In Re B, the child had been removed from her parents shortly after the birth and placed in temporary care under an interim order. The parents visited the child regularly and formed a relationship with her.
When the case came to court the judge made a full care order for the girl, with a view to her eventual adoption. He concluded that there was a real risk of emotional and psychological harm to the child if she was placed in the care of her parents. The mother suffered from conditions that could mean the girl receiving unnecessary medical treatments and the parents frequently presented a dishonest picture of the world, which could lead to significant confusion for the girl. Extensive intervention would be needed to protect the girl from such risks but the parents were unlikely to cooperate as they had a hostile and manipulative attitude to social workers the case reports stated.
The parents appealed the judgement and the Court of Appeal upheld the original judge’s decision. The case then went to the Supreme Court.
In the majority judgement, the Justices declared that the original judge had had sufficient evidence for the conclusions reached. Under section 31 of the Children Act 1989, there need only be a real possibility of harm, including emotional harm, for the courts to make a care order.
However, in her dissenting judgement, Lady Hale declared that the case was based solely on the mere possibility of harm to the child. The family courts had not explored any alternatives to the care order.
“It must not be forgotten that this is a child who as yet has suffered no harm at all (except possibly the harm of being separated from her mother so soon after birth). She has had the advantage of remaining with the same foster carer throughout, where she is doing well. She has also had the enormous advantage of establishing a strong and loving relationship with her parents, who have given her “child centred love and affection in spades”, as the judge put it. Their commitment has been excellent and the fact that in all the circumstances their behaviour during contact has attracted so little criticism and so much praise is extraordinary. She will eventually have to move on from her foster home and the only question is whether she moves to a completely new home with adoptive parents as yet unidentified or whether she moves to live with the parents she knows and loves and who know and love her.”
Lady Hale concluded:
“I take the view that it has not been sufficiently demonstrated that it is necessary to bring the relationship between [the child] and her parents to an end. In the circumstances of this case, it cannot be said that “nothing else will do” when nothing else has been tried. The harm that is feared is subtle and long term. It may never happen.”
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