Supreme Court to hear dispute over appellate courts, proportionality assessments and care orders

The Supreme Court will next week (22 March) consider whether, when an appellate court reviews a first instance decision concerning the proportionality of orders made under the courts’ obligations under the Human Rights Act 1998, it is necessary for the appellate court to undertake its own proportionality assessment of that decision.

In In the matter H-W (Children) the First Appellant, M, is the mother of six children including C, D, E, and F. Following longstanding concerns related to both sexual abuse by their elder brother A and neglect, in March 2020 the local authority issued proceedings seeking to take C, D, and E into its care and place them in three separate foster homes. It also sought that M’s newly born child F (daughter of the Second Appellant F3) be removed for adoption.

Following two hearings, Judge McPhee found that E had been sexually assaulted by her brother, A, and that M and F3 had both failed to protect the children from sexual abuse and delayed reporting the assault.

Judge McPhee ultimately concluded that it would not be safe for C, D, and E to remain in the care of M and F3 and therefore made the care orders sought. A final decision in respect of F was postponed.

The First Appellant appealed to the Court of Appeal, which in H-W (Children: Proportionality) [2021] EWCA Civ 1451 by a two (Lewison LJ, Elisabeth Laing LJ) to one (Peter Jackson LJ) majority decision dismissed the mother's appeal.

A Supreme Court panel comprising Lord Hodge, Lord Kitchin, Lord Burrows, Lord Stephens and Lord Hughes will hear the case on 22 March 2022.