LV22C50093 - [2025] EWHC 1474 (Fam)

The Court has received detailed submissions on the law relevant to welfare decision-making in care proceedings. It is not, however, contentious. Whether the Court should make the order as sought by the Local Authority is a question relating to N’s upbringing and N’s welfare under s 1 of the Children Act 1989 (‘CA 1989’) is thus the paramount consideration. Section 1(4) of the CA 1989 directs the Court to have particular regard to the welfare checklist in s 1(3). Crucial to the Court’s assessment of N’s welfare is the Local Authority’s final care plan, in which is set out their plan for permanency.

In undertaking its welfare analysis, the Court reminds itself of what was said by Munby P, in Re B-S (Children), [2013] EWCA Civ 1146, namely, that the court must consider all options which are realistically possible, carrying out a proper balancing exercise in order to determine whether it is necessary to make the order as sought. As it was put by our now President in Re G (A Child) (Care Proceedings; Welfare Evaluation) [2013] EWCA Civ 965, the court is required to carry out a global, holistic and multifaceted analysis. The pros and cons, advantages and disadvantages, of each option must be carefully considered.

The Court of Appeal reiterated the correct approach in giving judgment in this case. Once threshold is crossed, the court must carry out a ‘pure’ welfare analysis. There is no presumption or starting point that a child should be brought up by a parent that the applicant local authority is required to displace (Re: N (A Child) (Care Order: Welfare Evaluation) [2024] EWCA Civ 938, [61]-[62]). Whilst there are of course generic and specific advantages and disadvantages to a child being raised by a parent, and generic and specific advantages and disadvantages to a child being raised in foster care, all of these matters must be weighed and balanced in light of the individual circumstances of each case.

Finally, the Court remains mindful that the Article 8 rights of Mr O and N to respect for their private and family lives are also engaged. Any order the Court makes which constitutes a prima facie interference with the Article 8 rights of Mr O or N must be necessary and proportionate to protect the rights and interests of others. In balancing these rights and interests, the best interests of N will prevail. There is thus no tension with the approach mandated by section 1 of the CA 1989.

The Court has read and considered the full court bundle. It heard oral evidence from the following witnesses:

Ms Russo has prepared a parenting assessment and an addendum assessment of Mr O dated 23rd September 2024 and 15th January 2025. She has also now undertaken direct work with Mr O and the paternal grandmother on some of the areas of identified vulnerability. She concludes, in brief, that she is cautiously optimistic that Mr O is able to meet all of N’s holistic needs – physical, social, emotional and educational – to a good enough standard, and that any residual risks can be managed with ongoing intervention and support. She would support N being placed in his father’s care in Italy with the support and oversight of local child protection services. They would share parental responsibility.

Ms Russo is an experienced ISW. Her parenting assessment of Mr O is exceptionally thorough. It reaches positive conclusions but is appropriately cautious, fair and balanced. The positives offered by Mr O, as well as the vulnerabilities, risks and disadvantages of placing N in his care, are carefully considered. The assessment is based on significant time spent with Mr O, as well as a number of hours spent observing Mr O and N together. She also spent some time with N alone. Ms Russo has clearly spent much more time with Mr O and observing his relationship with N than any other professional in the case. She has also liaised closely with the social work team in the local child protection services in Italy. In the Court’s judgment, the assessment process itself and the conclusions reached were robust.

Ms Russo could be criticised for going beyond her remit in expressing a view in oral evidence, albeit in response to detailed questions put by counsel on behalf of all parties, that N’s sibling relationship should not prevail over the possibility of N being placed in his father’s care given his significant dependency needs at 7 years of age and the need to be parented by ‘a natural parent’ for a number of years to come. Ms Russo did however acknowledge that her role was limited to assessing Mr O’s parenting capacity and was not to conduct the overall welfare analysis of whether N should return to his father’s care, which she accepted was the role of the social worker and the guardian. The Court is also satisfied that when her responses to questions are looked at across her evidence as a whole, she was not applying a presumption in favour of ‘a natural parent’, but giving an informed professional view on the particular needs of this young child and how his father may be better placed to meet them throughout the course of his childhood than a corporate parent. Those welfare and needs-based observations do not amount to the application of a presumption and in the court’s judgment do not undermine the force of her evidence regarding Mr O’s parenting capacity.

In the Court’s assessment, Ms Russo was an impressive and authoritative professional witness. The Court found her evidence to be entirely persuasive.

AY authored the local authority’s final evidence dated 1st October 2024 and the addendum dated 29th January 2025. She also authored the second Together and Apart Assessment dated 16th August 2024. She confirmed to the Court that the Local Authority’s care plan for N remained one of long-term foster care. She set out a willingness to develop N’s contact with his father to overnight holiday contact in Italy, and to provide a roadmap to keep the possibility of rehabilitation to his care under review. In reaching that conclusion, she confirmed the local authority do not seek to criticise or depart from the assessments of Dr Hellin, who carried out the psychological assessment of Mr O, or Ms Russo. AY was clear that she accepts those assessments, describing them as balanced and helpful in understanding and managing the risks. Ultimately, however, she told the Court that in assessing N’s welfare the balance fell in favour of him remaining placed in long-term foster care in this country with M. Of particular concern to AY, was the assessment of father’s capacity to promote N’s other significant relationships, particularly with his mother, M and his current foster carer ER, if he was to return to Italy.

Unfortunately, the Court did not find AY welfare evidence to be appropriately balanced or persuasive. It is acknowledged that AY has been the allocated social worker since August 2023. She has therefore been involved for significant time and knows all the sibling group extremely well. There was, however, in the Court’s judgment, a clear imbalance in her final welfare analysis.

It has been the sustained position of the local authority for considerable time that N should remain placed with M in local authority foster care. AY accepted that it is only very recently that there has been any professional openness within the local authority to N moving to his father’s care in Italy. Even so, in considering AY’s evidence, there was a clear sense that the recent evidence of Dr Hellin and Ms Russo has not led to a new and open assessment of N’s needs and welfare, unencumbered by previous institutional positions of the local authority. In the Court’s judgment, the local authority have continued to look for reasons as to why the cautiously positive assessments of Dr Hellin and Ms Russo, the work now completed by Mr O, and the extensive ongoing support and oversight which will be mandated in Italy are not sufficient to shift their original welfare analysis. There are numerous examples of that imbalance being entrenched within the Local Authority’s evidence.

Fundamentally, in the Court’s judgment, the local authority has not carried out a fair and balanced analysis of the positives and the risks of a move to father’s care in Italy, compared with the positives and the risks of N remaining in local authority foster care. The Court is satisfied, for example, that a number of protective factors which would mitigate against the risks and vulnerabilities of a move to Italy were not identified by AY and properly considered within the welfare balance:

Compounding that imbalance, the Court is satisfied that the local authority’s final evidence failed to acknowledge and fairly assess a number of the risks and disadvantages of N remaining in long-term foster care. If identified, a number of those risks were minimised:

Having considered AY’s oral evidence and her response to these issues in cross examination, the Court is satisfied that the balancing of the advantages and disadvantages in each of the various placement options has been skewed. It is a legitimate criticism of AY that if there is an identified risk of N remaining in foster care that AY believes can be managed, she has not included it within her final welfare analysis. In contrast, any risk involved in a move to Italy has been highlighted, regardless of whether effective steps are available to manage or mitigate that risk to a safe level. The court is satisfied there has been a basic inequality in approach.

The Court has to note other concerns about the social worker’s approach. Although AY knows the children very well, she has not observed any contact between Mr O and N. Given how finely balanced she says she has found this case to be, and given the local authority are not proposing to rehabilitate a child to the care of a parent who has been subject to a very thorough, comprehensive and cautiously positive parenting assessment, it is surprising she did not consider it important to observe the quality of the attachment between Mr O and N for herself.

It is also surprising AY has not sat down and spent time with Mr O to assess for herself the strengths and weaknesses he might bring to caring for N. She accepted that direct contact between herself and Mr O has been limited to one or two meetings online and the formal setting of LAC and care planning meetings. Again, in a case she says is this finely balanced, it might have been expected that the local authority would take some time with Mr O to satisfy themselves that long-term foster care was the right plan for N.

The Court also found some of AY’s oral evidence to lack clarity and certainty. Having made a number of concessions, it became somewhat unclear exactly what the local authority were contending should happen within the final care plan as regards any potential rehabilitation of N to his father’s care. The contact and support plan filed by the social worker in response to the Guardian’s analysis, alongside her oral evidence, suggested a move by the local authority towards a plan that would see N rehabilitated to his father’s care in 12 months’ time. It has been confirmed that this is not the local authority’s final care plan, but, in the Court’s view, it revealed a lack of confidence by the social worker that a care plan of long term foster care was in the best interests of N.

AY sensibly conceded on a number of the issues noted above, accepting she had made mistakes or omitted important considerations from her welfare analysis. She gave striking evidence about how she had carefully reflected following the hearing before Knowles J in October 2024 when issues over father’s contact had required the intervention of the Court. Following that professional reflection and supervision, she told the Court that she had ‘re-set’ her approach to father. That was professionally honest and impressive evidence, and the social worker should be commended for it. However, the concessions she made about the gaps in her welfare analysis, and her acceptance that father had not been fairly considered or included in the local authority’s thinking until the last few weeks of this long 3-year process, is wholly unacceptable. It inevitably undermines the local authority’s case on welfare.

The Court did not find AY to be a persuasive professional witness.