Re B (A Child) (Care Order: Proportionality: Criterion for Review)

JurisdictionEngland & Wales
Judgment Date2013
CourtCourt of Appeal (Civil Division)

Care proceedings – Appellate exercise – Proportionality – Criterion for review – Mother suffering from somatisation and factitious disorders – Father having long criminal history – Child being removed from parents at birth – Parents assiduous in attending supervised contact pending determination of care proceedings – Reports of contact quality being uniformly positive – Mass of evidence indicating that parents fundamentally dishonest, manipulative and antagonistic towards professionals – Experts agreeing that child could not conceivably be placed in parents’ care other than pursuant to programme of multi-disciplinary monitoring and support requiring honest co-operation from parents – Judge making care order – Court of Appeal dismissing appeal – Mother appealing to Supreme Court – Proper approach of appellate court to challenge to proportionality of care order made with view to adoption – Whether appellate court should depart from normal function of secondary review and instead make fresh determination – Criterion for review apt to appeals against determinations made in care proceedings – Whether judge erring in concluding that threshold to making of care order crossed – Human Rights Act 1998, s 6(1).

M came from a dysfunctional background, partly owing to the presence in her life of a stepfather (Mr E), who was aggressive, domineering and dishonest. Mr E’s influence on M was malign in almost every sense and, by 1986, although married to her mother, he 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 T, M had six further abortions consequent upon her relationship with Mr E. 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, T. In the early years, when the half-brothers were still minors and prior to the birth of T, local authorities and police forces became concerned about their safety at the hands of Mr E; for a month in 1997 they were taken into care. In 2003, M was found guilty

of a series of frauds 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 that regard she was later found guilty of attempting to pervert the course of justice and sentenced to a further term of 27 months. For the purposes of her second criminal trial, M’s solicitors invited a consultant psychiatrist (Dr T) to assess her fitness to plead. His conclusion was that she was fit to do so but that she suffered from a somatisation disorder, a condition which drove the sufferer to misuse physical symptoms in order to elicit care from others or for other purposes. Following her 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 family home had become intolerable and she left, leaving T in the care of Mr E. In the summer of 2009, M met F and entered into a relationship with him. F had a long criminal history and had spent some 15 years of his adult life in prison. M gave birth to F’s child (A) in April 2010, but the child was removed from them at birth. From May 2010 until June 2012, when the care proceedings were heard, contact took place under supervision for one-and-a-half hours on five days a week. M and F were assiduous in attending all the periods of contact and the supervisors’ reports of its quality were uniformly positive. Another consultant psychiatrist (Dr B) was instructed to appraise M’s psychological condition for the purposes of the care proceedings relating to A. Dr B confirmed Dr T’s diagnosis but also reported that M suffered from a factitious disorder of mild to moderate intensity. That was a related psychiatric disorder in which the sufferer was driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories. There was, therefore, a deceptive dimension to the disorder which was replicated in a mass of other evidence before the judge, unrelated to M’s medical condition, which raised questions about her ability, and also the ability of F, to behave honestly with professionals. Dr B stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken only if she were to acknowledge the problems and to engage honestly with the therapist. There was an issue before the judge about the effect on A of being placed in the care of M in the event that she was to continue to suffer somatisation and factitious disorders. In the event, the judge found that there were risks that A would suffer harm in that regard, namely that A might receive medical treatment which was unnecessary and might grow up to believe that the way in which M presented herself for treatment was appropriate and might model herself on it. It was the judge’s wider concerns, however, which drove him to conclude that it was not safe for A to be placed with the parents. Those concerns related to the mass of evidence that each of the parents was fundamentally dishonest, manipulative and antagonistic towards professionals. All the instructed experts agreed that A could not conceivably be placed in the care of the parents other than pursuant to a programme of multi-disciplinary

monitoring and support, which could be implemented only in the event of honest co-operation on the part of the parents. The judge’s key conclusion was that their honest co-operation with professionals would not be forthcoming; and his subsidiary conclusion was that it might in any event be damaging for a child to grow up in a household permeated by dishonesty and animosity towards professionals in that she would find such attitudes confusing, even assuming that she did not find them attractive. M, supported by F, appealed against the care order made in relation to A. The Court of Appeal dismissed the appeal. On further appeal to the Supreme Court, an issue arose as to proper approach of an appellate court to a challenge to the proportionality of a care order made with a view to adoption. The mother submitted that s 6(1) of the Human Rights Act 1998 dictated that an appellate court should depart from its normal function of secondary review and instead should make a fresh determination of its own when the allegation was that the order made below had violated a right protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. In considering that issue, the court had regard to r 52.11 of the Civil Procedure Rules 1998, SI 1998/3132 (‘CPR’), para (1) of which provided that: ‘every appeal will be limited to a review of the decision of the lower court unless … (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’.

Held – (1) (Lady Hale and Lord Kerr dissenting) Section 6 of the 1998 Act did not mandate fresh appellate determination of a Convention-related issue. That provision made it unlawful for public authorities, which included appellate courts, to act in a way which was incompatible with a Convention right. However, the Convention itself did not require appellate courts to address issues arising under it with any particular degree of intensity. Appellate courts had to discharge their domestic duty under s 6(1), but the manner in which they sought to do so was a matter for Parliament or for rules made under its authority. Civil appellate courts other than the Supreme Court operated in accordance with r 52.11 of the CPR. Such courts should seek to discharge their duty under s 6 by determining a Convention issue in accordance with para (1) of that rule. Having decided that the requisite appellate exercise was that of conventional review, a question remained about the criterion for review apt to appeals against determinations made in care proceedings. There was an attractive symmetry between the criterion for review of a determination of whether the threshold was crossed and that for review of a determination of whether a care order should be made. In each case, it was no more and no less than whether the determination was wrong. To ask whether the determination was ‘plainly’ wrong either added nothing or served to treat the determination under challenge with some slight extra level of generosity apt to one which was discretionary but not to one which was evaluative. There was nothing discretionary about a determination of whether the threshold was crossed. It

was correct to categorise it, instead, as a value judgement, particularly, but not only, when the court was surveying likelihood. Although the court’s apparent discretion whether to make a care order had led family practitioners readily to assume that the criterion for appellate review was identical to that applicable to review of what were taken to be discretionary determinations relating to children in private law, the task of the trial judge in applications for care orders was more than to exercise a discretion. His task was to comply with an obligation under s 6(1) of the 1998 Act not to determine the application in a way which was incompatible with a person’s right to respect for his or her family life. The review which fell to be conducted by the appellate court therefore had to focus not just on the judge’s exercise of a discretion but on his compliance or otherwise with an obligation (see [35]–[37], [44]–[47], [83]–[92], [136] and [138]–[139] of the judgment of the Supreme Court, below); G v G [1985] 2 All ER 225 and RB (Algeria) v Secretary of State for the Home Dept, U (Algeria) v Secretary of State for the Home Dept, Othman v Secretary of State for the Home Dept [2009] 4 All ER considered.

(2) (Lady Hale dissenting) In the circumstances, the...

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