(Court of Appeal; Jacob and Wilson LJJ; 2 January 2009)
Both parents were drug users, and were unable to care for either the 5-year-old child or the 13-year-old half-sibling. The local authority care plan was for the half-sibling to remain on a long-term basis with the foster carers currently caring for both children, and for the child to be adopted. The local authority had dismissed the 70-year-old paternal grandmother as a carer for the child, because of her age. The paternal grandmother had obtained party status in the care proceedings, and sought a residence order, supported by all the other family members, including the mother and the half-sibling. The judge criticised the authority's failure to assess the grandmother's candidacy properly, even after her acquisition of party status, and made a residence order in the grandmother's favour. The judge considered age as a factor, but concluded that family would 'rally round' if and when the grandmother's circumstances disabled her from continuing to act as the child's primary carer. The guardian appealed, supported by the local authority, on the basis that the judge's conclusion had plainly been wrong.
While it was no doubt very unusual to commit a 5-year-old to the care of a 70-year-old grandmother, there were three important factors in the case: (i) the grandmother was a member of the child's wider family, and the law's bias in favour of family members was therefore engaged; (ii) most importantly the grandmother had a substantial track record of commitment to the child, through contact in very difficult circumstances, and had established a very positive relationship with him; (iii) the grandmother was sincerely committed to maintaining contact between the child and the child's half-sibling. The local authority's adoption proposal, on the other hand, involved gross curtailment, if not effective elimination of two key relationships: the relationship with the grandmother and with the half-sibling. Three of the grandmother's adult children, and one of her adult grandchildren, had indicated not only their full support for the grandmother's candidacy as a carer, but also their willingness to act in principle as a backstop in the event that a time came when she could no longer look after the child.