Court of Appeal allows appeal by local authority over order that child in foster care should move to Italy to be with father

The Court of Appeal has allowed a local authority’s appeal against an order that a child living in foster care should move to live with his father in Italy, after finding that the judge “did not undertake the required balancing exercise”.

Lord Justice Moylan said: “[the judge’s] reliance on Re L and her reference to a ‘starting point’ fed into the analysis she undertook which, as a result, was flawed.

“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 case concerned a child, N, who was living in foster care in England pursuant to an interim care order.

The local authority, supported by the mother and the Guardian, appealed from an order made at the conclusion of care proceedings.

Moylan LJ said: “The Local Authority relied on a number of grounds in support of their appeal but the overarching challenge to the Judge's order, as supported by the mother and the Guardian, was that she had failed to undertake the required balancing exercise.

“It was submitted […] that the Judge had effectively applied a presumption or had applied a tilted balance in favour of N moving to live with the father and, as a result, had failed to undertake "the side-by-side analysis of the pros and cons of each alternative" option as referred to by Dame Siobhan Keegan when giving the judgment of the Supreme Court in Re H-W (children) [2022] 4 All ER 683 ("Re H-W"), at [51]. As a result, it was submitted that the Judge's decision was flawed and should be set aside.”

After considering the parties’ submissions, Moylan LJ concluded that the Judge had “incorrectly placed the fulcrum such that she did not undertake the required balancing exercise”.

He observed: “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.”

Moylan LJ agreed with submissions made about the “limited value” of an assessment undertaken by the Italian social services.

He said: “As noted by King LJ during the hearing, it was plainly not a parenting assessment. As referred to above, the limited nature of the assessment was not through any fault of Italian social services. It reflected the limited information they were provided with and the limited nature of the enquiries they were asked to conduct.”

“I agree, therefore, with the Local Authority's submissions that it was not sufficient in the present case for the Judge simply to conclude that Italian social service "would carry out whatever work and monitoring they deem to be necessary" and "would comply with their safeguarding duties".”

He added: “The involvement of foreign child or social services does not absolve the domestic court of the need closely to 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.”

He noted that 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.

Moylan LJ went on to highlight that the need to engage with foreign agencies, in particular through Chapter V of the 1996 Convention (either for information/assessments or in respect of a proposed placement), is addressed “as early as possible in the proceedings”.

He continued: “Secondly, the guidance given by Black LJ in Re V-Z (which I set out below) should be applied carefully and consistently. This is to ensure that any requests for information or assessments are clearly focused on the matters which need to be addressed and to ensure that they are supported by the necessary information and documentation. It also involves steps being taken promptly to address any perceived deficiencies in the information or assessment which has been provided.”

He set out the guidance given by Black LJ in Re V-Z, at [42] as follows:

"Before leaving the case, I would add that what happened here in relation to the involvement of the Slovak authorities underlines how important it is, when seeking the assistance of foreign authorities, to:

i) Inform them clearly and comprehensively what questions they are requested to answer as part of their assessment;

ii) Provide them with all the information that they need in order to carry out the enquiry/assessment asked of them;

iii) Document carefully and comprehensively what material has been sent to them;

iv) Answer any queries posed by them in the course of their assessment;

v) 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;

vi) 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."

Allowing the local authority’s appeal, Moylan LJ remitted the matter for rehearing.

Lord Justice Green and Lady Justice King agreed.

Lottie Winson