Re B (A Child) (Care Proceedings: Threshold Criteria): SC 12 Jun 2013

B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of fact.
Held: (Lady Hale dissenting) The appeal was dismissed. An adoption order is an order of last resort. Lord Wilson said the making of such an order required a ‘high degree of justification’, Lord Neuberger, Lady Hale and Lord Kerr preferred the phrase ‘nothing else will do’. Lord Clarke said ‘only in case of necessity will an adoption order be proportionate ‘
A binary fact in issue is treated as either having happened if it is proved to the civil standard of proof or not having happened if it is not.
Lady Hale said that this case was based on the mere possibility that the child would at some future stage suffer psychological harm. There was insufficent evidence that these parents would abuse or neglect the child. Nor, even if the threshhold criteria was met and a care order was appropriate, had it been shown that an adoption was necessary to protect the child. It had not been shown that ‘nothing else would do’. The care order and orders following it were disproportionate.
Lord Wilson set out the reasons for an appeal court’s reluctance to interfere with a lower court’s assessment of evidence: ‘this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).’


Lord Neuberger, President, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson


[2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, [2013] WLR(D) 226, [2013] HRLR 29, [2013] Fam Law 946, [2013] 2 FCR 525, [2013] 3 All ER 929


Bailii, Bailii Summary, WLRD


Children Act 1989 31(2), European Convention on Human Rights 8


England and Wales


Appeal fromIn re B (A Child) CA 14-Nov-2012
B had been taken from her parents at birth, the local authority anticipating a risk of harm. The mother had suffered violence at the hands of the father, and also had convictions for dishonesty and making false allegations. The judge had made a care . .
CitedRe C and B (Care Order: Future Harm) CA 2001
Hale LJ said that ‘a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not’. . .
CitedRe L (Children), (Care Proceedings: Significant Harm) CA 25-Aug-2006
The Court allowed an appeal by parents against a judge’s conclusion that their children had suffered and were likely to suffer significant harm and it remitted the issue for re-hearing. The professional evidence had been that the parents’ . .
CitedIn re J (Children) SC 20-Feb-2013
The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child’s death. Now, . .
CitedYC v The United Kingdom ECHR 13-Mar-2012
The court collated a number of different ways in which, in its previous judgments, it had sought to explain the requirements of necessity and proportionality in relation to adoption orders made against the wishes of the parents: ‘The Court . .
CitedSB v X County Council, In re P (a Child), In Re P (Placement Orders: Parental Consent) CA 20-May-2008
The court asked ‘what is the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002 (the 2002 Act)?’
Held: Any question of contact between the children . .
CitedSB v X County Council, In re P (a Child), In Re P (Placement Orders: Parental Consent) CA 20-May-2008
The court asked ‘what is the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002 (the 2002 Act)?’
Held: Any question of contact between the children . .

Cited by:

Citedre G (A Child) CA 8-Apr-2014
McFarlane LJ said: ‘In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then . .
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedAintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
CitedHenderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
CitedPerry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
CitedRe EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
CitedMott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .
CitedAR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
CitedPoole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Children, Human Rights

Updated: 11 February 2022; Ref: scu.510792