S v F & Anor

In wardship proceedings, the court must determine the child’s welfare in the round. It is not confined to deciding whether parental conduct was lawful or whether state intervention under the public-law provisions is required.

Parental responsibility ordinarily leaves important decisions with parents, within a generous ambit, unless the child is suffering or likely to suffer significant harm. A child’s wishes and feelings must be considered, with appropriate weight given to age and maturity, but they are not determinative.

Where a child’s return to the United Kingdom would expose him to a greater risk of harm than remaining abroad with family support, the court may decline to order return, even where the parents’ conduct involved a serious breach of trust.

S, aged 14, applied through his litigation friend to become a ward of court and to be returned to England and Wales from Ghana, where his parents had arranged for him to live and attend school. The move had been concealed from him because his parents believed he was becoming involved in criminal activity, gang culture and knife-related risks in London.

The court obtained a report under section 37 of the Children Act 1989. It did not recommend care or supervision proceedings and concluded that S’s best interests lay in remaining in Ghana. The principal issues were S’s habitual residence, the weight to be given to his wishes and feelings, the scope of wardship and parental responsibility, and whether return to the United Kingdom served his welfare.

1. Application dismissed. S remained habitually resident in the United Kingdom. The purposes and intentions of his parents were relevant but not determinative; the focus was the child’s situation and the stability of his residence.
2. S was Gillick competent. His wishes and feelings therefore required careful consideration and, given his age, significant weight. They were not determinative. The court also had regard to Article 12 of the UNCRC and Article 8 of the ECHR, requiring meaningful participation in decisions affecting him.
3. Parental responsibility under section 3(1) of the Children Act 1989 principally frames parental powers as responsibilities and duties. The State should ordinarily recognise that parents are better placed than judges to make decisions about their child. Interference is justified where the child is suffering or likely to suffer significant harm, but the wardship welfare inquiry was broader than determining whether the parents’ decision to send S to Ghana was lawful.
4. Section 37 provides a bridge between private-law proceedings and public-law proceedings. A direction under section 37 requires the local authority to investigate and consider whether to apply for a care or supervision order, but does not compel it to issue proceedings. Section 38 permits an interim care or supervision order in the circumstances identified by the statute, subject to the applicable time limits. The court could not use the section 37 process to force a return before realistic welfare arrangements had been identified.
5. The parents’ deception was a serious breach of trust and had caused S substantial distress. Nevertheless, the evidence established a real risk of greater harm if he returned to London, including renewed exposure to criminal activity and gang influences. The available United Kingdom options were unplanned, inadequately resourced or carried significant risks. Remaining in Ghana offered family support, educational opportunities and protection from those influences. The parents’ decision fell within the generous ambit of parental decision-making in which the State had no dominion.