A (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Lewison,Lord Justice Newey |
| Judgment Date | 16 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2240 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/1870 |
| Date | 16 October 2018 |
[2018] EWCA Civ 2240
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
Lord Justice Lewison
Lord Justice Peter Jackson
and
Lord Justice Newey
Case No: B4/2018/1870
Mark Twomey QC and Rebekah Wilson (instructed by London Borough of Enfield) for the Appellant
Rima Baruah (instructed by Barnes and Partners Solicitors) for the Respondent Mother
The Respondent Father was present in person
Mark Jarman and Jonathan Rustin (instructed by Tyrer Roxburgh Solicitors LLP) acting pro bono for the Respondent Foster Carer
Deirdre Fottrell QC and Maggie Jones (instructed by Wilsons LLP) for the Respondent Children's Guardian
Hearing date: 3 October 2018
Outline
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.
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.
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.
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
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.
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.”
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.…”
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.
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.
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...
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