When it comes to considering the importance of allowing a child to grow up immersed in its birth culture has a shameful history. Thanks to colonialism and the belief that white, Anglo-Saxon culture is superior to all others, history is littered with examples of children being raised, not only away from their families, but also from the culture of their birth. One of the most famous examples of this is Australia’s ‘Stolen Generation’. Between the 1890s and 1970s, tens of thousands of children of mixed-race descent where forcibly removed from their parents to be raised by white foster carers, homes, or missions. Like all historical events, this one must be viewed in light of its time – many people who were part of this process believed they were doing good and providing the children with the opportunity of a better life. However, members of the ‘stolen generation’ grew up to experience feelings of loneliness and a lack of identity, having been denied access to a crucial part of their heritage.
Although, as a society, we may have a long way to go in terms of recognising the value and importance of all cultures, English law, backed by international conventions, now recognises the importance of a child being exposed to and, if possible, raised in their own cultural environment. The recent case of Re A (a child)  EWCA Civ 2240,  All ER (D) 76 (Oct) highlighted, not only the Courts consideration of allowing the child to grow up in its culture of origin, but also the factors the Court must take into account when coming to such a decision.
The background to the case
The child (aged one) was the third child of a mother of Ghanaian ancestry and had 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 a Special Guardianship Order (SGO); however, she stated she could not look after A in addition.
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 especially 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 was fully prepared to take on the role. At first instance, the Court was faced with two options:
- an SGO made to the natural family in Ghana, supported by the maternal family and the local authority, or
- an SGO made to the foster carer in London, supported by the guardian and foster carer in person
The foster carer in London would be able, it was hoped, to provide A with greater contact with his siblings and other family. The circuit judge made an SGO to the foster carer in London, and the local authority appealed to the Court of Appeal.
The Court of Appeal’s decision
In allowing the appeal, the Court of Appeal concluded that the judge at first instance had not demonstrated that she had balanced the arguments in favour of placing the child with the foster carer with letting him live with his family in Ghana. In addition, the judge had not assessed the risk of each placement in enough detail.
The Court of Appeal ruled that:
“where a court is considering whether to make an order such as an SGO it “shall have regard in particular” to the matters that appear at s.1(3) Children Act 1989. The provision is therefore obligatory, flexible and open-ended, providing the decision-maker with a workbench and tools with which to devise a proper welfare outcome”.
Section 1 (3) states:
(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
In delivering the judgment, Lord Justice Jackson stated the section 1 (3) checklist was “obligatory, flexible and open-ended, providing the decision-maker with a workbench and tools with which to devise a proper welfare outcome”.
Lord Justice Jackson stated the judge at first instance had not properly balanced the benefits and risks of growing up with his family in the UK against being embedded in his ethnic Ghanaian culture of origin, with the opportunity to stay in touch with his siblings and other family.
The case also engaged Article 8 of the European Convention on Human Rights which provides:
- Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
This meant that along with making any order regarding placement of a child in accordance with the law and with the aim of promoting the best interests of the child, when considering proportionality under Article 8, the Court must look at whether the proposed interference in private and family life is necessary in the first place and if so, how far does it need to go to achieve its purpose? Lord Justice Jackson quoted Lord Justice Ryder in CM v Blackburn with Darwen BC  EWCA 1479 who stated:
“The whole purpose of a proportionality evaluation is to respect the rights that are engaged and cross-check the welfare evaluation, i.e. the decision is not just whether A is better than B, it is also whether A can be justified as an interference with the rights of those involved. That is of critical importance to the way in which evidence is collated and presented and the way in which the court analyses and evaluates it”.
It follows, the Court held, that when a decision regarding an order is made, the judge needs to consider not only if Article 8 rights are engaged, but their short, medium, and long-term significance, before going on to consider whether interference of the rights are justified.
Placing children who are unable to live with their parents is a significant challenge for the authorities and the Courts to get right. It is notable that the Court of Appeal’s decision did not provide guidance as to why it was necessary for the child sibling to mature outside of his natural family, nor explore the consequence of that to him. This is something that later judgments are likely to clarify.
Rosie Bracher is a specialist family law solicitors based in Barnstaple. We have the knowledge and expertise to advise you on all matters involving children and family law. Please contact our office on 01271 314 904 and arrange to speak to one of our team.