S (A Child)  EWCA Civ 325
Appeal by paternal grandmother of a child based upon the assumption that the judge at first instance had not regarded the grandmother’s claim to be the child’s long term carer as being unrealistic in the context of Re B-S. Appeal allowed.
The central issue in this appeal concerned whether a court had been justified in ruling out the child’s paternal grandmother as a prospective long-term carer for him prior to the full welfare hearing.
The paternal grandmother had been a significant figure in the life of T, the subject of the proceedings. She had been the subject of two positive assessments by the local authority during the course of the proceedings.
However, at the Issues Resolution Hearing, the Children’s Guardian expressed concern about the approach adopted by the local authority in assessing the grandmother. As a result, the court directed a further assessment by an independent social worker.
This assessment was negative and led the local authority to change its own position to recommend a plan of adoption for T. This was also the view of the Children’s Guardian. A seven-day hearing took place in November 2014.
At this hearing, the paternal grandmother sought a special guardianship order so that T could remain in her care. She was not able to put herself forward as a carer for his younger sibling, N.
The outcome of this hearing was that the application for special guardianship was dismissed and the court ruled that neither child could be brought up in their family of origin.
The order from this hearing recorded the key issues for the final hearing as being whether permanency should be achieved through adoption or long-term foster care, and any contact arrangements.
The outcome of this hearing was the subject of the grandmother’s appeal. The thrust of the appeal was that the judge had not ruled the grandmother out as a carer having conducted a Re B-S type analysis.
The issue of adoption had not been considered at the November hearing and so the judge could not have weighed up the relative merits of the different types of placement nor had she conducted the holistic welfare analysis that was required of her.
She had not tested the local authority’s case against the checklists in the Children Act 1989 and the Adoption and Children Act 2002.
The local authority, opposing the appeal, accepted that the arguments at the core of the appellant’s case were valid but submitted that they had no relevance to the context in which the judge conducted the hearing.
The object of the hearing had been to test whether care by the grandmother was a ‘realistic’ option for T. In doing so, the judge was only doing what she was permitted to do in accordance with R (A Child)  EWCA Civ 1625 in which the Court of Appeal emphasised that the process described in Re B-S did not apply to every conceivable option for the long-term care of a child but only to those that were ‘realistic’.
McFarlane LJ, giving the lead judgment of the Court of Appeal, concluded that
if the process undertaken by the judge in November was intended to be a process of evaluating one realistic option against another then the judge’s approach fell entirely and profoundly short of what is required” (para. 47).
The question was, therefore, “whether or not the judge was in fact determining that the option of care by the paternal grandmother was not a “realistic option” and therefore one in accordance with Re R that could be removed from the otherwise mandatory welfare and proportionality evaluation” (para. 48).
He concludes that it was ‘not credible’ that an experienced family judge would have failed to establish the structure within which she was making the decision if what she was undertaking was intended to be a full welfare evaluation. She must, therefore, have understood that she was establishing whether or not continued placement with the grandmother was a ‘realistic’ option for T.
A central issue for the appeal was therefore what is, or can be, regarded as a realistic option and what can be ruled out prior to a full welfare evaluation at a final hearing. On the evidence before the court, it was simply not possible for a court to rule that the paternal grandmother should fall outside the pool of realistic options for care of T.
The quality of the assessment between T and his grandmother was strikingly described in the earlier positive assessments. Moreover, the status quo argument (that is, T remained placed with his grandmother) was relevant.
A further factor was that the local authority had themselves supported the placement until a few months before the November hearing.
Finally, the negative matters that had led to her being ruled out were based on family dynamics and the risk of future harm. These were subtle matters that represented only part of the totality of the care that the grandmother could offer.
The appeal was therefore allowed, on the basis that the judge could not reasonably have ruled out the grandmother as a realistic option for T’s care. What was required was a holistic analysis, bearing in mind the strictures of Re B-S and considering this option against the other realistic option(s), being, in this case, a plan of adoption.