Re B-S (Children)  EWCA Civ 1146
Practice and procedure – other
Regular readers of the newsletter will know that we regularly draw to your attention decisions from the Family Division/the appellate courts relating to children for the light that they can shed by way of analogy upon practice and procedure in the Court of Protection.
The facts of the present case – concerned with an appeal against a refusal of leave to a mother to oppose the making of adoption orders for her children – are irrelevant for present purposes (as they were, in large part) for the Court of Appeal. Rather, the case is of importance for pulling together a number of threads from some of this recent jurisprudence to make a series of points that are, we think, of direct relevance to those practising in the Court of Protection. This is, in part, because they are expressed in characteristically forceful style by Sir James Munby, President both of the Family Division and of the Court of Protection.
In his judgment, Sir James Munby P placed emphasis upon the two points of particular relevance to proceedings before the Court of Protection:
1. The nature of the judicial task in a case where the choice is to be made between a number of options, where one (or more) of those options is more draconian than others, Sir James Munby P specifically endorsing (at paragraph 43) the dicta of McFarlane LJ in Re G (A Child)  EWCA Civ 965 at paragraphs 49-50:
“In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.”
Sir James Munby P continued (at paragraph 44):
“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) 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. To quote McFarlane LJ again (para 54):
‘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.’
45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:
‘a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial windowdressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.’”
2. The nature of the task of the appellate court in light of the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911. Sir James Munby P noted that:
- The decision leaves undisturbed the approach in case management appeals in public law family proceedings set out by the Court of Appeal in Re TG (Care Proceedings: Case Management: Expert Evidence)  EWCA Civ 5,  1 FLR 1250: see Re B paragraph 45 (Lord Wilson).
- Re B does not affect the traditional approach to appeals from fact-finding determinations in such proceedings: Re A (Children)  EWCA Civ 1026 at paragraph 34;
- The effect of Re B was succinctly summarised by Black LJ in Re P (A Child)  EWCA Civ 963: “Because of the obligation of the trial judge not to determine the matter in a way which is incompatible with article 8 ECHR, the review by the appellate court must focus not just on the judge’s exercise of his discretion in making a care order but also on his compliance or otherwise with that obligation”
- In Re B itself, Lord Neuberger had said this (para 93): “There is a danger in overanalysis, but I would add this. An appellate judge may conclude that the trial judge’s conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable.”
- Lord Neuberger went on to say that the appeal must be dismissed if the appellate judge’s view is in category (i) to (iv) and allowed if it is in category (v) to (vii);
- The question of whether the same approach – was the judge wrong? – applies in the case of appeals in private law cases was considered by the Court of Appeal in Re A (Children)  EWCA Civ 1026 where McFarlane LJ said this (paragraph 43): “Re B concerned decisions under the CA 1989 and the Adoption and Children Act 2002 making public law orders relating to children which plainly engaged the right to family life protection enshrined in ECHR, Article 8. It may well be that not all orders under CA 1989 relating to children will be of sufficient import to engage Art 8 (for example an order which merely defines the time of day and/or place for contact), but the impact of Art 8 is by no means confined to public law orders. There will be a range of private law children orders which engage Art 8 and which must now be approached on appeal in the manner established by the majority of the Supreme Court in Re B. It is not necessary for the purposes of this judgment to establish where the outer limit of this ‘range’ may be, and I expressly do not intend to do so, but an order refusing all direct contact between parent and child must plainly be on the Re B side of the boundary.”
- Sir James Munby P, on behalf of the Court of Appeal, “agree[d] with the analyses of Black LJ and McFarlane LJ in the judgments to which we have just referred. Like them, we decline any attempt to establish the boundaries of the Re B approach” (paragraph 83).
The Court of Protection remains a court which, to some extent, is still creating its own distinctive culture. It draws upon a range of very different strands of thinking and (sometimes unreflective) practices reflecting the backgrounds of those appearing before it, whose expertise can range from community care to conflicts of laws. It is therefore not simply because the Court is asked to make a range of very different decisions, requiring very different case management approaches, that the approaches that it adopts can vary dramatically: that variation can often be the result, as much, if not more, of the background of the judge and the practitioners involved in the case. We would like to think that this variation will diminish over time, not least because of the initiatives undertaken by Sir James Munby to bring about increased reporting of judgments and also to take forward the work of the Rules Review Committee to amend the COPR.
At least in proceedings concerning P’s welfare, however, we continue to think that valuable guidance can be found in decisions taken in the context of public law child care proceedings. Both will – frequently – involve considerable state interference with the rights of P (and of others) under Article 8 ECHR, and the consequent requirement to scrutinise that interference to ensure that it is necessary and proportionate. Both will also frequently involve the need to examine the factual basis of allegations made against family members relating to their care or treatment of the individual the subject matter of the proceedings.
We know that the mapping from public law proceedings involving children onto proceedings before the Court of Protection cannot be complete – there is, for instance, no equivalent in the MCA 2005 to the threshold criteria that must be satisfied when a local authority seeks a care or supervision order (see LBB v JM, BK and CM  COPLR Con Vol 779 at paragraph 7 per Hedley J). Nor is there any necessary presumption when determining the best interests of an incapacitated adult that they should reside at home with their family (K v LBX & Ors  EWCA Civ 79).
Nonetheless, we would respectfully suggest that decisions such as those summarised in Re B-S (Children) are ones that do not merely make interesting reading for practitioners before the Court of Protection, but are ones that must actively be brought to the attention of the court so as to secure the same intense focus on the issues and on the ECHR rights in play at both first instance and appellate level as is deployed in cases involving children.