In the matter of H-W (Children)

A court may make a care order removing a child from parental care only where the order is necessary and proportionate. It must evaluate every realistic option through a global, holistic and multi-faceted assessment.

The court must assess the nature and likelihood of the relevant harm, its possible consequences, and any means of reducing or mitigating the risk. It must then compare, side by side, the welfare advantages and disadvantages of each option, including the harm likely to result from removal and family separation.

An appeal ordinarily proceeds by review, not rehearing. If the first-instance judge omits the required evaluative comparison, the decision is legally flawed. The appellate court should set it aside, but should not undertake its own proportionality assessment where that would require scrutiny of revised plans and protective measures.

The mother and her partner appealed against care orders authorising the removal of three children from the family home into separate long-term foster placements. The orders followed findings that one child had been sexually abused by an older sibling and that the adults had failed to protect the children. The factual findings and the conclusion that the statutory threshold had been crossed were not challenged.

The Court of Appeal affirmed the orders by a majority: [2021] EWCA Civ 1451. Peter Jackson LJ dissented because the first-instance judgment did not reveal an assessment of the advantages and disadvantages of the rival plans.

The issues before the Supreme Court were whether proportionality required assessment of the likelihood and consequences of sexual harm, possible mitigation, and the comparative welfare merits of the available options; and whether the judge had failed to conduct that assessment.

1. The appeals were allowed unanimously and the case was remitted for rehearing before a different judge. Dame Siobhan Keegan gave the judgment, with which Lord Hodge, Lord Kitchin, Lord Burrows and Lord Hughes agreed.

2. A care-order application normally requires three stages: findings of primary fact; determination of the threshold under section 31(2)(a) of the Children Act 1989; and selection of the proper order at the welfare stage. Although the threshold was satisfied here, that did not answer whether removal under a care order was necessary and proportionate.

3. A care order engages the article 8 rights of parent and child because it gives the local authority parental responsibility and restricts the parents’ exercise of theirs. Removal is therefore permissible only if necessary to protect the child and proportionate to the situation. The court must seek the least interventionist possible order. Those principles apply not only to adoption but also to long-term foster care which separates children from their parents and siblings.

4. The welfare-stage evaluation must examine all realistic options globally, holistically and in a multi-faceted way. Each option must be analysed for its own advantages and disadvantages and then compared side by side with the alternatives. The court must assess the nature and likelihood of harm, the consequences if it occurs, possible mitigation, the welfare effects of each option, and the full range of available powers.

5. The first-instance judge identified the risk of sexual harm and correctly found the threshold crossed. He nevertheless failed to analyse protective injunctions, the non-molestation order, other less interventionist orders, or the prospects of mitigating the risk. Nor did he compare the harm of remaining at home with the emotional harm caused by removing the children and separating them from their parents and each other. The decision was therefore insufficiently founded on the required proportionality analysis and was legally flawed.

6. An appellate court reviews rather than rehears the welfare decision. Deference is appropriate where the judge used the correct approach, but an omitted side-by-side evaluation is a material error of process. The Supreme Court could not substitute supervision orders because it had not scrutinised a revised plan or the proposed safeguards and was not equipped to perform the necessary proportionality assessment.

1. United Kingdom Supreme Court: Allowed the appeals unanimously and remitted the case for rehearing before a different judge: [2022] UKSC 17.
2. Court of Appeal: Affirmed the care orders by a majority of Lewison and Elisabeth Laing LJJ; Peter Jackson LJ dissented: [2021] EWCA Civ 1451.
3. First-instance court: Made care orders on 26 July 2021 approving removal of C, D and E into separate long-term foster placements. The judge refused permission to appeal but granted a short stay.