K and O (Children)

In care proceedings, the court must determine whether the statutory threshold and welfare requirements are satisfied on the evidence. It must not remove children merely because another upbringing appears socially or economically preferable. A diversity of lifestyles must be respected. The decisive question is whether the proposed care exposes the child to significant harm or fails to meet the child’s needs. The welfare checklist requires attention to the child’s wishes and feelings, age and understanding, needs, the likely effect of change, background, harm, parental capacity and the available orders. A young child’s wishes are important but are not necessarily determinative. Where the evidence establishes a clear risk of significant harm and an alternative placement can meet the child’s needs, protective orders may be made.

Cardiff City Council brought care proceedings concerning two brothers, K and O, who had been left in Wales without a person with parental responsibility residing in the United Kingdom. The local authority alleged significant harm through sexual harm, neglect and abandonment. Most allegations were accepted by the mother.

An Article 15 request concerning Poland’s jurisdiction was not pursued. The court considered whether O should remain in specialist care in Wales and whether K should return to his mother in Poland or remain with his foster carers. The central issues were the statutory threshold, the children’s welfare, the risk of significant harm, the mother’s ability to meet K’s needs, and the suitability of special guardianship.

1. Threshold and evidence. The local authority bore the burden of proving the threshold on the balance of probabilities. The mother accepted almost all the allegations, including emotional harm, sexual abuse and neglect. The court found that the children had suffered neglect, poor hygiene, dental deterioration and inadequate nutrition.
2. Jurisdiction and welfare. The Article 15 request for the children to be returned to Poland and for the Polish courts to determine welfare issues was no longer pursued. The court proceeded to determine the children’s welfare in Wales.
3. K’s welfare. Applying the paramountcy principle and the welfare checklist in section 1(3) of the Children Act, the court considered K’s wishes and feelings, age and understanding, physical, emotional and educational needs, the likely effect of change, his Polish background, the harm suffered and risk of future harm, the mother’s capacity, and the available orders. K’s wishes varied. His wish not to enter care in Poland was clear, but his views were not determinative.
4. The court rejected any suggestion that the case involved social engineering or a preference for a more economically or socially convenient upbringing. Society must accept varied lifestyles. The evidence instead established that the proposed environment in Poland was unsafe and that K would be at risk of significant harm if returned to his mother.
5. O’s extensive medical needs and the mother’s agreement justified a care order and approval of the local authority’s care plan. For K, the court made a one-year supervision order and a special guardianship order in favour of Mr and Mrs O. The carers were expected to preserve K’s Polish heritage and promote contact with his brother and mother.

The judgment describes earlier proceedings concerning the proposed Article 15 request and the transfer of the case to the High Court for consideration of jurisdiction. The request was ultimately not pursued. The present judgment determined the care proceedings at first instance.