Supreme Court rejects appeal against care order due to risk of harm

Teddy bearThe Supreme Court has dismissed an appeal against a care order intended to save a child from the risk of future psychological harm.

In Re B, the child had been removed from her parents shortly after the birth and placed in temporary care under an interim order. The parents visited the child regularly and formed a relationship with her.

When the case came to court the judge made a full care order for the girl, with a view to her eventual adoption. He concluded that there was a real risk of emotional and psychological harm to the child if she was placed in the care of her parents. The mother suffered from conditions that could mean the girl receiving unnecessary medical treatments and the parents frequently presented a dishonest picture of the world, which could lead to significant confusion for the girl. Extensive intervention would be needed to protect the girl from such risks but the parents were unlikely to cooperate as they had a hostile and manipulative attitude to social workers the case reports stated.

The parents appealed the judgement and the Court of Appeal upheld the original judge’s decision. The case then went to the Supreme Court.

There the Justices again came down in favour of the original judge’s conclusions – but only by a 4 to one majority. Lady Hale issued a dissenting judgement.

In the majority judgement, the Justices declared that the original judge had had sufficient evidence for the conclusions reached. Under  section 31 of the Children Act 1989, there need only be a real possibility of harm, including emotional harm, for the courts to make a care order.

They also rejected an argument that the care order violated the child or her parents’ rights to respect for family life under Article 8 of the European Convention on Human Rights.

However, in her dissenting judgement, Lady Hale declared that the case was based solely on the mere possibility of harm to the child. The family courts had not explored any alternatives to the care order.

She said:

“It must not be forgotten that this is a child who as yet has suffered no harm at all (except possibly the harm of being separated from her mother so soon after birth). She has had the advantage of remaining with the same foster carer throughout, where she is doing well. She has also had the enormous advantage of establishing a strong and loving relationship with her parents, who have given her “child centred love and affection in spades”, as the judge put it. Their commitment has been excellent and the fact that in all the circumstances their behaviour during contact has attracted so little criticism and so much praise is extraordinary. She will eventually have to move on from her foster home and the only question is whether she moves to a completely new home with adoptive parents as yet unidentified or whether she moves to live with the parents she knows and loves and who know and love her.”

Lady Hale concluded:

“I take the view that it has not been sufficiently demonstrated that it is necessary to bring the relationship between [the child] and her parents to an end. In the circumstances of this case, it cannot be said that “nothing else will do” when nothing else has been tried. The harm that is feared is subtle and long term. It may never happen.”

Photo by Adrian Bailon via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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10 comments

Luke - June 13, 2013 at 2:44pm

As we don’t know the details I don’t think we can judge the situation – but Lady Hale seems to make a strong case.

Marilyn Stowe - June 13, 2013 at 2:52pm

Dear Luke
You can read the judgement by following the link. Should this child be adopted away despite her link with her parents and never having suffered any harm and as Lady Hale states, no alternative ever having been attempted?
Its a darkly disturbing case. I can see arguments on both sides.
I think it would have received far more attention had it not been handed down at the same time as Prest.
Yesterday when I was on This Morning, I think it was pretty clear there are no neat pat answers to child related cases. In this case we have two parents who desperately want to stop their child being adopted and the highest court in the country ordering it to take place for the benefit of the child. The interests of the parents dont count.
Im not expressing a view on this case, but I am interested in what people think about it.
Regards
Marilyn

Francis - June 13, 2013 at 3:19pm

The important point about this case is whether children should be forcibly adopted in circumstances such as this on a prediction of harm where no harm has been suffered. The Judge was upheld in the Supreme Court so he was right in law and clearly thought long and hard about the decision. Personally I prefer the Hale approach but there are respectable arguments both ways. The bigger issue is that Parliament has never really considered this point namely how bad should things be to justify a forced adoption. There is no public debate and it is left to judges who mostly strive to do their best but are largely risk averse. Policy makers such as Martin Narey are trying to force through an agenda which basically amounts to – if there is a risk of harm then it should be adoption.

Paul - June 13, 2013 at 3:26pm

This is a very unsettling and disturbing judgement. It seems perverse to me that with both parents’ behaviour in relation to their child being judged as “exemplary” over a two year period and with a doctor confident that the mother was progressing, gaining insight and so forth, that his recommendations for a method of maintaining the family intact were not followed. Why the court regarded the parents’ disinclination to engage with professionals as being somehow pivotal to proving the risk of anticipated future harm is beyond me. I was exactly the same in my own case. I absolutely refused to have anything to do with social services at the time and the district judge regarded my blunt opposition to them as understandable because of the mess their own meddling had caused. And he was right.

These people just make it up to suit. There was plenty of expert opinion for the parents in this case, including the child’s original guardian.

Luke - June 13, 2013 at 4:48pm

I’ve read the judgement now (I didn’t know that a link went to it previously), and it is a tough call, but I think they have got it wrong again.

As their behaviour with the child has been judged as excellent my own view would be that under careful monitoring they had to give the family a chance.

I am very surprised given the nature of the relationship between them and the child over a 2 year period that they made this decision – what was the point of them having a relationship with the child if it was to make no difference ?
:-(

Paul - June 13, 2013 at 5:15pm

Exactly right. All pontification on dictionary definitions mixed in with crystal gazing rather than the observation of reality: how the parents were coming together for their child; what the professionals who were most directly involved in helping them were saying. Social engineering by alchemists.

Winston Smith - July 14, 2013 at 1:35pm

There appears to be a problem.

It appears to be an MSBP/FII Relaunch case, with the mother as claimed in other cases to have FI and will therefore project FI on the child in the future.

But wait a minute wasn’t FII discredited with judge Bellamy awarding £200,000 costs against the LA……….

Dana - July 17, 2013 at 9:52am

I’m with Lady Hale. To take it one step further, all children who have care orders are at future risk. The children are more at risk of abuse in care that those of similar situations out of the care system. Outcomes are generally poorer overall. They face discrimination & stigma. All in all most children would be better off at home & out of the care system. This is not just me who says this. There is research that can be found on NCCPR. The largest ever study done. The evidence is in: the definitive study. Foster care vs kids left in their own homes. I find it strange that the UKs research takes the view that reunification fails. Maybe they should leave the kids at home and work with them and when they reunify kids home they should also assist! That has to be a better & cheaper solution. A win win!

hali - September 1, 2013 at 5:33pm

I need some urgent advise, regarding appeal against care orders and 1 adoption placement order, please may you help on how to discharge this, or contact lady hale.

Dana - December 22, 2013 at 10:25am

If a child is removed for safeguarding then it makes no sense to adopt that child given that once adopted no one knows what happens to the child. We live in dangerous times and frankly if the state removes a child it should keep that child safe and parents can visit too as an additional safeguard. In USA parents rehomed their adopted kids on Bulliton boards. This went on for 8 years! Anyone could take the kids off the hands of the adoptive parents who had been assessed and cleared to adopt by social workers but were found not to be able to cope. How wrong could they be! Russia refuses to allow adoption after Russian kids were found to be abused, maimed or murdered by American adopters. Why do we think this doesn’t happen here in the UK? A new element has crept in, trafficking. How many kids from care, adopted or fostered, have been trafficked?

However NCCPR research states family preservation is better than foster care. The UK needs to look at what it is doing in family court as its becoming more apparent that children are taken unnecessarily and exposed to greater risk than they would have experienced if they remained at home.

All cases of kids in care should be reviewed by an independent body with a view to returning the children to parents or grandparents.

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