S (Wardship: Removal to Ghana), Re

This appeal concerned a wardship application by a 14 year old seeking orders to require his parents to repatriate him from Ghana to the United Kingdom. The Court of Appeal allowed the appeal and remitted the matter for rehearing because the judge at first instance had conducted an intertwined analysis of the lawfulness of the parents' exercise of parental responsibility and the child’s welfare under the Children Act 1989, s 1, rather than making a wholly independent welfare determination.

The court held that the judge erred in two principal respects: first by making a final welfare determination prematurely when there was no firm or viable plan for the child’s care in England; and second by failing adequately to give weight to the appellant’s expressed wishes and feelings and to identify and evaluate harm, and the risk of harm, arising from the child having been taken to and left in Ghana and from any further enforced stay there. The court also clarified that the concept of Gillick competence is legally limited to medical consent but remains a relevant indicator of the weight to be afforded to a mature child’s wishes in a welfare analysis under CA 1989, s 1.

Background: The appellant, S, a dual British–Ghanaian citizen born in England in 2010, was taken by his parents to Ghana in March 2024 and left there while his parents returned to the United Kingdom with his passport. With assistance from London solicitors he issued wardship proceedings in September 2024 seeking an order for his summary return. Hayden J refused the application and discharged the wardship on 27 February 2025 ([2025] EWHC 439 (Fam)). Permission to appeal to the Court of Appeal was granted by King LJ and the appeal was heard on 12 June 2025.

Nature of the application: The application sought an order requiring S’s parents to repatriate him to the United Kingdom and the reinstatement of wardship to enable the court to determine his future care.

Facts and procedural posture: The High Court found a significant deterioration in S’s behaviour in England prior to removal and accepted professional and parental evidence that S had been involved in, or on the periphery of, gang-related and criminal activity. Hayden J accepted those factual findings and the associated risk of harm if S returned to his former environment in the United Kingdom. The judge also accepted that S was Gillick competent and noted the need to take his views into account. The local authority filed a Children Act 1989, s 37 report which recommended that S remain in Ghana; the judge declined a further s 37 direction before finally refusing repatriation.

Issues framed: (i) whether the judge had correctly applied the welfare principle in CA 1989, s 1 and taken paramount consideration of S’s welfare; (ii) whether the judge conflated parental lawfulness and the proper welfare enquiry; (iii) whether the judge gave appropriate weight to S’s wishes and feelings, given his demonstrated maturity; and (iv) whether it was premature to decide the case without properly investigated options for S’s care in England (including the use of s 7 welfare reporting).

Reasoning and conclusion: The Court of Appeal accepted the findings of fact as to S’s life in England but concluded that Hayden J had compressed an audit of parental decision-making into the court’s welfare determination and thereby risked viewing welfare through the parents’ lens. The Court of Appeal held that making a final determination when key options for care in England (Plan A, B or C) had not been investigated was premature. The judge had not demonstrated adequate engagement with S’s strongly held wish to return or assessed potential harm from being taken to, and left in, Ghana or from continued enforced residence there. The court also explained that Gillick competence is legally confined to medical consent but is a useful indicator of the weight to afford a child’s wishes in welfare proceedings. Outcome: the appeal was allowed, wardship was reinstated and the matter remitted for rehearing before another Family Division judge, with the factual findings about life in England standing.

Appeal allowed. The Court of Appeal concluded that the High Court judge erred by conflating review of the parents’ exercise of parental responsibility with the court’s independent welfare determination, by making a final decision prematurely without firm plans for the child’s care in England, and by insufficiently weighing the appellant’s wishes and the potential for harm from his being taken to and remaining in Ghana. The case was remitted for rehearing before a different Family Division judge with the factual findings about life in England preserved.

Appeal from Hayden J’s judgment refusing the wardship application and discharging the wardship ([2025] EWHC 439 (Fam)). Permission to appeal was granted by King LJ. The Court of Appeal ([2025] EWCA Civ 1011) heard the appeal on 12 June 2025 and delivered judgment on 29 July 2025 allowing the appeal and remitting the case for rehearing.