The Children Act 1989 (CA89) sets the boundaries of State intervention in relation to parents and their children. The courts are empowered, in defined situations, to issue various orders such as contact orders, residence orders, supervision orders and care orders. Under the Adoption and Children Act 2002, children may be 'placed' for adoption (placement orders) and then adopted to suitable adoptive parents and this may (not necessarily always) break the child's ties with the natural family. Given the draconian nature of some of these powers, it may surprise some readers to learn that 23 years after the CA89 came into force the courts are still deciding questions relating to the meaning of the Act, its application to particular cases and the role of the appellate courts in relation to decisions of those judges tasked with the day-to-day application of the law.
In February, the Supreme Court gave judgment in J (Children)  UKSC 9 (Lord Hope, Lady Hale, Lords Clarke, Wilson and Sumption) and, in June, there was B (A Child)  UKSC 33 (Lord Neuberger, Lady Hale, Lords Kerr, Clarke and Wilson). Both cases raised questions relating to the 'significant harm' test in section 31 of the CA89. This test - often described as the threshold - is applied to the facts of a particular case. In the event that the facts raise sufficient concern to pass the test, some form of State intervention in the child's family will be permissible by law.
Section 31(2) -
- “development” means physical, intellectual, emotional, social or behavioural development;
- “health” means physical or mental health; and
- “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.
From this we can see:
1. Neither a supervision order nor a care order may be made by a court unless the significant harm test is met.
2. The child must be suffering or be likely to suffer significant harm.
3. The harm being suffered or likely to be suffered must be due to lack of the care which it would be reasonable to expect a parent to provide.
4. The words 'harm', 'development', 'health' and 'ill-treatment' are widely defined.
5. It is possible for the significant harm test to be met where a child is likely to suffer and the likely harm is attributable to the care likely to be given to the child.
Child care cases arise from an immense variety of factual circumstances and it is perhaps unsurprising that the significant harm test has resulted in a considerable amount of case law. In the J (Children) case, Lady Hale pulled together the following authorities:
' ... the apparently simple words of section 31(2) have been considered by the House of Lords and the Supreme Court in no less than six cases: In re M (A Minor) (Care Orders: Threshold Conditions)  2 AC 424; In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563; Lancashire County Council v B  2 AC 147; In re O (Minors) (Care: Preliminary Hearing)  UKHL 18,  1 AC 523; In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening)  UKHL 35,  AC 11; and In re S-B (Children) (Care Proceedings: Standard of Proof)  UKSC 17,  1 AC 678.
J (Children) was concerned with the second limb of that question: what is meant by "likely to suffer" significant harm?
Lady Hale [at para 4] said - 'A child may be protected, not only if he is actually suffering harm as a result of a lack of reasonable parental care, but also if it is likely that he will do so in the future. But how is a court to be satisfied that it is likely that this particular child – the child concerned - will suffer significant harm in the future? It has twice been held in the House of Lords that the mere possibility, however real, that another child may have been harmed in the past by a person who is now looking after the child with whom the court is now concerned is not sufficient. The court has to be satisfied on the balance of probabilities that this person actually did harm that other child: see In re H  AC 563 and In re B  AC 11. But in both those cases, it was not established that the other child had been harmed at all. The issue in this case is whether it makes a difference that another child has indeed been harmed in the past and there is a possibility that this parent was responsible for that harm.'
Note here the word 'possibility' that the parent has harmed the child in the past. It has not been established that the parent DID harm the child.
The Supreme Court noted that it is a serious matter for the state compulsorily to remove a child from his family of birth. The section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm. The wording of section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities. This approach is supported by the legislative history of section 31(2). It would be odd if the first limb (actual harm) had to be proved to the court’s satisfaction but the basis of predicting future harm did not.
B (A child):
At the heart of the case were questions about what is 'significant harm' under section 31 of the CA89; what is the role of Article 8 (Right to respect for private and family life) when a court makes a care order and what is the role of the appellate court hearing an appeal from a judge who has made a care order.
Significant harm -
In B (A Child), Lady Hale discusses significant harm at some length - [paras 177 to 193]. At  Her Ladyship said:
'Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 that "likely" does not mean "probable" or "more likely than not". It means, in Lord Nicholls' well-known words, "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria)  UKSC 9;  2 WLR 649...'
At  Lady Hale set out 5 helpful propositions for cases where the threshold is in dispute:
I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:
(1) The court's task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.
(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.
(3) Significant harm is harm which is "considerable, noteworthy or important". The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.
(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.
(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents' future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a "risk" is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J  2 WLR 649.
Once the threshold is crossed, section 1(1) of the Children Act requires that the welfare of the child be the court's paramount consideration. In deciding what will best promote that welfare, the court is required to have regard to the "checklist" of factors in section 1(3). These include, at (g), the range of powers available to the court in the proceedings in question. By section 1(5), the court must not make any order unless it considers that doing so would be better for the child than making no order at all. The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.
Lady Hale considered the Strasbourg case law in this area and concluded at :
Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B  1 FLR 611, at para 34,
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."
The role of appellate courts -
A majority view (Lords Neuberger, Clarke and Wilson)
Lord Neuberger [at 80-96] analyses the role of appellate courts where there is a challenge to a care order. It was held that the test to be applied by the appellate court is whether the decision of the lower court was 'wrong.' The appellate court exercises a review role rather than undertaking the entire decision making process for itself. So, when is a decision 'wrong'?
At [93-94] Lord Neuberger stated:
An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii). [My emphasis]
As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.
A minority view (Lady Hale and Lord Kerr)
The case is of some interest for the differing views of Lord Kerr and Lady Hale as to the role of appellate courts.
Lord Kerr at  - The decision by an appellate court on whether the making of an adoption order is proportionate cannot be determined by an approach which is geared solely to testing the adequacy of the trial judge's assessment of the proportionality issue. In my view this is impermissible because it removes the appellate court from the area of responsibility which it has to ensure that a Convention right is not infringed. Moreover, an approach that contemplates the endorsement by an appellate court of a decision on proportionality which it does not affirmatively find to be correct involves an abdication of the court's statutory duty as a public authority. Section 6 of the Human Rights Act makes it unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right.
Lady Hale at  - ' .... it seems to me that if the court has the duty to assess the proportionality of the decisions of a board of school governors, or of the Secretary of State, or of the immigration appellate authorities, it must a fortiori have the duty to assess the proportionality of the decisions of the trial judge in a care case. It must of course give due weight to the enormous benefit which he has had of reading and hearing all the evidence, of assessing not only the credibility and reliability of the witnesses but also their characters and personalities and the professionalism of the professional witnesses, of living and breathing the case over so many days and weeks. And it must be alive to the risks of being over-critical of the way in which a judge has expressed himself, bearing in mind the wise words of Lord Hoffmann in Biogen quoted earlier. But the court which makes the final decision is the public authority which is responsible for the invasion of Convention rights. I agree with Lord Kerr that it must decide for itself whether the order will be compatible with those rights. But I also agree that this will only make a difference in cases within Lord Neuberger's category (iv), where the appellate judge cannot say whether the trial judge was right or wrong.'
Subsequent cases in the Court of Appeal:
In some recent cases the effect of Re B has been considered by the Court of Appeal. This is therefore a developing area of the law. The judgments of McFarlane LJ in Re B-S  EWCA Civ 813 (14th June) and Re G  EWCA Civ 965 (30th July) as well as Black LJ in Re P  EWCA Civ 963 (30th July) are also of crucial interest in the manner in which Re B has affected the practical consideration of these major orders. See also the Court of Appeal judgment in Re B-S (Children)  EWCA Civ 1146 (17th September).
A good article on Re B (A Child) is at Family Law Week where Frank Feehan QC and Anna McKenna offer a table summarising the individual findings of the Supreme Court Justices - Re B (A Child): Who held what in the Supreme Court? To open a PDF of the table click here .
A further useful write up of Re B (A Child) is by Tessa Buchanan on the UK Human Rights blog 2nd July 2013.