The case of Re H (Care and Adoption – Assessment of wider family)  EWFC 10 deals with the situation where a parent is positively opposed to proposing family members and just how far the duty to investigate family options extends to the local authority and indeed the guardian. Joseph Lynch explains.
When acting for a parent, it is one of the difficult conversations that we often have to have with a client early in proceedings when they seek the return of a child to their care.
Often at a CMH or by a date very soon after it the local authority and court require a clear indication/confirmation of any family members that may be considered as an alternative carer in the long run. When a client is clear that they want to care for the child themselves they do not appreciate being asked to identify an alternative family member, but it is a necessary option to explore.
The case of Re H deals with the situation where a parent is positively opposed to proposing family members and just how far the duty to investigate family options extends to the local authority and indeed the guardian.
The parents in the case had previous children placed for adoption and whilst the mother’s family were not willing to be assessed the father was refusing to provide details of potential family members and stated he would rather the child be placed for adoption than his family be made aware of the proceedings. Notwithstanding the father’s objection to the local authority taking steps to locate his family, and contacting them, the local authority sought confirmation from the Court that it could and should notify the father’s wider family of the existence of H, and, as appropriate, elicit their views as to plans for H’s future, and if relevant assess them as carers for H.
In the course of his judgment Cobb J helpfully deals in some detail with the responsibilities and expectations placed on the various parties through statute, regulations and case law (paras 15-43). It is useful reading and a concise reminder to us all of the various elements and responsibilities in play when decisions are being made.
Overall the Cobb J was minded to grant the application on the basis as stated at paragraph 45 that whilst:
‘….none of the provisions of statute, regulations or rules to which I have referred, impose any absolute duty on either the local authority or the Children’s Guardian, or indeed the court, to inform or consult members of the extended family about the existence of a child or the plans for the child’s adoption in circumstances such as arise here. However, the ethos of the CA 1989 is plainly supportive of wider family involvement in the child’s life, save where that outcome is not consistent with their welfare.’
The ethos which is mentioned, I would suggest, does mean there is a realistic option available to allow any child to remain in the family then it should properly be explored. It has to be accepted that the circumstances of each case and the make up of the extended family will influence that decision but as Cobb J states at paragraph 49 of the judgment:
‘in exercising judgment – whether that be by the local authority, adoption agency or court – I am clear that the wider family should not simply be ignored on the say-so of a parent. Generally, the ability and/or willingness of the wider family to provide the child with a secure environment in which to grow (section 1(4)(f)(ii) ACA 2002) should be carefully scrutinised, and the option itself should be “fully explored”’.
This is not carte blanche for those parents who are facing permanent separation from their child(ren) to demand assessments of every possible family member as decisions must be made whilst attaching primacy to the welfare of the subject child(ren).
However, the guidance in this case does clarify the options and expectations that are placed on those involved in proceedings whilst remaining true to the key principles of the CA 1989 and the ACA 2002 that children are generally best looked after within their own family, save where that outcome is not consistent with their welfare, and that a care order on a plan for adoption is appropriate only where no other course is possible in the child’s interests (see Re B (A child) and Re B-S).
Central Chambers has a family team with experience in representing applicants and respondents in all manner of public family law proceedings.