S (A Child), Re

A court may rule out a parent or relative as a long-term care option before the final welfare evaluation only where, with appropriate confidence and clarity, it is plainly unrealistic: there must be no real prospect that the option would be chosen after the full assessment. “Realistic” is an ordinary, fact-sensitive word. The court must avoid reviving linear decision-making. A proposed carer’s deficiencies must clearly outweigh positive features. Established attachment, the status quo, the effect of separation, and earlier professional support for the placement are material considerations. If the option remains realistic, it must be compared holistically with adoption under section 1 of the Adoption and Children Act 2002, including the welfare checklist and proportionality.

The local authority brought care proceedings concerning T, a young child who had spent most of his life with his paternal grandmother. The grandmother sought a special guardianship order. Earlier local authority assessments supported her care, but an independent assessment identified concerns about family dynamics, her relationship with T’s father, and her ability to protect T and work openly with professionals.

After a seven-day hearing, Her Honour Judge Garland-Thomas dismissed the special guardianship application and ruled that T could not remain in the grandmother’s care. The adoption application had not yet been determined. The grandmother appealed, arguing that the judge had failed to carry out the required holistic comparison of family care and adoption. The central issue was whether the grandmother could lawfully be ruled out as an unrealistic option at that stage.

Appeal allowed. The court set aside the parts of the order ruling that the paternal grandmother was not a realistic option for T. The care proceedings, including the application for a placement for adoption, were to be reheard. The findings concerning the mother and father were not set aside.

1. Where a judge is evaluating one realistic long-term care option against another, the court must conduct a comprehensive and holistic welfare evaluation. The options must be balanced against each other, with proportionality considered. Where adoption is in issue, the court must apply section 1 of the Adoption and Children Act 2002 and its welfare checklist. This was the effect of Re B-S (Children) [2013] EWCA Civ 1146.
2. Re R [2014] EWCA Civ 1625 permits a court to rule out an option before the final hearing if it is not realistic. The word realistic requires no finer definition, but each case is fact-sensitive. Appropriate caution is essential, particularly where the option is advanced by the only parent or relative willing to care for the child. The same caution applies to relatives as to parents.
3. A family carer may be excluded only where the deficiencies identified are so substantial that they clearly outweigh the positive features, leaving no real prospect that the option would be chosen after a full welfare evaluation. The court must guard against reintroducing linear decision-making through a preliminary categorisation.
4. In this case, the grandmother’s established care, strong attachment with T, the status quo, the effect of separating them, positive assessment evidence, and recent local authority and fostering-panel support made her care a realistic option. The concerns about family dynamics, future emotional harm and cooperation with professionals were important matters for the welfare balance, but did not justify excluding her at the preliminary stage.
5. The judge’s evaluation was independently flawed because it identified only negative factors and omitted the attachment, status quo, positive features and consequences of removal. The conclusion that T could not safely remain with the grandmother was not supported by a sufficiently precise finding of harm. Likely emotional harm was not identified as significant and did not, by itself, establish the threshold under section 31 of the Children Act 1989. The suggested further developmental delay was unsupported by a specific finding or evidence.

1. Court of Appeal (Civil Division) — In [2015] EWCA Civ 325, unanimously allowed the grandmother’s appeal, set aside the ruling that she was not a realistic option, and directed a rehearing.
2. Swansea Civil Justice Centre — Her Honour Judge Garland-Thomas dismissed the grandmother’s special guardianship application and ruled that T could not remain in her care. The adoption placement application remained for a later hearing.