A (A Child)

In a finely balanced child welfare decision, the statutory welfare checklist is obligatory, flexible and open-ended. It does not create a presumption that a child should be raised by natural family. The court must evaluate each realistic placement in sufficient detail, weighing its internal advantages, disadvantages and risks before comparing the options. Article 8 proportionality is a separate cross-check: the court must identify the rights engaged, their short-, medium- and long-term significance, and whether any interference is necessary and no more extensive than required. A judgment may be unsustainable where it omits material benefits and risks of a family placement or fails to explain why an out-of-family placement is necessary.

The Family Court at Barnet considered competing proposals for a special guardianship order concerning a young child whose parents could not care for him. The local authority supported placement with maternal relatives in Ghana. The Children’s Guardian supported continuation with the foster carer in England, enabling close contact with the child’s siblings, grandmother and wider family.

On 20 July 2018, the judge made a special guardianship order in favour of the foster carer. The local authority appealed, alleging inadequate welfare-checklist analysis, failure to conduct a proper Article 8 proportionality assessment, and procedural unfairness because the proposed relatives had given evidence through an ineffective video link. The central issue was whether the judgment sufficiently evaluated and compared the two placements.

Appeal allowed; rehearing ordered.

1. The procedural ground failed. Although the proposed relatives had participated by an ineffective video link, they had been fully and favourably assessed, no contested issue arose from their evidence, and their position was actively advanced by the local authority and the mother. There was no actual disadvantage.
2. Section 1(3) of the Children Act 1989 imposes an obligatory, flexible and open-ended welfare checklist. In a difficult or finely balanced case, the judgment should address the checklist factors and other relevant matters so that no feature receives excessive weight. The checklist does not create a presumption or right that a child must be raised by the natural family. The judgment must be read as a whole, but must contain real analysis sufficient to explain the result and permit appellate review: Re G (Children) [2006] UKHL 2305; Re W (A Child) [2016] EWCA Civ 793; Re F (Children) [2016] EWCA Civ 546.
3. Each realistic placement must be analysed by reference to its own advantages, disadvantages and risks, followed by a side-by-side comparison with the competing option: Re G (A Child) [2013] EWCA Civ 793. A single contested issue must not become the tipping factor without adequate analysis of the remaining considerations.
4. Article 8 proportionality is an additional cross-check to the welfare evaluation. The court must identify the actual private and family life rights engaged, their temporal significance and the extent of interference, then ask whether the proposed interference is necessary and goes no further than required for the welfare aim. The child’s welfare predominates in a conflict with adult rights, but the interference must still be justified in the individual case: CM v Blackburn with Darwen BC [2014] EWCA 1479.
5. The judge did not sufficiently balance the benefits of the foster placement against the benefits of growing up embedded in the child’s Ghanaian family and culture, the prospect of visits to England, and the risks inherent in each placement. Nor did the judgment adequately explain why foster care was necessary when a viable family placement and significant continuing contact were available. The welfare and proportionality assessments therefore could not stand.
6. Because it was unclear what conclusion the judge would have reached after a fuller analysis, the matter required a fresh rehearing. The rehearing was to proceed independently, with updated evidence and directions clarifying the proposed relatives’ participation. The appellate court expressed no view on the appropriate ultimate placement.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal from the welfare decision and ordered a fresh rehearing.
• Family Court at Barnet: On 20 July 2018, made a special guardianship order in favour of the foster carer, with flexible continuing contact with the child’s family and no separate contact order.