The ripples of Re B – for whom are judgments made? A case note on Re N-D  EWCA Civ 1226 ~ Victoria Harle, Student of law at University of Bristol, JORDAN’S FAMILY LAW, 13 MAR 2015.
The case of Re N-D  EWCA Civ 1226 is interesting as evidence of certain deficiencies within the current family appeal system. It is submitted here that, while the case itself is airtight in its reasoning, with a solid foundation in precedent, it shows a fundamental disregard for the welfare of the children involved, as well as for other elements of justice.
Re N-D can specifically be seen as evidence of the extension of a right to appeal caused by Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075 and Re B-S (Adoption: Application of s 47(5))  EWCA Civ 1146,  1 FLR 1035. Equally it is evidence of the ineffectiveness of discretion, rather than a duty, to conduct a fresh proportionality exercise, or to ‘re-make’ a decision of the lower courts.
By way of introduction it will be useful to outline some of the rights and interests involved so as to provide a definition of principles of justice to take forward. First, Art 8 of the European Convention on Human Rights 1950 (ECHR as incorporated into United Kingdom law by the Human Rights Act 1998) provides a right to a family life free from interference of the state. This applies as much to the parent as it does to the child, and is reinforced by Art 9 of the United Nations Convention on the Rights of the Child 1989 (UNCRC) which confers a right on the child to be brought up by their natural parents. However, these rights are qualified. As such, they may be outweighed by the welfare of the child (Children Act 1989, s 1(1)) or by the child’s Art 3 ECHR absolute right to be actively (Assenov v Bulgaria (1999) 28 EHRR 652) protected from inhuman or degrading treatment. Furthermore, a child has the right to alternative care, including adoption, where it is not possible for a child to be cared for by their natural family (Art 20 UNCRC).
The point at which the latter rights and interests should be invoked in order to satisfy justice is made clear by the fact that the judicial task in approving a plan for adoption is an evaluative, rather than a discretionary, one (Re B  UKSC 33, at para , Re B-S  EWCA Civ 1146, at para ) . This suggests that the child’s best interests lie in the evidence, and not in the judgment. Therefore, the latter rights and interests should be invoked from the point that the evidential pathway exists to prove them necessary.
This brings us on to the case itself. This was an appeal against care and placement orders made in respect of the two youngest children: A, aged four and D, aged 19 months (Re N-D  EWCA Civ 1226, at para ). The orders were sought on the basis that the couple had committed serious physical assaults against their eldest child (para ); for which the father was imprisoned and the mother was given a suspended sentence (para ). There was also evidence of the elder of the two children concerned – A – having been inappropriately physically chastised (para ). At this point A and D’s Art 3 rights were invoked in order to take the children into care and begin proceedings.
The appellant’s counsel conceded that the s 31 (Children Act 1989) ‘threshold was indeed satisfied’ (para ). Both parents refused, and continue to refuse, to accept the full extent of their culpability (para ). Ryder LJ, in his leading judgment, accepted that analysis of the evidence brought to light an evidential pathway which supported the conclusion of the Children’s Guardian which was adopted by the judge (para ). His Lordship also accepted that this pathway may even produce ‘a powerful case against the mother and likewise the father’ (para ). It is submitted that at this point, where the evidence shows that the best interests of the child are contrary to continuation of a family relationship; they are capable balancing the infringement of the parents’ rights.
To support my first submission; that this is evidence of a change in the law; requires an outline of the principles in Re B and Re B-S. The case of Re B placed an emphasis on adoption as a ‘last resort’ (para  per Lord Neuberger) – that appeals were to be allowed where the decision was merely ‘wrong’ and not ‘plainly wrong’ (Overturning G v G (Minors: Custody Appeal)  1 WLR 647) – and that judgments on whether or not to grant an order involving adoption were of an evaluative and not discretionary nature (paras –). The Court of Appeal sought to clarify this position through their dicta in Re B-S. The court decided on two adoption ‘essentials’, these being proper evidence (para ) and adequately reasoned judgments (para ).
Despite Munby LJ’s (as he then was) admission in the guidance judgment that these standards ‘may well impose a more onerous burden on practitioners and judges’ (para ) it is still claimed that these cases did not change the law, but merely enforced existing principles (‘Impact of Court Judgments on adoption; what the Judgments do and do not say’ (National Adoption Leadership Board, 2014)). This seems disingenuous. These judgments have altered the way that practitioners behave, as can be seen by the dramatic decrease in adoption decisions, and also in Re N-D.
It cannot be doubted that the unequivocal language adopted in Re B-S gives solid precedent to support the conclusion that a judgment such as the one in Re N-D cannot be adequate. However, considering the evaluative nature of the judicial task, the fact that an evidential pathway is in existence suggests that at rehearing the judge must come to the same conclusion. If this were not the case then the judgment must contain some discretion. This therefore puts Re N-D in contravention of the previously accepted principle in Lake v Lake  p 336 at 343-4, that an appeal is against the decision and not the reason. It can therefore be seen that, by encouraging a disproportionate focus on adoption ‘essentials’, other elements of justice have been side-lined and the right to appeal extended.
This extension of appeal does not serve the aforementioned definition of justice due to its extremely limited consideration of repercussions. This is best put by Judith Masson when she states that such a change should ‘be based on a review of all the issues and their implications for all concerned, not developed through an adversarial analysis, focusing on one case (or even a handful).’ (‘The Quality of care proceedings reform’ (2014) 36(1) JSWFL 82, at p 84) Considering the implications for the children involved in Re N-D, for instance, gives rise to the acknowledgement that they have been done an injustice. A delay has been caused that could potentially jeopardise the success of a placement for A and D. Further proceedings could take up to forty-two weeks, this, added to the minimum of twenty-eight weeks already incurred (5 weeks for first hearing and 23 weeks between hearings) makes a delay of 70 weeks. As both A and D are very young, this substantial delay is far more likely to have a significant effect on the success of their eventual placement (Centre for Adoption support and education, ‘The adopted child’s changing view’). Further to these proceedings, suitable adopters will need to be found. As A and D’s parents originate from Zimbabwe, making A and D part of the minority ethnic population, this may take longer than usual.(For reference view; Adoption Research initiative, ‘Pathways to permanence for black, Asian and mixed ethnicity children’ (2010); in conjunction with the repeal of s 1(5) of the Adoption and Children Act 2002 (in England only); and the Department for Education, ‘Draft statutory guidance on adoption’ (2014)). In contrast to the established principles of justice, we can see this is clearly against the best interests of the children, as they have no real prospect of being returned to the care of their parents.
However, this delay could have been reduced had the court of appeal exercised its discretion to conduct a fresh proportionality assessment. This leads in to the second submission made here. Following the majority in Re B (Lords Wilson, Neuberger and Clarke) it has been made clear that carrying out a proportionality assessment is discretionary rather than obligatory. Lord Neuberger set out criteria for the exercise of this discretion:
‘where the Court of Appeal (i) decides that the judge has gone wrong in some way so that his decision cannot stand, and (ii) feels able to reconsider, or “rehear”, the issue for itself rather than incurring the parties in the cost and delay of a fresh hearing at first instance.’ (para )
Subsequently, Ryder LJ gave further judgment on this discretion, stating that the court may ‘fill in the gaps’ where the error is sufficiently discrete that this would not create procedural irregularity. His Lordship further states that where there is a lack of reasoning it is unlikely that this will be appropriate, and that the decision would essentially be fact-specific (Re B (Care Proceedings: Proportionality Evaluation)  EWCA Civ 565, at paras –).
It is argued here that this is still sufficiently wide to allow discretion in the case of Re N-D, as while the error is a lack of reasoning, it is merely the failure to show reasons for favouring the evidence of four witnesses over two (para ). This seems relatively minor in the light of such a monumental decision. However, this was not the opinion that Ryder LJ took. Rather his lordship stated that it would not be appropriate, ‘from the transcripts on the facts of the case’ (para ). In this case there are only two options to consider, an evidential pathway is apparent, and all that is missing is relatively minor reasoning. Furthermore, the court has the power to rehear evidence (FPR 2010, r 30.12 (2)). If it is not appropriate to exercise this discretion now, then at what point willit be appropriate?
For these reasons, it is submitted that a duty to re-make certain decisions should be imposed. Such a duty was preferred by Lord Kerr and Lady Hale, dissenting, in Re B (paras – and –). The duty that they imagined was all encompassing. However, the reasons for the submission made here are not based entirely on convention rights, as they were there (paras –), but rather on the conception of justice discussed earlier. As such a more moderate solution may be offered; that the criteria laid out by Lord Neuberger above may be enforced by duty. This may lead the courts to consider more fully the possibility of re-making the decision, while stopping short of imposing too onerous a burden.
On analysis of the realities of the repercussions in the case of Re N-D there can be seen a distinct lack of justice for the children involved. Additionally, a disproportionate focus is given to the procedural factor of an inadequate judgment. No justice is served by allowing an appeal that, even for the parents, has no prospect of success. It is apparent that the court’s discretion to re-make the decision does not provide adequate safeguards against this. As such rectification of the law that preceded this case is required. In Re N-D a duty may have provided sufficient protection; however, this will not be the case in all types of proceedings that were not imagined in the case law. Therefore, a comprehensive analysis is required to determine the position of the current law and consider the repercussions so as to prevent further injustice.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.