N (A Child) (Care Order: Welfare Evaluation), Re

Once the threshold criteria are established, the court must determine welfare by a global, holistic and proportionate evaluation of the realistic options. It must examine each option’s advantages and disadvantages and compare them side by side. There is no presumption, starting point or tilted balance in favour of a placement with a parent or natural family.

The potential benefits of parental care and disadvantages of foster care are case-specific factors within that evaluation. They cannot pre-determine it. Where an overseas placement is proposed, the court must scrutinise the adequacy of the foreign assessment and the available support, safeguards and remedies for the particular risks identified.

Care proceedings concerned three siblings. N had lived with his older brother M in the same foster placement in England since March 2022. N’s father sought N’s placement with him in Italy. The local authority and the children’s guardian proposed that N remain in long-term foster care with M, with contact with both parents.

Her Honour Judge Coppel made a final care order and directed that N move to Italy. The local authority, supported by the mother and guardian, appealed. They contended that the judge had treated parental care as the starting point, failed to conduct a balanced comparison with foster care, and relied on an inadequate Italian social-services assessment.

The central issue was whether the judge had undertaken the required welfare evaluation of the competing realistic placements.

1. Appeal allowed and matter remitted for rehearing. The judge’s welfare decision was flawed because her analysis was tilted towards N living with his father and did not contain the required balanced comparison of the realistic options.

2. Following Re H-W [2022] 4 All ER 683, the court must undertake a rigorous welfare evaluation. It must identify and weigh each option’s internal benefits and disadvantages, then compare the options side by side. The relevant welfare-checklist factors form part of that exercise.

3. The judge’s reliance on Re L [2007] 1 FLR 2050 was misplaced. Its observations concerned the threshold for state intervention, not the subsequent welfare decision. Once the threshold is crossed, Children Act 1989 welfare principles require a fact-specific and proportionate evaluation; they do not permit a presumption or starting point that parental care is best.

4. The judge had in substance assumed the likely answer before balancing the alternatives. Her general predisposition against foster care prevented proper evaluation of the identified risks arising from the father’s conduct and of the concrete benefits to N of stability, his foster placement, and his relationship with M.

5. The Italian assessment was limited. It was not a parenting assessment, had been conducted without key information, and did not address the relevant risks, contact arrangements or sibling relationships. A domestic court cannot simply assume that foreign social services will manage identified risks. It must scrutinise the adequacy of the assessment and the support and remedies available in the foreign jurisdiction for the particular case.

6. The court also endorsed the need for early, focused and well-documented engagement with foreign authorities under the 1996 Convention, consistently with Re V-Z [2016] EWCA Civ 475.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal and remitted the issue of N’s placement for rehearing: [2024] EWCA Civ 938.
• High Court of London, Family Division: Her Honour Judge Coppel made a final care order and directed that N move to live with his father in Italy on 12 February 2024.