C-D (A Child), Re

In care proceedings, a prospective special guardian has no automatic right to party status or representation. The court must assess the realistic prospects of the proposed order and whether it can fairly determine the care case on the evidence available. A care order may be made despite unresolved implementation details where the care plan is sufficiently firm and specific to give a reasonably clear picture of the child’s foreseeable future. A judgment need not recite every welfare-checklist factor if it is adequately reasoned and shows that all significant factors, including wishes and feelings, were considered. An order under section 91(14) is discretionary and may be made, with great care, to secure a period of calm even without repeated unreasonable applications.

The mother appealed from the Central Family Court order of HHJ Wright dated 28 October 2019. The judge had made a care order concerning the child and an order under section 91(14) of the Children Act 1989, restricting further applications until 18 October 2021. The appeal challenged the absence of representation for the maternal aunt, the approval of contact arrangements, the assessment of alternative care options, the timing and proportionality of the care order, the treatment of the child’s wishes and feelings, and the section 91(14) order. The central issues were whether the proceedings had been fairly and sufficiently informed and whether the child’s welfare justified final orders before completion of the aunt’s foster-carer assessment.

The appeal was dismissed. Moylan LJ gave the judgment, with Lewison LJ agreeing.

1. Joinder and access to justice. The circumstances in In re P-S (Children) were materially different because the proposed special guardians had positive assessments and were the recommended carers. That decision did not create a general entitlement to party status. The court had to consider the prospects of any special guardianship application and whether it could fairly determine the care proceedings without the proposed guardian being joined. The negative viability and special guardianship assessments gave ample evidence to conclude that the aunt’s proposed special guardianship order was not realistic.
2. Care order and care plan. Under sections 31A, 31(3A) and 31(3B) of the Children Act 1989, the court had to consider the permanence provisions and the local authority’s long-term plan. Applying In re S (Minors), the court distinguished uncertainties that had to be resolved before deciding whether a care order was in the child’s best interests from implementation matters that could be worked out afterwards. The care plan was sufficiently firm and particularised. The formal outcome of the aunt’s foster-carer assessment did not need to be awaited, particularly given the need to avoid further delay. The decision-making process also had to be fair and respect Article 8 interests under the European Convention on Human Rights.
3. Welfare and contact. Applying Re DAM, the judgments were adequately reasoned and showed that the relevant welfare factors, including the child’s wishes and feelings, had been considered. The court was not required to refer expressly to every item in the welfare checklist. The challenge to contact arrangements failed because the parties could make submissions and the existing evidence was sufficient; no further oral evidence had been sought.
4. Section 91(14). The power was discretionary and the guidelines in Re P were not confined to repeated unreasonable applications. Following the approach in Re K, the child’s need for a period of calm and the risk of further destabilising litigation justified the order until October 2021.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 501, Moylan LJ, with Lewison LJ agreeing, dismissed the mother’s appeal.
2. Central Family Court: HHJ Wright made a final care order and an order under section 91(14) on 28 October 2019.