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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> H-W (Children) and In the matter of H-W (Children) (No 2) (Rev1) [2022] UKSC 17 (15 June 2022) URL: https://www.bailii.org/uk/cases/UKSC/2022/17.html Cite as: [2022] UKSC 17, [2022] 4 All ER 683, [2022] WLR 3243, [2022] 1 WLR 3243, [2022] 3 FCR 46 |
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On appeal from: [2021] EWCA Civ 1451 JUDGMENT In the matter of In the matter of before Lord Hodge, Deputy President Lord Kitchin Lord Burrows Lord Hughes Dame Siobhan Keegan JUDGMENT GIVEN ON 15 June Heard on 22 March
H-W
(Children)
H-W
(Children) (No 2)
2022
2022
respondent
for M’s application))
(Acting Pro Bono)
Will Tyler QC
Emily Beer
Amy Stout
(Instructed by Crane & Staples Solicitors)
1st
Respondent
(A Local Authority)
Damian Woodward-Carlton QC
Sharan Bhachu
Katie Phillips
(Instructed by A Local Authority)
2nd
Respondent
(F1 (father of C and D)
(written submissions only)
Baldip Singh
(Instructed by Philcox Gray Solicitors)
3rd
Respondent
[F2 (father of E)]
4th, 5th and 6th
Respondents
(Childrens’ Guardians)
Cyrus Larizadeh QC
Amanda Meusz
(Instructed by David Barney & Co)
DAME SIOBHAN KEEGAN: (with whom Lord Hodge, Lord Kitchin, Lord Burrows and Lord Hughes agree)
Introduction
relation
to three children and appellate
review
of those orders. It is convenient to adopt the alphabetic identification of the family which was used in the courts below. The appellants are the mother M and her partner F3 who currently care for the children at home. The subject children are now aged 14, 11 and nine and are known as C, D and E. M has three other children. These are A, aged 22, and B aged 19, both of whom are independent and live outside of the family unit. M’s son, A, who features in this case, is clearly a troubled young man.
He was
made the subject of a care order during his minority. As will be seen, he, and M’s
reaction
to him, are the keys to this case. M also has a young child F now aged two who currently lives in the
home with
C, D and E and M and her current partner F3 who is the father of F. The other children within the family unit have different fathers. Child E’s father has not taken part in this appeal and is
referred
to as F2. The father, F1, of children C and D has filed written submissions although his role in the life of these children has been limited.
removal
of the three children C, D and E from the family
home with
a view to separate long term foster placements. That decision was appealed to the Court of Appeal where the orders were affirmed on 7 October 2021 by a majority of Lewison and Elisabeth Laing LJJ, Peter Jackson LJ dissenting.
refined
by this court which in granting permission formulated two questions as follows:
“In making care orders for the
removal
of three of the first appellant’s children into foster care:
(1) In order to decide whether those orders were proportionate, was it necessary as a matter of law to assess the likelihood that, if left in the first appellant’s care, (a) the children would suffer sexual harm; (b) the consequences of such harm arising; (c) the possibility of
reducing
or mitigating the risk of such harm; and (d) the comparative welfare advantages and disadvantages of the options presented; and
(2) Did the judge err in law by failing to make any or any proper assessment of those matters?”
removes
a child into care from its parents, and in this case from each other, must be necessary to meet the needs of the children having
regard
to the advantages and disadvantages of each available option. The four elements of question (1) identified as (a)-(d) above help to answer the question whether the care orders were in fact proportionate and necessary. The second question focuses on the assessment made by the judge of these issues and essentially asks whether the judge carried out the correct balancing exercise.
requires
consideration of the background facts, discussion of the decision of the judge as examined on appeal, determination of the issues identified in the permission and a decision as to whether any error has been made in the proportionality evaluation.
removed
from her care and from each other, to separate placements with limited contact with their family and against their clear wish to stay at home.
The history
remained
as a shadow in M’s life and has partaken in this appeal to the extent that he supports M’s case and contends for the maintenance of the placement of the children at
home with
M. However, for a substantial period of time he has had only supervised contact with child E. Aside from F2 and issues of sexual risk there has also been local authority involvement with the family over many years due to issues of neglect.
removal
of these children have been contemplated before. The first time that
removal
was attempted was in March 2012. This was precipitated by F2 being found concealed in the family home. The risk of sexual harm from
him was
the basis for the application, given F2’s history. However, there was no
removal
of the children at this time save that a care order was made in
relation
to A. In
relation
to the other children
residence
and supervision orders were made by a different judge in March 2014 and, perhaps most significantly for the purposes of this appeal, an injunction was made against F2 to prevent him from attending at the home again. This injunction
remains
in place to this day.
relative
stability in the family save that in 2016 there were proceedings in
relation
to F3’s children by a different mother. Of significance in
relation
to those proceedings, was that one child who had been living with M and F3 was
removed
into foster care. This was without criticism of the care givers and simply on the basis that the placement was simply not sustainable. In 2019 there were further proceedings, brought by F1 for C and D to live with him; however they were dismissed.
reduced
intervention to a level of support synonymous with “children in need” obligations. On 28 October 2019 the case was closed by social services on the basis that the family had made considerable progress and that the children were happy. Therefore, when the current proceedings were issued in March 2020 the family unit was
relatively
stable. C, D and E lived at
home with
their mother and F3 was part of the family structure in a stepfather role. A baby was born in early 2020, namely F. Also, a permanent injunction had been made against F2 and so he had only supervised contact with the family. By the time that the current proceedings issued none of the children who were ultimately made the subject of care orders had ever been out of the care of their mother.
remove
C, D and E. This was in the usual way made on an ex parte basis. The application was
refused.
However, in
refusing
the application for an emergency protection order directions were given for a care order hearing. A non‑molestation order was also made against A, which among other things prevented him from coming to the family home. The
reason
why the non-molestation order was made against A is important to state and is a matter to which I will
return.
reported
to social services until 21 November 2019, A having gone back to his own accommodation on 19 November 2019. Therefore, the local authority case made against M and F3 was that they had failed to protect E and the other children from A and failed to notify the social services when he abused E in the home.
he was
in the house and since. The local authority sought care orders, and
removal
from the home, not only of C, D and E, but also of F.
hearings were
lengthy. At the fact-finding hearing findings were made in
relation
to the assault on E in November 2019. The judge did not make any further findings in
relation
to the additional allegations made by E to the head teacher and the student social worker as these were not proven to the
requisite
standard. His findings against A were thus limited to the single occasion when the parents were distracted by the injured dog. The judge was not asked to make findings of neglect or on any other issues and so the threshold criteria were essentially confined to sexual abuse having occurred, a risk of sexual harm and a failure to protect. The background facts
relating
to the family were also informed by the earlier fact-finding decision of the first judge in 2014.
hearing was
that the judge decided that care orders should be made for C, D and E but that the case of F should be adjourned to allow for a further assessment of the possibility of B caring for her.
remotely.
It is a comprehensive judgment which deals in detail with the factual background of the case, the basis for intervention, the evidence and the legal tests to be applied.
her wish
that the family
remain
together. The social work evidence, which was extensive, highlighted the social work opinion that the adults in this case had not accepted the risk that A posed and would not be able to guard against that risk in future, notwithstanding the fact that the practical care of F had been good and there was co-operation.
report
from Dr Freedman is some 200 pages. In this
report
Dr Freedman expresses the view “assessing this large extended family is a challenge.” Dr Freedman balanced the pros and cons and
reached
the following position:
“On the one hand it becomes increasingly apparent over the years of judgments and assessments that matters in the family have not changed greatly. The presentation of the children and the state of the home are described as just adequate. The children struggle in their education. Boundaries are broken. Sexual abuse emerges
repeatedly
as a risk.
Yet, on the other hand, it is difficult to imagine how C, D and E would manage separation from their mother - much less how M would manage separation from them. And this conundrum also will impact on F, who I have not been asked to include in this assessment.”
reports
refer
to therapy and support being provided for M and the family but was overall pessimistic about the ability of M and F3 to protect the children from sexual harm given the history of the case.
report
and care plans which are instructive to
read.
In particular, the social worker’s evidence outlines the individual characteristics of each child in the following
respects.
C was 13 at the date of the hearing of this appeal and is described as suffering from anxiety and gender identity issues and having been absent from school. D is described as having some intellectual deficits, ADHD and possible ASD and in need of a specialist school placement which was promoted by M. E is described as having suffered sexual harm and exhibiting behavioural difficulties at school. A sibling assessment conducted by the social worker
recommended
separate placements for all four children and set out some issues in
relation
to educational potential and otherwise.
recommendation
in support of the social workers and said in
relation
to the mother that, in her opinion, “she has a blind spot in
respect
of A.” The plan for the youngest child F, by this stage, was adoption; however, the guardian was unable to
recommend
this drastic course without a guardianship assessment of B being undertaken. Therefore, the judge acceded to an adjournment of F’s case for further assessment and so her case
remains
before the first instance court.
relation
to C, D and E is profound in that by virtue of the orders made they would be
removed
from the care of M and F3 to separate foster placements and with contact six times per year. The fourth child, F, was to
remain
at home by virtue of the judge’s orders pending an assessment of whether or not her half-sister B, could be approved as a special guardian for her, but unless B was shown to be a viable long-term carer for her, she would be adopted.
recommendation
in
relation
to B’s special guardianship application has not been positive. Therefore, we can see that F’s case may be contested and issues arising in this case will have a bearing upon it.
The judgment of the judge at first instance
himself which
are comprised in his judgment. It is a mark of the experience of this judge that his ex tempore ruling was delivered immediately at the end of a lengthy hearing. The judgment extends to 32 pages.
recitation
of the legal tests. At para 139 of the judgment the judge rightly directs himself as follows:
“It is not enough simply to consider that the paramountcy of the children’s welfare and the matters itemised for consideration in section 1(3) of the Children Act 1989, commonly
referred
to as the welfare checklist. I have to consider the proportionality of any decision I make to
remove
a child permanently from their family. In other words, I have to be satisfied that the steps taken or the order made are indeed proportionate to the harm found or feared.”
refers
to the available options in this case and sets out the parties’ positions. At para 145 he
refers
to care orders and supervision orders. Thereafter the judge
refers
to various parts of the welfare checklist. His conclusion is found at para 169 which
records
his view that it would no longer be safe for the children to
remain
in the care of the mother and F3.
176
where the judge says:
“
176.
I have carefully considered the local authority section 31A plan for a placement in foster care under a care order. It seems to me necessary so as to allow the children to be cared for in foster care and for the local authority to share parental
responsibility
with their parents and determine the extent to which their parents can exercise their parental
responsibility.
It is the only way, I think, of stopping the difficulties that the children have suffered in the care of their mother and in the care of one or more of their fathers throughout their lives, and I have concluded that each would continue to suffer if they
remained
in that care.”
The judge
refused
leave to appeal. However, he granted a short stay of the decision and the stay has subsequently been
retained
by virtue of orders of the Court of Appeal and this court.
The judgments in the Court of Appeal
reasoning
(dissenting) is found at para 57 of his judgment wherein he states that:
“Making every allowance for the fact that this was an ex tempore judgment, I am driven to accept the submission that it does not contain an assessment of the welfare advantages and disadvantages of the rival plans for the children. The judge stated a number of the
relevant
factors, so he clearly had them in his mind, but it is not possible to see how he balanced them out.”
referred
to the fact:
“There is a range of different ways in which a judgment like this can be expressed, just as there is a range of
reasonable
decisions which are open to the first instance judge; even if sometimes that range is confined to a choice between two available options. The judge had to make his own assessment of a complicated picture and then, on the basis of that assessment, to make a very difficult decision. … The judgment of Peter Jackson LJ is cogent indeed. But I cannot say that the decision of the judge was ‘wrong’ (in the sense in which that word is used in the test for allowing an appeal in a case like this).”
“The question is not whether we would have
reached
the same decision as the judge. In cases which are marginal it is, in my judgment, all the more important to trust to the wisdom and discretion of an experienced family judge, particularly one who has been immersed in the evidence, not only in
relation
to the welfare decision but also the prior fact-finding decision.”
At para 81 Lewison LJ also said that:
“I find myself in the uncomfortable position of
reviewing
a decision which I cannot say was right or wrong. In that situation Lord Neuberger considered that the appeal should be dismissed.”
review
actually undertaken by the judge and questions whether or not all options were fully considered. The majority, whilst
respecting
this view, have focussed on their view of the limits of the appellate
review
and the deference to be afforded to the judge who heard and saw the witnesses and had conduct of the case for some time.
refer
to the profound effects of decisions taken to
remove
a child into public care. In this case three children who have never been outside parental care may be
removed
and one very young child may face adoption. Hence, it is imperative to scrutinise with care the decision made in
relation
to their future.
The competing positions of the parties
request
of the court, counsel submitted an options paper to the court which set out the viable options as follows: placement of all children in foster care; placement of C, D and E at
home with
M and F3; placement of C and F at home and D and E in foster care. Counsel also highlighted the orders which could underpin the placement at home, namely no order, a child arrangements order under section 8 of the Children Act 1989, a supervision order under section 31 of the Children Act 1989 or a care order under section 31 of the Children Act 1989.
reference
was made to support monitoring that could be put in place in
relation
to these children in the form of family safety plans, supervised contact, therapeutic intervention and support through universal services and
regular
social work visiting as part of a supervision plan.
represented
by Mr Woodward-Carlton QC stressed the history of “
repeated
lapses in protection” within this family. Thus, he maintained that the local authority plans were justified and necessary and that the judge had
reached
the right decision. Mr Woodward-Carlton candidly accepted that there was no mention of the non-molestation order or injunction in the judge’s ruling. Whilst he accepted that the judge had not specifically addressed point (g) in the welfare checklist (ie the range of powers available to the court) he contended that there was more than enough in the judgment
read
as a whole to confirm the view that the judge considered all of the options and where this was not expressed it could be implied.
revised
her position and articulated
reluctant
support for the appellant’s position that the judge was wrong in not expressly weighing the less interventionist option. This
revised
position therefore led to the local authority being the only party defending the decision of the learned judge on the basis that
he was
right having had the benefit of hearing oral evidence and having been seised of the case for a number of years to make an assessment that care orders were the only orders that could guard against the risk in this case.
Legal Framework
require
the judge to traverse three principal stages:
(i) finding the
relevant
primary facts;
(ii) determining whether the legal threshold for the making of a care order has been crossed (section 31(2)(a) Children Act 1989); and, if yes, then
(iii) deciding the proper order to make (the disposal or welfare stage).
regard
to the welfare checklist and in particular to -
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of
his which
the court considers
relevant;
(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;
(g) the range of powers available to the court under this Act in the proceedings in question.
real
possibility of significant harm, and that this was attributable to the parenting of M and F3 not being what could
reasonably
be expected of them - in particular M had a “blind spot” about A.
required
of him in making this third stage decision? In particular, what is
required
to demonstrate that the order being made is proportionate and necessary? This is, in my view, the first issue which needs to be addressed on this appeal.
re
B (A Child) (Care Proceedings: Threshold Criteria) [2013]
UKSC
33; [2013] 1 WLR 1911. In that case this court examined aspects of the threshold criteria to the making of a care order, the proportionality and necessity
requirement
which stems from article 8 of the European Convention on Human Rights, and the boundaries of appellate
review.
The first element is not material in this appeal. However, the court’s views on the second two areas bear some examination, touching as they do on the issues germane to this appeal.
Proportionality and necessity
responsibility
for the child in the local authority: section 33 Children Act 1989. Thereafter, the parents can exercise their parental
responsibility
only to the extent that the local authority determines. As this court explained in In
re
B, that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the statutory threshold criteria under section 31(2) are met, if such an order is necessary in a democratic society for the protection of the child(
ren)’s
right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the situation. See especially Lord Wilson at paras 32-34, Lord Neuberger of Abbotsbury at paras 73-79 and Baroness Hale of Richmond at paras 194-198. And it follows also that, as Lord Wilson put it at para 45, a judge considering a care order has an obligation not to act incompatibly with the article 8 rights involved. In truth, the obligation under article 8 ECHR, so clearly
recognised
in In
re
B does no more than
re-state
the longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order, but the emphasis given to the issue in In
re
B was overdue.
re
B the care order under consideration was one with a care plan for adoption of the children, so that if made it would
result
in a complete legal severance of the family
relationship
between natural parent and child. That is, no doubt, the most intrusive form of care order which our law knows. But a care order of the kind in question here has consequences almost as far-
reaching.
It will break up the existing family and indefinitely so; it can be expected to last throughout the minority of the children. It will separate them from their parents and also from each other. The principles set out in In
re
B as to necessity and proportionality clearly apply, mutatis mutandis, also to this kind of case.
re
B by several highly experienced family judges who have addressed what is involved in the third or disposal stage of consideration of a care order and how a judge goes about ensuring that the obligation to intervene only when necessary and proportionate is discharged. The
repeated
concerns of, inter alia, Sir James Munby P, Sir Andrew McFarlane P and Lady Black are well set out in the former’s judgment in In
re
B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146; [2014] 1 WLR 563. The precise context of that case was a parent’s application for leave to oppose adoption despite the previous making of a care and placement order, but observations about the approach to decisions on necessity and proportionality are of general application. They were most conveniently summarised at para 44, adopting a passage derived from the judgment of McFarlane LJ (as he then was) in In
re
G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2013] 3 FCR 293:
“The judicial task is to evaluate all the options, undertaking a global, holistic and … multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option …
‘What is
required
is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’”
This is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the
requirement
that it be necessary and proportionate.
The approach on appeal
re
B, albeit by majority, is that the existence of the
requirement
of necessity and proportionality does not alter the near-universal rule that appeals in England and Wales proceed by way of
review
rather than by way of
re‑hearing.
It follows that it is not incumbent upon an appellate court to undertake a fresh evaluation for itself of the question of necessity and proportionality. For the
reasons
clearly stated by, in particular, Lord Neuberger at paras 83-90, such is contrary to principle, as well as undesirable in practice. In particular, if each appellate court were to undertake such a fresh evaluation, it would expose the parties, and the children, to the risk of successive investigations of the same issue, certainly two, and in some cases three or even four times. It would also mean that the appellate court was expected to undertake a task for which it is unsuited, having not heard the evidence or seen the parties for itself. A decision on paper is no substitute for the decision of a judge who has, as Lord Wilson felicitously put it at para 42, had the advantage of a face-to-face, bench-to-witness-box acquaintanceship with those who are under consideration as carers of the child(
ren).
re
B, to
review
his findings, and to intervene only if it takes the view that
he was
wrong. In conducting that
review,
an appellate court will have clearly in mind the advantages that the judge has over any subsequent court - see Lord Wilson in In
re
B at para 41 and the earlier decision of the House of Lords in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360.
re
B Lord Neuberger, at para 93, essayed a further dissection of the process of deciding whether a judge’s decision was wrong. He cautiously prefaced his suggested breakdown of the possible states of mind of an appellate judge with the observation that there was danger in over-analysis. With hindsight, that was a prophetic observation, as this court held in the subsequent case of R (R) v Chief Constable of Greater Manchester Police [2018]
UKSC
47; [2018] 1 WLR 4079. Lord Carnwath, giving the judgment of the court, said this at para 63:
“With hindsight, and with great
respect,
I think Lord Neuberger’s warning about the danger of over-analysis was well made. The passage risks adding an unnecessary layer of complication. Further, it seems to focus too much attention on the subjective view of the appellate judges and their degrees of certainty or doubt, rather than on an objective view of the nature and materiality of any perceived error in the
reasoning
of the trial judge.”
real
issue is not whether the appellate court is satisfied that the judge
reached
a conclusion which was wrong. The question is rather concerned with the adequacy of the judge’s process of
reasoning
in
reaching
his conclusion. This appeal asks the question whether the judge did go through the rigorous process described at para 47 above or whether he proceeded too directly from his finding that the threshold criteria were met to the conclusion that it followed that a care order ought to be made. If, on appeal, it is found that a judge has unduly telescoped the process, and has not made the side-by-side analysis of the pros and cons of each alternative to a care order, then the likely conclusion is that his decision is, for that
reason,
flawed and ought to be set aside.
This case
required
to be considered upon a care order application. It is necessary as a matter of law for the court when asked to decide whether to make a care order to consider: (a) the nature and likelihood of risk of harm arising; and (b) the consequence of harm, if suffered.
reduction
or mitigation of the risk which pertains and the welfare advantages and disadvantages of imposing an order. Again, it is clear that this question should be asked when a court is considering whether to make a care order. That is because a court must look to determine whether any order is necessary by virtue of the Act: section 1(5), and whether or not the most interventionist order is necessary: article 8(2) of the Convention.
refers
to the range of powers available to the court under the Act. Consideration of the range of orders obviously includes the ability of the court to consider in a care order case a supervision order or other orders and options.
required
to be answered in discharge of the obligations imposed under the Children Act itself and by virtue of the Human Rights Act which in tandem with the domestic legislation,
requires
a court to consider the proportionality of any intervention in the light of the harm that may arise. In this case it was quite right to assess the harm as sexual harm and risk. It was also quite right to attribute the failure to protect from that harm both to a third party and the parental unit. There is no valid argument against the judge’s ruling in
relation
to this particularly given that he had the benefit of hearing substantial evidence including expert evidence and in light of his knowledge and experience of the case. This case does involve serious episodes of
repeat
patterns of sexual abuse and a lack of appreciation of sexual
harm which
the judge was correct to articulate.
required
to look at both. The local authority has rightly
referred
to the comprehensive papers which set out the various options filed on behalf of social services, in particular, by the main social worker. However, on close inspection the paragraphs previously
referred
to simply set out the options and there is in fact no analysis of the competing options and the issue of mitigation.
recite
each and every piece of evidence in a case. However, a judge does have to
refer
to the core elements of a case in order to
reach
a conclusion which is understandable and accords with the law.
recognise
the impact of the section 31A plan for permanence in
relation
to each child. Unfortunately, paras 142-145 of the judgment cannot cure the problem as these paragraphs simply raise the issues rather than analyse them.
required
to be proportionate. However that is not the end of the matter. The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law
requires
of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be
reduced
for each child. Nor is there any comparison of the
harm which
might befall the children if left at
home with
the
harm which
would be occasioned to them if
removed,
and separated not only from the parents but from each other.
required
this appellate court cannot determine whether the orders made were proportionate and necessary. That being so, it was premature to ask, as Lewison LJ did, whether the order was one which he could say was right or wrong.
reaching
his decision.
Next steps
relation
to the three children. His argument was based on the need for certainty for the children and to avoid delay. Such a position is understandable. However it cannot prevail in this case for the simple
reason
that a court would need to scrutinise a
revised
plan and be satisfied itself as to any mitigations which might address the identified risks. This court is not equipped to conduct that exercise. This court would be stepping in to make its own proportionality assessment which is contrary to the line of authority we approve emanating from In
re
B.
realistic
course to take in this case where, unfortunately, we have found that the judge fell into error, is to
remit
the case for
rehearing.
It is better that a different judge should hear the case. It
remains
to be seen what the ultimate outcome will be. Given the amount of information already generated it is to be hoped that updating
reports
will not
result
in a lengthy process. We would also hope that it is feasible to have the
remitted
case
relating
to C, D and E and the outstanding case
relating
to F, heard together and concluded in the near future in order to settle arrangements for the entire family.
remitted
for
rehearing.