Re B (Children) (Care Order: Proportionality)

판결 이유

사실관계

The case concerned a young child, B, whose parents opposed a local authority's application for a care order made with a plan for adoption. The section 31 Children Act 1989 threshold was said to be crossed on the basis of a risk of future emotional and psychological harm: the mother had a history of dishonesty and of making false allegations (associated with a somatisation/fabrication disorder), and the father had a criminal record, so the authority argued the child would be at risk of significant harm in their care. The trial judge found the threshold met and made a care order endorsing the adoption plan; the parents appealed, ultimately to the Supreme Court, challenging both the threshold finding and the proportionality of removing the child for adoption.

판결 요약

The Supreme Court, by a majority, dismissed the parents' appeal and upheld the care order, but every member of the court stressed the exceptional gravity of a non-consensual adoption. The court confirmed that whether the section 31 threshold of 'significant harm' is crossed is essentially a finding of fact for the trial judge, with which an appellate court should be slow to interfere. It emphasised, however, that making a care order with a plan for adoption is a distinct and far more serious step: because it permanently severs family ties it is a 'very extreme thing, a last resort', compatible with Article 8 ECHR only where it is necessary and proportionate — where, in Lady Hale's phrase, 'nothing else will do'. The court also held (Lord Neuberger, Lord Kerr and Lord Wilson) that an appellate court reviewing whether such an order is proportionate must form its own value judgment on proportionality, rather than merely asking whether the trial judge's decision was 'plainly wrong'. Re B is the leading modern authority on the proportionality of care orders and non-consensual adoption, and it set the stage for the practical guidance in Re B-S (Children) [2013].

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