H-W (Children)
| Jurisdiction | England & Wales |
| Judge | Dame Siobhan Keegan,Lord Hodge,Lord Kitchin,Lord Burrows,Lord Hughes |
| Judgment Date | 15 June 2022 |
| Neutral Citation | [2022] UKSC 17 |
| Court | Supreme Court |
[2022] UKSC 17
Lord Hodge, Deputy President
Lord Kitchin
Lord Burrows
Lord Hughes
Dame Siobhan Keegan
1st Appellant (M (mother of C, D, E and F))
(Acting Pro Bono)
Hannah Markham QC
Kate Makepeace Grieve
Lara Izzard-Hobbs
(Instructed by Bastian Lloyd Morris LLP)
2nd Appellant (F3 (partner of M and father of F) (also a 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)
Heard on 22 March 2022
( with whom Lord Hodge, Lord Kitchin, Lord Burrows and Lord Hughes agree)
These appeals concern the proportionality of care orders made in 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.
The care orders were made by the judge on 26 July 2021. These orders were made approving a care plan of 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.
The grounds of appeal of the appellant parents (M and F3) were 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?”
The first question focuses on the issue of the proportionality of the care orders which were made for C, D and E. To be proportionate a care order which 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.
An answer to these questions 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.
In outlining the contours of these appeals it is important to state that the appellants do not seek to challenge the primary factual findings made by the judge. They do not argue that his assessment of the risk of harm to the children in their mother's care was wrong. Rather, they say that the judge erred in failing to consider the proportionality of the orders he made by balancing the risk of harm to the children in the care of their mother with the harm the children would suffer should they be 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 local authority began involvement in the life of this family when M was herself a child. She was in public care and suffered from neglect and sexual abuse which began when she was a teenager. That abuse was perpetrated by F2 with whom M was to have child E in 2013. F2 has 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.
Court proceedings for 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.
From 2014, when the aforementioned proceedings concluded, to 2018 there appears to have been a period of 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.
In March 2019 the local authority 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.
The current proceedings began on 31 March 2020. They were triggered by the conduct of A. On that date the local authority made an application for an emergency protection order to 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.
The trigger for court proceedings in March 2020 was an incident in November 2019. This involved A coming to the family home and sexually abusing the child E. At this time A was advised by the police to leave his supported accommodation for his own safety. M was expected to prevent A from staying in the house or being unsupervised around the other children. Notwithstanding this, A was apparently allowed to visit the house for short periods. In November 2019 A stayed at the house for a period of time and on 18 November he sexually abused the child E whilst M and F3 were distracted in the house by an injured dog. An added concern was that the matter was not 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.
Unsurprisingly, after...
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