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

This appeal concerned the making of a care order with a care plan for adoption. The trial judge (HHJ Cryan) had conducted lengthy hearings and concluded that the section 31(2) threshold was crossed and that adoption was the only viable option. The Court of Appeal dismissed the parents’ appeal. The Supreme Court considered (a) the meaning and application of the section 31(2) threshold, (b) the role of article 8 ECHR (proportionality) in threshold and welfare stages, and (c) the appropriate standard and intensity of appellate review in care/adoption cases. The majority upheld the judge’s findings and dismissal of the appeal; Lady Hale dissented on proportionality and remittal.

1. Disposition: The majority (Lord Neuberger, Lord Wilson, Lord Kerr, Lord Clarke) dismissed the appeal and upheld the care order with a view to adoption; Lady Hale would have allowed the appeal and remitted the case for further inquiry.
2. Threshold (s.31(2) Children Act 1989): The court reaffirmed that a likelihood of significant harm means a real possibility based on facts established on the balance of probabilities. The concept of "significant" should not be over-elaborated; the court must identify the nature of the harm, why it is significant and why it is attributable to parental care shortcomings. The focus is on deficient parental care which causes or is likely to cause harm, not on character alone. (paras 23–31, 55–66, 176–193)
3. Article 8 ECHR and proportionality: The majority held that article 8’s proportionality analysis bears on the substantive decision to make a care/adoption order (welfare/disposal stage) rather than on the mere crossing of the s.31 threshold; trial judges must, however, apply a test of necessity ("nothing else will do") when contemplating adoption. Lady Hale took a different view about appellate intensity in assessing proportionality. (paras 29–36, 72–79, 194–199)
4. Appellate review: The appropriate appellate standard is whether the trial judge was wrong. Appellate courts should give respectful weight to the trial judge’s advantage in seeing witnesses and conducting the evaluation but must themselves decide whether the threshold and the proportionality/necessity conclusions are supportable; rehearing is exceptional. The trial judge’s evaluations will only be disturbed if wrong, unjust for serious irregularity, or otherwise insupportable. (paras 36–47, 80–96, 199–204)
5. Application to the facts: Having regard to the primary findings (extensive factual material, expert evidence, parents’ dishonesty and likely non‑cooperation with professionals), the majority concluded the threshold was crossed and that adoption was necessary because there was no reliable means to mitigate the identified risks. Lady Hale considered the evidence insufficiently focused on necessity and would have remitted the case for further inquiry. (paras 48, 64–66, 97–101, 212–224)
6. Result: Appeal dismissed (majority). Practical guidance: (i) identify precise nature, significance and likelihood of harm; (ii) treat proportionality/necessity at disposal stage as exacting; (iii) appellate courts review for wrongness, but must take care to respect trial judge’s evaluative advantages.

• Court of Appeal: [2012] EWCA Civ 1475 — appeal against HHJ Cryan's order dismissed; judgment considered and formed the immediate antecedent decision on appeal to the Supreme Court.
• High Court / Family Division (first instance): HHJ Cryan, Principal Registry of the Family Division — care order made with plan for adoption (14 June 2012).