In this issue, we focus on a recent High Court judgment in which the wishes of a ‘Gillick competent’ 12 year-old girl to be removed from foster care and returned home to her mother’s care were granted by the court. The girl had been subjected to “draconian restrictions” on her family and social life after an interim care plan prevented her from any contact with her mother, and severely restricted her contacted with her sister and peers. The restrictions, justified by the local authority as necessary due to the risk of emotional harm presented by the girl’s mother, were found by the court to have “severely interfered” with her rights under the European Convention on Human Rights.
High Court finds interim care plan had the effect of “a very serious interference” in a child’s right to respect for private and family life
This judgment concerns a 12 year-old girl, referred to as Z. Z’s parents separated in 2016, at which point Z, who was then aged 7, and her sister, referred to as X and then aged 5, went to live with their father, later moving to live with their mother. The girls’ contact with their father became “increasingly haphazard” over time. In early 2020 an interim contact order was made to maintain the girls’ relationship with their father. Following safeguarding concerns and protracted, missed family time with the father, the local authority conducted an assessment and put in place a ‘child in need’ plan. The girls continued to miss family time with their father, who blamed it on the girls’ mother, saying she was alienating them against him. Throughout that time, Z’s mental health kept deteriorating and she had suicidal thoughts. In late October 2021, local authority enquiries under section 47 of the Children Act 1989 led to a ‘child protection plan’ under the category of emotional harm being put in place for both girls.
In early March 2022, the local authority made an application to the family court for Z and X to be removed from their mother’s care “due to concerns about the levels of abuse they were being exposed to”, leading to the girls moving to live with their father. Shortly after, the girls ran away from their father’s care and, having been found by roadworkers at approximately 3.40am, they were taken into police protection. At this point, the girls’ father agreed for Z and X to be accommodated in foster care. Later that month, X and Z were separated and placed in different foster homes, with X returning to the care of her father soon after and Z remaining in foster care. In May 2022, an interim care order was made.
Z’s mental health continued to decline rapidly, and she self-harmed and ran away from her foster carer and from school several times.
In July 2022, an application was made by Z’s mother to discharge the interim care order and return Z to her care. At the time of the court proceedings, the girls were not allowed social media apps on their phones (with WhatsApp being considered), and they could be in touch with each other only for two hours per week, supervised at a contact centre. There was also a plan in place for supervised, “virtual family time between the children and the mother”.
The wishes of the different parties to the court proceedings
The girls’ father urged the court not to return Z to her mother’s care and to keep in place the restrictions on both girls’ contact with their mother, arguing that returning Z home to her mother would invalidate all the efforts to improve the girls’ circumstances and that it would have a negative impact on X (who was at the time living with her father). The father was supportive, however, of greater supervised contact between the sisters. The girls’ mother argued that Z’s emotional and mental health were being harmed by the separation and severe restrictions on contact, pointing out the serious risks Z was exposed to when she repeatedly ran away from her foster carers.
Z, through her lawyer, expressed a desire to return home to her mother’s care, saying she was extremely unhappy in foster care and describing several incidents where the foster carer was unkind to her. Z was also disheartened by the prospect of the need for police checks before seeing her friends and told her lawyer she would not participate in a psychological assessment at that point.
The guardian agreed that Z was suffering harm due to her separation from her mother, at the same time expressing concerns about the harm Z would suffer if she returned home, and about the impact this would have on her sister, X.
The local authority wanted the interim care order to continue and proposed to amend Z’s care plan “to allow her to have a mobile phone, albeit subject to close supervision and blocking numbers associated with the mother and her family”.
The legal framework
The court considered the welfare checklist, Gillick competency, and the legal duties under the European Convention on Human Rights and the Human Rights Act 1998. [The court has also referred to extensive case law relating to ‘parental alienation’, which we have left out of this summary. For more information, please refer to paragraphs 65 onwards of the judgment].
- Welfare checklist
The welfare checklist, set out in section 1(3) of the Children Act 1989, requires courts to have regard to a number of considerations when making decisions about whether a court order should be made. These considerations include the ascertainable wishes and feelings of the child, their physical and emotional needs, their age and any harm they have suffered or are at risk of suffering. [See bottom of this page for more information].
- Gillick competency
Gillick competency, coined as a term in the aftermath of the landmark House of Lords ‘Gillick judgment’, refers to the capacity of children under the age of 16 to understand, participate in and influence decisions about them and their lives. A ‘Gillick competent’ child is able to understand both the nature and implications of a specific decision in given circumstances. The concept of ‘Gillick competency’ affirmed in law the idea that parental authority dwindles as a child’s understanding and autonomy grows.
To learn more about ‘Gillick competency’, please read the December 2021 issues of our children’s rights legal digest.
- The European Convention on Human Rights
Article 8 of the European Convention on Human Rights (ECHR) guarantees respect for private and family life. Article 8 protects all children and young people (and adults) against arbitrary interference with private and family life (including correspondence) by public authorities. It also places a positive obligation on public bodies to ensure that Article 8 rights are respected. This duty is binding on local authorities because section 6(1) of the Human Rights Act 1998 requires all public bodies, including local authorities, to act compatibly with ECHR rights.
Article 2 of the ECHR protects everyone’s right to life.
The court’s assessment of the impact of the care plan on the child’s human rights
Z was assessed as being ‘Gillick competent’, capable of giving instructions to her lawyer and therefore “entitled to have her views given considerable weight under Article 8”. The judge stated that even in light of a positive obligation on the state under Article 8 to promote the rights of parents, in any case concerning the welfare of a child, “the child’s rights must necessarily be those at the forefront of the court’s mind”.
The court described Z’s situation as presenting “a very significant interference” in her Article 8 rights. With Z having no contact with her mother, two hours per week of supervised contact with her sister, and no contact with her father (as per her wishes), “she was in essence having no family life whatsoever”. In addition, she was not allowed to see or spend time with her friends outside of school hours and was prevented from having any contact with her peers over the phone or via social media. The court found that “…the effect of the care plan … was a very serious interference in Z’s Article 8 rights, by which she was completely personally and socially isolated, save when she was at school” [paragraph 90], with the restrictions that had been put in place described as “draconian” and not at all proportionate to Z’s circumstances. Even at the point when some of the restrictions were eased, Z remained “highly restricted in her access to family life, to a degree that is much greater than would be the case for most children of her age” [paragraph 90].
Importantly, any assessment of Z’s human rights under the ECHR must take into consideration the risks to her life and safety. The severe restrictions imposed by the local authority on Z were justified by the risk of emotional harm posed to her by her mother. However, evidence before the court clearly indicated that, following Z’s removal from her mother’s care, her emotional wellbeing deteriorated. Moreover, by running away from her foster carer, Z became exposed to genuine risk of harm, jeopardising her right to life under Article 2 of the ECHR.
The court also raised the fact that the therapeutic reunification plan prepared by the local authority was bound to fail as Z “made it abundantly clear that she [was] not prepared to cooperate with it”.
The High Court’s decision
Acknowledging the complexity of Z’s circumstances, the judge concluded:
“… in some cases there is no solution to a problem, only a choice between two not good outcomes, and the need to choose the least worst outcome. What might be characterized as choosing the course which is less stressful for the child could alternatively be described as taking into account and giving appropriate weight to the child’s wishes and feelings.” [paragraph 100]
“I have reached the conclusion that keeping Z in foster care against her strongly expressed wishes, and at risk of serious harm to her, places her at greater and certainly more immediate risk than the risks set out in the [local authority’s threshold document].” [paragraph 101]
The court accepted the potential negative impact of the decision on Z’s sister, X, and acknowledged it as a “a very serious consideration”, while at the same time stressing that current law (“statute”) prevents the prioritising of the possible negative impact on Z’s sibling over her welfare interests.
“In my view, the most appropriate course, taking into account all the considerations, is to ask the [local authority] to amend the care plan so that Z can go home to her mother immediately. However, I do not consider the tests for interim separation are met and taking into account the welfare checklist, I consider it to be strongly in Z’s best interests for her to live with her mother until a final order is made. If the [local authority] do not consider they can amend the care plan with Z placed at home, then I will make an interim supervision order with Z living with the Mother.” [paragraph 103]
The court issued an order allowing Z to go home to her mother’s care immediately.
You can read the full judgment here:  EWHC 2146 (Fam)
Welfare of the child and the welfare checklist
In law, whenever a court makes decisions about any questions relating to the upbringing of a child or how a child’s property (or income) should be managed, paramount consideration must be given to the child’s welfare. This is expressed in section 1(1) of the Children Act 1989 and is recognised as one of the underpinning principles of the children’s rights legal framework in England.
Whenever a court is considering whether to make, change (‘vary’) or remove (‘discharge’) a care order (whether interim or not), a supervision order (whether interim or not) or a special guardianship order, it must have regard to the welfare checklist set out in section 1(3) of the Children Act 1989. The same checklist must be followed when a court is deciding whether to make, vary or discharge a ‘section 8 order’ (i.e., a child arrangements order, a prohibited steps order or a specific issue order), and when this is opposed by any party to the court proceedings.
The welfare checklist requires the court, when making decisions, to have regard to:
(a) the ascertainable wishes and feelings of the child (considered in the light of their age and understanding);
(b) the physical, emotional and educational needs of the child;
(c) the likely effect on the child of any change in their circumstances;
(d) the child’s age, sex, background and any characteristics which the court considers relevant;
(e) any harm suffered by the child or any risk of harm;
(f) how capable the child’s parents, and any other relevant persons, are of meeting the child’s needs;
(g) the range of powers available to the court under the Children Act 1989 in the specific circumstances being decided by the court.
There is another important duty on the court determining matters relating to a child’s welfare and upbringing – the ‘no order principle’. This requires the courts to refrain from making an order unless, according to the court’s assessment, doing so would be better for the child than making no order at all (section 1(5) of the Children Act 1989).
To learn more about the Children Act 1989, including children and young people’s rights to see and spend time with their loved ones and the people who are important to them, visit our ‘Children Act 1989 guides’ web page.