D (A Child), Re

On an appeal concerning a child’s care arrangements, the Court of Appeal should not interfere with a welfare decision based on factual findings, witness impressions and the balancing of competing factors unless the lower court erred in principle or was plainly wrong in exercising its discretion. The child’s welfare remains paramount under the Children Act 1989. A continuing care order must also satisfy article 8 of the European Convention on Human Rights by being necessary and proportionate to protect the child’s welfare. Boarding education may therefore be lawful where it protects a child from harmful parental pressure while preserving meaningful relationships with both parents.

The mother sought permission to appeal against orders made by HHJ Plumstead on 15 August 2002. The orders refused her application to revoke a care order concerning her 13-year-old son and were intended to restore a care plan involving full boarding education, shared holidays with the parents and some time with former foster parents.

The care order had been made by the President of the Family Division in 2000 after findings of significant emotional harm and a continuing risk of harm arising from the parents’ competing proposals. The central issues were whether the care order remained justified, whether the arrangements were compatible with article 8, and whether the mother had been denied a fair hearing or discriminated against contrary to article 14.

1. Permission to appeal refused. The orders below were supported by ample evidence and the Court of Appeal could not properly interfere.
2. Welfare decisions of this kind involve findings of fact, impressions of witnesses and a difficult balancing exercise. An appellate court may disturb the result only where the court below erred in principle or was plainly wrong in exercising its discretion. The fact that the mother advanced an understandable case did not satisfy that threshold.
3. HHJ Plumstead correctly treated the child’s welfare as paramount under the Children Act 1989 and considered the factors in section 1(3). She was entitled to find that living with the mother would expose the child to renewed parental disagreement, emotional harm and loss of the protective environment provided by the school. The proposed boarding arrangement was supported by the evidence as the best means of promoting the child’s emotional development and maintaining relationships with both parents.
4. The continuation of the care order was compatible with article 8 of the European Convention on Human Rights. The interference with family life was necessary and proportionate to protect the child’s welfare, and was directed towards retaining the child within his family rather than severing family relationships.
5. The complaints concerning a fair hearing and discrimination contrary to article 14 were rejected. The mother had received a fair hearing. The findings concerning her disability were favourable rather than discriminatory, while the evidence was principally directed to the child’s needs.

• High Court, Family Division: The President of the Family Division made a care order in 2000 after finding significant harm and a future risk of harm, with a care plan centred on boarding education.
• High Court at Norwich, Family Division: HHJ Plumstead dismissed the mother’s application to revoke the care order and made ancillary orders on 15 August 2002.
• Court of Appeal (Civil Division): In [2002] EWCA Civ 1483, permission to appeal was refused and the lower court’s orders were left undisturbed.