THE “threshold” that must be crossed before a child can be compulsorily taken into state care requires a finding that he “is suffering or is likely to suffer significant harm”, attributable inter alia to the relevant care “not being what it would be reasonable to expect a parent to give” (Children Act 1989, s. 31(2)). If the relevant “harm” is “the impairment of health or development” (s. 31(9)), its significance is determined with reference to the health or development that “could reasonably be expected of a similar child” (s. 31(10)). In deciding to make a care order, however, the judge must still be satisfied that he is treating the child's welfare as the “paramount” consideration (s. 1) and must act compatibly with the European Convention on Human Rights.
While the law in this area has been considered in several recent cases at the highest level (Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35; Re S-B (Care Proceedings: Standard of Proof) [2009] UKSC 17; Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9), that of Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 W.L.R. 1911 involved particularly difficult facts and required analysis of child protection law in the light of its strong current link with non-consensual adoption. The case concerned “Amelia”, who was placed in foster care effectively at birth, and who at the age of two was the subject of a full care order based on a plan for eventual adoption. The Court of Appeal ([2012] EWCA Civ 1475) had dismissed her mother, “M”’s, appeal against that order made by Judge Cryan. The further appeal to the Supreme Court also failed: only Baroness Hale dissented as to the outcome.
The basis for the care order had centred around the personality of Amelia's parents. When aged 15, M, who was understatedly described as a victim of “grave misfortune” (at [7]), began a sexual relationship with her abusive step-father, “Mr. E”, consequently having seven abortions before giving birth to “T”. M was imprisoned for a series of frauds she perpetrated under the influence of Mr. E as well as for perverting the course of justice and perjury. She was diagnosed with both a somatisation disorder, which “drives the sufferer to misuse physical symptoms in order to elicit care from others or for other purposes” (at [12]), and a factitious disorder, “in which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories” (at [17]). The appeal was supported by Amelia's father, “F”, whom M had met after leaving Mr. E, and who as well as being a drug user also had a criminal record containing offences of dishonesty.
M and F, who were cohabiting, had been having regular supervised contact with Amelia since her premature birth. Notwithstanding their difficult histories, the judge found that her parents had a very loving relationship with Amelia, had put enormous effort into their contact with her, and were both strongly of the view that she should return to their care. Judge Cryan nevertheless made the order. While part of the justification was a risk that Amelia might be presented for, or even receive, unnecessary medical treatment as a result of M's disorders, or that she might ultimately model her behaviour based on M's condition, Lord Wilson emphasised that the judge's main concern was that both parents were “fundamentally dishonest, manipulative and antagonistic towards professionals” (at [20]). Lord Wilson was able to cite sixteen recent examples of such behaviour.
The Supreme Court's permission decision had identified four overlapping legal issues for consideration: the meaning of “significant harm”; the relationship between the nature and gravity of the anticipated harm and the likelihood of its occurring; the proper role of an appellate court in care cases; and the proportionality of a care order on these facts. All five Justices gave substantive opinions on the appeal, though Lord Clarke expressed general agreement with Lords Wilson and Neuberger.
On the threshold criteria, while Lord Wilson thought it undesirable for the Supreme Court to explain the word “significant”, Lord Neuberger advocated the provision of authoritative guidance in a difficult area and seemingly endorsed that given by Baroness Hale (summarised at [193]). She held inter alia that the court's task was not to “improve nature”; that Humberside County Council v B [1993] 1 F.L.R. 257 was correct in suggesting that “significant” meant “considerable, noteworthy or important”; that the anticipated harm must be precisely identified; and that where a child has not suffered any harm, assessment of its future likelihood must include an evaluation of the relationship between the likelihood and the significance of the feared harm. She criticised Judge Cryan for being insufficiently explicit in complying with the latter two obligations given the unusual facts, but like the majority felt unable to interfere with his conclusion that the threshold had been crossed.
Lords Wilson and Kerr questioned Ward L.J.'s assertion in Re MA (Children) (Care Threshold) [2009] EWCA Civ 853 that Article 8 of the ECHR informs the meaning of “significant” for the purposes of the threshold. In Lord Wilson and Baroness Hale's view (shared by Lord Neuberger even if he considered the question “arid” (at [62])), interference with Article 8(1) occurs only when a care order is actually made. Lords Wilson and Neuberger regarded M's submission that the threshold could not be crossed only on the basis of the character of the parents rather than the quality of their parenting (a view with which Baroness Hale apparently sympathised) as representing a false dichotomy. Lord Wilson also refused to read any mental element into the threshold so that M could potentially be exempted from it due to her lack of responsibility for her psychiatric condition, adopting the only realistically supportable reading of these protective provisions.
On the appropriate standard of appellate review at the threshold stage, all of the Justices were conscious of the advantages held by the trial judge, but preferred to ask simply whether he was “wrong” rather than “plainly wrong” (Re MA). Lord Wilson noted that a judge's task in deciding whether to make a care order (as distinct from when finding facts or determining whether the threshold is crossed) is not simply to exercise a discretion but to ensure compliance with a proportionality obligation in the light of the ECHR. He emphasised “the high degree of justification which article 8 demands of a determination that a child should be…placed in care with a view to adoption” ([34]), citing YC v United Kingdom (Application No. 4547/10). In turn, Lords Wilson, Neuberger and Clarke held that an appellate court evaluating a care order decision should not ask merely whether the judge had exceeded “the generous ambit within which a reasonable disagreement is possible” (cf. G v G (Minors: Custody Appeal) [1985] 1 W.L.R. 647), but whether the decision was either “wrong” or “unjust because of a serious procedural or other irregularity”.
Lords Neuberger, Wilson and Clarke nevertheless rejected Baroness Hale's suggestion that section 6 of the Human Rights Act 1998 mandates a fresh appellate determination of an ECHR-related issue, placing her in dissent on that point. Lord Kerr agreed that the appellate court need not decide proportionality for itself, but suggested that undue deference might prevent an appellate court from discharging its own duty under section 6 such that he did not “entirely agree” with Lord Wilson on the issue ([133]).
All except Baroness Hale held that Judge Cryan had not been “wrong” in determining either that the threshold had been crossed or that the care order with a view to adoption should be made, because (in Lord Wilson's formulation) “the characters of the parents disabled them from offering the elementary co-operation with professionals which Amelia's safety in their home would require” ([48]). Lord Neuberger opined that Judge Cryan had complied with his Convention obligations by concluding that adoption was “the only viable option” for Amelia ([79]). Baroness Hale, by contrast, held that the judge was indeed wrong to regard the care order as a proportionate response to the identified risks, because he had not demonstrated the necessity of in substance ending Amelia's parental relationships when nothing else had been tried and the feared harm was “subtle and long term” ([223]).
Despite his conclusion on the facts, Lord Neuberger like Baroness Hale was anxious to point out that “adoption of a child against her parents’ wishes should only be contemplated as a last resort— when all else fails” ([104]), meaning 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” ([105]). This was a difficult case with extraordinary facts, highlighting the impossible situation that parents can face if they co-operate insufficiently with those who might facilitate the permanent removal of their child. An admirable legacy of the decision, however, is an apparently more rigorous approach to the adoption process in the lower courts (see, e.g., Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146), which sits uneasily with current Government policy of increasing the speed and prevalence of adoption from care (see, e.g., Children and Families Bill 2013–14, Part 1).
