UKSC 33
On appeal from:  EWCA Civ 1475
In the matter of B (a Child) (FC)
Lord Neuberger, President
JUDGMENT GIVEN ON
12 June 2013
Heard on 25 February 2013
Frank Feehan QC
(Instructed by Moss and Coleman Solicitors)
Alison Russell QC
(Instructed by HB Public Law, Joint Legal Services for Barnet and Harrow Councils)
Paul Storey QC
(Instructed by Baxter Harries Solicitors)
Alex Verdan QC
(Instructed by Munro Solicitors)
(a) aspects of the threshold to the making of a care order set by section 31(2) of the Children Act 1989;
(b) the application to the decision whether to make a care order of the requirement under article 8 of the European Convention on Human Rights 1950, "the Convention", that the nature of any interference with the exercise of the right to respect for family life should be proportionate to its legitimate aim, "the proportionality requirement"; and, perhaps in particular,
(c) the boundaries beyond which it is wrong for this court, or any other appellate court, to set aside the grant or dismissal by a trial judge of a local authority's application for a care order.
(a) The most striking feature of the relationship between the parents was the strength of their united wish that Amelia should be placed in their care.
(b) They had put a massive effort into making a success of the periods of contact.
(c) They were devoted to Amelia.
(d) They each had a warm and loving relationship with her.
(e) During contact periods they had "not put a foot wrong" and had given her child-centred love and affection "in spades".
THE JUDGE'S CONCLUSIONS
(i) When late in 2009 she moved to London, M told a local authority housing department that her violent step-father was responsible for her pregnancy and that he was a solicitor.
(ii) Later M successfully claimed housing benefit and child benefit on the basis that Amelia was living with her.
(iii) In April 2010, when Barnet first became involved with the family, M obstructed their attempts to find out about Teresa by lying about where she lived.
(iv) She also falsely told them that her mother was dead.
(v) F, for his part, refused to provide them with his surname.
(vi) Each parent refused to provide them with a genogram.
(vii) In August 2010 F refused further to participate in Barnet's intended assessment of the capacity of the parents to care for Amelia.
(viii) In November 2010 F told a social worker that, if Amelia died, it would be on her head and he would go to prison.
(ix) In 2011 M falsely told an officer of the Lucy Faithfull Foundation that her father had raped her when she was aged 12.
(x) F told Ms Summer that, if he was concerned about Amelia, there was no way in which he would call social services but that he might call the police.
(xi) Ultimately both parents withdrew their cooperation with Ms Summer in the production of a viability assessment; during the final session with Ms Summer M played a game on her mobile telephone.
(xii) When he learnt that his half-sister had told Barnet that she would try to explain their concerns to him, F's response was to threaten to punch her.
(xiii) When later M learnt that the half-sister had withdrawn her candidacy to care for Amelia, she was so angry that she made an anonymous call designed to obstruct the half-sister's adoption of a child whom she was fostering.
(xiv) F falsely told Dr Dale that he had ceased to take hard drugs in 2002.
(xv) It was the practice of the parents to wash Amelia's laundry but, when Barnet told her that cigarette butts had been found in the laundry returned to the foster-mother, M responded that Barnet had planted them there.
(xvi) Between April 2010 and December 2011 M made 23 complaints about professionals attempting to work with her (and about the foster mother) including to the General Social Care Council, to the Local Authority Ombudsman, to the Patient Advice and Liaison Service of the NHS and to her MP.
"I have major concerns about the capacity of [M] to protect any child in her care because of ongoing concerns about her capacity for deception because it is such a dominant feature of her personality, allied to this lack of insight and this lack of acknowledgment and evasiveness and inconsistency."
The judge observed:
"Provided whoever [M] is dealing with appears to be going along with her without challenge, she will cooperate to achieve her ends. If she is questioned, challenged or thwarted, cooperation is abandoned and entirely unacceptable hostility begins."
"Ultimately, I find that I am persuaded... that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe... In short I cannot see that there is any sufficiently reliable way that I can fulfil my duty to [Amelia] to protect her from harm and still place her with her parents. I appreciate that in so saying I am depriving her of a relationship which, young though she is, is important to her and depriving her and her parents of that family life which this court strives to promote."
The judge ended by stating that in those circumstances adoption was "the only viable option" for Amelia's future care.
THE THRESHOLD SET BY SECTION 31(2)
"Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child."
When we read this subsection together with the definition of "harm" in the preceding subsection, we conclude that, whereas the concept of "ill-treatment" is absolute, the concept of "impairment of health or development" is relative to the health or development which could reasonably be expected of a similar child. This is helpful but little more than common sense.
"It is intended that "likely harm" should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur."
It follows that when, in Re C and B (Care Order: Future Harm)  1 FLR 611, Hale LJ (as my Lady then was) said, at para 28, that "a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not", she was faithfully expressing the intention behind the subsection. But the other interesting feature of the sentence in the White Paper is the word "unacceptable". I suggest that it was later realised that whether the risk was "unacceptable" was a judgement which fell to be made at the welfare stage of the inquiry; and so a different adjective was chosen.
"many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or 'model' them in their own lives but those children could not be removed for those reasons."
I agree with Mr Feehan's submission; but the question arises whether, in the light of the judge's key conclusion, it misses the point.
"The court will also have to make a decision as to whether the harm was caused or will in future be caused by the child not receiving a reasonable standard of care or by the absence of adequate parental control. This is not intended to imply a judgment on the parent who may be doing his best but is still unable to provide a reasonable standard of care."
"134 The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained."
Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them.
(a) it is not enough that it would be better for the child to be adopted than to live with his natural family (In re S-B (Children) (Care Proceedings: Standard of Proof)  UKSC 17,  1 AC 678, para 7); and
(b) a parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied.
The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word "requires" in section 52(1)(b) "was plainly chosen as best conveying...the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, para 125).
"190. There is nothing in the Convention which prevents the United Kingdom from according only a limited right of appeal, even if the issue involves a Convention right. There is no Convention obligation to have a right of appeal at all. If there is a right of appeal, then of course it must offer a fair hearing before an independent and impartial tribunal in accordance with article 6. But there is no obligation to provide an appeal against the determination of a Convention right. The only concern of the European court with the court structure of the member state is that it should provide a remedy for breach of a Convention right in accordance with article 13. If a SIAC hearing does so, that is an end of the matter and the extent of the right of appeal, if any, is irrelevant."
APPELLATE REVIEW OF DETERMINATIONS MADE IN CARE PROCEEDINGS
"The Jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed."
He added, at p 652:
"Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as 'blatant error' used by the President in the present case, and words such as 'clearly wrong', 'plainly wrong', or simply 'wrong' used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."
The concept of the generous ambit of reasonable disagreement was derived from the judgment of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite  1 All ER 343, at p 345, which Lord Fraser had already quoted.
"The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc  RPC 1, 45:
The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance...of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
"16. ... There is no objectively certain answer on which of two or more possible courses is in the best interests of a child. In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.
19...Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision."
The first main issue: the crossing of the section 31(2) threshold
The threshold: findings of primary fact
The threshold: the meaning of section 31(2)
The threshold: the Judge's decision that it was crossed
"50. What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access)  1 AC 806, 812, said this:
'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'
It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.
51. That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in section 31(2) is made out. . It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in In re H  AC 563 that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy."
The second main issue: the Judge's decision to make a care order
The care order: the correct legal test
"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".
The care order: the appellate court's approach
The care order: should it be upheld?
"whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk."
(a) Where the parents do not consent, a court may only sanction the adoption of a child (and any ancillary or preparatory steps) where that is proportionate (necessary);
(b) Parents therefore enjoy a Convention right not to have their child 'freed' for adoption unless that course is proportionate/necessary;
(c) No public authority (including a court) may lawfully act in a way which is incompatible with that right;
(d) In order to address the question whether it would be acting unlawfully (in breach of section 6 of HRA) a court, at whatever level, which is called on to sanction an adoption must ask itself whether this is a proportionate/necessary interference with the parents' Convention right;
(e) The question in (d) cannot be answered by saying that another public authority/court has said that the adoption is proportionate.
"generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision."
In the present context, it seems to me, in agreement with Lord Neuberger at para 58, that the court should have particular regard to the principles stated by Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360 at 1372, which are quoted by Lord Wilson at para 41.
"The concerns of the local authority focus primarily on the emotional harm to [Amelia] likely to be caused by the Mother's somatisation disorder and the factitious illness disorder. Those emotional risks are coupled with the concerns expressed by Drs Bass and Taylor and by Ms Summer, which I have accepted, about the parents' personality traits, and her mother's vulnerability to accommodation disorder, her mother's lying and her father's active, but less chronic tendency to dishonesty and vulnerability to the misuse of drugs. Whilst primarily these are engines for emotional harm, it is submitted, and I accept, that physical harm to [Amelia] cannot be discounted, for example by over treatment or inappropriate treatment by doctors" (para 192).
"Ultimately, I find that I am persuaded by the other group of witnesses that what the evidence clearly demonstrates is that these parents do not have the capacity to engage with professionals in such a way that their behaviour will be either controlled or amended to bring about an environment where [Amelia] would be safe and protected from emotional and/or physical harm identified by Drs Bass and Taylor".
The Court of Appeal
(i) the meaning of significant harm;
(ii) the relationship between the nature and gravity of the harm which is feared and the degree of likelihood of that harm being suffered in the future;
(iii) the proportionality of a care order with a care plan for adoption in a case such as this; and
(iv) the proper approach of the Court of Appeal to a finding that the threshold has been crossed, and (although this was not expressly referred to) to the issue of proportionality.
The first two questions relate to the "threshold criteria" in section 31(2) of the Children Act 1989, the third relates to the approach of the court once the threshold has been crossed, and the fourth to the appellate function.
"(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control."
"The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature."
If, by that last sentence, Lord Templeman was making a factual statement, then some might disagree: if local authorities remove children from unsatisfactory parents at birth and swiftly place them with highly satisfactory adoptive parents they can undoubtedly improve on nature. But in my view Lord Templeman was making a normative statement: public authorities have no right to improve on nature.
"If it were a choice of balancing the known defects of every parent with some added problems that this father has, against idealised perfect adopters, in a very large number of cases, children would immediately move out of the family circle and towards adopters. That would be social engineering . . ."
"It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance [semble: province] of the state to spare children all the consequences of defective parenting."
"Significant harm was defined by Miss Black, in accordance with the dictionary definition, first as being harm that the court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the court should take into account in considering a child's future."
Wilson LJ went on to comment that while "I might not have expressed myself in quite such broad terms, they certainly foreshadow the view of Lord Nicholls, expressed three years later, that, in relation to the likelihood of harm, the threshold is set at a comparatively low level".
"Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the state and disturb the autonomy of the parents to bring up their children by themselves in the way they choose."
(1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.
(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.
(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.
(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J  2 WLR 649.
"In assessing whether the freeing order was a disproportionate interference with the applicants' article 8 rights, the court must consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of article 8 of the Convention (see, among other authorities, K and T v Finland (2001) 36 EHRR 18, para 154). . . . The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany (2002) 34 EHRR 58, para 49, and Kutzner v Germany (2002) 35 EHRR 25, para 67). For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child's best interests (see Aune v Norway (Application No 52502/07) 28 October 2010, para 66; Johansen v Norway (1996) 23 EHRR 33, para 78; and, mutatis mutandis, P, C and S v United Kingdom (2002) 35 EHRR 31, para 118)."
". . . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child."
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."
The appellate function
"It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."
Application to this case
(1) The nature of the harm feared
(i) that M's medical behaviour would reassert itself and that Amelia would therefore be harmed by the "intergenerational transmission of abnormal health behaviour" and by "excessive medicalisation" (para 122); and
(ii) that Amelia would be confused and experience conflicting loyalties as a result of her mother's (and to a lesser extent her father's) chronic lying and dishonesty and her mother's use of complaining tactics learned in the household of Mr E (paras 123 to 125).
(2) Is it significant?
(3) How likely are they to be suffered?
(4) Was the order proportionate?