Family Law Update: 'Placement in Ghana: proportionality, human rights and the guardian'

Tuesday 2 April 2019

Re A (A child) [2018] EWHC 3625 (Fam)

This case concerns a decision as to whether the child, ‘A’ should be placed in Ghana with extended family members or remain in the UK in the care of his foster carer.

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Racism in this country is subtle and pervasive. It is not a sign that says ‘No Blacks, No Dogs, No Irish’. It is not (at least not always) a racially motivated attack on the streets. It is the cashier who does not put change in your hand. It is the people who politely assume you are there to serve because of the colour of your skin or your accent. It is the children’s guardian who questions an African family’s ability to respond to “cultural norms”. I don’t think people always realise they are doing it. I think it’s an unconscious bias that sits under the surface but bubbles up when people are not paying enough attention to themselves. It remains when the people around them do not question the words used and inquire about their meaning. When that meaning cannot be explained in polite conversation or in a court room in front of a Judge and the family, it may be because beneath the surface is prejudice.

…the Guardian struggled to make sense of her own reasoning and was quite unable at times to explain how she had reached the conclusions and views she had. She was unable to answer some questions at all. [Paragraph 42]

There was undisputed evidence from an independent social worker about the positivity of the placement with the family members (Mr and Mrs H) that none of the advocates sought to challenge. Yet once this evidence was before the Court the Guardian suggested the foster carer (GG) be assessed, resulting in a final hearing where the Local Authority and the family supported placement of A with the wider family in Ghana and the Guardian supported placement with the foster carer.

The reason given in cross examination was the quality and availability of contact between the child, A and his elder siblings who resided within the family in the UK. However, the family had made arrangements set out at [44(e)] of the judgement where there would be extensive time spent between A and his siblings despite being placed in another country; and there had been no contact between A and his siblings since the first instance judgement [21]. Whether this was tactic or not by the maternal grandmother in impeding the contact, the effect had to be considered by all professionals in the case. People are people and behaviour and dynamics that begin during proceedings, whether advised or ill advised will continue in some form when the lawyers cease to be involved.

Further doubt was cast upon the validity of the Guardian's analysis and reasoning by her inability to explain what she meant by "African/English" and the reference in her report to the carers ability to respond to "cultural norms". [Paragraph 42]

It’s unclear how ‘African / English’ and ‘cultural norms’ quoted by the Judge could have been placed in a report and not properly considered prior to giving evidence. There must have been a meaning at the time it was written. These ideas cannot escape scrutiny. This case was about placement in Africa, but many other ethnic and minority groups are discriminated against within society. The group that comes to mind for me is Travellers, particularly for professionals as their way of life is not easy to accommodate with standard practice. Allowing discrimination to seep into decision-making in care proceedings will perpetuate problems with engagement, access to justice and trust that already exists. 

She also struggled to explain how she had reached some of the conclusions she did and why there were important omissions in her report. [Paragraph 42]

The Guardian could not explain why she did not consider prior to the final hearing the advantages of A being placed in Africa with his extended maternal family. This is despite an appeal judgement that set out the specific advantages of this placement and a further analysis drafted by herself after receipt of the judgement. I cannot help but think this inability to consider the positives is borne from an already entrenched view that placement in Ghana would be negative for this child. In any event it informed the Judge’s decision that the Guardian was unable to assist and her work in this case could not be relied upon [51].

Is it proportionate to place A with a non-family member, notwithstanding the availability of not only a suitable but also a good family placement? [Paragraph 45]

Much of this case boils down to a proportionality analysis. The first ground of appeal was the absence of a proportionality evaluation. Jackson LJ considered the law the law [19 – 22]. HHJ Robertshaw dedicated the end of her judgement to this issue starting at [45]. Does the proposed interference go any further than it must to achieve its purpose? Is placement with the foster carer in the long term justified as an interference with the rights of those involved? HHJ Robertshaw does a full balance of the competing rights of A, his parents, his foster carer and his siblings. Her conclusion is that even if on a welfare basis the placement with the foster carer would be ‘better’ when it comes to proportionality, the Court should still decide to place with Mr and Mrs H [49]. The fact that the Judge went as far to say this makes it clear, a glowing family placement should not lightly be set aside for placement outside of the family and rarely will it be right in law to do so.

Without making any statement of policy or guidance, I would encourage guardians to think and long and hard before canvassing and encouraging a state foster carer who is holding a child in a neutral interim position, to apply for a SGO when there is a good placement available within the natural family. This is particularly so where, as in this case, there is a family placement available with a glowing assessment, a recommendation for placement of the child with that family member and where the placement has the support of the child's mother and immediate family. Each case will turn on its own facts. [Paragraph 53]

The Guardian’s analysis in this case contained phrases that were prejudicial, and it seems there was no expectation that she would be questioned. Whether conscious or unconscious she expected that at least the Judge would share that bias. It was not shared. Her initial decision making to support the foster carer was questioned. This level of awareness of unconscious bias in ourselves and others should be considered at every stage, particularly when a proposition being put forward is puzzling in the context of the facts and the law.

Monifa Walters-Thompson is a member of the Garden Court Family Team.

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