Supreme Court remits care proceedings for re-hearing following proportionality failings
H-W (Children) No 2  UKSC 17
On 15 June 2022, the Supreme Court gave judgment in an appeal concerning ‘the proportionality of care orders made in relation to three children and appellate review of those orders.’ Dame Siobhan Keegan gives the judgment, with which all the other members of the Court agree.
The Mother (first appellant) has 6 children, including C (aged 14), D (aged 11), E (aged 9) and F. The second appellant was the mother’s partner, who is also F’s father. This case had a long history of Local Authority involvement, primarily due to the mother suffering from domestic abuse in the past and concerns of neglect. Proceedings were issued with the Local Authority seeking to take C, D and E into its care, placing them into separate foster homes and for F to be adopted. The catalyst for proceedings was domestic abuse concerns, perpetrated by the children’s older brother, A, who is described in the judgment as a ‘troubled young man.’
The Local Authority’s application for an Emergency Protection Order to remove C, D and E was refused and a non-molestation order was made against A, preventing him from entering the family home. It was expected that the Mother would ensure A did not enter the family home or be unsupervised around the children.
First instance decision
The Judge at first instance made findings that E had been sexually assaulted by A, but that this was not reported to social services until a few days later. Therefore, it was found that the appellants failed to protect the children and delayed reporting the assault. Care orders were made in respect of C, D and E on 26 July 2021 after a six day hearing and the decision regarding F was postponed. These proceedings included evidence from 10 witnesses, including the guardian who noted that the Mother had a “blind spot in respect of A”.
Court of Appeal
The first instance decision was upheld on 7 October 2021 by a majority (Peter Jackson LJ dissenting).
“The tension between the majority and the minority in the Court of Appeal emerges from the foregoing passages. Jackson LJ raises the adequacy of the proportionality review actually undertaken by the judge and questions whether or not all options were fully considered. The majority, whilst respecting this view, have focussed on their view of the limits of the appellate review and the deference to be afforded to the judge who heard and saw the witnesses and had conduct of the case for some time.” 
“Both of these perspectives are understandable in family law terms and of course raise issues as to the correct approach to be taken on appeal. All of the appeal judges refer to the profound effects of decisions taken to remove a child into public care. In this case three children who have never been outside parental care may be removed and one very young child may face adoption. Hence, it is imperative to scrutinise with care the decision made in relation to their future” 
Grounds of appeal
- In order to decide whether those orders were proportionate, was it necessary for the judge as a matter of law to assess the likelihood that if left in M’s care;
- the children would suffer sexual harm;
- the consequences of such harm arising;
- the possibility of reducing or mitigating the risk of such harm;
- the comparative welfare advantages and disadvantages of the options presented.
- whether the judge erred in law by failing to make any or any proper assessment of those matters
“In outlining the contours of these appeals it is important to state that the appellants do not seek to challenge the primary factual findings made by the judge. They do not argue that his assessment of the risk of harm to the children in their mother’s care was wrong. Rather, they say that the judge erred in failing to consider the proportionality of the orders he made by balancing the risk of harm to the children in the care of their mother with the harm the children would suffer should they be removed from her care and from each other, to separate placements with limited contact with their family and against their clear wish to stay at home.” 
The Supreme Court unanimously allowed the appeal and remitted the case for a re-hearing.
The Court found that the first instance Judge had erred in law by failing to make a proper assessment in reaching his decision.
“The judge’s treatment of the facts and the evidence was thorough. He undoubtedly directed himself that his orders were required to be proportionate. However that is not the end of the matter. The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child. Nor is there any comparison of the harm which might befall the children if left at home with the harm which would be occasioned to them if removed, and separated not only from the parents but from each other.” 
“It follows that the decision was insufficiently founded on the necessary analysis and comparative weighing of the options. In the absence of the evaluative analysis which is required this appellate court cannot determine whether the orders made were proportionate and necessary. That being so, it was premature to ask, as Lewison LJ did, whether the order was one which he could say was right or wrong.”