B (a Child), Re

Factual and Procedural Background

The case involves an appeal by the Mother (“Appellant”) – supported by the Father (“Supporting Party”) – against a care order made on 14 June 2012 by Judge A in the Principal Registry of the Family Division. The order placed their daughter (“the Child”), born April 2010 and fostered since birth, under the care of The Local Authority with a plan for adoption. The Court of Appeal (Judges B, C and D) dismissed the Appellant’s appeal on 14 November 2012. The present judgment arises from a further appeal to the Supreme Court, which examines (i) whether the statutory threshold for a care order under section 31(2) Children Act 1989 was met, (ii) whether the order was proportionate under Article 8 of the European Convention on Human Rights, and (iii) the proper limits of appellate review of such decisions.

Legal Issues Presented

1. Whether the Child was “likely to suffer significant harm” attributable to parental care falling below the reasonable standard required by section 31(2) Children Act 1989.
2. How to interpret “significant harm” and the required degree of likelihood in emotional or psychological contexts.
3. Whether making a care order with a plan for adoption constituted a proportionate interference with the family’s Article 8 rights—i.e., whether “nothing else would do.”
4. The scope of an appellate court’s power to overturn a trial judge’s findings on (a) threshold criteria and (b) proportionality.

Arguments of the Parties

Appellant’s Arguments

• The evidence did not establish a likelihood of significant harm; any prospective harm was too speculative or minor.
• The feared harm related to parental character (dishonesty, somatisation disorder) rather than demonstrable deficiencies in parenting.
• Even if threshold were crossed, permanent severance via adoption was a disproportionate response; less-intrusive measures (support or supervision orders) were available.
• The trial judge failed to explain adequately the probability and severity of the alleged future harm and gave insufficient weight to positive contact evidence.

The Local Authority’s Arguments

• Extensive findings showed both parents to be persistently dishonest, manipulative and hostile to professionals, making safe rehabilitation impossible.
• Expert evidence (Psychiatrists X and Y and Psychologist Z) identified risks of emotional harm through “inter-generational transmission of abnormal health behaviour” and potential over-medicalisation.
• A robust multi-disciplinary plan could only work with honest parental cooperation, which the judge found would not be forthcoming.
• The Court of Appeal should not disturb findings that were open to the trial judge on the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

Threshold. Judge A accepted expert evidence that the Mother has somatisation and mild-to-moderate factitious disorders, posing two main risks: (a) the Child could be exposed to unnecessary medical procedures and (b) the Child could model abnormal health-seeking behaviour. Added to this were both parents’ entrenched dishonesty, manipulation and hostility toward professionals, exemplified by 16 incidents catalogued by the judge. He concluded these traits would impair the Child’s emotional development and made future harm a real possibility; therefore the statutory threshold was “crossed.”

Proportionality. All experts agreed that any placement with the parents required intensive multi-disciplinary monitoring. Judge A found honest cooperation “critical” yet unlikely: past conduct showed the parents cooperated only when unchallenged. No “half-way house” (e.g., supervision order) was viable because professionals could not rely on truthful reporting or safe access. Adoption was thus “the only viable option.”

Appellate Review. The Supreme Court majority (Judges E, F and G) held that appellate courts review threshold and proportionality findings for “wrongness,” giving weight to the trial judge’s advantage. Section 6 Human Rights Act does not compel a fresh merits hearing; conventional review suffices if the judgment properly addresses Article 8. Applying that standard, the majority accepted that (i) the threshold decision, though not “extreme,” was open to the judge and (ii) given the parents’ predicted non-cooperation, adoption was proportionate and necessary. A minority (Judge H) would have remitted the case, viewing adoption as premature where no less-intrusive plan had been attempted.

Holding and Implications

Holding: APPEAL DISMISSED. The care order with a plan for adoption remains in force.

Implications: The judgment clarifies that:

• “Significant harm” requires a fact-specific, but considerable or important, detriment, even when rooted in emotional or psychological risk.
• The appellate test for both threshold and proportionality findings is whether the trial judge was “wrong,” not merely whether another view was possible.
• Adoption orders remain “a last resort”: however, where robust professional monitoring is impossible due to parental non-cooperation, permanent placement may be deemed necessary despite the absence of past physical harm.
• Local authorities must still explore realistic, supportive alternatives, but courts will defer to first-instance evaluations if the evidential groundwork is sound.