Family Court Balances Children's Best Interests and Human Rights in Care Proceedings - [2023] EWFC 225

Citation: [2023] EWFC 225
Judgment on


The case in question, with the neutral citation number [2023] EWFC 225, homes in on critical family law issues involving the welfare of two children, ‘B’ and ‘G’, under the auspices of care proceedings in the Family Court. The judgment traverses a landscape of complex child welfare considerations, invoking both statutory law under the Children Act 1989 and case law precedents to render a decision that balances the children’s best interests with their fundamental rights to family life as protected by Article 8 of the Human Rights Act 1998.

Key Facts

’B’ and ‘G’, two siblings aged 15 and 13, respectively, were the subjects of interim care orders due to concerns about their mother’s mental health and the impact on their well-being. The court considered the children’s current and proposed living arrangements, the mother’s mental health and recent improvements, the children’s express wishes, and the need for rehabilitative care plans.

The proceedings were the second involving the children; the first concluded with a 12-month Supervision Order permitting the children to live at home with their mother. However, due to subsequent concerns, new proceedings were initiated, resulting in the children being placed in interim care.

Several key legal principles were at play in this case:

  1. Threshold Criteria (Section 31 of the Children Act 1989): The court found the threshold for making a care or supervision order was met due to the risk of significant harm due to the mother’s mental health affecting her parenting capacity.

  2. Welfare Checklist (Section 1(3) of the Children Act 1989): The court systematically considered various factors from the welfare checklist, including the children’s needs, the likely effect of any change in circumstances, and the capability of the mother to meet their needs.

  3. Least Interventionist Approach: Emphasizing that intervention by the court should be minimal, the judgment assessed whether the proposed care arrangements were necessary and proportionate.

  4. Article 8 of the Human Rights Act 1998: The right to respect for family life was highlighted, with the court mindful of ensuring any interference was lawful, necessary in a democratic society, and proportionate to the legitimate aim pursued.

  5. Case Law: The judgment referenced Re B (A Child) [2013] UKSC 33 for the standards required in adhering to Article 8 and the proportionality of making a Care Order, and JW (child at Home under Care Order) [2023] EWCA Civ 944 for guidance on when a child can remain at home under a Care Order.


The outcome for ‘B’ was the making of a Care Order, recognizing his best interests would not currently be served by returning to his mother given her mental health status and his complex needs.

For ‘G’, the court concluded a Care Order was not necessary or proportionate; instead, a Supervision Order was deemed appropriate with ‘G’ returning to the mother’s care, as this was in line with her strongly expressed desire, and there was credible evidence of the mother’s improved mental stability and engagement with therapeutic support.

The court refrained from extending the mother’s current level of contact with ‘B’ or permitting ‘B’ to visit the family home, acknowledging the potential emotional harm due to his complex needs and circumstances.


The judgment in [2023] EWFC 225 meticulously applies established legal principles to the facts, harmonizing the statutory duty to prioritize the children’s welfare with their and their family’s rights under Human Rights legislation. The court’s nuanced approach demonstrates an astute understanding of the delicate balance between the need for protecting children from harm and the imperative to maintain family unity where possible. The decision to place ‘B’ in care while allowing ‘G’ to return to her mother, subject to a Supervision Order, encapsulates the selective application of the least interventionist approach while upholding the children’s respective best interests and rights.

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