ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE
HER HONOUR JUDGE HUGHES QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE DAVIS
|Re: G (A Child)|
Nicholas Horsley (instructed by Southwark LBC) for the Respondent local authority
Michelle Powell (instructed by Duncan Lewis) for the Respondent child
Hearing date : 2nd May 2013
Crown Copyright ©
Lord Justice McFarlane:
"J has suffered and is at risk of suffering significant harm due to the care he has received and would receive if the order was not made, not being what a reasonable parent would provide.
The reasons are:
1. On 9th December 2010 J was left at social services offices by his mother. She left an explanatory letter on that occasion.
2. M did not meet with social workers, return to collect J or attend for contact with him until 4th January 2011. M did telephone the Local Authority on 13th December 2010.
3. M has previously left J in social services offices in Dublin in 2007 leading to a period of foster care (believed to be 9-12 months)"
a) The assessment of M by both experts was essentially normal save that she exhibits a clear potential to respond adversely to stress but, as the psychologist put it, these features were in the sub-clinical range and meant that "similar personality features would be expected to be found in a sub-section of the normal population".
b) During the proceedings in Ireland M had professed and displayed insight into the Local Authority concerns arising from the act of abandonment, however, as soon as the proceedings ended M began to move to different parts of Dublin, moving J from school to school and failing to engage with professional support.
c) The social worker's parenting assessment had been essentially favourable and recommended rehabilitation of J to M's care. However, by the time he gave evidence, the social worker had changed his recommendation as a result of reading the paperwork that had subsequently arrived from Ireland. He considered that there was a clear potential for history to repeat itself, given that M's actions in London in December 2010 were very similar to those in Dublin in 2007, and this indicated that J would be at risk of repeat behaviour in the future. He also reported that his professional relationship with M had broken down after he had given advice which was perceived by M as criticising her parenting skills.
d) The current social worker recorded a good working relationship with M but she too adhered to a care plan for long term fostering.
e) The Guardian expressed concern that M lacked insight into the circumstances that led her to act as she had done in the past. She considered that it was "a risk" to place J back in M's care and it was not a risk that she would recommend taking.
"However, my view is that given her inability to work [with] the professionals in this case, her lack of insight, and the history in Ireland I find she will be unable to prioritise J's needs when she finds herself in the inevitable stressful situation of looking after J full time."
"To make no order would leave J entirely unprotected and in my view given my reasons that is not appropriate.
In this case the only order that will protect and safeguard J's welfare is a care order to allow the Local Authority to share parental responsibility. It is necessary and proportionate to the aim of promoting his welfare. He is a young boy with specific needs and requires security, stability and routine.
I will make a care order to the London Borough of Southwark in respect of J. In relation to the care plan I agree contact as agreed by the parties."
"3. I think there is even less substance in the second point because it seems to me that it is all very well to say the mother showed insight by saying a supervision order and the district judge was wrong to say the mother was seeking no order, but actually it does not matter what labels are put on things. The fact is the judge is considering this case and she is considering the facts in this case and a mistake like 'she is urging me to make no order at all' when she is actually saying 'I am willing to have a supervision order', I think, is neither here nor there, to be honest. It was corrected at the end of the hearing. Apparently, it was mentioned during the hearing and it does not, to me, affect the mother's level of insight one way or the other whether she is asking for a supervision order or she is asking for no order. So I am afraid I do not find that point proved.
4. I think the most important point in regard to this appeal is the third point that is made because what is said is that she has not weighed the evidence and she has not conducted the balancing exercise. I am not with the mother in that in this sense that, if you read this judgment carefully, she has taken into account both sides. I appreciate she has not specifically said, 'I take into account the welfare checklist' and she has not said, 'the harm to the boy if he stayed with mother would be this' and 'the harm if he went in the care of the Local Authority would be this' and 'I prefer this or that'. I accept that that has not been done, but I am not willing to say in this case she has not conducted a balancing exercise.
5. I am afraid, in all the circumstances, I am not prepared to say this district judge was plainly wrong in the position that she came to or the way she reached her decision. Therefore, this appeal must be dismissed."
73. "I turn to consider the first question, which involves first identifying the correct test. The effect of section 1(1) of the 1989 Act is that, when considering whether to make a care order, the court must treat the welfare of the child as the paramount consideration, and this involves taking into account in particular the factors identified in section 1(3), which includes, in para (g), the range of powers available to the court. As Lady Hale (who knows more about this than anybody) says in para 194, the 1989 Act was drafted with the Convention in mind; in any event, with the coming into force of the Human Rights Act 1998 ("the 1998 Act"), the 1989 Act must now, if possible, be construed and applied so as to comply with the Convention. So too the Adoption and Children Act 2002 ("the 2002 Act") must, if possible, be construed and applied so as to comply with the Convention. It also appears to me that the 2002 Act must be construed and applied bearing in mind the provisions of the UN Convention on the Rights of the Child 1989 ("UNCRC").
74. A care order in a case such as this is a very extreme thing, a last resort, as it would be very likely to result in Amelia being adopted against the wishes of both her parents.
75. As already mentioned, it is clear that a judge cannot properly decide that a care order should be made in such circumstances, unless the order is proportionate bearing in mind the requirements of article 8.
76. It appears to me that, given that the Judge concluded that the section 31(2) threshold was crossed, he should only have made a care order if he had been satisfied that it was necessary to do so in order to protect the interests of the child. By "necessary", I mean, to use Lady Hale's phrase in para 198, "where nothing else will do". I consider that this conclusion is clear under the 1989 Act, interpreted in the absence of the Convention, but it is put beyond doubt by article 8. The conclusion is also consistent with UNCRC.
77. It seems to me to be inherent in section 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to article 8, the Strasbourg court decisions cited by Lady Hale in paras 195-198 make it clear that such an order can only be made in "exceptional circumstances", and that it could only be justified by "overriding requirements pertaining to the child's welfare", or, putting the same point in slightly different words, "by the overriding necessity of the interests of the child". I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ in Re C and B  1 FLR 611, para 34 quoted by Lady Hale in para 198 above), but it is unnecessary to explore that point further.
78. The high threshold to be crossed before a court should make an adoption order against the natural parents' wishes is also clear from UNCRC. Thus, Hodgkin and Newell, Implementation Handbook for the Convention on the Rights of the Child, Unicef, 3rd ed (2007), p 296, state that "there is a presumption within the Convention that children's best interests are served by being with their parents wherever possible". This is reflected in UNCRC, which provides in article 7 that a child has "as far as possible, the right to know and be cared for by his or her parents", and in article 9, which requires states to ensure that
'a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child"'.
104. "We were not addressed on [Article and cases referred to]. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents' wishes should only be contemplated as a last resort – when all else fails. Although the child's interests in an adoption case are "paramount" (in the UK legislation and under article 21 of UNCRC), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them.
105. Hodgkin and Newell, op cit, suggest that, under UNCRC, an "adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge" their responsibilities towards the child. The assessment of that ability to discharge their responsibilities must, of course, take into account the assistance and support which the authorities would offer. ... It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support."
"46. Lord Neuberger, at paras 90 and 91, and Lord Clarke, at para 139, suggest that the criterion for appellate review of an ultimate determination to make (or to refuse to make) a care order should, as in respect to the threshold, be whether it was wrong (or vitiated by serious irregularity). Just as in my view rule 52.11(1) of the Civil Procedure Rules helps to identify the roles of an appellate court in a challenge to the determination of a Convention-related issue, so, as Lord Clarke there suggests, rule 52.11(3) helps to identify the criterion which it should adopt in that it provides: "The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity …". I agree. To be driven to jettison the principles in G v G in this context is not to say that the factors which often vitiate the exercise of a discretion – namely that the judge considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle – become irrelevant. On the contrary they may well generate a conclusion that the determination was wrong and should be set aside and either that it should be reversed or that the application should be remitted for consideration afresh. By contrast a judge's failure to give adequate reasons for his determination is likely to lead to its being set aside as unjust within the meaning of rule 52.11(3)(b).
47. There is therefore an attractive symmetry between the criterion for review of a determination of whether the threshold is crossed and that for review of a determination of whether a care order should be made. In each case it is no more and no less than whether the determination is wrong. But the simplicity of the criterion should not disguise the difficulty, in some cases, of its application."
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii)."
The welfare evaluation at the conclusion of care proceedings
(c) the likely effect on him of any change in his circumstances;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs.
'a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term is now understood.'
The first instance welfare determination in this case
a) the mother will be unable to prioritise J's needs when she finds herself in the inevitably stressful position of looking after J full time;
b) to make no order would leave J entirely unprotected and is therefore unacceptable;
c) the only order that will protect and safeguard J is a care order;
d) he is a young boy with specific needs and requires security, stability and routine;
e) a care order is therefore necessary and proportionate to the aim of promoting his welfare.
The first appeal
i) In the welfare checklist at CA 1989, s 1(3)(g) the court is expressly required to have regard to 'the range of powers available to the court under CA 1989 in the proceedings in question';
ii) there is a clear distinction, when contemplating the range of orders, between making 'no order' and making a supervision order, the most prominent of which are:a) a supervision order can only be made if the circumstances are sufficiently serious to meet the threshold criteria in s 31;b) a supervision order places a named local authority under a duty to allocate resources in order to advise, assist and befriend the supervised child;
iii) there is a body of established case law which describes the differences between 'no order', a supervision order or a care order [Re O (Care or Supervision Order)  2 FLR 755; Oxfordshire County Council v L (Care or Supervision Order)  1 FLR 70 and Re K (Supervision Orders)  2 FLR 303].
Lord Justice Davis:
Lord Justice Longmore: