C (A Child)

An appellate court will not interfere with a welfare decision merely because it might itself have reached a different conclusion. It must be shown that the judge’s conclusion was plainly wrong.

In choosing between adoption and care within the wider family, a proposed kinship placement must be assessed in its full context. The carer’s age and the risk of later incapacity are important, but they must be weighed with the family relationship, the child’s existing attachments, sibling contact, available wider-family support, and the consequences and uncertainty of adoption.

The child, aged five, had been removed from the care of parents affected by serious drug problems. The local authority sought care and placement orders, with a plan for adoption. The paternal grandmother, then aged seventy, sought a residence order. The child’s guardian and the local authority supported adoption; the grandmother was supported by the parents and the child’s half-sister.

The Family Division judge dismissed the applications for care and placement orders in respect of the child, made a residence order in favour of the grandmother, and made a one-year supervision order in favour of Cornwall County Council. The child, through his guardian, appealed on the basis that the judge’s welfare conclusion was plainly wrong, principally because of the grandmother’s age and the absence of a sufficiently firm long-term plan.

1. Appeal dismissed. Lord Justice Wilson held that the judge’s decision to place the child with the grandmother was not plainly wrong. Lord Justice Jacob agreed.
2. The judge had identified and addressed the central concern: whether the grandmother, because of her age, could care for the child throughout his minority, particularly during adolescence. The appellate court could not substitute its own assessment merely because adoption was also an available and defensible outcome.
3. The grandmother’s age could not be considered in isolation. Her candidacy engaged the law’s preference, where practicable, for placement within the wider family. She had an established and positively assessed relationship with the child, had shown sustained commitment through difficult contact arrangements, and was willing to facilitate continuing contact with his half-sister.
4. The judge was also entitled to take account of the wider family’s cohesion and stated willingness to provide support if the grandmother could no longer be the primary carer. The possible future disruption of a family placement had to be weighed against the substantial curtailment of the child’s family and sibling relationships inherent in adoption, as well as the uncertainty that an adoption of an older child might fail.
5. The local authority’s assessment of the grandmother had been perfunctory and could properly be given limited weight. Although the guardian and the child psychiatrist favoured adoption, the judge had not ignored their concerns and had professional support for the alternative placement. No material evidence had been overlooked. The residence and supervision orders therefore stood.

• Court of Appeal (Civil Division): appeal dismissed in [2009] EWCA Civ 72.
• Family Division, Principal Registry: HHJ O’Dwyer dismissed the local authority’s applications for care and placement orders concerning the child, made a residence order in favour of the paternal grandmother, and made a one-year supervision order in favour of Cornwall County Council.