England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET CIVIL AND FAMILY COURT CENTRE
Her Honour Judge Karp
ZW17C00503

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 October 2018

Lord Justice Peter Jackson:

Outline

1. This appeal from the Family Court concerns a little boy of dual British/ Ghanaian nationality and heritage whose first birthday falls this week. I shall call him 'David'. His parents are of Ghanaian ancestry, the mother having been born in London to her mother ('the grandmother'), who came from Ghana in the 1960s. The father, who arrived here from Ghana six years ago, has precarious immigration status.
2. David is the mother's third child. The eldest, a girl who has a different father, is now 13; the second, David's brother, is aged 2. Because of mental health problems that have afflicted both parents, these two children are being brought up by the grandmother under special guardianship orders ('SGOs'). But when David was born the grandmother could not look after him too. The maternal family therefore proposed that he should be cared for in Ghana by the grandmother's first cousin and her husband ('the H's') with the support of their married daughter. This couple took part in a positive special guardianship assessment carried out by a well-known independent social worker and by March 2018 planning had begun for David to be transferred to their care.
3. At this point, the Children's Guardian, who was concerned at the prospect of David growing up away from his family in England, and in particular from his siblings, canvassed the foster carer about the possibility of her keeping him under a SGO. The foster carer, a single woman of Afro-Caribbean origin, enthusiastically accepted the invitation and was in due course positively assessed. Meantime regular contact had been taking place with the parents under supervision and with the grandmother and siblings, supported by the foster carer.
4. The court was therefore presented with two contenders for a SGO, one supported by the local authority and the other by the Guardian. The maternal family continued to argue for the family placement in Ghana while the father preferred David to remain in England.

The hearing before the judge

5. The matter came for final hearing before HHJ Karp in the Family Court at Barnet. She heard evidence on 16-18 July 2018 from the social worker, the parents, the foster carer and the Guardian. Mrs H and her daughter also briefly appeared as witnesses via an inadequate video-link from Ghana. Mr H was available but did not give evidence due to the quality of the link. The only issue of fact for the judge to decide was the extent to which David would maintain his connection with his family in this country (which includes not only his parents, grandmother and siblings, but also some uncles and aunts) if he remained with the foster carer. The rest of the evidence was uncontentious.
6. The judge gave a reserved judgment on 20 July 2018. The judgment, which speaks to the care that went into its preparation, begins with introduction and scene-setting before coming to this direction on the law:

"14. … Once the threshold for making the order is established, the court must then consider the local authority plans for the child, keeping the child's welfare as the court's paramount consideration. I must take into account all the relevant circumstances of the case and, in particular, the matters to which I am directed in section 1(3) of the Children Act.

15. The local authority applies for orders the effect of which contemplates the separation of [David] from his birth parents and Art. 8 and 6 of the ECHR are therefore engaged in relation to this application. In evaluating which set of arrangements for the future are to be endorsed, David's welfare is paramount and I must not approach the task of deciding whether or not to approve the care plan in a linear way but must undertake a global, holistic evaluation of each of the options available before deciding which of those options best meets the duty to afford paramount consideration to his welfare."

7. The judge addressed in detail the evidence about the parents, whose acute health problems meant that it would be impossible to place David with them. She then reviewed the rival contenders for a SGO. She noted that the assessment of the H's was overwhelmingly positive and accepted that they would try to commit to coming to England for a month twice a year. She said that she had no doubt that they would offer David a warm and nurturing family life. She then considered the foster carer at rather greater length, finding her to be an articulate, warm and sensitive woman who would be able to put David's needs ahead of her own and to offer a high level of care. As to the contested issue, she said this:

"37… I considered the concerns and worries, in particular of the mother and maternal grandmother, that [the foster carer] might not promote contact in the future but I am entirely satisfied and accept [her] evidence that her primary motivation in seeking the order is to promote [David]'s contact with his closest relatives, his brothers and sister, grandma, uncles, aunts and great aunts, all of whom live in the UK.…"

8. The judge found the grandmother to be an impressive witness who has the role of matriarch of the family, has supported her daughter over many years and has provided a warm and loving home for the older two children. She records that the grandmother wanted David to go to Ghana because he would be brought up by his blood relations within his own Ghanaian culture and because she feared that if he was raised outside the family network it may strain his relationship with family members and siblings. The grandmother was also concerned about the lack of good male role models for David. She said that she now felt betrayed by the foster carer.
9. The judge then reviewed the professional evidence. The social worker considered that David should have the opportunity to be raised within his birth family and was concerned that the continuation of sibling and parent contact depended on the foster carer's relationship with the grandmother and parents, which had already deteriorated since the foster carer had put herself forward. She said that while both homes could give good care, "the significant difference is that the H's are family". The judge was critical of this professional opinion, saying that the social worker's analysis failed to give proper weight to the existing family relationships and the benefit to David of having "shared lived experiences with his siblings growing up" together with direct contact with his mother when she is well, and with his grandmother. In contrast, the judge was impressed by the Guardian's explanation of the long-term importance of sibling relationships and she preferred her evidence as to the likelihood of the adults being able to repair and maintain a good relationship for the benefit of the children. She said that she had no doubt that the feeling of betrayal would be healed and that the unpleasantness of the court process would be short-lived. She accepted the Guardian's opinion, which had included the observation that a placement with the H's would in many ways be a step not very far removed from adoption.
10. The judge approached her conclusions in this way:

"49. … Sadly, it is a fact that [David] cannot be brought up by his parents, or by his grandmother with his siblings. I have to weigh up the advantages and disadvantages of him being brought up by the foster carer, close to his family with extended contact to them, contrasted with him being brought up by more distant family who are currently unknown to him. I am satisfied that his cultural identity will be promoted by the foster carer and will be met in addition by the time he spends with his extended family, being part of their cultural life.

50. It is said the foster carer was unrealistic and idealistic about her role and about the emotional harm that may be caused by [David] not being placed with his extended family when they wanted him. It is, of course, true as [David] becomes older he will have to grapple with the difficulties of knowing that he could not be brought up by his parents, and that he was not able to be offered a family placement in this country, but I find that the protective effect of him knowing that he was to be brought up close to his siblings, close to his grandmother with ongoing contact with them is likely to outweigh the benefits of him having to face knowing that he was placed away from them Ghana, even though that placement was made with the maternal family's consent.

51. I have therefore considered [David]'s welfare holistically within the framework of the relevant limbs of the welfare checklist. [David] is extremely fortunate in having two sets of loving potential carers available to him. I have considered carefully the maternal family's wishes but I have to put [David]'s welfare as my paramount concern and I prefer the Guardian's analysis and balance of advantage and disadvantage to that of the local authority. Whilst I am satisfied that either option could meet his physical and educational needs, the special guardianship order to [the foster carer] coupled with flexible, ongoing contact to his siblings, the maternal grandmother and supervised contact with his parents will better meet his emotional needs and better meet his Article 8 rights. I was heartened to hear the maternal grandmother saying in her evidence how he could join his siblings for traditional Ghanaian meals at her home and possibly join them when they go to church. This would constitute a very high level of contact and lived shared experience. It would meet his cultural and identity needs and will make his situation far closer and more similar to that of his siblings. I find that this would be easier for him to understand as a decision as older then a decision that involves him living in Ghana.

52. On balance, his welfare needs throughout his minority are best met by a placement with [the foster carer]. I agree with the Guardian that it is the opportunity to develop the sibling relationships, the relationship with his grandmother and the wider family relationships, through shared lived experience, that is the factor that tips the balance in this case. Without this, notwithstanding David's clear attachment to the foster carer, I would have had no hesitation in making a special guardianship order to the H's in the hope that he would have been able to build an attachment to them in the future."

She accordingly made a SGO in favour of the foster carer. She did not consider that a contact order was required. In the light of the maternal family's vehement reaction to her decision, she urged the local authority to arrange for mediation between the grandmother and the foster carer.

11. The local authority, having unsuccessfully sought permission to appeal, applied to this court and on 31 August I granted permission for it to proceed on some but not all of the original grounds of appeal.

The grounds of appeal

12. For the local authority, Mr Twomey QC and Ms Wilson now advance three propositions:

1. The judge failed to undertake a proportionality evaluation of the necessity of state interference with the child's Article 8 rights and in particular whether placement outside his birth family was proportionate to his welfare needs.

2. The court failed to consider the welfare checklist in full and omitted other relevant factors.

3. The judge was wrong to proceed to a decision when one of the two candidates was not able to participate in the proceedings effectively and was placed at a substantial disadvantage.

13. I can dispose of the third ground at this stage. The maternal family are understandably concerned that the H's were placed at a disadvantage by giving evidence over a video link that was functionally useless. However, the judge cautioned herself against this colouring her impression of them, and indeed recorded an extremely positive impression. While it was unfortunate that the H's could not participate in the same way as the foster carer, they had been fully and favourably assessed and there was no contested issue arising from their evidence. In the circumstances, any perception of unfairness did not amount to actual disadvantage in circumstances where their position was actively championed by the local authority and the mother. This ground of appeal therefore fails. The real substance of the appeal concerns, in logical order, (1) whether the judge's welfare checklist assessment was sufficiently thorough, and (2) whether she made an adequate proportionality evaluation.

The welfare checklist

14. At the risk of stating the obvious, where a court is considering whether to make an order such as a SGO it "shall have regard in particular" to the matters that appear at s.1(3) Children Act 1989. The provision is therefore obligatory, flexible and open-ended, providing the decision-maker with a workbench and tools with which to devise a proper welfare outcome.
15. The welfare checklist can be helpful in several ways. In the first place, paying attention to it tends to ensure that all important considerations are taken into account. As Baroness Hale put it in Re G (Children) [2006] UKHL 2305 at [40]:

"My Lords, it is of course the case that any experienced family judge is well aware of the contents of the statutory checklist and can be assumed to have had regard to it, whether or not this is spelled out in a judgment. However, in any difficult or finely balanced case, as this undoubtedly was, it is a great help to address each of the factors in the list, along with any others which may be relevant, so as to ensure that no particular feature of the case is given more weight than it should properly bear.…"

16. Next, its neutral content is a reminder that the assessment of welfare is not driven by presumptions. As McFarlane LJ said in Re W (A Child) [2016] EWCA Civ 793 at [71]:

"The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged."

17. Then, the open-ended nature of the checklist allows the court to take account of other matters that may bear upon the individual decision. For example, although the present case is not concerned with adoption, the lifelong significance of the decision might reasonably prompt the court to have regard to the matters appearing in the checklist in the Adoption and Children Act 2002 at s.1(4)(f).^[1]
18. Lastly, the substantive nature of the entire process was described by Sir James Munby P in Re F (Children) [2016] EWCA Civ 546 at [22]:

"Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law."

What is instead called for is real analysis that descends into as much detail as the decision demands. As McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 793 at [71]:

"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."

Proportionality

19. Art. 8 of the European Convention on Human Rights of course provides that:

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.

20. Orders of the present kind are made in accordance with law and with the legitimate aim of promoting the welfare of the child. The additional question that is addressed by the proportionality evaluation is whether the proposed interference is necessary in the first place and if so whether it goes any further than it must to achieve its purpose. In CM v Blackburn with Darwen BC [2014] EWCA 1479, Ryder LJ put it this way at [36]:

"The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross check the welfare evaluation i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it."

21. In every case heard in the Family Court, the children and (with occasional exceptions) the adults will hold rights under Art. 8(1). Where there are competing outcomes, the choice of one outcome over another will commonly entail some degree of interference with those rights. It is well-established under European and domestic law that where there is a conflict between the welfare of the child and the rights of an adult, the child's interests will predominate. What is necessary in the individual case is to identify the nature of rights that are engaged and the extent of the proposed interference. This cross-check prevents the choice of an unnecessary interference or one that is disproportionate to the problem.
22. The importance of identifying the actual rights that are engaged is illustrated by the facts of the present case. Without deciding the matter, it would seem that David has 'family life' with his foster carer, qualified by the fact that she has been a professional carer providing a neutral, holding placement. He also has important family life rights with his parents, grandmother and siblings. As to the H's, they are the only viable placement within his birth family, but he has never met them, and he might therefore be said to have a right to private life in their regard with the potential for it to develop into family life if he was placed with them. It is therefore important to identify not only what rights are engaged but also their short, medium and long-term significance, before going on to consider the justification for any proposed interference. This exercise is of particular importance when the choice is between a placement with relatives and a placement outside the family, certainly where the decision is finely balanced.

The parties' submissions

23. Mr Twomey QC and Ms Wilson for the local authority submit that, having made only passing reference to the welfare checklist, the judge did not address important aspects of it thoroughly or at all, and that the balancing exercise she conducted was defective. In an effective presentation, Mr Twomey emphasises the extraordinary nature of the decision, which would decide whether a baby would grow up in Europe or Africa, with all that that entails. When considering David's emotional needs and the capacity of each placement to meet them, he argues that the judge did not look in sufficient detail at the effect on David's identity of a long-term placement with a foster carer who could not replicate the daily experience of living within one's natural family. Nor did the judge focus closely enough on David's age and the fact that, given his good attachment to the foster carer, he would be able to move successfully to the H's; or to his sex, and the need for a male role model; or to his background and characteristics as a child of Ghanaian heritage with parents who speak the Ga and Twi languages respectively and who belongs to a cultural heritage where extended kinship care is common. Mr Twomey challenges the Guardian's assessment, accepted by the judge, that placement in Ghana is more akin to adoption than placement with foster carer. He contends that the reverse is true, even if the judge's forecast for continuing contact was borne out by events. In relation to the balancing exercise, Mr Twomey draws attention to the judge's reasoning at paragraphs 49-50, cited above. Instead of comparing the strengths and weaknesses of one option with the strengths and weaknesses of the other, he argues that the judge in effect compared the strengths of one option with the weaknesses of the other. Finally, he argues that the judge's conclusion at paragraphs 51-52 that the balance was tipped by the availability of a shared lived experience with family members in London was tantamount to treating the underlying claims of the foster carer and the H's as being of equal weight, and that this amounts to a direct error arising from an inadequate analysis of the full range of checklist factors.
24. As to proportionality, Mr Twomey says that it is a stark outcome to a routine care case that a child should remain in foster care when such a good family option is available. The justification for this needed to be closely examined and spelled out. Yet the judgment contains no reference to the significant advantages to a child of being brought up within his natural family. The judge also failed to bring into the balance the accepted evidence that the H's intended to bring David to stay with his family in London for two months of the year. The judge's conclusion was built upon the assessment of the Guardian, which refers to the advantages and disadvantages of a placement with the H's without remarking that the advantages are long-term while the disadvantages are short-lived. The equivalent analysis by the social worker was, says Mr Twomey, more balanced. Overall, he submits that the passing reference to David's Art. 8 rights in paragraph 51 of the judgment falls well short of the analysis required for a decision of this importance.
25. For the mother, Ms Baruah argues that the judge left an important element out of her evaluation, namely the impact upon David of being brought up outside of his own ethnicity and family. The maternal family was entitled to know that its argument had been fully considered and, if it was to be dismissed, why.
26. The foster carer's case has been argued by Mr Jarman and Mr Rustin who have, to their great credit and that of their instructing solicitors, acted pro bono on this appeal. In relation to proportionality, they observe that any placement brings about a breach of someone's Art.8 rights and that the judge was fully entitled to treat the active and important relationships that David now has with his family as the tipping point when compared with potential relationships with distant cousins. The judge was careful not to overvalue the existing attachment with the foster carer but took account of the unusually close relationship between the family and the foster carer and their geographical proximity, which would work in David's favour. Although the judge did not carry out an explicit proportionality evaluation, her references to Art. 8 in the judgment shows that she had everyone's rights in mind. As to the welfare analysis, the judgment likewise shows that the judge had the relevant considerations in mind; she did enough to support her conclusion.
27. On behalf of the Children's Guardian, Ms Fottrell QC and Ms Jones accept that judgment is not as full as it might have been in relation to the welfare checklist and proportionality. The evidence was finally balanced, and the disputed aspect related to the narrow issue of the likelihood of contact continuing under present arrangements. The Guardian did not dispute that there is a perfectly suitable high-quality family placement in Ghana. The judge did not treat the attachment between David and the foster carer as a trump card, but her assessment of the shared lived experience (with siblings in particular) entitled her to prefer placement with the foster carer to placement in the natural family. In any event, the present placement was one that included a family dimension, so to refer to David as having 'contact' with his family understates matters. The judge had accepted the strong view of the Guardian about how much David is loved by his family and the importance of the sibling relationships that now exist, factors that favour him remaining in England. A change in circumstances would diminish these relationships, while his cultural identity can be maintained. However, Ms Fottrell also realistically accepted that the judgment does not explicitly set out the significant advantages for the child of a placement in his natural family; she accepts that the judge must have regarded the prospect of David spending some two months of the year in England with his siblings as also amounting to a shared lived experience and that the absence of this element from the balancing exercise was a deficit. However, she argues that, taking the judgment as a whole, any shortcomings are not fatal to the decision that was reached.

The statutory framework

28. Although it did not feature in the proceedings below, we invited the parties to address us on the statutory framework within which the court was considering the competing proposals for SGOs. Section 14A of the Act provides two routes by which a SGO can be made:

The first is under ss. (3), where an order can be made on the application of an individual (a) who is entitled to make it, or (b) has obtained the leave of the court to make it.

The second route is under ss. (6) where an order can also be made in any family proceedings following (a) an application made via ss. (3), or (b) where the court considers that an order should be made even though no application has been made.

In this case, no application having been made, the court was following the second route and its order was made under ss. (6)(b).

29. It is worth noting the provisions that govern the entitlement to apply for a SGO. These appear in ss. (5), which includes two subparagraphs relevant to the present case.

Subparagraph (c) entitles a person to apply if they come within s. 10(5)(b) or (c). Section 10(5)(c)(ii) refers to a person who has the consent of the local authority where the child is in the care of a local authority. The definitions in sections 105 and 31(11) provide that a child is in the care of a local authority if subject to care order or, as here, an interim care order.

Subparagraph (d) entitles a local authority foster carer to apply if the child has been living with them for at least one year immediately preceding the application.

Consequently, the H's would have been entitled to apply for an SGO with the consent of the local authority, while the foster carer would have required the court's permission under s. 14A(3)(b). Given the support of the Guardian, that permission would surely have been granted if it had been requested. It is nonetheless the case that the Act contains specific provisions for relatives on the one hand and for foster carers on the other, including under s. 22C, which sets out the priorities for local authorities when seeking placements for children in their care.

Conclusion

30. I again acknowledge the care taken by the judge in this difficult case, and the caution with which this court must review an evaluation of this kind. Nonetheless, my conclusion is that the judge's reasoning does not have the necessary depth and detail to underpin a decision of this importance and that if my Lords agree the appeal must therefore be allowed.
31. The reasons for my conclusion are these:

1. The judge rightly acknowledged the powerful arguments in favour of the foster carer's claim, and in particular the fact that it is the only way in which David can grow up in the same country as his immediate family and benefit fully from his British heritage. However, she did not show that she had sufficiently balanced these against the powerful arguments in favour of a placement with the H's, notably the benefits of growing up embedded in his ethnic Ghanaian culture of origin, the opportunity to remain in touch with close family members by visiting, and the important feature that the placement had the support of a maternal family that had shown itself capable of making very satisfactory arrangements for the older two children.

2. Nor did the judge show that she had adequately weighed the risks inherent in each placement, including the potential disadvantages to David of growing up between two households with different cultural backgrounds, particularly if 'contact' was to become fraught or even to break down, as against the disadvantages of growing up at a distance from his close family, particularly if visits to England did not materialise.

3. The tipping factor in the judge's evaluation sprang from the only contested issue. This, combined with the absence of a systematic checklist analysis, leaves open the possibility that this issue was given more weight than it could properly bear.

4. The judgment does not sufficiently explain why it is necessary for David to grow up in foster care when he has available to him a placement in his natural family that also offers the prospect of significant time spent with close family members; nor does it explore the consequences for him of being the only member of his family to grow up outside it.

5. For these reasons, neither the judge's welfare assessment nor her proportionality evaluation can stand.

32. It is not clear what conclusion the judge would have reached had she addressed matters more fully. There must therefore be a rehearing. Arrangements have been made for a four-day hearing to begin on 26 November before a circuit judge sitting as a s.9 judge. The parties should submit a draft order containing directions to ensure that this hearing will be effective. These should include provision for the evidence to be briefly updated and for there to be clarity about the extent to which the H's are expected to participate in the hearing, whether as witnesses or as parties.
33. Finally, I refer to the danger that a decision overturning one outcome on appeal might be misinterpreted as providing support for another outcome at a rehearing. That must not happen here. This court holds no view as to whether the judge made the right decision or not: its investigation has only been concerned with her reasoning. The judge conducting the rehearing will look at the matter entirely afresh and independently determine the appropriate arrangements for David's future.

Lord Justice Newey:

34. I agree.

Lord Justice Lewison:

35. I also agree.

Note 1    1(4) The court or adoption agency must have regard to the following matters (among others)— … (f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.    [Back]