B (A Child)
|England & Wales
|Lord Wilson,Lord Neuberger,Lord Kerr,Lord Clarke,Lady Hale
|12 June 2013
| UKSC 33
|12 June 2013
 UKSC 33
Lord Neuberger, President
THE SUPREME COURT
On appeal from:
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)
Heard on 25 February 2013
This challenge to the making of a care order, made with a view to the child's adoption, requires the court to consider
(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.
The mother, "M", supported by the father, "F", with whom she lives, appeals against an order of the Court of Appeal (Rix, Black and Lewison LJJ) dated 14 November 2012. By its order, the Court of Appeal dismissed M's appeal against an order made by HHJ Cryan in the Principal Registry of the Family Division dated 14 June 2012. By his order, the judge made a care order in relation to the daughter of M and F upon the basis of a care plan that she should be placed for adoption. Amelia (being the name which Lady Hale proposes that we should attribute to the daughter) was born in April 2010 so is now aged three. At birth she was placed with a foster mother on what was intended to be a short—term basis; she remains living with her pending the determination of this appeal.
M is aged 42 and F is aged 45. The applicants for the care order are the London Borough of Barnet, where the parents were living when Amelia was born. Since then they have moved to Islington. M and F each have other children. M has another daughter, aged 14, whom, in accordance with Lady Hale's proposal, I will call Teresa and with whom M has no contact. F has four other daughters aged between 17 and six. They live with their mother; F has an amiable relationship with them but, for reasons which I will explain in para 15 below, his has not been a stable or responsible presence in their lives and, on a practical level, his involvement with them has been marginal.
Teresa's father is M's step-father, "Mr E", with whom M lived for many years. In 2010, following her separation from him, M applied for a residence order in relation to Teresa. It was in that application that Judge Cryan first became acquainted with the family. He conducted a fact-finding hearing over 20 days which led in April 2011 to his handing down a judgment of 180 paragraphs. The relevant local authority, West Sussex, thereupon issued care proceedings in relation to Teresa, in which the judge conducted three further substantial hearings. With M's support, he ordered the removal of Teresa from the home of Mr E into foster care, where she remains.
The hearing which led to the making of the care order in relation to Amelia also proceeded for 20 days and led to the judgment under challenge, which extends to 203 paragraphs. It follows that, in arriving at his conclusion that it was not safe for Amelia to be placed with the parents and that it was necessary in her interests that she should be adopted, Judge Cryan drew on extensive exposure to the problems of the family. Indeed the extent of it is beyond my own experience of service for 12 years in the Family Division. M scarcely challenged the judge's findings of fact in the Court of Appeal; and her challenge to them in this court is, inevitably, so faint that there is no need to add to the reasons which Black LJ gave for rejecting them in her judgment in the Court of Appeal,  EWCA Civ 1475, at paras 133 to 136.
What follows represents as brief a summary as possible of the facts found by Judge Cryan. Greater detail is to be found in the judgment of Black LJ.
M is the victim of grave misfortune. Her life has been hugely dysfunctional. In 1975, when she was aged four, the marriage of her parents broke down and, with her sisters, she moved to live with her grandparents. Several years after her mother's marriage to Mr E in 1977, M and her sisters moved to live with them. The family was enlarged by the birth of two sons born to M's mother by Mr E in 1985 and 1986.
Mr E's influence on the family in general, and on M in particular, was malign in almost every sense. He is egocentric; aggressive; domineering and dishonest. By 1986, although married to her mother, Mr E was having sexual relations with M, then aged 15; in that year she became pregnant by him and had an abortion. Prior to 1999, when she gave birth to Teresa, M was to have six further abortions consequent upon her relationship with him.
Mr E also inflicted grave and protracted physical abuse on one of M's sisters. When in 1989 the family went to live in Greece, of which Mr E was a citizen, they left the sister behind. In due course the sister was taken permanently into care. Meanwhile the family had returned from Greece.
In 1990 M's mother left Mr E. For the following 19 years the family in effect comprised Mr E, M, her two half-brothers and, once born, Teresa. On numerous occasions until 2002, when they settled in West Sussex, the family moved home. In the early years, when the half-brothers were still minors and prior to the birth of Teresa, local authorities and police forces became concerned about their safety at the hands of Mr E; and for a month in 1997 they were taken into care.
In 2003 M was found guilty of a series of frauds, which had yielded £30,000 and for which she was sentenced to imprisonment for two years. Her defence had been that the prosecuting officer had conspired with a man who had allegedly raped one of her half-brothers to present a false case against her. In this regard she was later found guilty of attempting to pervert the course of justice and sentenced to a further term of 27 months. Judge Cryan found that, in perpetrating the frauds and concocting the false defence, she had been heavily influenced by Mr E. Nevertheless the convictions, the gravity of which was reflected in the sentences passed upon her in respect of them, represent the first example of conduct on the part of M which, taken together, was to lead the judge to describe her as an habitual and purposeful liar.
For the purposes of her second criminal trial M's solicitors invited a consultant psychiatrist, Dr Taylor, to assess her fitness to plead. His conclusion was that she was fit to do so; but, following examination of her extensive medical records, he concluded that she suffered from a somatisation disorder. This is a chronic psychiatric disorder, of which the main features are multiple complaints about physical symptoms and requests for medical investigations in circumstances in which, if organic disorder is present at all, it fails to account for the symptoms or for the extent of the sufferer's pre-occupations. In short it is a condition which drives the sufferer to misuse physical symptoms in order to elicit care from others or for other purposes. For use in the proceedings before Judge Cryan, another consultant psychiatrist, Dr Bass, was instructed to appraise M's psychological condition in the light of her more recent medical records. Dr Bass, who has considerable expertise in this area, confirmed Dr Taylor's diagnosis that M suffers a somatisation disorder; and in effect it became an agreed fact. But, as I will explain in para 17 below, Dr Bass went further.
While investigating the allegations of fraud against M, the police discovered paedophilic images in a computer in the family home. Mr E contended that the police had planted them there. In 2004 Mr E complained to the General Medical Council that the family GP had sexually assaulted one of the half-brothers, then aged 18. The complaint was dismissed. Following her ultimate release from prison in 2004, M made various complaints to probation officers, hospitals and social workers that Mr E was abusing her physically and sexually. By June 2009 her life in the home had become intolerable and she left. She did not take Teresa with her; no doubt Mr E would not have allowed her to do so. In effect it marked the end of her relationship with Teresa who, under Mr E's influence, has refused to have any further dealings with her. Judge Cryan's conclusion was that, within her long relationship with Mr E, M could fairly be regarded as his victim but that her role had not been entirely inert and that she had actively conspired with him in the many lies, deceptions and false accusations which had been generated in the household.
In the summer of 2009 M met F. They began a relationship which continued following M's move to Barnet late in 2009; but they did not fully cohabit until late in 2011.
F has a long criminal history and has spent about 15 years of his adult life in prison. He was convicted of 52 offences between 1980 and 2008. Some related to drugs; some included violence but most were offences of dishonesty. In the 1990s he sustained three convictions for robbery, for each of which he received sentences of imprisonment of between two and three and a half years. In...
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