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ADOPTION: Re EN (Adoption: Special Guardianship) [2007] EWCA Civ 264

Date:28 MAR 2007

(Court of Appeal; Thorpe, Lawrence Collins LJJ and Munby J; 28 March 2007)

In care proceedings the mother had been found to have inflicted various non-accidental injuries on the child. The child, then aged 1, had been discharged from hospital into the care of the paternal grandmother. The mother continued to assert that the paternal grandmother was responsible for the injuries, and a very serious rift had developed between the maternal and paternal families. The authority, supported by expert evidence, favoured adoption outside the family; the aim was to ensure that the child escaped the fierce family conflict. The paternal grandmother, who had been caring for the child for almost 3 years, offered to relocate some distance away, leaving her partner behind, to improve her case for keeping the child with her. The judge agreed with the child's guardian that the mother would be likely to try to undermine the paternal grandmother as primary carer, and that the child would be at risk of further physical harm from the mother, and with the expert psychologist that the child would continue to be faced with conflict if he remained in the grandmother's care. The judge concluded that the advantages of a fresh start in a new family away from the family conflict significantly outweighed the advantages of remaining with the grandmother in a new home in a new area. The grandmother appealed against the judge's order for adoption outside the family and refusal of her application to become the child's special guardian.

The sole ground of the appeal was that the judge was plainly wrong. The judge had been entitled to make the care order, finding that there was both a risk of physical harm from the mother and, more significantly, the risk of emotional harm arising out of the family conflict. The judge could not be faulted in his analysis and evaluation, either of the various factors that had to be put in the balance, or of the way in which the balance should finally be struck. It would have been little short of perverse if the judge had refused to make the placement order, having found that there had been no material change in any of the relevant circumstances since approval of the care plan. The judge had been entitled to conclude that contact between the grandmother and the child should be as set out in the authority care plan, that is four times a year, and that no order was necessary on the basis of the provision in the care plan.