In the matter of B (a Child) (FC)

The threshold in section 31(2) of the Children Act 1989 requires a real possibility of significant harm, founded on facts proved on the balance of probabilities. Parental character is relevant only insofar as it affects parenting. No intention to cause harm is required.

Adoption against parental wishes is permissible only where necessary for the child’s welfare. It is a last resort, appropriate only where nothing else will do after realistic protective alternatives have been considered.

An appeal concerning the care threshold or the proportionality of a care order is ordinarily a review, not a fresh determination. The appellate court may intervene where the decision was wrong or unjust because of a serious irregularity. The trial judge’s evidential advantages remain important when applying that standard.

The mother appealed against a care order for her three-year-old daughter, made on a care plan for adoption. The trial judge found a real possibility of emotional and possible physical harm arising from the mother’s psychiatric disorders, both parents’ dishonesty and antagonism towards professionals, and their inability to cooperate with monitoring and support essential to the child’s safety.

The Court of Appeal dismissed the mother’s appeal in In the matter of B (a Child) [2012] EWCA Civ 1475. The mother appealed to the Supreme Court.

The principal issues were the meaning and application of the threshold in section 31(2) of the Children Act 1989, the necessity and proportionality of a care order made with adoption in view, and the proper appellate approach to those determinations.

1. Disposition. The appeal was dismissed by a majority of four to one. Lord Wilson, Lord Neuberger, Lord Kerr and Lord Clarke held that the statutory threshold was crossed and that the care order was necessary and proportionate. Lady Hale would have allowed the appeal and remitted the case for further inquiry.

2. The care threshold. A likelihood of significant harm under section 31(2) of the Children Act 1989 means a real possibility, founded on facts proved on the balance of probabilities. The significance and likelihood of future harm are interrelated. A relatively small possibility may suffice where the harm is very serious, while a high probability of slight harm may not.

   The statutory language should not be burdened with a judicial gloss. Under sections 31(9) and 31(10), impairment of health or development is assessed by comparison with what could reasonably be expected of a similar child. Parental character is relevant only to the extent that it affects the quality of parenting. Section 31(2)(b)(i) requires causation between deficient care and harm; it does not require an intention to cause harm. The majority also held that crossing the threshold does not itself interfere with family life and therefore does not engage article 8.

3. Necessity and proportionality. A care order directed towards adoption is an extreme and last-resort measure. The child’s welfare must require it. Adoption against parental wishes is justified only in exceptional circumstances, where overriding requirements of the child’s welfare establish that nothing else will do. The court must consider realistic alternatives and any practical assistance or support capable of enabling safe family care.

4. Appellate review. Lord Neuberger, Lord Wilson and Lord Clarke held that neither article 8 nor section 6 of the Human Rights Act 1998 requires an appellate court to redetermine proportionality afresh. Under rule 52.11 of the Civil Procedure Rules 1998, the ordinary function is review. Both the threshold determination and the ultimate care-order determination are reviewed by asking whether the judge was wrong, or whether the decision was unjust because of serious irregularity. The “generous ambit of reasonable disagreement” test in G v G [1985] 1 WLR 647 was inapt in this context. The reviewing court must nevertheless respect the trial judge’s substantial advantage in seeing the witnesses and evaluating future parenting.

5. Application. The judge was entitled to find a real possibility of significant emotional harm. The decisive feature was the parents’ demonstrated inability to cooperate honestly with professionals whose monitoring and support were indispensable to making placement at home safe. That inability was itself relevant to the quality of their parenting and made a protective programme unworkable. Adoption was therefore the only viable option.

6. Separate reasoning. Lord Kerr agreed with the outcome but considered that an appellate court must decide proportionality for itself, while giving appropriate weight to the trial judge. Lady Hale agreed that the threshold finding could stand, but considered that necessity had not been proved because the required protective work and possible alternatives had not been adequately examined.

1. United Kingdom Supreme Court: In In the matter of B (a Child) (FC) [2013] UKSC 33, the court dismissed the mother’s appeal by a majority of four to one and upheld the care order made with adoption in view.

2. Court of Appeal: In In the matter of B (a Child) [2012] EWCA Civ 1475, the court dismissed the mother’s appeal against the care order.

3. Principal Registry of the Family Division: On 14 June 2012, HHJ Cryan made a care order on the basis of a care plan that the child should be placed for adoption.