A judge had underestimated the powers of a grandmother who is fighting a legal battle to become her grandchild’s foster carer.

That was the decision of the Court of Appeal in a case involving the welfare on an 18-month old baby.

The baby had been in foster care since birth because the parents could not care for him. The judge at the initial hearing held that the best outcome for the child would be a placement with the grandmother.

However, the local authority’s fostering panel refused to approve her application to become a family and friends foster carer, which was required for the placement to be lawful.

The panel reconsidered that decision at the judge’s request but maintained its position. The judge then made a placement order for adoption in line with the local authority’s recommendations. The order was stayed for four weeks to allow the grandmother to apply for judicial review of the panel’s decision.

The grandmother challenged the ruling and the Court of Appeal has now found in her favour. It held that the judge had erred in making the placement order at the stage she did.

She had underestimated the grandmother’s powers and should not have accepted the local authority’s unchanged position without calling it to account for its unconvincing response to her careful assessment of risk and welfare.

By staying the order to allow for judicial review proceedings, she was acknowledging that the court’s resources were exhausted, when they were not. She effectively accepted that the question of placement was one for the local authority rather than the court, which it was not.

The judge should have re-evaluated the remaining options for the baby’s future. By not doing that, she boxed herself in. Had she looked at matters afresh, she would have realised that the baby was being sent for adoption because of a non-court body’s decision.

Such outcome was unprecedented in modern times.

The judge’s further investigations would have led her to better understand who was ultimately directing the local authority’s thinking and to achieve effective engagement with them until the issue was satisfactorily resolved.

The matter was remitted to be reheard by a different judge.

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Case Citations: [2018] EWCA Civ 650RE T (A CHILD) (2018)CA (Civ Div) (McFarlane LJ, Peter Jackson LJ, Newey LJ)