On appeal from: [2011] EWCA Civ 954.

The child concerned was removed from her parents at birth under an interim care order as her mother was diagnosed with somatisation disorder, which involves making multiple complaints to medical professionals of symptoms for which no physical explanation can be found, and had a history of making false allegations. The child’s father had convictions for many serious offences.

The Court of Appeal upheld the trial judge’s assessment that if the child were placed in her parents’ care there was a risk that the child would be presented for unnecessary medical treatment and would be confused by her mother’s dishonest presentation of the world, and that that due to the parents’ fundamentally manipulative and dishonest attitude towards social workers the only way to prevent harm to the child was a care order with a view to adoption.

The Supreme Court, by a majority of 4:1 (L Hale dissenting) dismissed the appeal. The threshold conditions for making a care order under the Children Act 1989, s 31 involve a “likelihood” of significant harm, which means no more than a real possibility that it will occur based on facts established on balance of probabilities. The severity of the harm required is inversely correlated with the likelihood of the harm.

Appellate courts in determining whether threshold conditions in care orders are satisfied must have regard to the advantages a judge at first instance had, including the ability to assess based on the oral evidence given by the candidates for the child’s care.

The dissenting opinion was that this case was based on the mere possibility that the child would suffer psychological harm and it had not been demonstrated that ‘nothing else would do’, so the care order was not a proportionate response.

For judgment, please download: [2013] UKSC 33
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII