Appeal in care proceedings involving rival Special Guardianship Order contenders: a foster carer and extended family members in Ghana. Appeal allowed.

Tuesday 30 October 2018

Rebekah Wilson of Garden Court Chambers and Mark Twomey QC of Coram Chambers were instructed by the London Borough of Enfield for the successful Appellant. Maggie Jones of Garden Court Chambers and Deirdre Fottrell QC of 1 Garden Court were instructed by Wilsons Solicitors for the Respondent Children's Guardian.

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A (A Child) [2018] EWCA Civ 2240

Appeal in care proceedings involving rival SGO contenders: a foster carer and extended family members in Ghana. At first instance, the judge made a SGO to the foster carer. Appeal allowed.

These were care proceedings concerning the child "David", aged 1 at the time of the appeal. His parents were of Ghanaian ancestry. The mother's elder two children (one a half-sibling, one a full sibling) were being brought up by the grandmother under SGOs because of mental health problems that afflicted both parents. The grandmother was unable to care for David too, and the maternal family therefore proposed that he be cared for in Ghana by the grandmother's first cousin and her husband (the "Hs"). The Guardian, who was concerned at the prospect of David growing up away from his family in England and in particular his siblings, canvassed David's foster carer about the possibility of her keeping him under a SGO which the foster carer enthusiastically accepted.

Both the Hs and the foster carer were positively assessed and the Court was therefore presented with two contenders for a SGO: the Hs supported by the Local Authority and the maternal family; the foster carer supported by the Guardian and the father.

At first instance the only contested issue of fact for HHJ Karp to decide was the extent to which David would maintain his connection with his family in this country (which included not only his parents, grandmother and siblings, but also some uncles and aunts) if he remained with the foster carer.

HHJ Karp gave a reserved judgment preferring the Guardian's analysis and balance of advantage and disadvantage to that of the Local Authority, and made a SGO in favour of the foster carer. The Local Authority appealed.

The Court of Appeal allowed the appeal. Peter Jackson LJ (in a judgment with which Newey and Lewison LJJ agreed) concluded that the judge's reasoning did not have the necessary depth and detail to underpin a decision of this importance, and for the following reasons neither the Judge's welfare assessment nor her proportionality evaluation could stand:

  • The Judge did not show that she had sufficiently balanced the powerful arguments in favour of the foster carer's claim against the powerful arguments in favour of a placement with the Hs.
  • The Judge did not show that she had adequately weighed the risks inherent in each placement.
  • 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.
  • The judgment did not sufficiently explain why it was necessary for David to grow up in foster care when he had 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.

It was not clear what conclusion the Judge would have reached had she addressed matters more fully and there must therefore be a rehearing before a Judge looking at the matter entirely afresh and independently.

Rebekah Wilson and Maggie Jones are members of the Garden Court Chambers Family Law Team.


Mark Twomey QC of Coram Chambers and Rebekah Wilson of Garden Court Chambers (instructed by London Borough of Enfield) for the Appellant
Rima Baruah of Thomas More Chambers (instructed by Barnes and Partners Solicitors) for the Respondent Mother
The Respondent Father was present in person
Mark Jarman and Jonathan Rustin of 4 Paper Buildings (instructed by Tyrer Roxburgh Solicitors LLP) acting pro bono for the Respondent Foster Carer
Deirdre Fottrell QC of 1 Garden Court and Maggie Jones of Garden Court Chambers (instructed by Wilsons LLP) for the Respondent Children's Guardian


This summary was prepared by Victoria Flowers, barrister at Field Court Chambers and was published in Family Law Week.

See also related Garden Court Chambers news item: Placement of a child outside their natural family

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