H (A Child), Re

Under section 1(3) of the Children Act 1989, a child’s wishes must be assessed in light of both age and understanding. They are not determinative, but a mature and consistently expressed wish to live with a parent, supported by a strong attachment, is a weighty welfare factor.

The court must compare the likely emotional harm of returning home with the harm of long-term care and test predicted benefits of care against the evidence. An appellate court may intervene where the lower court omitted material welfare considerations or relied on an unsupported assumption. The care order was set aside and residence and supervision orders substituted.

The mother appealed against a care order made by HHJ John Mitchell on 11 July 2008. The judge had dismissed the maternal grandmother’s application for residence and the father’s applications for contact, while leaving the mother’s contact to the local authority’s discretion.

The judge found that the child had suffered significant emotional harm through exposure to violence, hostility towards her father and grandmother, and the mother’s conduct. He concluded that the mother could not meet the child’s emotional needs and that long-term foster care would cause less harm than returning home.

The appeal concerned the assessment of the child’s wishes and feelings, her age and understanding, her attachment to her mother, the comparative harm of care and return home, and whether foster care was likely to promote family contact. The court also had to determine whether to remit the matter or make substituted orders.

1. Appeal allowed. Ward LJ, with Lloyd LJ agreeing, held that the care order should not have been made. A residence order was substituted, together with a supervision order for twelve months.
2. The Court of Appeal recognised the restraint required in appeals from discretionary welfare decisions, including the generous ambit allowed for reasonable disagreement, referring to G v G (Minors: Custody Appeal) [1985] 1 WLR 647 and Piglowska v Piglowski [1999] 1 WLR 1360. This was not, however, a case of mere disagreement. The judge had failed sufficiently to consider the child’s understanding as well as her age, as required by section 1(3) of the Children Act 1989.
3. The child’s wishes were not determinative. However, her mature, consistent wish to live with her mother, together with her strong and significant attachment to her, was a weighty factor. The judge’s analysis of the child’s needs concentrated on the emotional deficiencies in the mother’s care and failed adequately to address the need to preserve the important relationship between mother and child.
4. Although the judge acknowledged the disadvantages of long-term foster care, his conclusion depended materially on the prospect that care would promote contact with the father and grandmother. The child had been in care for about fifteen months without meeting either of them, and there was scant evidential support for that optimism. The lack of evidence undermined a central part of the judgment. The judge had therefore reached his conclusion without a sufficient evidential basis and had failed properly to balance the emotional harm of return against the harm caused by diminishing the maternal relationship.
5. Remittal and a further rehabilitation period would not serve the child’s interests. She was returning to an existing home relationship, not an unfamiliar environment. Supervision was appropriate to monitor the harmful influence of FM, support the child’s relationship with her grandmother, and address the continuing hostility between the adults. If FM’s involvement continued to cause harm, the matter could return to the court.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1245, allowed the mother’s appeal, set aside the care order, and substituted residence and supervision orders.
• High Court of Justice, Family Division: HHJ John Mitchell made a care order on 11 July 2008, finding that returning the child to her mother would cause greater long-term emotional harm than continued foster care.