O, (A Child), Re (application for a final care order-return to Nigeria) No 2

When deciding whether a child should return to another country under a special guardianship arrangement, the child’s welfare is the paramount consideration under the Children Act 1989. The court must also respect the parties’ fair-trial and family-life rights and ensure that the order is proportionate. A placement with relatives may be preferred where their care is established, safe and emotionally appropriate, even though another available carer is not found unfit. The court should assess the child’s relationships, wishes and feelings, the practical arrangements for education and contact, family dynamics, and the likely effects of transition and cultural change. An English special guardianship order is not binding on a Nigerian court, but the English court may invite that court to mirror the arrangements while recognising that the Nigerian court must consider the matter afresh under Nigerian law.

The proceedings concerned a child, A, who had lived in England for nearly four years and whose future care had previously been considered by the court. The earlier judgment left open the possibility of placement with her father. Further evidence addressed the father’s alleged alcohol misuse, a family dispute in Nigeria, the maternal grandparents’ capacity to care for A, A’s wishes and feelings, and arrangements for contact and education.

By the final hearing, the parents and Children’s Guardian supported A’s return to Nigeria. The maternal grandparents had been assessed positively, and arrangements had been made for A to travel with her grandfather while the grandparents applied in Lagos for appropriate guardianship, residence and contact orders. The central issue was whether A’s welfare required a special guardianship order in favour of the maternal grandparents and her return to Nigeria.

1. The court made a special guardianship order in favour of the maternal grandparents and approved the arrangements for A’s return to Nigeria.

2. Under section 1 of the Children Act 1989, A’s welfare was the paramount consideration. The court applied the welfare checklist and also considered the parents’ and A’s rights to a fair trial and to family life. Any order had to be proportionate. [10]

3. The previous concerns about the father’s alcohol use and the dispute between him and the maternal family had been sufficiently resolved. The court did not find the father incapable or unfit to care for A. Nevertheless, placement with him was not presently in A’s best interests because the parental relationship remained complex, A’s relationship with him was insufficiently established, and therapeutic work was needed to repair and develop it. [11]–[13]

4. The maternal grandparents were preferred because their relationship with A was well established, they had cared for her previously, and they could provide emotional warmth, empathy, family support and continuity of care. The court considered A’s wishes and feelings, the likely cultural and educational transition, and the proposed arrangements for parental contact. [13]–[17]

5. The Nigerian family court would have to consider the case afresh under Nigerian law. An English special guardianship order was not binding in Nigeria, but the English order could set out the reasoning, invite the Nigerian court to mirror the arrangements, and provide for disclosure of relevant documents. [8]–[9]

The judgment records that an earlier judgment in the same proceedings, given in late summer 2016, had left open the possibility of placement with the father. The present judgment determined the final care and placement arrangements at first instance.