Lucy (Care Proceedings) (Rev 1)

In determining a child’s care arrangements, the court must undertake a global and holistic evaluation of the available options under Children Act 1989, section 1, while applying the statutory welfare checklist and making a proportionate decision where family life is interfered with.

A child’s wishes may be given substantial weight even where the child is not Gillick competent to decide where to live. The court must balance the risk of harm in a family placement against the emotional and psychological harm likely to result from continued foster care. Where neither proposed arrangement is ideal, the court may use its case-management powers to devise a supported placement which best promotes welfare.

The proceedings concerned the future care of Lucy, aged 12, who had been in foster care for two years following a fact-finding judgment concerning the death of her older brother. The court had found that the death was not suicide and that her parents and older brother were within the pool of perpetrators.

The local authority sought approval of a care plan for long-term foster care with limited family contact. Lucy’s parents sought her return home, alternatively placement with her adult sister Belinda in accommodation separate from the family home. The independent psychologist and Children’s Guardian supported placement with Belinda, subject to safeguards. The central issue was which arrangement best served Lucy’s welfare in light of the competing risks.

1. Outcome. The local authority’s plan for long-term foster care was rejected, as was the parents’ proposal that Lucy return to their care. The interim care order was continued. The local authority was directed to prepare a transition plan for Lucy to move into Belinda’s independent care outside the family home, and the final care-order application was adjourned.
2. Under Children Act 1989, sections 31 and 1, the court was required to apply the welfare checklist and conduct a global, holistic evaluation of the available options. Article 8 of the European Convention on Human Rights required proportionality, although on these facts it added nothing to the evaluation required under section 31.
3. Lucy was not Gillick competent to decide where she should live, because she could not contemplate that her family posed a risk. Nevertheless, her age and intellectual maturity enabled her clearly expressed wishes and feelings to carry substantial weight. Her prolonged and extreme rejection of foster care made the emotional harm of continued placement a real and material welfare consideration.
4. The risk in placing Lucy with family was difficult to quantify. It arose from the unresolved circumstances of her brother’s death, the family’s lack of openness and cooperation, evidence of violence, hostility to public authorities, and uncertainty concerning her older brother Charles. Those risks meant that returning Lucy to her parents would not be safe.
5. The balance nevertheless favoured placement with Belinda. Belinda was genuinely committed to Lucy, and a carefully supported arrangement, with independent accommodation, defined boundaries, monitoring, assistance with housing and education, and regulated contact with the wider family, offered the best prospect of protecting Lucy while avoiding the serious psychological harm likely to result from long-term foster care.
6. Following W v Neath and Port Talbot BD [2013] EWCA Civ 1227, the court could use its case-management powers to pursue an outcome best securing Lucy’s welfare. Unsupervised contact between Lucy and Belinda was to be facilitated as soon as possible, and the local authority was to address Belinda’s approval as a Regulation 24 carer.