely a passive victim and that her problematic behaviour will not recur”
(para 125). The judge addressed the issue when he commented of the mother:
“Clearly, she was for many years under the thrall of Mr E, and might fairly be
thought of as a victim within that long-standing relationship. However, having
seen and heard her over a long period and having regard to her subsequent
conduct, I find it difficult to see her role as being entirely inert” (para 22). We are
all these days very well aware of how difficult the victims of domestic violence
and abuse can find it to escape, because of the variety of subtle and not-so-subtle
ways in which they can be dominated by their oppressors. But the picture which
the judge gained of this mother was more complicated than that and involved a
degree of collusion in the abusive environment in which her half brothers and her
older daughter Teresa were being brought up.
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214. Not without some hesitation, therefore, I am driven to the conclusion that
this court is not in a position to interfere with the judge’s finding that the threshold
was crossed in this case.
(4) Was the order proportionate?
215. But that is not the end of the story. We all agree that an order compulsorily
severing the ties between a child and her parents can only be made if “justified by
an overriding requirement pertaining to the child’s best interests”. In other words,
the test is one of necessity. Nothing else will do.
216. The judge referred to proportionality when directing himself as to the law at
the beginning of his judgment, but he did not remind himself of the test when it
came to making his decision. The basis of his decision was the inability of the
parents to work with professionals. But it must first be asked what work with
professionals would be necessary, before asking whether the parents would cooperate. Mr Feehan complains that neither the judge nor the Court of Appeal
responded adequately to the detailed criticisms which he had made of the local
authority’s case about this.
217. Dr Bass and Dr Taylor had said that the mother’s diagnosis necessitated a
“plan and strategy for the future to ensure that all health care professionals are
aware of M’s past and are able to intervene to protect Amelia should the symptoms
resurface” (para 114). What reason was there to suppose that the parents would not
co-operate with health care professionals? There was no evidence that Teresa had
been exposed to inappropriate attention from the medical professions. The mother
had accessed ante-natal care appropriately during her pregnancy. The mother had
co-operated with the investigations conducted by Dr Bass and Dr Taylor and the
father had co-operated with Dr Bass. The mother had been, of course, a frequent
user of medical services, and this was the main reason for concern. But none of
this evidence suggests that it would not be possible to devise a “plan and strategy”
to enable the health care professionals to be aware of the situation and take
appropriate action should it become necessary.
218. But what about the need for co-operation with the social services? Even Dr
Dale, the professional who was most supportive of the parents’ case, accepted that
there would need to be a “risk management and family support programme” (First
report, para 20.1) although details would require clarification. There was little
evidence about what this might entail, other than the brief enquiries made by the
guardian during the hearing. There was conflicting evidence about the parents’
ability to co-operate with such a programme, whatever it might be. On the one
hand, West Sussex social services confirmed that the mother had tried to get them
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to intervene to protect Teresa after she had left and her solicitors had sent a copy of
the case conference minutes about Teresa to Barnet social services while she was
pregnant with Amelia. She had also cooperated with the enquiries by the Lucy
Faithfull Foundation and by Dr Dale (as was to be expected). The parents had been
able to co-operate with a succession of workers who were supervising their contact
with Amelia over the whole of her life. Their initial relationship with the foster
carer was not a happy one, but it had much improved. And they had been able to
co-operate with the child’s guardian.
219. On the other hand, they had not been so co-operative with Barnet social
services. As the judge found, “from the start she has failed to co-operate
reasonably with the local authority and at times has behaved in a singularly
unconstructive way” (para 140). This was, as some of the examples given by Lord
Wilson show, putting it mildly. Perhaps this is not to be wondered at. Their
original contact was in the context of concern about Teresa and the household of
Mr E. The response was to seek an interim care order separating mother and baby
without taking the usual step of a pre-proceedings letter explaining matters to
them. Anyone who has had to leave a premature baby in a special baby care unit
can empathise with the feelings of a mother who is prevented from taking her baby
home when, miracle of miracles, that baby is well enough to be discharged from
hospital. Of course, the first social work statement to the court explained why the
authority was making the application. But the scene was set for a rocky
relationship. And this will not have been improved by the parents’ frequent
complaints about Amelia’s progress in foster care.
220. The other negative relationship was with Ms Summer of the Marlborough
Family Service. In her oral evidence, Ms Nabi of the Lucy Faithfull Foundation,
who was generally supportive of the mother, was surprised and worried by this.
Ms Summer had adopted the method of challenging the parents about the various
aspects of their behaviour which were a matter of concern. This had clearly not
gone down well with them, they had been at times dishonest, evasive, petulant and
immature. In effect, the parents were willing to be helpful when they perceived
that a professional was helping them but not when they perceived the professional
to be the enemy.
221. But it was essential to set all this evidence against the evidence of the harm
which was feared that Amelia might suffer in the future and the sort of programme
which might be needed to protect her. It was not established that the mother was
immediately in need of the sort of intensive psychological therapy which would
make such challenging demands upon her. The question was what monitoring and
support was an “overriding requirement pertaining to the child’s best interests”.
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222. It must not be forgotten that this is a child who as yet has suffered no harm
at all (except possibly the harm of being separated from her mother so soon after
birth). She has had the advantage of remaining with the same foster carer
throughout, where she is doing well. She has also had the enormous advantage of
establishing a strong and loving relationship with her parents, who have given her
“child centred love and affection in spades”, as the judge put it. Their commitment
has been excellent and the fact that in all the circumstances their behaviour during
contact has attracted so little criticism and so much praise is extraordinary. She
will eventually have to move on from her foster home and the only question is
whether she moves to a completely new home with adoptive parents as yet
unidentified or whether she moves to live with the parents she knows and loves
and who know and love her.
Conclusion
223. In all the circumstances, I take the view that it has not been sufficiently
demonstrated that it is 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. 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. There is a need for some
protective work, but precisely what that might entail, and how the parents might
engage with it, has not yet been properly examined.
224. Accordingly, I would have allowed the appeal and sent the case back for a
fresh and in-depth enquiry by the child’s new guardian (her original guardian
having sadly died soon after the judge’s judgment), who would be able to examine
both the necessity for and the viability of the sort of measures which were only
beginning to be explored by the previous guardian. My understanding of the
careful submissions made to us on her behalf is that this would have been her
preferred solution had we not now been so far down the road. Of course the safest
solution for Amelia now is almost certainly adoption. But I take the view that the
judge was indeed wrong to hold this a proportionate response to the risks which he
had identified and that it is my duty to say so.
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