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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child), Re [2014] EWCA Civ 565 (09 May 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/565.html Cite as: [2014] EWCA Civ 565, [2014] WLR(D) 197, [2014] 1 WLR 4344, [2014] WLR 4344, [2014] Fam Law 1087, [2014] 3 FCR 129 |
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ON APPEAL FROM Birmingham County Court
Her Honour Judge Clarke
UN12C00038
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE BLACK
and
LORD JUSTICE RYDER
In the Matter of B (A Child)
____________________
MB |
Appellant |
|
- and - |
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Staffordshire County Council -and- KM -and- B (A Child) |
Respondent |
____________________
Alistair MacDonald QC with Yolanda Pemberton (instructed by Staffordshire County Council Legal Services) for the Local Authority
Martine Kushner (instructed by Walker & Co Solicitors) for the Child by his Children's Guardian
Hearing dates: 11 December 2013
____________________
Crown Copyright ©
Lord Justice Ryder:
The question to be decided
The background
i) the domestic violence in their relationship;
ii) the exposure of B to the risk of sexual abuse from the paternal grandfather who has a number of convictions for sexual abuse of children including B's father; and
iii) the parents' (lack of) co-operation with the local authority.
The grounds of appeal
i) they adopted a linear approach to their decision making;
ii) they failed to carry out a welfare analysis of the realistic options for B's long term care; and
iii) they failed to conduct a proportionality evaluation of the proposed interference in the family life of B and his parents.
"50. In the light of those authorities, it seems to me that my task in this appeal is, firstly, to consider whether the Justices carried out an appropriate and sufficient Convention-compliant balancing exercise in respect of the welfare outcome for [B] and the proportionality of the orders sought; if they did, to decide on review whether the conclusion they reached was wrong. If I conclude that the Justices did not carry out the appropriate balancing exercise, then it seems to me, on the basis of what was said in Re G, that I must, if I consider that I can properly do so, revisit that issue in order to determine whether the decision reached was wrong."
"75. In light of the Justices' omission, in my judgment, to carry out an appropriate and Convention-compliant balancing exercise by failing to take into account the potential harm to [B] throughout his life of becoming an adopted person, in my judgment it would be appropriate for me to revisit that exercise in the holistic manner recommended by Lord Justice McFarlane. It seems to me that I do have the proper information to enable me to carry out that exercise, and I do not think it would be in anyone's interests, least of all [B's], for me to remit this matter for a rehearing, with the inevitable expense and delay that that would involve."
The welfare analysis and the proportionality evaluation
i) Welfare evaluation: a linear approach to deciding welfare outcomes is inappropriate and instead a global, holistic evaluation of each of the realistic options available for the child's future upbringing should be undertaken before deciding which of the options best meets the duty to give paramount consideration to the child's welfare. A judgment should include a balancing exercise in which each option is evaluated to a degree of detail necessary to analyse and weigh the internal positives and negatives of each option as well as a comparison of each option, side by side: Re G (A Child) [2013] EWCA Civ 965 at [44] to [56] and Re B-S (Children) [2013] EWCA Civ 1146 at [23] to [29].
ii) Proportionality: the first court which makes the ultimate determination of whether to make a care order and/or a placement order has "an obligation under section 6(1) HRA 1998 not to determine the application(s) in a way which is incompatible with the Art 8 rights that are engaged": Re G above at [33]. The welfare analysis of the realistic options before the court and the question what, if any, orders are necessary engage article 8 of the Convention and the proportionality of the intervention proposed must be justified: see, for example Re B above at [75] to [77] and [197] to [198].
iii) A plan for placement with a view to adoption: where within CA 1989 proceedings, the court is considering a care plan which proposes an adoptive placement, then whether or not there is a concurrent application for a placement order under ACA 2002 it is necessary to consider the separate welfare checklist under section 1(4) of that Act. In any event, where a placement order application is being heard it is necessary to distinguish between the qualitatively different tests in the CA 1989 and the ACA 2002, in particular sub-sections 1(4) (c) and (f): see, for example, Re G above at [48].
iv) Dispensing with the consent of any parent: in every application in which a placement order is to be made the court must dispense with the consent of a parent or guardian if a placement order is to be made. By section 52(1)(b) ACA 2002, a court cannot dispense with that consent unless it is satisfied that the welfare of the child requires the consent to be dispensed with. Such orders are only to be made where it is necessary to safeguard the child's interests that is, where the welfare of the child requires this. The connotation of the imperative in the test involves a stringent and demanding level of scrutiny by a court such that it must be satisfied that "nothing else will do", that is that "no other course [is] possible in [the child's] interests" (see Re B at [74], [76-77], [82], [104], [130], [135], [145], [198] and [215].
The powers of the court on an appeal
"(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) an enactment or practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) 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 in the proceedings of the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) [ ... ].
"[88] As I see it, this limitation on the function of the appellate court is based on similar grounds as set out in paras 53 and 57-61 above - see per Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191, 220 and per May LJ in EI du Pont para 94. If, after reviewing the judge's judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision he was entitled to reach, then the appellate court will not interfere. If, on the other hand, after such a review, the appellate court considers that the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then, and only then, will the appellate court reconsider the issue for itself if it can properly do so (as remitting the issue results in expense and delay, and is often pointless)."
"[105] Re B also establishes that we must approach the appeal adopting the normal reviewing approach to appeals rather than considering the issues that the judge determined afresh. Because of the obligation of the trial judge not to determine the matter in a way which is incompatible with article 8 ECHR, the review by the appellate court must focus not just on the judge's exercise of his discretion in making a care order but also on his compliance with that obligation (§45)"
"[32] The second aspect of the Supreme Court decision in Re B which is relevant to the present appeal arises from their lordships' clarification of the necessary role of an appellate court where there is a challenge to the proportionality of a public law order authorising local authority intervention under CA 1989. Whilst the type of intervention considered in Re B was adoption, in my view the approach to be deployed must similarly apply to lesser forms of intervention. On this aspect the majority of the Justices (Lord Neuberger, Lord Clarke and Lord Wilson) concluded that the duty on a court, as a 'public authority', not to act in a manner which is incompatible with the Convention under [the]Human Rights Act 1998, s 6(1) does not mandate the appellate court to undertake a fresh determination of a Convention-related issue (paragraphs 37, 83 to 90 and 136). The majority did not therefore hold that there was a need for a radical departure from the conventional domestic concept of a 'review' of a case on appeal, as opposed to a full re-appraisal on the issue of proportionality."
"[69] [ ...] Where, as here, a circuit judge accepts that the first instance judge has not expressly referred to the welfare checklist and has not expressly weighed up the harm of returning to the mother against the harm if the child went into local authority care, then, on the basis of the positive duty identified by the majority in Re B, the judge must go on and herself review the proportionality of the order that has been made to determine whether that order is 'wrong'."
Discussion:
Conclusion in principle:
Application of the conclusion in this case:
Lady Justice Black:
Definition of terms and other preliminary matters
The scope of the appeal
"In the event that the learned judge did have power to undertake a welfare balancing exercise and to apply the proportionality test, she was wrong to have pursued such a course given the facts of this case."
Discussion
"64. It follows that there was a positive duty under HRA 1998, s 6, upon the circuit judge …. to conduct a review of the first instance decision to make a care order in order to determine whether, in terms of proportionality, that decision was wrong.
…..
69. ….Where, as here, a circuit judge accepts that the first instance judge has not expressly referred to the welfare checklist and has not expressly weighed up the harm of returning to the mother against the harm if the child went into local authority care, then, on the basis of the positive duty identified by the majority in Re B, the judge must go on and herself review the proportionality of the order that has been made to determine whether that order is 'wrong'." [my emphasis]
a. there had been domestic violence in the parents' relationship and it was thought, there having been more than one separation, that it may be attended by regular fall-outs and separations, thus exposing R to inappropriate adult behaviour and leaving him in the care of only one parent who, unsupported, may not be able to provide good enough parenting;
b. there was a risk to R of sexual abuse by the paternal grandfather and doubt as to the parents' ability to understand the risk and protect him from it;
c. the local authority considered that the parents had not been open and honest with them, misleading them about the father's contact with the paternal grandfather and withholding information such as the fact of the mother's pregnancy, and feared that the parents would not work with them over the care of R;
d. delay in settling arrangements for R's future would be harmful to him.
"The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a chid case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just 'is this true?' or 'is this sincere?' but 'what does this evidence tell me about any future parenting of the child by this witness?' and, in a public law case, when always hoping to be able to answer his question negatively, to ask 'are the local authority's concerns about the future parenting of the child by this witness justified?'"
"There is much positive evidence in the parents' favour, and I have real sympathy with many of the arguments advanced on their behalf. In particular, it seems to me that there is real weight in the submission that the parents were given some mixed messages about contact with the paternal grandfather, and I also bear in mind that the risk of abuse at the hands of the paternal grandfather has not in fact materialised."
The Chancellor of the High Court: