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Re Z (Care Proceedings: Special Guardianship: Competing Placements) [2021] EWHC 70 (Fam)
(Family Division, Knowles J, 9 August 2021)

This month’s blog is brought to you by Sarah Preest – pupil to Ravi Randawa

 

 

 

 

 

These proceedings involved two competing SGO placements. Z was subject to an interim care order and it was determined within proceedings that neither of his parents could care for him. The choices before the court were whether Z should move to the home where his half-sister (Y) lived with her father (PQ) or whether he should move to the home of his paternal aunt and uncle.

Background

Both PQ and the paternal aunt and uncle were subject to positive viability assessments.

PQ presented as a protective figure for Y and Z. PQ had a close, loving, and established relationship with Z. PQ continued to have telephone contact with the mother most days whilst she was in prison. PQ regarded the relationship with the mother as over and planned to divorce the mother.

Previously the paternal aunt and uncle had limited contact with Z. They had met Z when he was six months old shortly before the mother and father separated and had no subsequent contact.

Both the paternal aunt, uncle and PQ were subjects of full special guardianship assessment by the local authority. Both assessments were positive but the local authority concluded on balance that Z should be placed with PQ because this would enable him to live with his half-sister, and cement his already established relationship with PQ.

Subsequently the court directed the local authority to prepare an assessment to provide a holistic evaluation and analysis of the respective abilities of PQ and the paternal aunt and uncle to care for Z throughout his minority.

The local authority addendum report accepted that Z had a close and meaningful relationship with Y which would likely endure beyond his current relationships and that PQ was a very significant attachment figure. However, the local authority concluded that placement with the paternal aunt and uncle represented the overall best long-term plan for Z because they were the most capable and assured option when it came to meeting Z’s needs for emotional security, stability, safe contact, and healthy identity needs.

It was agreed by all parties that the threshold criteria in s.31(2) Children Act 1989 had been met. Neither the mother or the father sought the return of Z to their care.

The Law

Special Guardianship Orders (Section 14 Children Act 1983) provide a degree of permanence. This is demonstrated both by the substantive procedural requirements before a special guardianship order can be made and by the fact that the court’s permission is required before a parent can apply to discharge a special guardianship order: section 14D(3). (Birmingham City Council v R [2007] Fam 41).

Where a court is considering whether to make an order such as a special guardianship order, it shall “have regard in particular” to the matters that appear at s.1(3) of the Children Act 1989. The welfare checklist is helpful because it tends to ensure that all important considerations are taken into account. This is particularly apposite in any difficult or finely balanced case as Baroness Hale observed in Re G (Children) [2006] UKHL 2305 at [40]. The neutral content of the welfare checklist is a reminder that the assessment of welfare is not driven by presumptions. Re W (A Child) [2016] EWCA Civ 793 at [71]. The open-ended nature of the checklist allows the court to take account of other matters that may bear upon the individual decision. For example, the lifelong significance of the decision might reasonably prompt the court to have regard to the matters appearing in the checklist in the Adoption and Children Act 2002 at s.1(4)(f). A real analysis is required that descends into as much detail as the decision demands Re G (A Child) [2013] EWCA Civ 793 at [71]

Special guardianship orders are made in accordance with law and with the legitimate aim of promoting the welfare of the child. The proportionality evaluation requires the court to address whether the proposed interference with Art 8 rights is necessary in the first place and, if so, whether it goes any further than it must to achieve its purpose. In CM v Blackburn with Darwen BC [2014] EWCA Civ 1479 [36].It is well established under European and domestic law where there is a conflict between the welfare of the child and the rights of an adult, the child’s interests will predominate. What is necessary, is to identify the nature of rights that are engaged and the extent of the proposed interference. This crosscheck prevents the choice of an unnecessary interference or one that is disproportionate to the problem.

The court must also have regard to the general principle that any delay in determining issues is likely to prejudice the welfare of the child. However, the child’s welfare is paramount and if contrary to the general principle, delay promotes the welfare of the child, then delay will be the right course to pursue. Re P-S (Children) [2018] EWCA Civ 1400 at [69]:

Discussion

It is important to identify the particular characteristics and capabilities over and above the provision of good quality day to day care which any prospective carer for Z should possess in order to meet his needs in the short, medium, and long-term. The evidence highlights that the following characteristics are necessary:

  1. an ability to promote Z’s identity and knowledge of his life story;
  2. a carer best placed to hold parental responsibility in the face of challenging family dynamics;
  3. a carer most likely to maximise the support offered by services and to work openly with the local authority; and
  4. a carer most able to meet Z’s emotional needs.

Both PQ and the paternal aunt and uncle are capable of meeting Z’s physical and educational needs. However, the position with respect to Z’s requirement for a safe home and for his emotional needs to be met is different. Z is aware that PQ is not his father.  PQ has been and continues to be a father figure for Z. However, PQ’s ability to promote contact with the paternal family is uncertain.

The paternal aunt and uncle’s evidence was unequivocal about the need to promote Z’s contact with both sides of his family and, in particular, with his sister. Though related to the father, the paternal aunt and uncle had taken steps to distance themselves from him.

I have no reason to believe that the paternal aunt and uncle will not collaborate with the local authority. The paternal aunt understood the need for support with life story work and the role of the local authority in evaluating the risks presented by parental contact. The court was far less certain that PQ would work transparently with the local authority.

Welfare Assessment

There are two realistic options for Z’s future care: placement with PQ or placement with the paternal aunt and uncle. The assessment necessarily involves rejecting one option for Z whilst endorsing another, though finely balanced, the decision was made in Z’s welfare interests and was deemed proportionate.

The advantages of a placement with PQ were as follows. Z has a well-established and loving relationship with him and has known him since birth: PQ has been a father figure to Z. Z would live with his half-sister with whom he has a happy relationship despite the difference in their ages. Z would continue to have regular and frequent contact with his maternal grandparents. Z would also continue to attend his present nursery school where he has settled. PQ could also provide good quality basic care.

The disadvantages of a placement with PQ were that he has been unable to promote a truthful narrative to Y about the mother and has been resistant to the offer of professional help to assist him in this regard.  There are concerns about PQ promoting good quality regular and frequent contact with the paternal family, including the father.

The advantages of a placement with the paternal aunt and uncle are as follows. Though their relationship with Z is relatively recent, he has responded positively to them and to the increased time he has spent in their home. Both are child focused and attuned to Z’s emotional needs, particularly his need for regular and frequent direct contact with his sister, PQ and the maternal grandparents.

There are disadvantages to placement with paternal aunt and uncle, the most significant of which is that Z would not live with Y. Sibling relationships are often the longest relationships people have during a lifetime and, as stated in Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request) [2021] EWHC 1970 (Fam) at [77].

The court must prioritise Z’s need for an adult carer over his need to live with his sister if the court determined that Z’s welfare would be compromised by a placement with PQ. Living with the paternal aunt and uncle Z would find himself in a situation not dissimilar to that faced by many children where parents have separated, and siblings and half-siblings live apart in different homes yet have regular contact with each other. Z’s relationship with Y will not be severed as would be the case were Z to be adopted although it would undoubtedly be different.

Family Court Order

The court was satisfied that Z’s welfare required placement with the paternal aunt and uncle pursuant to a special guardianship order.

 

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