A Local Authority v A Mother & Ors

In public law children proceedings, once the statutory threshold is crossed, placement must be determined by an holistic and proportionate evaluation of the realistic options, with the child’s welfare paramount. The court must apply the welfare checklist and avoid any presumption in favour of either the natural family or an alternative placement. Risk must be analysed by identifying its type, likelihood and consequences. A parent’s lies or lack of insight matter insofar as they affect the child’s welfare, particularly the ability of safeguarding agencies to manage risk. Where a child’s rights conflict with those of family members, the child’s rights prevail. A placement with a relative may be proportionate despite limiting the child’s religious or cultural expression where the risks of parental care outweigh that disadvantage.

These were the second care proceedings concerning J, a four-year-old child. Earlier proceedings had resulted in findings concerning parental radicalisation and a special guardianship order in favour of the paternal grandmother. That placement later broke down. The local authority, mother, paternal great uncle CC, paternal grandmother BB and J were parties. The parties agreed that the threshold under section 31(2) of the Children Act 1989 was satisfied. The central issue was whether J should return to her mother or live with CC under a new special guardianship order, together with the appropriate supervision and contact arrangements.

1. Outcome. The court made a special guardianship order placing J in the care of her paternal great uncle, CC, together with a 12-month supervision order. The existing order in favour of the paternal grandmother was discharged. Contact with the mother was to take place every three weeks at weekends, initially for about half a day, supervised by the paternal family, with longer contact on special occasions and no staying contact initially.
2. Because the threshold under section 31(2) of the Children Act 1989 was conceded, no further fact-finding was required. The court nevertheless treated the threshold finding as critically significant. Once threshold was crossed, the placement decision required an holistic analysis of the realistic care options, with J’s welfare paramount, the welfare checklist applied, and the decision made proportionately. There was no presumption in favour of the natural family.
3. The court assessed risk by considering its type, likelihood and consequences. The mother had made significant progress, but her incomplete candour, continuing ambivalence about the father, vulnerability, isolation and association with the maternal family meant that significant risks remained. The father continued to pose a high risk, and the mother’s lack of insight impaired the prospects of safe protective action and effective risk management by safeguarding agencies.
4. The court treated lies and lack of insight as relevant only insofar as they affected J’s welfare, especially the operation of safeguarding arrangements. The court did not rely on the psychologist’s favourable assessment where it failed adequately to engage with the earlier findings and the mother’s account was materially inconsistent with them.
5. Placement with CC offered stability, continuity, a safe and loving home and preservation of J’s relationship with the paternal family. Its disadvantage was that J would not live with her mother and would not be raised fully within her Muslim identity. That disadvantage was mitigated by CC’s willingness to support her religious heritage and by continuing contact with the mother. The placement was therefore proportionate under article 8, and J’s right to a safe and loving home prevailed.
6. Contact had to be recalibrated to support CC’s role as primary carer. No detailed contact order was made because CC was best placed to adapt contact as J’s needs and circumstances changed.