What factors does a court need to consider regarding the placement of a child away from their extended family? Amina Ahmed, barrister at Garden Court Chambers, explores the test used in deciding the correct balance for a child's growing up in his culture of origin or in proximity with his family in the UK.
What are the practical implications of this case?
This case concerned the question of the placement of a baby with his maternal family in Ghana or with a foster carer in England, enabling him to maintain connection with his parents and siblings. The case balanced the benefits of growing up in the child’s Ghanaian culture of origin and his proximity with his parents and siblings in the UK.
In deciding this question, the case engaged Article 8 of the European Convention on Human Rights, the proportionality test and the welfare checklist (section 1(3) of the Children Act 1989 (ChA 1989)).
The court also observed that the statutory framework for special guardianship orders (SGOs) meant that the natural family in Ghana were entitled to apply for a special guardianship order (SGO) with the consent of the local authority (LA), while the LA would require the court’s permissions under ChA 1989, s 14A(3)(b).
The practical implications of the case are the following:
- the welfare checklist is obligatory, flexible and open-ended, providing the decision-maker with a workbench and tools with which to devise a proper welfare outcome
- the welfare checklist is open-ended and allows the court to take account of other matters that may bear upon the individual decision
- it is necessary to identify the nature of the Article 8 rights—both private and/or family life—engaged and the extent of the proposed interference
- it is important to identify not only what private and/or family life rights are engaged, but also their short, medium and long-term significance, before going on to consider the justification for any proposed interference
What was the background?
The child (aged one) was the third child of a mother of Ghanaian ancestry. His maternal grandmother came to London in the 1960s. His father arrived in the UK six years ago and has a precarious immigration status. The child has both British and Ghanaian nationality. His parents were found unable to care for him. His two siblings (aged two and 13) were already being raised by the maternal grandmother under SGOs. She was unable to look after him as well.
The maternal family proposed that he should be cared for in Ghana by the grandmother’s first cousin and her husband, with the support of their married daughter. The children’s guardian was concerned at the prospect of the child growing up away from his family in England and, in particular, his siblings, and proposed that his foster carer, a single woman of Afro-Caribbean origin, should care for him under an SGO instead. The foster carer, thoroughly committed, was keen to put herself forward. The circuit judge was faced with two options:
- an SGO made to the natural family in Ghana, supported by the maternal family and the LA, or
- an SGO made to the foster carer in London, supported by the guardian and foster carer in person
The foster carer in London would be able, it was hoped, to provide more inter-sibling contact and contact with other family in the UK. The circuit judge made an SGO to the foster carer in London, and the LA appealed to the Court of Appeal.
What did the court decide?
The Court of Appeal allowed the appeal from the circuit judge and remitted the case for a rehearing before a section 9 judge. The court allowed the appeal on the grounds that there was a failure to address the welfare checklist with sufficient care.The trial judge did not show that she had sufficiently balanced the child’s growing up in the UK, and benefiting from his British heritage, against the arguments in favour of a placement with the family in Ghana. Notably, this included that he would grow up embedded in his ethnic Ghanaian culture of origin, with the opportunity to remain in touch with close family members, and that the placement had the support of the maternal family that had shown itself capable of making very satisfactory arrangements for the older two children. The judge had not shown that she had adequately weighed the risks inherent in each placement. There was an absence of a systematic checklist analysis. The judgment did not sufficiently explain why it is necessary for the child to be the only member of his family to grow up outside of his natural family, nor explore the consequence of that to him.
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.
This article was originally posted by Family Law (Lexis Nexis).
See also related Garden Court Chambers news item: Appeal in care proceedings involving rival Special Guardianship Order contenders: a foster carer and extended family members in Ghana. Appeal allowed.