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Re M (A Child) (Placement Order) [2025] EWCA Civ 214, International element - 26 week extension - how long is a piece of string? - reminder of no presumption in favour of parents
Held: the trial judge made a placement order, which was unsuccessfully appealed. The subject child (18 months) is referred to as M in the judgement, I shall call him Man, so as not to confuse with M for mother.
Man was born in August 2023, and both his mother and father had other children, two of which were placed with M in December 2023. Re Man, a pre birth assessment was carried out. Man was placed with his mother with a restraining injunction against F.
The parents did not abide by the safely plan and injunction and as a consequence, Man was placed in foster care on 25 October 2023, where he remained ever since. Man’s final hearing was over 5 days in October 2024, The judge’s findings related not only to the father’s drugs and alcohol misuse, but also to the mother’s significant mental health issues. The mother proposed Man’s aunt and uncle who live in Pakistan with their three children, the youngest of whom is two years old.
From April 2024 to early August 2024, that option was actively pursued by the local authority, they then changed direction and issued an application for a Placement Order with a care plan for M to be adopted in this country.The aunt and uncle were given party status and were represented at the final hearing. They did not put themselves forward as a realistic option for the immediate placement of Man with them, they sought a significant adjournment for further assessments of them to be carried out in this country. The judge refused that application (not appealed) and made a Care Order and a Placement Order.
The LA conducted a positive viability assessment of the aunt and uncle, and commissioned a CFAB assessment of them, conducted in Pakistan by an experienced social worker, SR, whose report was received by the LA on 4 April 2024.That report is dated 6 February 2024. It highlighted a number of positives, taking into account cultural differences but some negatives,. The report concluded ‘that the aunt and uncle are suitable to be considered to care for the children (sic) if they are provided with financial support. If financial support cannot be given to the prospective carer, then I am not recommending this placement’.
A report was also obtained from AK, a dually qualified expert experienced in Pakistan’s courts and with Pakistan’s family law.The social worker reported the aunt and uncle ‘are suitable to be considered to care for the children (sic) if they are provided with financial support. If financial support cannot be given to the prospective carer, then I am not recommending this placement’.
Overall, no-one could say definitively, how long the process of transferring Man to his aunt and uncle might take (6 to 12 months said the trial judge). There were also difficulties, time lag, inter alia in sending money to the aunt and uncle and them receiving it.
Although Lady Justice King did not rehearse most of the relevant law[1] she did land on this:
In Re W (A Child) (Adoption: Grandparents Competing Claims) [2016] EWCA Civ 793, McFarlane LJ said:
“71. The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged.
In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:
‘89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).
Lady Justice King added later ‘once the s 31 threshold is crossed the evaluation of a child's welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions’.
And ‘It may be that some confusion leading to the idea of their being a natural family presumption has arisen from the use of the phrase 'nothing else will do'. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs’.
Lady Justice King then considered s 32(5) Children Act 1989[2] - (extension provision - the length of the piece of string !) saying:
‘In Re S (a child) (Interim Care Order: Residential Assessment) [2015] 1 WLR 925, Sir James Munby P considered at [33] those cases where it may be appropriate to extend the timetable under s32(5) CA 1989. This included, as highlighted by Mr Gupta, at para. [33(i)(c)] of his judgment “cases with an international element where investigations or assessments have to be carried on abroad”. He went on, however, at [34] to say (my emphasis):
“I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is "necessary" to enable the court to resolve the proceedings "justly". Only the imperative demands of justice – fair process – or of the child's welfare will suffice”.
The court was also taken to Peter Jackson LJ’s judgment in Re S-L (Children) [2019] EWCA Civ 1571; [2020] 4 WLR 102, in which he considered the use of s32(5) CA 1989. In relation to a case where improper use had been made of the provision, he made an observation which applies equally to all cases:
’12. In cases involving children, there can sometimes be good reasons for adjourning a final decision in order to obtain necessary information. The overriding obligation is to deal with the case justly, but there is a trade-off between the need for information and the presumptive prejudice to the child of delay, enshrined in section 1(2) Children Act 1989. Judges in the family court are well used to finding where the balance lies in the particular case before them and are acutely aware that for babies and young children the passage of weeks and months is a matter of real significance. Sharpening this general calculation, public law proceedings are subject to a statutory timetabling imperative. Section 32(1)(a) provides that the court must draw up a timetable for disposing of the application without delay and in any event within 26 weeks; subsection 32(5) allows an extension only where the court considers it necessary to enable the proceedings to be resolved justly.’
Lady Justice King decided ’In my judgment she (trial judge) reached the right decision given the uncertainties inherent in the proposed plan for placement in Pakistan and the urgency of achieving permanency for M.
The Court of Appeal thereby approved the Care and Placement Orders.
This article arose because of my involvement in a case where the Polish father was putting forward the paternal aunt, living in Poland. Initially the case was transferred into FDAC, but then back to the normal court system, when the parents failed to commit to FDAC requirements. However, in my experience cases that go into FDAC seem to go at a slower pace, so when they are transferred back, they are well into the 26 weeks or already beyond it.
