FM (A Child)

A court deciding a child’s placement must assess the whole welfare picture. A parent’s improving mental health and positive prognosis do not prevent consideration of relapse, concealment and the interaction with other risks. Drug misuse, volatility, parental conflict and hostility towards carers may cumulatively show that parents cannot yet prioritise the child’s needs. A special guardianship order may therefore be a necessary and proportionate interference with Article 8 rights, even if a child arrangements order would be less interventionist. Under the Children Act 1989, delay is a relevant welfare consideration. A court may prefer a final settled placement to further interim assessment where the evidence is sufficient and delay would prejudice a vulnerable child.

F had lived with his maternal aunt and uncle since shortly after his birth. Following care and supervision proceedings, His Honour Judge Bond made a special guardianship order in their favour, together with a supervision order and protective orders.

The mother appealed, arguing that the order disproportionately interfered with the family’s Article 8 rights, failed to confront the risk that contact with the parents would deteriorate, and placed undue weight on delay instead of exploring rehabilitation. The alternative of F living with the aunt and uncle under a child arrangements order had not been advanced. The central issue was whether the judge had been wrong to conclude that F should remain with them.

1. Disposition. Baker J, with Sharp LJ and McFarlane LJ agreeing, dismissed the appeal. The judge had been entitled to conclude that a special guardianship order was necessary and proportionate.
2. Article 8 and mental health. The judge was plainly aware of the Article 8 rights of F and his parents. He adopted a tolerant approach to different standards of parenting, consistent with the passage from Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, endorsed in Re A (A Child) [2015] EWFC 11. He did not discriminate against the mother because of mental illness. He considered her practical parenting capacity, prognosis, support network and improving condition, but was entitled to take account of the risk of relapse and the substantial risk that deterioration might be concealed.
3. Cumulative welfare assessment. This was not a single-issue case. The mother’s mental-health risks operated alongside the father’s history of drug misuse, volatile behaviour, uncertainty about the parents’ separation, and the parents’ extreme hostility towards the proposed carers. That hostility demonstrated difficulty in identifying and prioritising F’s emotional needs. The judge was entitled to trust the carers to promote contact, while recognising that professional help would be needed to manage the family conflict.
4. Delay and appellate restraint. The judge properly applied the delay principle in section 1(2) of the Children Act 1989. F was vulnerable, had a settled placement, and the court had sufficient information to decide his future. Further interim assessment aimed at rehabilitation would cause delay and uncertainty. The evaluative welfare decision and the findings based on the witnesses were within the judge’s discretion and could not be described as wrong.
5. A child arrangements order would have been less interventionist, but that option had not been advanced. Its availability did not make the special guardianship order disproportionate. The local authority’s amended plan proposed mediation, family work and assistance with contact, and the court urged the adults to accept that support.

1. Court of Appeal (Civil Division): On 23 March 2016, the court dismissed the mother’s appeal against the special guardianship order. [2016] EWCA Civ 189
2. Family Court at Bournemouth and Poole: On 3 November 2015, HH Judge Bond made a special guardianship order in favour of the maternal aunt and uncle, with supervision, prohibited steps and non-molestation orders.