The need for holistic analysis

Graeme Bentley examines the implications for local authorities and child protection professionals of a recent Court of Appeal decision on whether a child currently living in foster care in England pursuant to an interim care order, should move to live with his father in Italy.

In the matter of Re: N (A Child) (Care Order: Welfare Evaluation) [2024] EWCA Civ 938, 2024 WL 03625505, the Court of Appeal provided a further reminder that analysis of welfare following threshold findings did not proceed from a presumption of care by a parent but required a holistic analysis of the options. It also expressed concerns of the need for a prompt and focussed approach in seeking assessment from foreign authorities.

Assessment of father by foreign authority was limited in scope

The subject child, aged six years was one of three half siblings and had been in foster care for over two years with an older half sibling aged thirteen years. The foster placement was able to continue long term. Regular contact was occurring at the time of the original final hearing with the father travelling monthly from Italy. The local authority care plan of continued foster care was supported by the Guardian who was concerned at the likelihood of exposure to ongoing family conflict and the inevitable break in contact with the half sibling with whom N was said to have the most significant relationship. The father had been assessed by local social services in Italy, following a late request via ICACU. The assessment of him did not cover all areas sought by the local authority and the assessor had understood that they should focus on home, work and family conditions with there being other agencies which could deal with wider assessment of parenting capacity. It was viewed as being very limited in scope and based upon the receipt of very limited information and documents [29-30, 65}.

Need for global, holistic evaluation acknowledged

The experienced first instance Judge, while acknowledging the need for a global holistic evaluation of the realistic options, had sought to rely upon Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 to the effect that “the underlying principle that if possible the best upbringing for a child is with a birth parent is applicable where any other placement is being considered” and took this as a starting point.

She made findings as to the father’s threatening, violent and manipulative behaviour but, before undertaking the balancing exercise, considered whether N was at risk from his father, deciding that he was not and that he was not therefore ruled out as a carer. She went on to consider the balancing exercise in determining whether N should in fact move to his father. She believed that the matters arising from her findings could be addressed by social services in Italy. She saw it as “unthinkable” that he should “lose” his relationship with his father.

Analysis tilted in favour of one outcome

The Court of Appeal (Moylan LJ delivering the lead judgment) held that the Judge did not carry out the required balancing analysis when deciding that N should move to live with his father. Her analysis was not balanced with a proper weighing of the advantages and disadvantages of each possible outcome but was wrongly tilted in favour of one outcome, namely N moving to live with his father. Her reliance on re L was misplaced [56]. As reiterated by the Supreme Court in Re H-W (children) [2022] 4 All ER 683, the court must undertake a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options; this will of course incorporate the relevant factors in the welfare checklist [57]. There is no “presumption” in favour of a parent or family member in public law proceedings; there is a default position in favour of the natural family at the stage of establishing jurisdiction to make a public law order by establishing threshold. Once the section 31 threshold is crossed, however, the evaluation of a child’s welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions (citing MacFarlane LJ in Re H (A Child) (Appeal) [2016] 2 FLR 1173 [58] (and c/f Re W (Adoption: Approach to Long-Term Welfare ) [2017] 2 FLR 31 [59] as to the Court, seeking to undertake the balancing exercise, incorrectly placing the “fulcrum”.

Once the threshold criteria have been established, the child’s welfare is the court’s paramount consideration and the court’s assessment or evaluation requires all relevant factors to be taken into account. In that exercise, there is no starting point and certainly no starting point, as referred to by the Judge, “that the best arrangement for a child is to be brought up by a parent” [61]. In acknowledging the need for a balancing exercise but immediately afterwards referring to a starting point that “the best arrangement for a child is to be brought up by a parent unless there are reasons why this should not be the case,” the Judge had assumed the likely answer prior to undertaking the required balancing exercise [61]. The Judge was entitled to take into account, in general terms, the potential disadvantages for a child of remaining in foster care and the potential advantages of living with a parent. However, these are, to the extent relevant in the particular circumstances of the case, part of the balancing exercise. There is no presumption or tilted balance in favour of the latter because the welfare outcome will depend on the facts of the case. In some cases, the former will be in the best interests of a child and in others, the latter will be [62].

Among other matters, there needed to be proper consideration or assessment of the consequences, the risks to N’s welfare, if placed with the father, based on the significant findings the Judge made in respect of him and of the specific advantages in this case of N remaining in foster care. The Judge’s predisposition against foster care in general terms meant that she did not properly consider the factors advanced in this case by the Local Authority and the Guardian as supporting such a placement for N. These included evidence as to the benefits derived by N from this placement and the stability it had provided [63].

Close scrutiny of foreign assessments required by domestic court

It was not sufficient in the present case for the Judge simply to conclude that Italian social services “would carry out whatever work and monitoring they deem to be necessary” and “would comply with their safeguarding duties”. The involvement of a foreign child or social services does not absolve the domestic court of the need to closely scrutinise both the adequacy of any foreign assessments which have been provided and the adequacy of support services and remedies available in the relevant foreign jurisdiction. The extent to which this will be necessary will, inevitably, be dependent on the facts of any given case [66]. In the present case, there needed to be some specific evaluation of what the future involvement of Italian social services would entail and, in particular, what the consequences might be for N. [67].

Guidance when seeking assistance of foreign authorities

The Court was concerned at the manner of obtaining evidence from Italian social services and why an assessment had not been sought until seven months after the conclusion of proceedings. It reiterated the need to address the issue of engagement with foreign agencies, in particular through Chapter V of the 1996 Convention, as early as possible in the proceedings. The guidance by Black J in Re V-Z (Children) [2016] EWCA Civ 475 should be applied carefully and consistently. It is important, when seeking the assistance of foreign authorities to:

1. Inform them clearly and comprehensively what questions they are requested to answer as part of their assessment;
2. Provide them with all the information that they need in order to carry out the enquiry/assessment asked of them;
3. Document carefully and comprehensively what material has been sent to them;
4. Answer any queries posed by them in the course of their assessment;
5. Follow up assiduously any matters which require further exploration by them, or in respect of which they may be able to provide material information, such as details of local resources to assist in or supervise the care of the children;
6. Consider creatively how progress might be made in the event that obstacles are encountered, bearing in mind that it may be possible to communicate directly with those who are responsible for carrying out the assessment in the foreign state, although it would be prudent first to consult our Central Authority for advice as to whether that would be acceptable to the foreign state in question.

Conclusion

The matter was remitted for rehearing.

If threshold is met, it should not be assumed that there is any form of presumption for the purposes of disposal as to where the child should live. The alternatives need to be properly weighed up and balanced on a holistic basis as per established case law.

Delay and a lack of focus in commissioning assessment of family members abroad self-evidently risk the proceedings being lengthened. It is essential for the parties and the court to not just focus on these issues as far as possible from the outset but to review promptly how far the contents of any assessment tell the court what it needs to know in order to weigh up the alternatives.

Graeme Bentley is Principal Solicitor in Invicta Law’s Child Protection team and an Accredited Member of the Law Society’s Children Panel.