H (A Child), Re

Where the threshold for State intervention is established, the court must treat the child’s welfare as paramount and select the least interventionist order that is proportionate to the identified risks. It must evaluate all realistic options, including placement within the birth family, and balance their advantages and disadvantages. Family placement benefits, including identity and continuity, do not outweigh significant and real risks of instability or harm. A placement with non-relatives may be preferred where it better secures the child’s long-term welfare. Contact must also be assessed by reference to welfare, stability and the risk of undermining the placement. Indirect contact may adequately preserve identity and family history where direct contact would create a real risk of destabilisation.

The Local Authority sought a care order under section 31 of the Children Act 1989 for an eighteen-month-old child who had never lived with his parents and had remained in foster care since birth. The parents accepted that they could not care for him. Paternal relatives had been assessed but the proposed placement was not recommended. The Local Authority proposed placing the child with foster carers in Ireland who had cared for him during the first fourteen months of his life, with indirect contact with the birth family. The central issues were whether a care order should be made, which placement best met the child’s welfare needs, and whether the father should have direct contact.

1. Threshold and welfare. The parties agreed, and the court found, that the threshold criteria under section 31 of the Children Act 1989 were met. The child’s welfare was then the paramount consideration under section 1. The court had to consider the welfare checklist, identify the least interventionist order, assess proportionality, and evaluate and balance the advantages and disadvantages of each realistic option, applying the guidance in Re B-S [2013] EWCA Civ 1146.
2. Placement. Placement with paternal relatives offered important benefits, particularly in preserving birth-family identity. Those benefits had to be assessed against the identified risks. The relatives’ household presented significant and real risks of instability, disruption and emotional or physical harm arising from family pressures, the father’s behaviour, possible unregulated contact, and failures to disclose relevant information. The court accepted that they could not provide the security and stability required.
3. The Irish foster carers had previously cared for the child, remained committed to him, and were assessed as able to meet his long-term welfare needs. Their placement was therefore the option most consistent with his emotional and physical welfare.
4. Contact. Annual direct contact with the father offered no sufficient welfare benefit and carried a real risk of destabilising the placement and undermining it. The child’s identity and history could be supported through suitable indirect contact.
5. A final care order was made. The placement application was adjourned to 20 December 2013.

Not an appeal. The judgment records that the proceedings had previously been transferred from the Irish High Court to this jurisdiction, accepted by order of the President of the Family Division, and later transferred to the High Court from Brighton County Court.