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Kenya Law / Blog / Case Summary: The Supreme Court of UK holds that the litigation process adopted by the Court of Appeal was flawed as it did not adequately assess the prospects of various options to mitigate the risk of sexual harm pursuant to the care orders made

The Supreme Court of UK holds that the litigation process adopted by the Court of Appeal was flawed as it did not adequately assess the prospects of various options to mitigate the risk of sexual harm pursuant to the care orders made

In the matter of H-W (Children)
In the matter of H-W (Children) (No 2)
 [2022] UKSC 17 Supreme Court of the United Kingdom Lord Hodge, DP and SCJ; Lord Kitchin, Lord Burrows, Lord Hughes & DS Keegan, SCJJ June 15, 2022 Reported by Faith Wanjiku and Bonface Nyamweya

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Family law-child custody- child protection and restraining orders- care orders- where care orders for the removal of three of the 1st appellant’s children into foster care were made without considering the safety of the children- whether it was necessary as a matter of law to assess the likelihood that, if left in the 1st appellant’s care, (a) the children would suffer sexual harm; (b) the consequences of such harm arising; (c) the possibility of reducing or mitigating the risk of such harm; and (d) the comparative welfare advantages and disadvantages of the options presented-European Convention on Human Rights, 1998, article 8;Children Act, 1989, sections 1(3)(4) and 31(2)(a).

Family law-child custody- child protection and restraining orders- care orders- where care orders for the removal of three of the 1st appellant’s children into foster care were made without considering the safety of the children- whether the Court of Appeal erred in law by failing to make any proper assessment of the likelihood that, if left in the 1st appellant’s care, (a) the children would suffer sexual harm; (b) the consequences of such harm arising; (c) the possibility of reducing or mitigating the risk of such harm; and (d) the comparative welfare advantages and disadvantages of the options presented- European Convention on Human Rights, 1998, article 8;Children Act, 1989, sections 1(3)(4) and 31(2)(a).

Brief facts The appeals concerned care orders made in relation to three children, who were referred to as C, D and E to preserve their anonymity. C, D and E were then aged fourteen, eleven and nine respectively. The appellants were the children’s mother, M, and her partner, F3. In addition to C, D and E; M had three other children. The eldest were A, aged 22, and B, aged 19; both of whom were independent and lived outside the family unit. M also had a young child with F3 who was referred to as F. The other children in the family unit had different fathers. C and D’s father was referred to as F1, whilst E’s father was F2. C, D and E lived at home with their mother and F3, who acted as their stepfather. F also lived in the family home.
The local authority began its involvement with the family when M herself was a child. She suffered from sexual abuse at the hands of E’s father, F2. Aside from F2 and issues of sexual risk, there had also been local authority involvement with the family over many years due to issues of neglect. Court proceedings for the removal of C, D and E from the family home were first attempted in March 2012. That was precipitated by F2 being found in the family home. At that time, the children were not removed from the family home, although A (who was then a child) was made the subject of a care order. An injunction was also made against F2 to prevent him from visiting the family home. In October 2019, the family’s case was closed by social services on the basis that the family had made considerable progress and the children were happy.
The current proceedings were triggered by the conduct of A. He was a troubled young man and M was expected by social services to prevent A, from staying in the family home and being unsupervised around the children. Nevertheless, A visited the house for short periods. When A was at the house on November 18, 2019, he sexually abused E whilst M and F3 were distracted. That was not reported to social services until November 21, 2019. In March 2020, court proceedings were issued by the local authority seeking care orders, and removal from the home, not only of C, D and E, but also of F. The local authority’s case against M and F3 was that they had failed to protect E and the other children from A and failed to notify the social services when he abused E in the home. The local authority’s initial application for an emergency protection order to remove C, D and E was refused. However, a non-molestation order was also made against A which (among other things) prevented him from coming to the family home.

The proceedings came to court for hearing. The court made certain factual findings in relation to A’s assault on E in November 2019 at the threshold criteria stage. Thereafter, a welfare hearing took place. On July 26, 2021, the court decided that care orders should be made for C, D and E but that the case of F should be adjourned. The Court of Appeal upheld the High Court’s decision by a majority. M and F3 appealed.

Issues

  1. Whether it was necessary as a matter of law to assess the likelihood that, if left in the 1st appellant’s care:(a) the children would suffer sexual harm;

    (b) the consequences of such harm arising;

    (c) the possibility of reducing or mitigating the risk of such harm; and

    (d) the comparative welfare advantages and disadvantages of the options presented?

  2. Whether the Court of Appeal err in law by failing to make any proper assessment of the likelihood that, if left in the 1st appellant’s care:(a) the children would suffer sexual harm;

    (b) the consequences of such harm arising;

    (c) the possibility of reducing or mitigating the risk of such harm; and

    (d) the comparative welfare advantages and disadvantages of the options presented?

Relevant provisions of the law European Convention on Human Rights, 1998 Article 8-Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Children Act, 1989 Section 1(3)- Welfare of the child A court shall have regard to the welfare checklist and in particular to –

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.

Section 1(4)- Welfare of the child The circumstances are that— (a)the court is considering whether to make, vary or discharge a section 8 order, and the making, variation or discharge of the order is opposed by any party to the proceedings; or (b)the court is considering whether to make, vary or discharge [F2 a special guardianship order or] an order under Part IV.

Section 31(2)(a)- Care and Supervision (2) A court may only make a care order or supervision order if it is satisfied— (a)that the child concerned is suffering, or is likely to suffer, significant harm.

Held

  1. Where a court was considering whether to make a care order which was a part IV order, by virtue of section 1(4) of the Children Act, 1989, a court had to have regard to the welfare checklist and in particular to –

    (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

    (b) his physical, emotional and educational needs;

    (c) the likely effect on him of any change in his circumstances;

    (d) his age, sex, background and any characteristics of his which the court considered relevant;

    (e) any harm which he had suffered or was at risk of suffering;

    (f) how capable each of his parents, and any other person in relation to whom the court considered the question to be relevant, was of meeting his needs; and

    (g) the range of powers available to the court under the Act in the proceedings in question.

  2. There was no challenge to the court’s findings of primary fact, nor could there be. Nor was there any appeal against the court’s conclusion that the threshold criteria of section 31(2)(a) were met; there was and could be no quarrel with the court’s assessment that a risk of sexual abuse existed, bringing with it a real possibility of significant harm, and that that was attributable to the parenting of M and F3 not being what could reasonably be expected of them – in particular M had a blind spot about A.
  3. The effect of a care order was to vest parental responsibility for the child in the local authority. Thereafter, the parents could exercise their parental responsibility only to the extent that the local authority determined. As that court explained in re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911(In re B), that intrusive power clearly engaged the article 8 rights of the parents and children of theEuropean Convention on Human Rights, 1998.
  4. It followed that a care order could only be made, even if the statutory threshold criteria under section 31(2) were met, if such an order was necessary in a democratic society for the protection of the child(ren)’s right to grow up free from harm. That meant that the order could be made only if it was proportionate to the needs of the situation. And it followed also that a judge considering a care order had an obligation not to act incompatibly with the article 8 rights involved. The obligation under article 8 of European Convention on Human Rights, 1998, so clearly recognised in re B did no more than restate the longstanding proposition of English childcare law that the aim had to be to make the least interventionist possible order, but the emphasis given to the issue in re B was overdue.
  5. In re B the care order under consideration was one with a care plan for adoption of the children, so that if made it would result in a complete legal severance of the family relationship between natural parent and child. That was, no doubt, the most intrusive form of care order which the law knew. But a care order of the kind in question had consequences almost as far-reaching. It would break up the existing family and indefinitely so; it could be expected to last throughout the minority of the children. It would separate them from their parents and also from each other. The principles set out in re B as to necessity and proportionality clearly applied, mutatis mutandis, also to the instant case.
  6. The very clear decision in re B, albeit by majority, was that the existence of the requirement of necessity and proportionality did not alter the near-universal rule that appeals in England and Wales proceeded by way of review rather than by way of re-hearing. It followed that it was not incumbent upon an appellate court to undertake a fresh evaluation for itself of the question of necessity and proportionality. If each appellate court were to undertake such a fresh evaluation, it would expose the parties, and the children, to the risk of successive investigations of the same issue, certainly two, and in some cases three or even four times. It would also mean that the appellate court was expected to undertake a task for which it was unsuited, having not heard the evidence or seen the parties for itself. A decision on paper was no substitute for the decision of a judge who had had the advantage of a face-to-face, bench-to-witness-box acquaintanceship with those who were under consideration as carers of the child(ren).
  7. In a case where the trial court had adopted the correct approach to the issue of necessity and proportionality, the appellate court’s function was accordingly, as explained in re B, to review its findings, and to intervene only if it took the view that it was wrong. In conducting that review, an appellate court would have clearly in mind the advantages that it had over any subsequent court.
  8. The appeals boiled down to how the court assessed mitigations and options. The court was required to look at both. The local authority had rightly referred to the comprehensive papers which set out the various options filed on behalf of social services, in particular, by the main social worker. However, on close inspection the paragraphs previously referred to simply set out the options and there was in fact no analysis of the competing options and the issue of mitigation.
  9. Of particular significance was the fact that the court did not mention the efficacy of the injunction against F2 and also the non-molestation order made against A. It was quite right to say that a court did not have to recite each and every piece of evidence in a case. However, a court did have to refer to the core elements of a case in order to reach a conclusion which was understandable and accorded with the law.
  10. The difficulty was that one looked 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 required of a court at that stage. Whilst the court had identified the risk of sexual harm as satisfying the threshold criteria for intervention, there was 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 was 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.
  11. It followed that the decision was insufficiently founded on the necessary analysis and comparative weighing of the options. In the absence of the evaluative analysis which was required the appellate court could not determine whether the orders made were proportionate and necessary. That being so, it was premature to ask, whether the order was one which he could say was right or wrong.
  12. Rather, the process adopted by the Court of Appeal was flawed as it did not adequately assess the prospects of various options to mitigate the risk of sexual harm. The Court of Appeal did not state why the emotional damage that each of the very different subject children would suffer under a care plan which separated them from their mother, from their stepfather and no less importantly from their siblings, was proportionate to and necessitated by the identified risk of sexual harm from A, when no instances of harm had occurred since November 2019 and where a protective framework of non-molestation and interim supervision orders was in place.
  13. During the oral argument, Mr Larizadeh applied most vigour to the suggestion that the court should consider substituting supervision orders for the care orders in relation to the three children. His argument was based on the need for certainty for the children and to avoid delay. Such a position was understandable. However, it could not prevail in that case for the simple reason that a court would need to scrutinize a revised plan and be satisfied itself as to any mitigations which might address the identified risks. The court was not equipped to conduct that exercise. The court would be stepping in to make its own proportionality assessment which was contrary to the line of authority the court approved emanating from: In re B. Therefore, the only realistic course to take in that case where, unfortunately, the Supreme Court had found that the Court of Appeal fell into error, was to remit the case for rehearing. It was better that a different judge should hear the case. It remained to be seen what the ultimate outcome would be. Given the amount of information already generated it was to be hoped that updating reports would not result in a lengthy process. The Supreme Court would also hope that it was feasible to have the remitted case relating to C, D and E and the outstanding case relating to F, heard together and concluded in the near future in order to settle arrangements for the entire family.

The appeals would be allowed; the case remitted for rehearing.

Relevance to Kenyan jurisprudence The Constitution of Kenya, 2010, in article 53 spells out the rights of children. It notes that:
1. Every child has the right-

d. to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour; e. to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not;

2. A child’s best interests are of paramount importance in every matter concerning the child. 

In DN v GG [2022] eKLR, the applicant DN and the respondent GG were the biological parents of children MJN and ENN.  They lived together between May 2012 and November 2019.  MJN was then about 9 and ENN was about 5.  In a plaint dated 22nd April 2020 filed before the Children Court at Milimani, the respondent sought judgment against the applicant for her to be given actual custody, care and control of the children and the applicant be ordered to provide for their fees, transport and other school related expenses. The application was dismissed especially since the applicant failed to offer any security as to the wellbeing of the children if granted actual custody, care and control of the children.

In SMM v ANK [2022] eKLR, the High Court inferred:
I.  That the legal custody of the children will be shared jointly between the appellant and respondent.  This is to say that both parents have a right to participate and make inputs in the major decisions concerning the children including but not limited to the educational; religious; and medical decisions; II. That respondent shall have actual/physical custody of the minors herein.  For avoidance of doubt, the minors – SCKK and JJWK – shall reside with the respondent in Kenya. III.  That the appellant shall have unlimited access to the minors when she is in Kenya as follows:

i.  Unlimited access during school holidays ii.   Unlimited access on Saturdays when school is in session.

IV.  That for any period the appellant is out of the Country, she shall have unimpeded access to the minors through telephone, video calls and email or through some other use of technology. V. The parties herein to agree on maintenance of the minors and in the event, they fail to agree, parties shall be at liberty to apply. VI. That the passports of the minors which are in the custody of the appellant be handed over to the respondent immediately. Therefore, this case is crucial in illuminating the Kenyan jurisprudence regarding the prospects of various options to mitigate the risk of sexual harm when making care orders for children.

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