Understanding Proportionality as a Cornerstone of Family Public Law
Proportionality lies at the heart of contemporary legal reasoning. Article 6 and Article 8 of ECHR provides the principle that the state can only interfere in a manner proportionate to the risk of harm. Article 6 of the ECHR guarantees the right to a fair trial. This includes the requirement that any limitations on this right must be proportionate to the legitimate aim pursued. Article 8 of the ECHR protects the right to respect for private and family life, home, and correspondence. Any interference with these rights by a public authority must be necessary in a democratic society and proportionate to the legitimate aim pursued, such as national security, public safety, or the economic well-being of the country.
What Is Proportionality?
Proportionality has been described as the ultimate rule of law. At its core, proportionality asks whether the means used to achieve a legitimate objective are necessary and whether they impose an undue burden on the rights or interests of individuals.
Historical Development
The concept of proportionality has deep roots. Its intellectual origins are often traced to German (Prussian) administrative law, where it developed as a control on state power. In German administrative law, the Principle of Proportionality (Verhältnismäßigkeit) is a fundamental concept requiring that administrative actions be necessary, suitable, and proportionate in a narrow sense to the aims they pursue, ensuring that government measures do not use excessive means for their goals.
The Allgemeines Landrecht of 1794 granted the government the authority to exercise police powers to ensure public peace. However, it simultaneously restricted these powers to only those measures that were essential for achieving that goal. The article specified that the police were to “take the necessary measures for the maintenance of public peace, security, and order.” This would have marked the first textual basis for the requirement of proportionality. Note, that the American constitution went down the route of “balancing” as opposed to proportionality and there is an interesting article online titled “American balancing and German proportionality: The historical origins” by Moshe Cohen-Eliya* and Iddo Porat.
Proportionality in Care Proceedings
In B (A Child) [2013] UKSC 33 Lord Neuberger in the Supreme Court emphasised that a care order where the plan is for adoption is a proportionate response to the harm identified. Lord Neuberger described such an order as ‘a last resort’ and expressed the view that ‘before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support’.
In giving a dissenting judgment, Lady Hale in the same case said this on the topic of proportionality “Thus it is not surprising that Lewison LJ was troubled by the proportionality of planning the most drastic interference possible, which is a closed adoption, in a case where the threshold had not been crossed in the most extreme way (see para 174 above). However, I would not see proportionality in such a linear fashion, as if the level of interference should be in direct proportion to the level of harm to the child. There are cases where the harm suffered or feared is very severe, but it would be disproportionate to sever or curtail the family ties because the authorities can protect the child in other ways. I recall, for example, a case where the mother was slowly starving her baby to death because she could not cope with the colostomy tube through which the baby had to be fed, but solutions were found which enabled the child to stay at home. Conversely, there may be cases where the level of harm is not so great, but there is no other way in which the child can be properly protected from it”.
She further went on to say (and this was pre- Re B-S) “Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34.”
In the case of H-W (Children) a Supreme Court case from 2022, Dame Siobhan Keegan gave the lead judgment. She said of proportionality :-
“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”
“The effect of a care order is to vest parental responsibility for the child in the local authority: section 33 Children Act 1989. Thereafter, the parents can exercise their parental responsibility only to the extent that the local authority determines. As this court explained in In re B, that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the statutory threshold criteria under section 31(2) are met, if such an order is necessary in a democratic society for the protection of the child(ren)’s right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the situation.”
What does ‘proportionate to the needs of the situation’ mean? This concept is similar to the issues addressed by Lady Hale in Re B. The importance of risk assessment by the courts, as seen in Re F (A Child) (Placement Order: Proportionality) and more recently Re T (Children: Risk Assessment) EWCA Civ 93[1], compels the court to consider the likelihood of harm and how it can be prevented or protected against. This assessment informs the court on whether making a care or placement order is indeed proportionate, given the identified risk factors.
Dame Keegen went on to quote from Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146; which in turn quoted from McFarlane LJ (as he then was) in In re G (A Child) (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965; [2013] 3 FCR 293:
“The judicial task is to evaluate all the options, undertaking a global, holistic and multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option …
‘What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.’
As Dame Keegen stated “This is now rightly the accepted standard for the manner in which a contemplated child protection order must be tested against the requirement that it be necessary and proportionate”.
Presently, the test for proportionality seems to be well settled. However, as we know as practitioners, things change, and attitudes and opinions move with the times. Do you always feel that the decision of the court is proportionate?
William Green
Trinty Chambers.
1. (1)What type of harm has arisen and might arise?
(2) How likely is it to arise?
(3) What would be the consequences for the child if it did?
(4) To what extent might the risks be reduced or managed?
(5) What other welfare considerations have to be taken into account?
(6) In consequence, which of the realistic plans best promotes the child’s welfare?
(7) If the preferred plan involves interference with the Article 8 rights of the child or
of others, is that necessary and proportionate?”
