In re B (a Child) (Care Proceedings: Threshold Criteria)

The Supreme Court upheld a care order made with a view to adoption. The court applied the threshold in section 31(2) of the Children Act 1989 and confirmed that a finding that a child is "likely to suffer significant harm" requires a value judgment based on facts proved on a balance of probabilities and a real possibility of future harm. Article 8 ECHR requires that any interference with family life be proportionate, but the Convention proportionality assessment applies to the substantive welfare/disposal decision rather than to the mere crossing of the section 31(2) threshold.

The trial judge’s extensive fact-finding about the mother’s somatisation and factitious disorders, the parents’ chronic dishonesty and antagonism to professionals, the father’s criminal history, and the pattern of cooperation and non-cooperation with professionals led him to conclude the threshold was crossed and that adoption was necessary because the parents would not reliably cooperate with the monitoring and intervention that Amelia’s safety required. The Supreme Court majority held that those evaluative conclusions were not wrong and that an appellate court’s role is normally to review whether the trial judge was wrong (rather than to rehear the evidence), so the care order was upheld.

This appeal concerned a care order made with a view to adoption in respect of Amelia, a child born in April 2010 and placed in foster care at birth. The local authority (London Borough of Barnet) sought a care order with a plan for adoption; the mother (M), supported by the father (F), challenged the order. The matter reached the Supreme Court following dismissal of the parents' appeal by the Court of Appeal ([2012] EWCA Civ 1475).

Background and facts.

• M had a long and troubled history including somatisation disorder and an accepted diagnosis by experts of a factitious disorder of mild to moderate intensity; she had a history of dishonesty and of making frequent and vindictive complaints against professionals.
• The father had a substantial criminal record and a history of drug use, though he had not reoffended after release in 2009; both parents maintained a strong and apparently loving relationship with Amelia and performed very well in supervised contact.
• Expert evidence conflicted: some experts (including Dr Bass and Ms Summer) supported the local authority’s view that Amelia could not safely be placed with the parents absent reliable cooperation; others (Dr Dale and the original Guardian) were more optimistic and favoured intensive support or supervision.

Procedural posture and relief sought. The local authority sought a care order under the Children Act 1989 with a plan for adoption. HHJ Cryan conducted long fact-finding and welfare hearings and made the care order on 14 June 2012. The Court of Appeal dismissed the parents' challenge on 14 November 2012. The Supreme Court heard the appeal on points of law and appellate principle.

Issues. (i) The meaning and application of the section 31(2) threshold for "significant harm"; (ii) the role of article 8 ECHR and the proportionality requirement in care and adoption cases; (iii) the standard and scope of appellate review of a trial judge’s findings and welfare/disposal decision.

Court’s reasoning and outcome. The majority held that: (a) "significant" harm is a matter of degree and the likelihood element requires a real possibility supported by facts proved on the balance of probabilities (following In re J [2013] UKSC 9); (b) article 8 informs the welfare/disposal stage and requires a strict proportionality assessment when family ties will be severed, but crossing the threshold itself does not constitute the article 8 interference; (c) appellate courts should ordinarily review whether the trial judge was wrong (or whether there was a serious irregularity) rather than rehear the case; and (d) on the particular primary findings and evaluations made by HHJ Cryan — notably that the parents were fundamentally dishonest and would not cooperate with professionals in the way necessary to safeguard Amelia — the judge was not wrong to find the threshold crossed and to conclude adoption was the only viable option. Lady Hale dissented on remedy, preferring remittal for further exploration of support measures before permanent severance, expressing concerns about the sufficiency of reasoning on necessity and the long-term, subtle nature of the feared harms.

Appeal dismissed. The majority held that the trial judge was not wrong to find the section 31(2) threshold crossed and to make a care order with a view to adoption because his findings about the parents’ psychiatric conditions, long-standing patterns of dishonesty and their likely failure to co-operate with professionals made alternative, reliable protective solutions unavailable; the proportionality requirement under article 8 was therefore met. The Supreme Court emphasised that appellate review should ask whether the trial judge was wrong, not routinely rehear the evidence.

Appeal to the Supreme Court from the Court of Appeal decision dismissing the parents' appeal ([2012] EWCA Civ 1475) against HHJ Cryan’s care order dated 14 June 2012. Supreme Court judgment given 12 June 2013 ([2013] UKSC 33).