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This case concerned the question of the placement of a baby with his maternal family in Ghana or with a foster carer in England, enabling him to maintain connection with his parents and siblings. The case balanced the benefits of growing up in the child’s Ghanaian culture of origin and his proximity with his parents and siblings in the UK.
In deciding this question, the case engaged Article 8 of the European Convention on Human Rights, the proportionality test and the welfare checklist (section 1(3) of the Children Act 1989 (ChA 1989)).
The court also observed that the statutory framework for special guardianship orders (SGOs) meant that the natural family in Ghana were entitled to apply for a special guardianship order (SGO) with the consent of the local authority (LA), while the LA would require the court’s permissions under ChA 1989, s 14A(3)(b).
The practical implications of the case are the following:
The child (aged one) was the third child of a mother of Ghanaian ancestry. His maternal grandmother came to London in the 1960s. His father arrived in the UK six years ago and has a precarious immigration status. The child has both British and Ghanaian nationality. His parents were found unable to care for him. His two siblings (aged two and 13) were already being raised by the maternal grandmother under SGOs. She was unable to look after him as well.
The maternal family proposed that he should be cared for in Ghana by the grandmother’s first cousin and her husband, with the support of their married daughter. The children’s guardian was concerned at the prospect of the child growing up away from his family in England and, in particular, his siblings, and proposed that his foster carer, a single woman of Afro-Caribbean origin, should care for him under an SGO instead. The foster carer, thoroughly committed, was keen to put herself forward. The circuit judge was faced with two options:
The Court of Appeal allowed the appeal from the circuit judge and remitted the case for a rehearing before a section 9 judge. The court allowed the appeal on the grounds that there was a failure to address the welfare checklist with sufficient care.
The trial judge did not show that she had sufficiently balanced the child’s growing up in the UK, and benefiting from his British heritage, against the arguments in favour of a placement with the family in Ghana. Notably, this included that he would grow up embedded in his ethnic Ghanaian culture of origin, with the opportunity to remain in touch with close family members, and that the placement had the support of the maternal family that had shown itself capable of making very satisfactory arrangements for the older two children. The judge had not shown that she had adequately weighed the risks inherent in each placement. There was an absence of a systematic checklist analysis.
The judgment did not sufficiently explain why it is necessary for the child to be the only member of his family to grow up outside of his natural family, nor explore the consequence of that to him.
Interviewed by Stephanie Boyer.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.