A, Re

When deciding between a special guardianship placement with extended family and continued placement with a foster carer, the court must apply the welfare checklist without any presumption that a child has a right to be brought up by natural family members. Each placement must be evaluated in sufficient detail, with its advantages and disadvantages then compared. The welfare evaluation must be cross-checked against the parties’ rights under Article 8 of the European Convention on Human Rights. The court must identify the rights engaged, assess the significance of each relationship over time, and decide whether the proposed interference is necessary and proportionate. A good family placement may properly prevail over an excellent foster placement where it better meets the child’s lifelong welfare, identity, cultural and family-life needs.

The local authority sought a special guardianship order for A, a 14-month-old child, in favour of Mr and Mrs H, members of his extended maternal family living in Ghana. A’s foster carer, Ms GG, sought a special guardianship order in her favour. The first final hearing resulted in an order for Ms GG, but that order was discharged by the Court of Appeal and the matter was remitted for a rehearing. The parents could not care for A, while the child’s guardian supported placement with Ms GG. The central issue was which of the two viable placements best served A’s welfare and Article 8 rights.

1. Outcome. A special guardianship order was made in favour of Mr and Mrs H. The judge concluded that placement in Ghana was the only placement capable of meeting A’s welfare and private and family-life rights throughout his minority and beyond.
2. The welfare checklist in section 1(3) of the Children Act 1989 was obligatory, flexible and open-ended. It required the judge to address the relevant factors and any other matters bearing on the individual decision. The statutory scheme contained no presumption that a child should be brought up by natural family members. The court also took account of the relevant relationship factors in section 1(4)(f) of the Adoption and Children Act 2002.
3. The competing placements had to be analysed in detail and compared side by side. Placement with Mr and Mrs H offered family identity, Ghanaian cultural connection, committed and competent care, a supportive family network and continuing relationships with relatives. Placement with Ms GG offered exceptional existing care, continuity and proximity to A’s siblings, but carried a substantial risk that hostility from the maternal grandmother would make contact fraught or cause it to break down.
4. The welfare assessment required an Article 8 proportionality cross-check. The court identified A’s established family life with Ms GG, his family-life rights with his parents, grandmother and siblings, and his private-life relationship with Mr and Mrs H, with potential for that relationship to develop into family life. Although separation from Ms GG would cause short-term distress, the judge considered that the harm could be mitigated by A’s age, his attachment capacity and the quality of the proposed care.
5. The guardian’s recommendation was not followed because her analysis failed to engage adequately with A’s identity, Ghanaian heritage, the advantages of family placement and the risks to sibling contact if A remained with Ms GG. The judge nevertheless emphasised that each case turns on its facts and that, in some cases, a foster-carer placement or adoption may be appropriate.

• Court of Appeal: The earlier special guardianship order in favour of Ms GG was discharged and the matter was remitted for rehearing. The judgment is identified as Re A (A Child) [2018] EWCA Civ 2240.
• High Court (Family Division): On rehearing, the court considered the matter afresh and made a special guardianship order in favour of Mr and Mrs H.