The Court of Appeal (CoA) heard an appeal regarding an 18-month-old boy and whether delaying the procedure longer to allow a full assessment of the aunt and uncle, who were put forward by the mother as alternative placement, was in the child’s best interest.
Background:
M is an 18-month-old little boy and a British Citizen. He has been subject to a care order under Section 32(1)(a)(ii) of the Children Act (CA) 1989.
M’s mother has four other children. She met M’s father at the end of 2022. They travelled to Pakistan in October 2022 and remained there until December 2022. Care proceedings were instigated upon their return to the UK and were concluded in December 2023. The two older teenage children returned to the mother, and the two younger children were placed respectively with their natural father and a foster carer.
During the care proceedings, pre-birth assessments were carried out in anticipation of M’s arrival in August 2023. M was placed initially with his mother under an interim care order with an injunction excluding the father attached to the order. The parents however did not abide by the safety plan and injunction. As a result, M was placed in foster care in October 2023. By the time of the hearing in October 2024, the mother was pregnant with the father’s child. It was found that M would be at “unacceptable risk of significant harm if returned to his mother's care”.
The father has five children from a previous marriage and there are serious as-yet untested allegations of domestic abuse against him.
The parents were asked to put forward alternative potential family placements. The mother put forward M’s aunt and uncle, who lived in Pakistan, as alternative carers. From April 2024 to early August 2024, this was an option actively pursued by the local authority, during which time the parents changed direction and issued an application for a Placement Order with a care plan for M to be adopted in this country.
The aunt and uncle received a positive Children and Families Across Borders (CFAB) assessment, although some uncertainties were pointed out, including the likely financial strain the placement could have as well as the impact on the family unit in Pakistan.
Decision:
The CoA enumerated potential stumbling blocks and noted, “For my part, I can see that there was also a significant risk that the demands on the aunt and uncle might be simply too great.” Instead, the aunt and uncle’s hopes should have not been maintained for so long.
The Court considered the positives in the CFAB assessment but, drawing on Re: W (A Child) (Adoption: Grandparents Competing Claims) [2016], the Judge confirmed, “As in any case where it is hoped that a family placement can be achieved it is important, as was perhaps not recognised until too late in this case, that there is no presumption or right for a child to be brought up by a member of his or her natural family.” The Court concluded that the Judge was right in deciding that “despite its draconian nature and lifelong consequences, adoption is a necessary and proportionate interference – in short, nothing else will do.”
Regarding the extension under Section 32(5) of the CA 1989, the CoA concluded that the “Judge’s careful and sympathetic analysis of the application for an adjournment for further assessments of the aunt and uncle cannot be faulted and in my judgement, she reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.”
The Court concluded that delay was not in M’s best interest and that “the hopes of the family, and particularly the aunt and uncle, had been raised and then maintained long after a decision should have been reached that, for many reasons in addition to delay, the aspiration to place M with his extended family in Pakistan was not achievable.”
Implications:
This decision reiterates the importance of the child’s best interest and the need to avoid unnecessary delays. In this case, it seems rather unfair on the aunt and uncle to have maintained their hopes for so long by putting them through stressful situations. The 26-week time limit to resolve a care proceeding also creates a paradox with the ‘nothing else will do’ principle. When such delay is exceeded, the courts will require the alternative plan to be realistic and achievable within a reasonable amount of time. While the Court refers often to the concept ‘nothing else will do’, it did not provide any supporting guidance.
This case also reaffirms that there is no ‘right’ for a family placement, despite the potential benefits. If parents want their children to be cared for by family members outside the UK, they need to be proactive in identifying and assessing the potential carer at the earliest stage possible.
