London Borough of E v J & Anor

When threshold conditions are established, disposal under the Children Act 1989 requires the court to determine which order best promotes the child’s welfare, having regard to the welfare checklist, delay, proportionality and Convention rights. The child’s welfare remains paramount. Parental rights may consequently be overridden where the child’s interests, viewed in light of the nature and seriousness of the harm suffered, require it.

Immigration, imprisonment and extradition are matters for the responsible public authorities, not issues for determination in care proceedings. The court must nevertheless consider their practical consequences. Delay cannot be justified by uncertain future events where it would prolong an unstable placement and prejudice the child’s development.

The local authority sought orders concerning A, a child nearly three years old who had been subject to an interim care order after being found alone in his mother’s flat. The threshold conditions under section 31 of the Children Act 1989 were common ground.

The mother suffered from paranoid schizophrenia and could not safely provide day-to-day care. The father was imprisoned pending the resolution of extradition proceedings. The principal issue was whether A should be placed with his maternal grandmother in Slovakia, with permission for removal from the jurisdiction, or with Ms EH, a family friend in England. The court also considered whether the decision should be postponed pending clarification of the father’s position or further assessment of alternative carers.

1. The threshold conditions under section 31 of the Children Act 1989 were satisfied. The mother’s mental illness and associated behaviour had created a likelihood of significant harm and had already caused significant harm to A’s emotional development. The father was unable to provide day-to-day care because he was imprisoned.

2. Under section 1 of the Children Act 1989, the court had to apply the paramountcy, no-delay and no-order principles and have regard to the welfare checklist. The analysis also had to respect Articles 6 and 8 of the Convention and proportionality. The statutory and Convention approaches substantially overlapped because the child’s best interests could, depending on the seriousness of the harm, override parental interests.

3. The court was not exercising immigration, extradition or imprisonment policy. Those matters belonged to public authorities. It nevertheless had to consider the practical realities and uncertainties created by them. The father had provided no reliable timetable for his release or extradition, and those uncertainties could continue for a considerable period.

4. The court compared the proposed placements. Ms EH was a capable and caring parent, but her household involved significant uncertainties connected with her husband’s imprisonment and conviction, the father’s predicament and the pressures likely to affect household stability. A required stable, consistent care from a primary carer who could give him full attention as a single child. The maternal grandmother could provide that care, promote contact with both parents, and support A’s Muslim and Algerian heritage notwithstanding the move to Slovakia.

5. The father’s concerns about religion, language, distance and future contact were important. However, the developmental harm already suffered by A made stable primary care the fundamental consideration. The interests of the parents were therefore overridden to the extent necessary to promote A’s welfare.

6. Further investigations into religious and language provision in Slovakia, or an assessment of the paternal uncle, would not reasonably be expected to alter the conclusion and would cause unacceptable delay. A residence order in favour of the maternal grandmother was made, with permission for her to take A to live in Slovakia. Contact was to be supervised and subject to the arrangements specified by the court, including at least two yearly visits between A and his imprisoned father.