Michael (Foster carers versus paternal aunt), Re [2025] EWFC 472 (B)

IMPORTANT NOTICEThis judgment will be delivered in private. It may not be published without leave of the court. Irrespective of what is contained in the judgment, in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Date Date: 2 nd August 2025, amended 7 th August 2025, and 25 th August 2025[2025] EWFC 472 (B)Case No [redacted]
IN THE FAMILY COURT SITTING AT WOLVERHAMPTON
IN THE MATTER OF CHILDREN ACT 1989
AND IN THE MATTER OF: Re Michael (Foster carers versus paternal aunt)
Gary Peake (instructed by Shropshire Council Legal Services) for the Applicant Local Authority
Louise Higgins (instructed by Clarkes Solicitors) for the first respondent mother
Malvika Jaganmohan (instructed by Rees Page Solicitors) for the second respondent paternal aunt
Sioned Fitt (instructed by Ridley and Hall Solicitors) for the foster carers
Sarah Tierney (instructed by WMB Law Solicitors) for the child through his Children’s Guardian
HHJ Arthur:
This judgment was handed down in draft via email on 2 nd August 2025, following a hearing on 1 st- 4 th July 2025. Due to delays hearing the evidence (detailed below), the advocates had to provide written submissions. Due to advocates’ other work and holiday commitments, these could not be provided until 22 nd July 2025, hence the delay between the conclusion of the hearing and this written judgment. It is to be formally handed down at a remote hearing on 7 th August 2025 with any corrections/clarifications to be requested beforehand.
Introduction:
Between
Respondent motherRespondent
[1]This case is about a little boy called Michael (not his real name) who is coming up to 4 years old. He is the subject of these proceedings and the fifth respondent. He was represented by his barrister Ms Tierney at this hearing, who was instructed by the Children’s Guardian (“CG”).[2]The Local Authority (“LA”), Shropshire Council, brings this case to Court, represented at this hearing by Mr Peake of counsel, instructed by the social worker (who I will refer to as the “SW”).[3]Michael’s mother, I will refer to as “M” - short for “mother”. She is the first respondent in these proceedings. She was represented by her barrister Ms Higgins at this hearing.[4]Michael’s father I will refer to as “F” – short for “father”. Sadly, he died early in these proceedings. He was represented within proceedings prior to his death, but his representatives were discharged from proceedings following his death.[5]Michael’s paternal aunt I will refer to as “paternal aunt”. She is the second respondent in these proceedings. She was represented by her barrister Ms Jaganmohan at this hearing. She was made party to proceedings on 8/10/2024 as she applied for an order for Michael to be placed in her care.[6]Michael has been placed with LA foster carers (who I will refer to as “the FCs” collectively, and “the female foster carer” and “the male foster carer” respectively) since 25/8/2023. They are the third and fourth respondents in these proceedings. They were represented jointly by their barrister Ms Fitt at this hearing. They were made parties to proceedings on 8/10/2024 as they applied for a special guardianship order for Michael to remain placed in their care.[7]Michael has two older half-brothers, who were previously party to these care proceedings, but their cases were finalised in 2024 with them being placed with their respective fathers.[8]The matter has come before me for a final hearing over 4 days (1st – 4th July 2025). At this final hearing I heard oral evidence from the SW, paternal aunt, the female foster carer (the male foster carer was not also required to give evidence), and the CG. The hearing was extremely emotional for all the lay parties, with the female foster carer, paternal aunt and M crying on and off throughout. It clearly took a huge emotional toll on everyone. After struggling on the first day of oral evidence, M requested permission to attend the rest of the hearing remotely from her solicitors’ offices, which was granted. There was insufficient time during the hearing to hear oral closing submissions from everyone due to delays starting the trial (there was confusion as to which of the FCs was due to give evidence which could not be resolved until day 2), and there were some outstanding issues regarding the contact plan that required further detail from the LA. I therefore received written closing submissions, and due to the advocates’ other work and holiday commitments, these could not be provided until 22nd July 2025 (in fact due to a technology issue, one was not provided until 25th July 2025), hence the delay between the conclusion of the hearing and this written judgment. This draft written judgment was circulated to the advocates via email on 2nd August 2025, with permission for them to disclose it to their clients so they could take instructions. Any corrections/amendments/clarifications are to be requested before the formal handing down hearing, to be held remotely on 7th August 2025, at which any party may seek permission to appeal. All parties and legal representatives are excused attendance unless they seek permission to appeal.

The Parties’ Positions:

[9]The LA states that Michael should remain placed with the FCs, as although paternal aunt has been assessed as able to care for Michael, the move would be so disruptive to Michael it would cause him emotional harm. The LA supports the Court making a special guardianship order (“SGO”) in favour of the FCs, and proposes a plan for Michael’s contact with paternal aunt to continue to progress to overnight/holiday/respite care, 8 times a year – at least 4 of which would be overnight, plus monthly video calls. The plan also sets out proposed sibling contact on a monthly basis facilitated by the FCs and the siblings’ fathers, and with M for an hour twice a year supervised by the LA.[10]M accepts Michael cannot return to her care, but supports Michael being placed with paternal aunt under whatever orders the Court sees fit. She seeks as much contact as possible (certainly more than is proposed by the LA), and for it to progress to being supervised by paternal aunt.[11]Paternal aunt seeks Michael’s placement in her care as soon as possible, under whatever order the Court sees fit. Paternal aunt had no preference about form of order. In closing submissions, it was stated that she could see the benefits of a care order, although an SGO was also discussed. She recognises the importance of the FCs to Michael, so would continue to facilitate regular overnight/holiday/respite contact between Michael and them. Her contingency plan if the Court considers that Michael should remain placed with the FCs is that Michael should spend more time with her than is proposed by the LA – she considers 16x/year to be an appropriate level, but at least monthly, with overnight stays on every occasion due to the 6 hour round-trip journey.[12]The FCs seek an SGO for Michael to remain placed in their care. They recognise the importance of paternal aunt and M to Michael, so no longer seek to adopt Michael, and would facilitate regular overnight/holiday/respite contact between Michael and paternal aunt at the level recommended by the LA and/or Court, and monthly sibling contact, and whatever contact was deemed appropriate with M. Their contingency plan if the Court considers that Michael should be placed with paternal aunt is that he should spend time with them at least monthly, with overnight stays on every occasion.[13]The guardian supports Michael remaining placed in the FCs’ care under an SGO. She supports the LA’s proposals for Michael’s contact with paternal aunt and M, as any more contact would be too much when combined with sibling contact and Michael’s other needs and commitments.

Background:

[14]The family became known to the LA in 2021. The labour ward at Michael’s birth raised concerns about the presentation of M and F (suspected abuse of alcohol). No further action was taken. In January 2023, Michael’s brother told school staff that the mother had hit him. The school also raised concerns about neglect. There were further concerns regarding alcohol, neglect, failure to supervise the children (resulting in injuries), and domestic abuse, until 2023, when M and F were arrested for child cruelty. Michael was placed in an emergency foster placement, and his brothers were placed with their fathers. These care proceedings were issued, with interim care orders (“ICOs”) made at the first hearing on 31/7/2023 (almost exactly 2 years ago).[15]Michael moved from the emergency foster placement to his current placement with the FCs on 15/8/2023. He has therefore been there for almost 2 years now, and probably has no recollection of living anywhere else, given his age. The FCs also have an older adopted child who treats Michael as a brother.[16]M tested positive for cocaine from April to July 2023 and diazepam from May to July 2023 [F37]. F tested positive for cocaine from May to August 2023 and for diazepam [F59]). M’s cognitive assessment concluded that she did not require a specialist parenting assessment, but that:
“…The support of an advocate would be helpful in providing emotional support but M stated she did not require this.”
[17]M confirmed at the first hearing that she did not propose anyone to be assessed as an alternative carer. F put forward his parents, (“PGPs”) who had a negative viability assessment, and his sister, paternal aunt. Whilst paternal aunt’s viability assessment (dated 20/7/2023) was also negative, in part because she lied on behalf of F (her brother) to the assessor, about where he was living and the last time he had visited his/her parents’ address, the assessment also identified several strengths. Fundamentally, the assessor concluded that if paternal aunt could not work openly and honestly with professionals, she could not progress to a full connected carers assessment.[18]There is a factual dispute whether paternal aunt ever received the LA letter dated 23/7/2023 informing her of the negative viability assessment and how she could challenge it. She believes she received the assessment itself via email, but the LA asserts that the covering letter was sent via post and there is no confirmation that this letter was delivered. Miss Jaganmohan submitted that:
“…in this day and age, it seems astonishing that a local authority would be sending hard-copy documents that require urgent consideration by post and not by email, with no clear paper trail. The court has heard at length from paternal aunt and knows how motivated she is to “fight” for Michael to be in her care. She has been hugely proactive. It would be entirely uncharacteristic for her to have ignored this letter and it is far more likely she simply never saw it. The CG’s recollection is that paternal aunt and her father also spoke to the CG to challenge the assessment and asked her what they could do, so plainly they were being proactive in the only way they knew how. CG can recall other parts of the conversation but cannot recall advising paternal aunt about seeking legal advice or challenging her assessment. Given what is known about paternal aunt’s proactivity and given the reason for her conversation with the CG in the first place, it is far more likely that the CG spoke to Michael’s solicitor and the LA, but did not tell paternal aunt herself what steps she could take to challenge her assessment.”
I agree that there is insufficient evidence to find that paternal aunt ever received the LA’s letter or that she was advised by the CG about how to challenge her assessment.[19]On 12/10/2023, the CG submitted a C2 application for an ISW assessment of paternal aunt, and also of the paternal grandparents, as there were positives in the viability assessments, despite the negative outcomes, and adoption was a realistic option in the case so all realistic alternatives had to be properly explored. During the hearing [see postscript for subsequent clarification], it was unclear why the CG delayed over 11 weeks from the viability assessments before making the application. Even taking into account the LA being directed to confirm by 4/8/2023 whether or not there would be a full connected persons assessment of paternal aunt, that still leaves over 9 weeks delay before the CG’s application. It was granted on 1/11/2023 and the ISW completed a full connected carers assessment of paternal aunt, with her parents as support (rather than a separate assessment of them).[20]In the meantime, the parenting assessment of M dated 14/11/2023 (also completed by the same ISW) was negative due to M’s lack of insight, lack of capacity to change or progress regarding issues regarding safe parenting, and failure to engage with drug and alcohol support.[21]The same ISW also completed a sibling assessment, dated 20/1/2024 which concluded that whilst the siblings share a strong bond they should not be placed together over placement with their fathers. The bond with Michael is less strong but every effort should be made to maintain their contact and connection through regular, face-to-face contact wherever possible (at least 6 times a year) even if Michael were adopted.[22]There were delays in obtaining the DBS checks for paternal aunt, which delayed completion of her full assessment. There is no proper explanation for the delays, particularly given paternal aunt already has an enhanced DBS check due to her work. This led to the local authority making an application for a 5-week extension to the court and the fostering panel due to take place on 19/3/2024 being cancelled. There is no suggestion that paternal aunt was responsible for any of that delay. She completed the relevant forms promptly whilst managing the inquest into her brother’s death and her mother’s illness. She informed her assessor that she had been chasing the DBS. I agree with the closing submissions made on behalf of paternal aunt that it was unacceptable that the LA did not manage to obtain the necessary checks in a nearly 6-month period. Paternal aunt’s Connected Persons Assessment dated 5/2/2024 was positive, recommending that Michael be placed with her under a Care Order. The ISW provided further information in a document dated 19/3/2024 regarding her discussion with paternal aunt about the concerns about her behaviour whilst on the telephone with the Fostering Panel Coordinator, who had alleged that paternal aunt was aggressive. Paternal aunt acknowledged that she had threatened to contact newspapers, and that she was frustrated, but denied being aggressive. The ISW acknowledged the LA’s concerns but remained of the view that paternal aunt was capable of caring for Michael.[23]Due to the delays in paternal aunt’s DBS checks, the IRH listed for 5/4/2024 was vacated, and relisted on 23/5/2024. The initial Fostering Panel met on 4/4/2024, when they expressed: “a high degree of uncertainty” about paternal aunt’s suitability to care for Michael. Some panel members expressed concern that the ISW may have been too personally involved in the assessment of paternal aunt. The panel concluded that they would like to defer for three months. In that time, the panel stated that paternal aunt should partake in trainings around trauma and other training (including training in paternal aunt’s local area). Unfortunately, that recommendation was not followed until 14/6/24 – another 10 weeks delay, only a couple of weeks of which were explained by the SW not being allocated until April. Again, I agree with the closing submissions made on behalf of paternal aunt that it was unacceptable that there was so much unnecessary delay, and that the high turnover of social workers in this case (listed in those closing submissions) has not assisted.[24]At a further Case Management Hearing on 23/5/2024, it was agreed that paternal aunt would undertake the work panel recommended. At that same hearing, the proceedings for Michael’s older brothers concluded with Child Arrangement Orders for them to live with their respective fathers. Another IRH was listed on 14/10/2024. The report completed by the person doing the recommended work with paternal aunt, dated 15/7/2024, stated that her understanding of trauma and impact issues was equal, if not better than most foster carers’ understanding of potential issues. Astonishingly, there was then a further two months delay from completion of the recommended work on 17/6/2024before returning to fostering panel on 20/8/2024 (for reasons which remain unclear). This meant that Michael had been placed with the FCs for 5 days past the 1 year required for them to become eligible to make an application for an SGO, by the time fostering panel approved paternal aunt as a connected carer for him. The FCs notified the LA of their intention to apply for an SGO on Sunday 8/9/2024.[25]The LA lodged a C2 application seeking an urgent Case Management Hearing in light of the FCs’ notification, and the matter was listed on 17/9/2024. Time was provided for paternal aunt and the FCs to seek independent legal advice and for the matter to be listed for another case management hearing on the 8/10/2024. At that hearing paternal aunt and the FCs were both made parties to proceedings. The LA was directed to complete a SGO assessment and a non-agency adoption assessment of the FCs, and also a further parenting assessment of M (although this was not subsequently filed due to M’s failure to engage with it). The IRH was relisted yet again for 16/4/2025.[26]In the meantime, the health visitor referred Michael to CAMHS, resulting in a professionals’ consultation being held by CAMHS on 24/9/2024 to establish if the CAMHS Under Five’s service would be the most appropriate service. CAMHS advised at the meeting that ‘the Under Fives’ service would not be offered as in order for therapeutic support to take place safely and effectively, children need to be living in a secure and stable environment, so it could not commence until proceedings had concluded and Michael was in his permanent placement. The CG’s note of that meeting includes reference to therapeutic work unsettling children as they begin to work through and process their past and present experiences and mental health difficulties. During the work the presenting difficult behaviours can escalate, becoming more difficult and the need for further support and containment by their care giver(s) is needed. Miss Jaganmohan urged the court (via closing submissions) to treat with extreme caution the reported comments of CAMHS at the meeting in September 2024. The social worker writes, for instance, that the CAMHS view was that another move would re-traumatise Michael. CAMHS was asked to confirm the social worker’s note of that meeting for the purposes of her final evidence. They highlighted a number of matters which needed amending – such as changing the words “will re-traumatise” to “may re-traumatise or may impact”, and raised concerns about the “overall tone”, making clear that they have not met Michael and can only hypothesise. It is said on behalf of paternal aunt:
“Whatever CAMHS might have said in person to the SW and the CG, plainly they have reflected and have backtracked in email correspondence.”
[27]The LA’s SGO assessment of the FCs dated 11/2/2025, and the non-agency adoption assessment (Annex A report) dated 11/3/2025, were positive. The IRH on 16/4/2025 was adjourned to allow time for the parties to consider the position and hold a joint meeting between the FCs and paternal aunt to try to resolve the issues, and the IRH was relisted yet again, finally taking place on 23/5/2025. As matters could not be resolved by agreement, it was listed for a Final Hearing, when it came before me for the first time.

Law:

[28]The general principles of family law which apply to this case can be summarised as follows:(a) When making any decisions, the child’s welfare is my paramount consideration, with particular regard to the welfare checklist set out in s. 1 of the Children Act 1989.(b) I should only make any order where it is better for the child to make that order than not to do so. I should only make the least-interventionist order that meets the child’s welfare interests.(c) Delay is likely to be prejudicial to a child’s welfare, unless it is purposeful (i.e. for a good reason).(d) Michael, paternal aunt, and both FCs, have rights under Article 6 of the Human Rights Act 1998 to a fair trial, and Article 8 to right to respect for private and family life. These rights are engaged by this application, so any interference with their rights should only be ordered if it is lawful, necessary to protect the child, and proportionate to the risks identified. Where there is a conflict between a child’s and an adult’s human rights, the child’s rights take priority over the adult’s rights, but they do not automatically trump the adult’s rights – all rights must be weighed up in the balance, but a child’s rights will carry more weight.[29]The test for changing where a child lives is simply what is in the child’s best interests with reference to the welfare checklist. There is no priority afforded to birth parents over other relatives, or birth family over others, nor to the status quo continuing, although these are both likely to be important considerations within the welfare checklist analysis. There is no right or presumption for a child to be brought up within his birth family. As President McFarlane LJ said in Re W (A Child) [2016] EWCA Civ 793:
“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.”
[30]However, I also consider the sage words of Hedley J in Re L (A Child) (Care Threshold Criteria) (2007) 1 FLR 2050 at 2063: "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 in danger. Public authorities cannot improve on nature… There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”[31]At paragraph 36 of The London Borough of Barnet v DL & Ors [2025] EWFC 168, MacDonald J summarised the approach set out by President McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965 saying that in deciding where Michael’s best interests lie in this case, the court must undertake a careful and comprehensive two stage analysis, having regard to the matters set out in s.1 of the 1989 Act and s.1 of the 2002 Act:
“First, the court must undertake a global, holistic evaluation and analysis of [the child’s] welfare needs; and second, the court must undertake a comprehensive evaluation of each of the realistically available options for meeting [the child’s] identified welfare needs in the degree of detail necessary to analyse the option’s own internal positives and negatives in order to reach a decision as to which option is the most proportionate means of meeting those needs having regard to the duty to afford paramount consideration to [the child’s] best interests.”
[32]Miss Jaganmohan said (in closing submissions) that she has struggled to find case law where circumstances akin to this case have arisen (i.e. where there is a dispute about long-term placement between foster carers and a birth family member who has been involved in proceedings from an early stage; who is positively assessed; who has an existing relationship with the child; and who has been “in the picture” from the outset). However, she referred to the following cases:[33]In Re M’P-P (Adoption: Status Quo) [2015] EWCA Civ 584, the Court of Appeal observed:
“It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in each case will inevitably be determined by the underlying evidence.”
[34]In Re W [2016] EWCA Civ 793, the Court of Appeal noted that:
“Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst, undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption… Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances…”
[35]In A [2018] EWCA Civ 2240 the court allowed the appeal against an SGO in favour of the foster carer and remitted the matter for rehearing, as:
“a. The judge did not sufficiently balance the arguments in respect of the child growing up in the same country as his immediate family against the arguments in favour of growing up embedded in his ethnic culture of origin, with the opportunity to remain in touch with close family members by visiting. b. The judge did not show she had weighed the risks inherent in each placement, including the potential disadvantages to the child of growing up between two households with different cultural backgrounds, particularly if ‘contact’ was to become fraught or break down. c. The judge did not sufficiently explain why it is necessary for the child to grow up in foster care when he has a family placement available, nor does it explore the consequences for him of being the only member of his family to grow up outside it.”
[36]The court cannot make determinations about every single issue in a case, and must restrict itself only to making those decisions which are relevant to a child’s welfare. The Court must always have in mind the overriding objective, which states that the Court should deal with a case justly, which includes, so far as is practicable:(a) Ensuring that the case is dealt with expeditiously and fairly.(b) Dealing with the case in ways which are proportionate to the nature, importance, and complexities of the issues.(c) Ensuring the parties are on an equal footing.[37]The parties accept that threshold for final public law orders has been crossed (pursuant to s. 31 Children Act 1989), however nobody actually proposes a final care order being made at this hearing. So the threshold gateway is open for the Court to make a final care order, but the Court may agree with all the parties that it is not necessary for one to be made. It is nevertheless important to have a final agreed threshold document, even if the Court does not then go on to make a final care order, as a marker for why Michael is not in his parents’ care.[38]However, the FCs apply for an SGO and paternal aunt asks me to consider that as an option for her as well. The relevant law is set out in section 14A of the Children Act 1989, which states: s.14A(3) – The court may make a special guardianship order with respect to any child on the application of an individual who – (a). is entitled to make such an application with respect to the child; or (b). has obtained the leave of the court to make the application, … s.14A(5) – The individuals who are entitled to apply for a special guardianship order with respect to a child are – (a). any guardian of the child; (b). any individual who is named in a child arrangements order as a person with whom the child is to live; (c). any individual list in subsection 5(b) [child has lived with for at least 3 years] or (c) of section 10… (d). a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application; (e). a relative with whom the child has lived for a period of at least one year immediately preceding the application. s.14A(6) – The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if – (a). an application for the order has been made by an individual who falls within subsection (3)(a) or (b); or (b). the court considers that a special guardianship order should be made even though no such application has been made. s.14A(7) – No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application – (a). if the child in question is being looked after by a local authority, to that local authority, or (b). otherwise, to the local authority in whose area the individual is ordinarily resident. s.14A(8) - On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with— (a)the suitability of the applicant to be a special guardian; (b)such matters (if any) as may be prescribed by the Secretary of State; and (c)any other matter which the local authority considers to be relevant. … s.14A(11) – The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8). Section 14B – Special Guardianship Orders: Making s.14B(1) – Before making a special guardianship order, the court must consider whether, if the order were made – (a). a child arrangements order containing contact provision should also be made with respect to the child… s.14B(2) – On making a special guardianship order, the court may also – (a). give leave for the child to be known by a new surname;… Section 14F – Special Guardianship Support Services s.14F(6) - If— (a). a local authority decides to provide any special guardianship support services to a person, and (b). the circumstances fall within a prescribed description, the local authority must prepare a plan in accordance with which special guardianship support services are to be provided to him, and keep the plan under review.[39]Re P-S (Children) (Care Proceedings: Special Guardianship Orders) [2018] EWCA Civ 1407 states:
“c. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO: “In coming to the judgment that he did, the judge was influenced by informal guidance given by a High Court Judge in his role as a leadership judge. That is not the same as authoritative guidance or a practice direction…”
[40]Both paternal aunt and the FCs seek a child arrangements order (“CAO”) defining their contact in the event that the Court determines that Michael should not be placed in their care. Whilst nobody has made a formal application, the court can make a CAO (section 8 order) under section 10(1)(b) of the Children Act 1989 of its own volition if “the court considers that the order should be made even though no such application has been made.”[41]When assessing risk of suffering significant harm, the Court should consider the guidance given in Re F (A Child: Placement[42]There has been no application for a further assessment, but Miss Jaganmohan referred in closing submissions to the Children’s Guardian not seeking a child psychological assessment of Michael in circumstances where the Children’s Guardian is suggesting that he would not be able to manage a move, would suffer trauma after trauma if moved and would regress in his development. If I were to order one, I would have to consider the factors set out in section 13(7) of the Children and Families Act 2014, as to whether the further expert assessment is: “necessary to assist the court to resolve the proceedings justly” (the test set out in section 13(6) of that Act).[43]The CG proposed, and FCs seek, a change of Michael’s surname to add their surname as a double-barrelled surname (with either one first, as paternal aunt prefers). Paternal aunt opposes any change of surname. The law relating to name change is as follows:[44]The child’s name can be changed with the written consent of all those with parental responsibility. In the absence of consent: - if a care order is in force the court’s leave is required under S33(7)(a). - if an SGO is in force then the court’s leave is required to change the child’s name – S14C(3) - if a CAO ‘live with’ order is in force then the court’s leave is required to change the child’s name – S13(1)[45]In determining whether there should be a change of name, section 1 of the Children Act 1989 applies. Dawson v Wearmouth [1999] 2 WLR 960; [1999] 1 FLR 1167 states:
“the name of a child is not a trivial matter but an important matter and is not a question to be resolved without regard to the child’s welfare…. should not be permitted without some evidence that it would lead to an improvement in the child’s welfare… When a child has been known for a number of years by a registered name, the name will no doubt be an important factor in the exercise of discretion, However, when the child – as in that case – is incapable of understanding the significance of its registered surname, the factor must assume very much less importance.”
[46]In Re W, Re A, Re B (Change of Name) [2001] Fam 1, Butler-Sloss LJ set out a list of factors that would be relevant to any determination around change of surname, including: i. on any application the welfare of the child is paramount, and the judge must have regard to the section 1(3) criteria; ii. among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration, but it is not in itself decisive; iii. the relevant considerations should include factors which may arise in the future as well as the present situation; iv. reasons given for changing or seeking to change a child's name based on the fact that the child's name is or is not the same as the parent making the application do not generally carry much weight; v. the reasons for an earlier unilateral decision to change a child's name may be relevant; vi. any changes of circumstances of the child since the original registration may be relevant; vii. in the case of a child whose parents were married to each other, the fact of the marriage is important; there would have to be strong reasons to change the name from the father's surname if the child was so registered; viii. where the child's parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility.”[47]As far as the evidence is concerned, I make it clear that I have considered the whole of the electronic bundle of documents (including experts’ reports, statements of the LA, M, paternal aunt, the FCs, the ISW, and CG, contact records, police disclosure, and drug tests), plus all of the oral evidence at this final hearing (a unique benefit to hear and see the witnesses give oral evidence, which I have recorded in 90 pages of contemporaneous typed notes) and written closing submissions on behalf of each party. Even where I do not specifically mention a piece of evidence or argument within this judgment, it has factored within my decision-making insofar as it is relevant.[48]The Court must automatically treat M as a vulnerable witness, due to the cognitive functioning assessment, so I had to consider what participation directions I should make to assist her give her best evidence. I granted permission for her to attend remotely (from her solicitors’ offices) at her request following the first day. I also allowed one of the FCs to attend from home whenever required for childcare commitments.[49]In assessing that evidence, and what (if any) risk continues, it is for the party making the allegation to prove it, not for the party denying the allegation to prove that it did not happen. If I depart from an expert’s (which includes the ISW and CG) recommendations I must give good reasons for doing so. However, the decision is ultimately for the Court, so I do not have to follow the recommendation of the experts.[50]I have borne in mind all of these legal principles when considering the evidence in this case.

ANALYSIS:

[51]The start of this decision is that there are two possible placements for Michael, both of which would meet his needs well, and he would thrive and have a happy life. This sounds like a happy problem to have, but it has not proved so for these parties. This hearing and these proceedings have been incredibly traumatic for M, paternal aunt and the FCs, as demonstrated by them crying almost throughout the final hearing. I recognise everyone’s love for Michael, commitment to him and what is best for him, and it is of great credit to all of them that they have managed to shield Michael from their distress.[52]I also agree with the points summarised in the closing submissions on behalf of paternal aunt that: “…were in not for the delays which have occurred over the last two years, we would not be in court now…” – Michael would already have moved to live with paternal aunt a year or two ago.[53]The crux of this case was well-summarised by the closing submissions on behalf of M:
“Much is made of the harm that Michael will suffer should he have to leave the care of the FCs. It is submitted that this short-term harm, caused by further disruption, can be mitigated by a careful transition plan and the maintenance of contact with the FCs. It is most definitely outweighed by the longer-term benefit of him being able to grow up within the care of his birth family. The significant harm caused to him if he is denied that opportunity will be lifelong and has been ignored by the professionals in their respective analysis and minimised by FCs. The intervention in a child’s right to be brought up in their birth family is a significant interference and one which should have been much more carefully considered.”
[54]However we have arrived here, it is the Court’s job to look at the situation as it is now, and what is in Michael’s best interests now and in the future, not what might have been best for him if things had happened differently in the past. I must balance the short term harm of a move to paternal aunt with its long term gain of a family placement, against the potential long-term harm of removal from the FCs and delay in Michael starting therapy. The fundamental issue for the Court is not fairness for all parties (although of course the Court strives to reach its conclusions fairly) but only the best outcome for Michael, not the other parties, whose welfare has to come second to Michael’s welfare, as Michael is my only priority.[55]I was hugely impressed by the oral evidence of paternal aunt and the female foster carer, particularly given how difficult both clearly found it. I was less impressed by the SW and CG, not so much their oral evidence but the lack of progress during proceedings. I have already set out the criticisms of both the LA and CG for delaying these proceedings, in the Background section above. I also accept the criticism made of CG in the closing submissions on behalf of paternal aunt that the CG in her written analysis focussed on her concerns about paternal aunt’s ability to care for paternal aunt, in circumstances where paternal aunt’s assessor was not cross-examined. Under cross-examination, the CG conceded that paternal aunt can meet Michael’s needs and:
“The focus of her oral evidence then appeared to shift to the adverse impact upon Michael of a move rather than paternal aunt’s parenting capacity.”
That is where focus should always have been, as the criticisms and doubts about paternal aunt were unfounded given her positive assessments and approval by fostering panel, which CG would have known had she obtained and read the minutes of the August 2024 fostering panel, which she did not see until it was requested on behalf of paternal aunt during this final hearing. I also accept the criticism made of CG in the closing submissions on behalf of paternal aunt that:
“there was a total lack of analysis of the long-term risks to Michael of remaining with the FCs” except for “… perfunctory references to the “importance and value of maintaining biological ties and the legal principle that children should be, and have a right to be, brought up within their birth family whenever possible.”
However, I do not accept the criticism of CG for not seeking a psychological assessment of Michael. It would not be appropriate or helpful for a child of Michael’s age to be subjected to a full formal psychological assessment, requiring him to see yet another professional, with further intrusion, and it is not warranted when information has been gathered from CAMHS, albeit on the basis of information provided by the FCs and SW and CG rather than seeing Michael directly – for which I note the caution urged by paternal aunt’s counsel. However, I also note that that is the usual way CAMHS deals with children that age – via their carers. It would certainly not be appropriate to incur further delay at this stage and delaying final placement and much-needed therapy, by adjourning proceedings to get a psychological assessment now. I note nobody actually applies for one.[56]I will consider the two potential placements through the medium of the welfare checklist:[57](a) Michael’s wishes: Michael adores the FCs and their child who he considers his sibling. He has lived there for 2 years now, and I have no doubt that he would say he wants to stay with the FCs if he were old enough to express his wishes. However, Michael also loves his aunt and enjoys the time he spends with her, and no doubt as he gets older he will appreciate all the benefits that she could bring as a family placement.(b) Michael’s needs: are disputed, and as yet unclear. As per closing submissions on M’s behalf:
“M does not accept that Michael’s needs are particularly complex. She admits that his early childhood experiences have caused him trauma and harm. It is fair to point out that his experiences once he was removed in foster care have been disruptive. However, there is no medical or psychological expert evidence to support the very high level of needs which would justify him being unable to make a move from the care of the FCs to paternal aunt. The reference to CAMHS observations in respect of Michael do not stand up to scrutiny – for whatever reason, CAMHS were unwilling to accept the social worker’s summary of their position, no doubt because they could not have reached a settled position as to his needs given that he has never been seen by any CAMHS worker for proper assessment or direct work.”
Similar submissions were echoed in closing submissions on behalf of paternal aunt. Both SW and CG are ad idem regarding the information CAMHS provided at the meeting; they have contemporaneous notes that match, and I do not consider they would be likely to lie about what they were told. I am satisfied that their account is an accurate representation of what CAMHS said at the time. Although CAMHS were willing to provide a report, they were not willing to put formally in writing what they said during that meeting nor to endorse the wording reported by the SW – that is entirely understandable that they cannot provide a formal diagnosis or formal report in writing for the purposes of Court proceedings in those terms. I acknowledge that the conclusions and advice from CAMHS was based on information provided by the FCs and other professionals involved, not from direct assessment of Michael, so could include inaccuracies or exaggerations based on the anxieties of the FCs. However, I do not consider it likely, having heard the female foster carer’s oral evidence, that she would have been exaggerating symptoms and experiences to health professionals to bolster her application to keep Michael in her care – particularly not as the reported behaviour and areas of difficulty have been largely consistent for a long time. I do take into account that paternal aunt is familiar to Michael, and he is comfortable in her care and raises no issues arriving or leaving for contact with paternal aunt. I also note that Michael does not display particularly difficult behaviour whilst spending time in paternal aunt’s care. This could be because he is so comfortable in her care, but it could also be because he is less settled with her so is masking his behaviour (being on his best behaviour) which is common with children who have similar difficulties and can lead to fall out or melt down when they return to their primary carers. It is uncertain therefore what behaviour paternal aunt would experience if Michael moved into her care, because if he is masking in her care, he could not continue to do so long-term.[59]In closing submissions on M’s behalf, it was said that:
“Michael has suffered with sleep disruption in the past, there is no evidence of this being an ongoing issue, above and beyond the disturbed sleep of many a young child. The mother’s understanding of night terrors leads her to be concerned that too great an emphasis is placed on this as a symptom of trauma, rather than the equally or more likely possibility of these being typical behaviours of children between the ages of 3 and 8 (NHS website). It is noted that the advice of the sleep expert at the time emphasised the need for good bedtime routines but did not demonstrate that there was anything to be too concerned about.”
The sleep disruptions described by the female foster carer in oral and written evidence were not of a normal level, they were far more significant, and could only be managed by 2 professional carers working together, still leaving them exhausted. Whilst the sleep disruption has reduced in frequency in that it is no longer every night, it is still ongoing. I consider it would be likely to increase again, at least temporarily, if there were a disruption to his routine such as if he moved into paternal aunt’s care. Likewise, the time it has taken to transition Michael into nursery is not normal. Quoting from the SGO assessment dated 14/2/2025 (so relatively recent information):
“Michael really struggles with new or strange places and people and changes to his routine can make him very upset; he can scream, cry, throw things, headbutt and be very distressed for long periods of time…An example of this is Michael’s look around school. Michael went for a look around after being prepared for this and he screamed so much he had to be taken out by the female foster carer. It took several weeks before Michael was able to go into the classroom and stay there for a short period of time without the female foster carer being there. This was stressful for Michael, whose nighttime waking increased at the time school was being introduced. The impact of change on Michael should not be underestimated.”
This indicates Michael’s underlying problems, and is likely to be repeated if Michael had to move to a new school/nursery.[60]The most up to date formal professional evidence we seem to have is from his review health assessment in July 2024, so a whole year out of date now. Paternal aunt’s counsel complains that this would have also been heavily reflective of the FCs’ self-report, but I have already stated that I am satisfied that this is sufficiently accurate for the Court to rely upon. This notes that Michael has a significant delay in developing his listening and attention, and understanding and expressive language skills. Michael’s global development appears to be beginning to be impacted by his limited speech as the deficits identified are related to his inability to verbally communicate. The primary concerns at that health assessment were around Michael’s disrupted sleep pattern and his communication difficulties. His emotional and behavioural development was considered age appropriate, by reference to the ages and stages social-emotional questionnaire. There was also a report from SALT dated 24/2/2025 (so only 5 months old), referenced in the local authority’s care plan albeit that report is not before the court, that Michael continues to show signs of delay and presents as being a child with the abilities that are usually seen in children between the ages of 1 year and 4 months and 1 year and 7 months.[61]I am satisfied that the information is accurate that Michael has far greater needs than normal. I find the information from the CAMHS meeting is largely reliable, and that Michael does require therapy, which cannot start until he is settled in his permanent placement. I am also satisfied that his needs go beyond those falling within the range of normal behaviour, and he requires far greater than good enough care. I am also satisfied that a change in his living arrangements is likely to lead to some regression in his behaviour – it is impossible to say how far and for how long. If Michael moves to live with paternal aunt, it will delay him starting therapy, as however good she is at meeting his needs, Michael will have to settle first and go through any regression and recovery before therapy can start. I accept that the majority of the information suggesting that Michael would struggle with such a transition comes from the FCs, so I exercise caution as to the reliability of that information, or whether it might have been exaggerated because they are worried about Michael, or even that they want to support their case that Michael should remain with them. I am entirely satisfied that the female foster carer was honest in her evidence, and any anxiety is out of genuine concern about the impact on Michael of any move. Going to spend the day with his aunt is not comparable to moving into her care all day every day, with the consequential loss of daily time with the FCs and their child, his primary attachment figures.[62](c) I have considered some aspects of change under Michael’s needs in the paragraphs above: The local authority was confident as at August 2023 that Michael could manage the transition from the FCs’ care to paternal aunt’s care. The LA has changed its mind in the interim, but has explained that this is due to an ongoing and increasing understanding of Michael’s needs, and the passage of time since when he has increased his attachment to the FCs. In closing submissions on behalf of paternal aunt, she submitted:
“Michael is very young. He transferred attachment to the FCs readily, which bodes well for a future move. He resumed family time with paternal aunt after a significant gap in his short life without difficulty (as set out in the contact notes). There are no issues at handovers when he goes into paternal aunt’s care.”
As stated above, going to spend the day with his aunt is not comparable to moving into her care all day every day. (d) I have considered Michael’s particular relevantcharacteristics under his needs in the paragraphs above. (e) Michael has suffered significant harm in the care of his parents. It is as yet unclear (and may never be clear) which/how much of Michael’s difficulties are attributable to that initial harmful environment, and how much is genetic or otherwise biological in nature. Whatever the cause, Michael requires therapy to resolve his issues, which he has not yet been able to start due to it being inappropriate to commence therapy until a he is settled in his long-term placement (this is not a policy limited to CAMHS – it is a common-sense issue applicable to private therapy providers too – albeit some private therapists may be able to have a more flexible approach for particular cases). I have already set out why I consider there is likely to be some regression and fall-out from a move to paternal aunt’s care. Through no fault of paternal aunt, who I have no doubt will do everything she can to meet Michael’s needs and help him through the transition, I consider there is a real possibility that Michael’s likely reaction to the move, any regression, and the consequent delay in commencing therapy, means that Michael is likely to miss the window of opportunity (as described by the CG in her oral evidence as “a golden developmental window for Michael”) for that therapy to have the greatest impact and be successful long-term. Looking at the Re F factors for assessing risk: (1) What type of harm has arisen and might arise? I consider this combination of factors leads to a risk of emotional, psychological, and developmental harm, which may have lifelong implications for Michael. There may also be implications for Michael’s attachment. Whilst he transferred his attachment to the FCs well, he was far younger and may not have formed strong attachments to his birth family beforehand. This is an entirely different situation now he would be nearly 4 years old. I also consider separation from his psychological sibling (the FCs’ adopted child) to be an important factor for Michael. That child isn’t my primary concern, but I recognise that Michael’s relationship with them is a sibling relationship in all but biology, and it will cause Michael emotional harm to separate the children. It is not the same situation as the separation from his birth siblings because he left them when he was much younger and has not had the full sibling experience of living with them, for as long as he can remember. Michael cannot live with either of his full siblings, so his relationship with them will be limited to contact, whether he lives with the FCs or paternal aunt – in fact contact is easier (and therefore potentially more frequent) from the FCs because they live closer than paternal aunt to the two brothers. If the move to paternal aunt was not successful, Michael could probably move back to the FCs’ care, but the damage to his attachment processes would already have been done, and could have consequences for his ability to form attachments throughout his life, given how important this developmental stage is for setting up life-long patterns. (2) How likely is it to arise? For the reasons set out above, I consider it likely that Michael will suffer some harm from the move, the question is how much, and for how long, and how long-lasting will the consequences be? (3) What would be the consequences for the child if it did? This is addressed under (1). Whilst the magnitude is uncertain, there is no corresponding risk of emotional harm if Michael does not move to paternal aunt’s care. The harm described by the submissions on behalf of M and paternal aunt of not growing up within his birth family is of a wholly different nature, and whilst it may cause Michael to ask questions about his identity and his family, those can be satisfactorily addressed through substantial time spent with his birth family – particularly paternal aunt. Paternal aunt can provide Michael with his paternal family identity, access to his extended family, and information about F, through time spent with Michael, in much the same way as she would if Michael were living with M after she had separated from F. Paternal aunt can do all the things proposed in her submissions during overnight and holiday

Contact:

“freely talk to his family about his father, look through old photo albums, listen to anecdotes shared over the dinner table, and so on… ready access to his wider family”
. If placed with paternal aunt, his wider paternal family would be nearby. (4) To what extent might the risks be reduced or managed? I have every confidence in both the FCs and paternal aunt doing everything they can to make any move to paternal aunt’s care as smooth and manageable as possible for Michael, but I do not consider they could prevent its impact upon him. (5) What other welfare considerations have to be taken into account? This is dealt with via the welfare checklist considerations. (6) In consequence, which of the realistic plans best promotes the child's welfare? The risks to Michael of moving into paternal aunt’s care are likely to have long-term implications far greater than the short-term disruption of the move; they outweigh the long-term benefits of being brought up in his birth family, many of which can be provided via substantial contact arrangements. (7) If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate? Not being brought up within his birth family is an interference with Michael’s and paternal aunt’s and M’s rights, particularly when there is a viable family placement for Michael. However, for the reasons set out above, it is a proportionate interference given the likely harm that would be caused by the move. (f) Paternal aunt’s parenting capacity is not in question. I accept entirely the positive assessments of her, and reject the criticisms of her, in particular those based on the lies she told in the initial assessment (which she explained, apologised, and the behaviour has not been repeated), the risk of distress when her mother dies (she has amply demonstrated the ability to soldier on with everything required of her following her brother’s death), and her frustration with the delays (which is entirely reasonable and understandable). Paternal aunt has been incredibly committed to Michael, pursuing these proceedings in the face of all obstacles, privately paying for legal representation, offering to give up work for 6-12 months if he were placed in her care. I have every confidence that she would prioritise Michael over herself and everything else. I am also confident that she would prioritise Michael’s ongoing relationship with the FCs and promote contact with them, and value their advice as they know him best at the moment. Paternal aunt has always been polite to the FCs even under the strain of these proceedings, and largely been polite to professionals, despite frustrations. Paternal aunt could meet Michael’s needs if he were placed in her care, but those needs would have increased from where they needed to be, and might never reduce to the level they would have been had he not moved. Whilst I accept she could parent Michael extremely well, that she is resilient so would cope with whatever Michael’s needs were, and whatever else life throws at her including the death of her own mother, and that she would work well with professionals and the FCs to ensure that Michael’s transition went as smoothly as it possibly could do, I still do not accept that the transition would go smoothly, without long-term detrimental effects on Michael.[66]I also consider the FCs’ parenting capacity is not in question. They have demonstrated an ability to meet all of Michael’s needs exceptionally well, and he has thrived in their loving care. It was suggested in M’s closing submissions that:
“The FCs have the care of another child (with associated obligations such as facilitating contact in line with that child’s open adoption) whilst paternal aunt would have unlimited attention focussed upon Michael.”
There is no suggestion that the FCs have been stretched so far caring for both children, and the additional care of 2 children is off-set by the additional benefits of having 2 carers. I reject any criticisms of them too, in particular the suggestion that their initial preference for adoption was in some way based on a wish to exclude the birth family. The FCs had already adopted another child, so that is all they knew, and no doubt they had received the training about adoption being what is widely considered to be the best option for non-family placement of children that age. I accept what the female foster carer said in oral evidence:
“We didn’t really know about SGOs. It was not on our radar.”
There is no evidence that the FCs did not choose adoption to reject alternatives like an SGO, to purposely exclude the birth family. Likewise I do not accept the criticism of the FCs for making their application even though it delayed proceedings, because they thought placement of Michael with them was the best outcome for him, and they could not have applied any earlier. An issue arose around the extent of the FCs’ knowledge of paternal aunt’s involvement at the time of their application. The female foster carer stated in oral evidence that following paternal aunt being “negatively assessed” at panel in April 2024, she believed there were no other options on the table for Michael.I do accept that the FCs did know at the time of their application that paternal aunt was “still in the picture” but I do not find that the female foster carer was lying in oral evidence when said she “didn’t know”. I consider it far more likely to be a genuine error and forgetting what the circumstances had been at the time. She accepted her mistake as soon as she was taken by Miss Jaganmohan to her contemporaneous notes. The impression I got from the female foster carer’s oral evidence was that the FCs were given the strong impression from the limited information they received from the LA about the first panel being deferred, that there were problems with paternal aunt as a carer - because otherwise the panel would have approved her. So the FCs didn’t want Michael to move from them (where he was thriving), to paternal aunt (who had undisclosed problems). I absolutely reject the submissions made on behalf of paternal aunt that:
“The impression of the female foster carer’s evidence is of someone who feels entitled to care for Michael because of the progress he has made with her. With respect, she did a job as a foster carer. She has done that job very well, but it is the role of foster carers to nurture children in their care before supporting them to move on to other placements. Michael is not a reward to the FCs for the care afforded to him.”
I do not accept the criticism of the FCs that they overstepped the mark. The job of a foster carer is like no other - it is to love the child as their own, to provide the necessary therapeutic parenting that children desperately need when they are removed from their own family. We can see the results of the FCs’ love and care in Michael’s huge progress.[67](g) The Court’s powers are to approve placement with the FCs or with paternal aunt. Either placement could be under a number of orders (care order, supervision order, SGO, or CAO “lives with”) but the FCs prefer an SGO and paternal aunt also asks me to consider that as an option. Whilst a transition to paternal aunt’s care should probably be facilitated under a care order (or ICO) to provide additional support over the interim period, it should become an SGO as soon as possible, and if the LA refused to amend its care plan, the Court could override its powers by making an SGO immediately. However, for the reasons set out above, I have decided that it would not be in Michael’s best welfare interests to move him to paternal aunt’s care, so although the Court has the power to do so, it will not use its power to make that order.[68]For the avoidance of doubt (although it should be clear from the decisions I have made), I do not accept the submissions on behalf of paternal aunt that:
“The very strong impression created by both the social worker and the CG’s evidence was that they worked backwards from their preferred outcome to their analysis… There is a deeply distasteful undertone in this case of social engineering, with the FCs offering Michael a nice, middle-class home with lots of opportunities and financial security.”
The professionals have all been working on the basis of what is best for Michael now. Had the recommended move to paternal aunt taken place before Michael became so settled in the FCs’ care (i.e. over a year ago), it might have been successful, and in fact the LA and CG supported the move a year ago, so it is not accurate or fair to say that the professionals have been opposed to paternal aunt throughout proceedings. But too much time has passed now for the move to paternal aunt’s care to be successful now. The Court must also consider whether to make a CAO defining Michael’s contact with all relevant persons. Contact:[69]I have some sympathy with the submissions made on behalf of M that:
“It is unfair that Michael’s ability to cope with the move has not been better tested during the proceedings.”
I raised the question during the final hearing as to why overnight contact had not already started, so it could have been tested before this hearing. It would have provided the Court with useful information about how overnight contact could work long-term, and might also have provided some information about how a move might be likely to succeed or fail, although I do not consider that overnight contact is at all the same as a full-time move. However, I do not consider this information to be so crucial to the decision-making process that there should be an adjournment of proceedings to trial overnight contact. I simply comment that this is yet another disappointing issue in the proceedings where the professionals involved (SW and CG) have not driven the pace forward as much as they could and should have done.[70]I do not criticise the FCs for not progressing contact faster. They have always followed professional guidance. I do not agree with the submissions on paternal aunt’s behalf that:
“Given the delay which has occurred in overnight contact progressing during these proceedings, it cannot be left to the FCs to be the arbiters of the progression of contact. They appear to have had an overly cautious approach which has sometimes not been consistent with Michael’s welfare (e.g. travelling 6 hours a day for 5 hours of contact, suggesting that Michael get ready for bed at paternal aunt’s home before then going to a hotel etc). The evidence is that Michael has no difficulty transitioning into paternal aunt’s care for family time.”
I do not infer from the lack of progress of contact that the FCs are reluctant – the fact that they have been actually driving Michael 6 hours for each visit to paternal aunt demonstrates their commitment to Michael’s contact and relationship with paternal aunt and they will be fully aware of the impact of travel on Michael. I do not infer that the FCs have been overly cautious. They have just been trying to ensure that overnight contact is successful when it is trialed, so it does not backfire. They have suggested several ways to make it most likely to succeed. The CG said that overnight contact was last raised with her before Christmas 2024 and she felt that would be too emotive a time to trial it. It is disappointing that she did not revisit overnight contact in the 7 months since. A number of different ways of introducing overnight contact have been suggested by different parties. I agree with the CG that it would be too confusing for Michael to get ready for bed in paternal aunt’s house only to be moved to a hotel with the FCs, which would be yet another strange place for him to get used to, and something right out of his routine. It would be best for him simply to get used to the new situation in one jump, rather than having to get used to several different situations only for the routine to change again just as he had got used to it. In my view, the most appropriate way of introducing overnight contact is for the FCs to start talking about it with Michael to prepare him and get him excited about it as soon as possible, then the next contact, at least one of the FCs should be available/around during the bedtime routine, to inform paternal aunt and help Michael with any confusion or distress. The FCs should then stay in a nearby hotel, so they can be ‘on call’ if really needed overnight.[71]I do not consider that the FCs should be criticised for following professional guidance regarding frequency and duration of contact. However, I agree with the submissions made on paternal aunt’s behalf that:
“Given the distance between the two homes, it is plainly not in Michael’s interests to be travelling for so much of the day. Overnight contact would allow him to settle at paternal aunt’s home and enjoy quality time with her rather than being exhausted from travel. Paternal aunt would want this to be defined in a child arrangements order.”
I cannot understand the rationale for the LA’s proposals of 8 times/year with only a minimum of 4 including overnight. Whilst I accept that that could mean all of them are overnight, I cannot see the benefit of any of the contacts being daytime only once overnight is established. The 6-hour journey makes daytime contact unwieldy. As I disagree with the LA contact plan and what the FCs are proposing, I need to make a CAO to ensure that my decision is followed. Every contact will therefore be overnight as soon as overnight has taken place successfully, and overnight should be trialed immediately, starting with preparing Michael by talking about it straight away. I consider that paternal aunt (and the paternal family and their heritage, accessed through paternal aunt) is so important to Michael that he should see her at least monthly. If a contact can only take place at the weekend, during the school term, it should be at least one overnight (from Saturday morning to Sunday evening) but preferably two overnights (from Friday after school to Sunday evening). Wherever possible, the contacts should be timed to take place in school holidays so they can be longer – 3-4 days, with one contact during the summer holidays being 7 consecutive days so Michael has a proper holiday with his aunt, perhaps travelling somewhere with her (the usual private law orders being in place regarding consent, travel details a month in advance, and passport handed over with Michael at the start and returned at the end). As the summer holidays are almost over this year, there will be plenty of time for Michael’s contact with his aunt to build up gradually over the next year until he is ready to spend 7 consecutive days with her and away from the FCs next summer. I am confident that the FCs will be able to agree dates and times with paternal aunt that fit around their other commitments including Michael’s sibling contact. The dates, times, and travel arrangements of paternal aunt’s contact will be a matter for agreement between the FCs and paternal aunt, taking into account the need to share the burden of travel time and costs of Michael getting to paternal aunt’s home, with the FCs holding the ultimate decision-making power due to their enhanced parental responsibility under the SGO. This means that Michael will have 2 contacts each month in total: one with his siblings (which may include M on occasions), and one with paternal aunt (which may include M on occasions, and will last at least 1 overnight, but once a year shall last a whole week).[72]I agree with the submissions made on paternal aunt’s behalf that:
“paternal aunt would be willing to have M’s contact or sibling contact form part of her time with Michael in the interests of streamlining the family time arrangements. This would also enable her to have a higher level of family time with Michael.”
It makes sense for paternal aunt to supervise M’s contact to relieve the burden on the LA having to supervise it, and to reduce the number of occasions Michael has to leave the FCs’ home. If the LA needs to undertake any training of paternal aunt to prepare her for the task of supervising M, it should be done immediately. I agree with M’s position that 2x 1 hour each year is woefully inadequate for contact between M and Michael, particularly as the quality of contact has improved, and if supervised by paternal aunt it is likely to improve further as she would be there to assist and it could be activity-based in the community so more fun for Michael. I consider 4x/year, for 2 hours each session, to be the minimum appropriate contact to maintain Michael’s relationship with M, unless M’s commitment or the quality of contact deteriorates significantly. If the quality of contact improves as M intends it should when she undertakes the work she has been recommended, contact could increase to 6x/yr and for longer periods – with the agreement and supervision of paternal aunt. For the avoidance of doubt, this is not in addition to M joining some of the sibling contact, this is to offer alternative options for M’s contacts, in case her joining the sibling contact is problematic, or it would be beneficial for Michael to spend some more 1-1 time with M without the distraction of his brothers. The division of sibling versus aunt-supervised contact will be a matter for agreement between M, the FCs, and paternal aunt, taking into account the travel time and costs of M getting to paternal aunt’s home, with the FCs holding the ultimate decision-making power due to their enhanced parental responsibility under the SGO.

Name change:

[73]The FCs ask the Court to make a Specific Issue Order (“SIO”) for Michael’s surname to be changed to a double-barrelled name incorporating their family name. In the female foster carer’s oral evidence, she said they had no preference for which order the surnames came, so it could be whichever way paternal aunt preferred, whatever reassured her that they had no intention of “dropping” Michael’s father’s name in future. Paternal aunt vigorously opposes any change as the surname is a connection to Michael’s father, her dead brother, and thus an important part of Michael’s heritage. Michael is the last person in the family to carry the surname. It is a hugely emotional issue for her. Even the suggestion of a double-barrelled surname is no comfort or solution for her.[74]Looking through the relevant factors from Butler-Sloss LJ’s list in Re W, Re A, Re B (Change of Name) [2001] Fam 1: i. on any application the welfare of the child is paramount, and the judge must have regard to the section 1(3) criteria; - Michael is too young to express his views on such a specific question but I think it likely that in future Michael would want to share a surname with the people he lives with, who he considers his family, but he would not want to lose connection with his birth family who will become increasingly important to him as he grows up and gets more information about them from paternal aunt, so the double-barreled surname would be a solution for him. It would meet his need for belonging to both families. Whilst it would be a change from his current name, he is a very young age and developmentally delayed so is unlikely to use and be used to his surname much yet. In any event he would have plenty of time to become accustomed to a new surname. The addition of an extra surname would not cause him any harm, but there is a risk of some emotional harm from not sharing a surname with the family with whom he lives. Parenting capacity is irrelevant to this question. The Court’s powers mean it can make or refuse to make the name-changing order. ii. among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child's father. Registration is always a relevant and an important consideration, but it is not in itself decisive; - at the time Michael was registered he lived with his birth parents, but that is no longer the case and his primary attachment is now to the FCs, and will remain so throughout his childhood, probably throughout his life. The factors relevant at the time of registration are no longer so relevant. iii. the relevant considerations should include factors which may arise in the future as well as the present situation; - if Michael forms a view in future when he is old enough to make his own decisions, he can change his surname again, but the inclusion of both surnames in the meantime allow him options to choose from. vi. any changes of circumstances of the child since the original registration may be relevant; - addressed above.[75]Whilst I recognise the importance of the issue to paternal aunt, and the lesser importance to the FCs (given that it was not them who raised it, but the CG’s suggestion) my focus must be entirely on Michael’s welfare. I consider it is likely to be in his best interests to share a surname with his primary attachment figures, the FCs and their child, as they are now and will be a nuclear family. They do not seek to exclude paternal aunt or F from the surname, but include it as well. In oral evidence paternal aunt expressed some preference (albeit in the context of strong opposition to any change/addition) for the FCs’ name second as it was less-likely that the FCs would be able to “drop” F’s name if it came first. As she said:
“We all know that name would be dropped and they’d just use their name.”
I therefore make the SIO for Michael to be known as [removed] and neither name is to be “dropped”.

Conclusion:

[76]Sadly in this case I have to disappoint either paternal aunt or the FCs, neither of whom has done anything wrong, and all of whom love Michael so much. I am sorry that this decision will devastate paternal aunt, who has shown so much love and commitment to her nephew, and spent so much time and money on trying to get him home (as she sees it) to her care. I hope she is able to channel that love and commitment into making Michael’s time with her wonderful, exciting, fun, and a way of connecting to his birth family and heritage. The many benefits of placement with paternal aunt sadly cannot outweigh the risk of long-term damage and detriment of regression and delay in Michael receiving the therapy he so desperately needs. I must therefore make the SGO in favour of the FCs (in line with the professionals’ recommendation from the LA and CG), but not approving their contact plan, making a CAO in the terms I have set out above, and granting the FCs’ application for an SIO for Michael to be known as [redacted surname]. HHJ Helen Arthur 2nd August 2025, amended 7th August 2025 in response to the matters raised at the handing down hearing and 25th August 2025 in response to the matters raised via email Postscript: Following criticism of the CG in paragraph 19 of the judgment for delays in lodging a C2 application for an ISW assessment of paternal aunt following the negative IVA, which the CG could not recall to explain in oral evidence, Michael’s solicitor provided a chronology of events during that 11 weeks which answers some questions but raises other questions. The details within this chronology have not been the subject of oral evidence and cross-examination as the information was only provided following delivery of the judgment, and there has been criticism raised for further evidence being adduced after the judgment. I do not wish this judgment to be inaccurate, so consider it appropriate to include this post-script clarifying that this criticism of the CG’s conduct is no longer endorsed by the Court, but as this issue does not have any impact on the findings or welfare decisions, so I do not propose to deal with it in more detail.

Order

Proportionality) [2018] EWCA Civ 2761:(1) What type of harm has arisen and might arise?(2) How likely is it to arise?(3) What would be the consequences for the child if it did?(4) To what extent might the risks be reduced or managed?(5) What other welfare considerations have to be taken into account?(6) In consequence, which of the realistic plans best promotes the child's welfare?(7) If the preferred plan involves interference with the Article 8 rights of the child or of others, is that necessary and proportionate?

Cited in 1 later judgment