Supreme Court dismisses the appeal in Re B

The Supreme Court has dismissed the appeal of the parents of a child subject to a care order in the case of B (a child) [2013] UKSC 33. Last year the Court of Appeal upheld the decision of the trial judge to make a care order with a view to adoption in respect of the child. This morning four of the Supreme Court agreed with the Court of Appeal, with Lady Hale providing the dissenting judgment.

The case concerns the application of the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm and the role of the appellate courts once the trial judge has made an order.

The Court of Appeal's decision had been subject to some criticism from family law professionals and therefore it is likely that the dismissal of the parents' appeal may prove a controversial decision in the family law world. In the Court of Appeal judgment itself, Lord Rix, although upholding the trial judge's decision, wondered ‘whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk'.

In the judgment handed down this morning, the Supreme Court has held that the trial judge had been entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case. It explained that it would only be able to interfere with the trial judge's decision if it was ‘wrong', but it need not have been ‘plainly wrong'.

The trial judge had found that although the parents had behaved unimpeachably towards their daughter, showing their commitment to her in spades, nevertheless the threshold in s 31 of the Children Act 1989 had been satisfied. The trial judge found that if placed in her parents' care, there was a risk that the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mother's deceitful behaviour, and at the very least be confused at the difference between the real world and her mother's dishonest presentation of it. There would have to be a multi-disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co-operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption.

The Supreme Court also considered Article 8 of the ECHR and held that the trial judge was entitled to conclude that the making of a care order in relation to the child, with a view to her being adopted was necessary and did not violate the rights of the child or her parents to respect for their family life under article 8 of the ECHR.

The full judgment can be downloaded here.