CA-2025-000653 - [2025] EWCA Civ 1011

Fecha: 29-Jul-2025

Sir Andrew McFarlane P

Sir Andrew McFarlane P:

This appeal is brought by S, who is now 14 years old. In March 2024, S was taken by his parents, together with an older sibling, from their home in England to visit relatives in the Republic of Ghana. After a short time, S’ parents and sibling returned to the UK, leaving S in Ghana in the care of other family members and enrolled him in a boarding school there. S’ parents took his passport with them back to the UK, leaving him, effectively, stranded in Ghana.

With the assistance of solicitors in London, who accepted his direct instruction, in September 2024 S issued wardship proceedings in the High Court seeking orders requiring his parents to repatriate him to the UK from Ghana. Following a three-day hearing, Hayden J handed down judgment on 27 February 2025 refusing S’ application and discharging the wardship ([2025] EWHC 439 (Fam)). On 12 June, we heard S’ appeal, for which permission had been granted by King LJ. At the conclusion of the appeal hearing we announced our decision which was that the appeal would be allowed. We directed that the wardship should be reinstated and the case be remitted for re-hearing before another judge of the Family Division. This judgment contains my reasons for that determination.

Factual Background

Hayden J’s judgment contains a detailed account of the factual background at paragraphs 4 to 11.

In summary, S, who was born in 2010 in England, holds both British and Ghanaian citizenship. He is the youngest of three siblings. His parents, originally from Ghana, moved to the UK in the early 2000s. During 2023 and early 2024, S’ parents became increasingly concerned for his safety as a result of an apparent developing disinterest in school and an increasing number of incidents which indicated to them that S was becoming involved in the gang culture which was prevalent in the area in which the family lived.

Hayden J heard evidence from S’ father. He measured that evidence against NSPCC guidance on ‘Criminal Exploitation and Gangs’, which he found to be a helpful and forensically useful document. S did not give evidence or otherwise directly engage in the hearing, but in written statements he sought to explain away the seriousness of some of the behaviour that had been of concern to his parents. Hayden J nevertheless accepted the evidence of a social worker that a ‘striking number’ of the signs and behaviours cited in the NSPCC guidance could be identified in the evidence of S’ behaviour in the period prior to his removal to Ghana. The judge ‘broadly adopt[ed the social worker’s] identification of the factual matrix’ and he listed some 21 individual findings of fact [paragraph 27]. These can be summarised as follows:

Deteriorating behaviour at school and poor school attendance: increasingly being recorded as late, a 2-day internal exclusion in 2023 for fighting, incomplete homework on multiple dates in 2023/24 and investigation for possession of an expensive jacket;

At home his parents struggled to manage S’ behaviour, especially his anger and defiance, which became more aggressive in 2024. Physical force was reportedly used by both sides during conflicts. S often had angry outbursts, swore, slammed doors, and was aggressive. His parents were distressed when S stayed out late or was unreachable. S would lie to his parents and sneak out at night, often misleading them about his whereabouts.

S’s behaviour was influenced by peer pressure and a desire to fit in. S was described as withdrawn and sullen at school, which was uncharacteristic.

In July 2023 there was a GP referral to children’s services after S alleged physical discipline by his mother.

In November 2023, S punched his father to avoid going to school and, later that month, the parents called police when S had not returned home by 11pm.

In February 2024, S returned home with a swollen eyebrow after being punched by a peer. He downplayed the incident, but it aligned with earlier concerns about peer intimidation.

In March 2024, S stayed out until 1:30am and was unreachable on his phone during that time. The parents reported that he had become secretive and dishonest about his whereabouts and possessions.

S received an iPhone 11 (apparently from a friend) and his parents could not control its use. Conflicting accounts given by S about the phone’s ownership suggested dishonesty. He was then found with a second phone and refused to disclose its source.

In March 2024, S was accused of stealing phones and advertising them on social media. His parents found troubling social media messages suggesting involvement in theft.

In July 2024 (after S had gone to Ghana), police reported that S had obtained an indecent image from a girl which he then shared with others.

In August 2024, the parents, who had before the move to Ghana found videos and photographs on S’ phone showing S and friends with knives, found a hidden kitchen knife at their home.

S shared his bank account details with a stranger and participated in suspicious money transfers. Messages suggested involvement in fraudulent activity (S’ explanation was inconsistent and deemed unreliable by the court).

Once in Ghana, S was enrolled in a British-curriculum boarding school in Accra in April 2024. He later left the school and received online tutoring. In August 2024, S moved to live with an aunt in another part of Ghana and in October he moved again to an uncle in yet another location where he attended a local school. In September 2025 he is due to have a further change of school.

The judgment

After an account of the factual background, Hayden J set out ‘the legal framework’ from paragraph 12 of his judgment. He held that S was and remained habitually resident in the UK, that he had been duped into going to Ghana and he had gone to great efforts to secure his own return. Nobody disputed that S was a ‘Gillick competent’ young person and that ‘accordingly, resolution of his application requires his own views to be factored into a best interests decision relating to his welfare’. In that context, the judge correctly referred to Article 12 of the United Nations Convention on the Rights of the Child [‘UNCRC’] requiring the views of a child who is capable of forming his own views being given due weight in accordance with his age and maturity, together with similar requirements arising from the European Convention on Human Rights, Art 8 [‘ECHR’]. The UNCRC is not part of our domestic law, but its terms, at least in this regard, are to be taken as relevant to the requirements of the ECHR, which is incorporated into domestic law by the Human Rights Act 1998. The judge directly quoted from the important decision of Mabon v Mabon [2005] 1 FLR 1011, which emphasised the need for a keener appreciation of a child’s autonomy in decisions about future arrangements for their care.

The judge then moved on to describe ‘the central and critical role of parents in the upbringing of children and decision-making in their lives’. He did so by explaining the concept of ‘parental responsibility’ introduced by the Children Act 1989 [‘CA 1989’], before referring to four cases: KD [1988] 1 AC 806; Re L (Care: Threshold Criteria) [2007] 1 FLR 2025; Re Ashya King [2014] EWHC 2964 (Fam); Re E (A Child) (Medical Treatment) [2016] EWHC 2267 (Fam). In the first two of those cases, Lord Templeman and Hedley J respectively emphasised the central role of parents in decision making. At the end of his judgment, Hayden J expressly referred to the following words of Lord Templeman:

‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered. Public authorities cannot improve on nature.’

In the fourth case Sir James Munby P observed that ‘judges do not necessarily know best’ and that usually a child’s long-term carers are much better placed to decide what should happen to their child.

The judge’s quotation in the following terms from the decision of Baker J (as he then was) in the third case, Re Ashya King, however, requires some clarification:

“…the State – whether it be the court, or any other public authority – has no business interfering with the exercise of parental responsibility unless the child is suffering or is likely to suffer significant harm as a result of the care given to the child not being what it would be reasonable to expect a parent to give.”