Could more children in care be placed with family members abroad? (24 May 2022)

With the number of children in care at an all-time high it may be time that the authorities and courts did more to explore whether more children can be placed with family members abroad.

The law stipulates that children should be placed with their birth family wherever possible.

In the case of Re BS [2013] EWCA Civ 1146, the court considered the judgment given in YC v UK [2012] 55 EHRR 33 and determined that family relationships should be preserved, families rebuilt, and family ties only severed in exceptional circumstances. Further, it is not enough to say a child could have a more beneficial environment for their upbringing elsewhere.

Children and Families Across Borders (CFAB) is an organisation with an international children’s social work team which carries out viability assessments of family members abroad and works with partners in 130 countries. CFAB assessments enable families to be assessed in their own language, allowing the courts to have a clear understanding of a family’s needs without a language barrier.

In August 2021, CFAB published a report which found that 5,500 children in care could be placed with their families abroad.

One in three children in the UK have at least one foreign born parent. Therefore, there are many looked after children with family overseas who are often willing and able to care for them.

CFAB believes families abroad are not sufficiently considered as potential carers because the process is thought to be complex and lengthy at an international level, frequently leaving potential placement options unexplored. It is arguable that if the abroad family members lived in the UK, they would be assessed as part of the normal protocol, but because the family live outside of the UK these options are not fully considered.

The average length of care proceedings is currently at a nine year high, often taking around 43 weeks for a case to conclude. This would provide sufficient time for an in depth assessment to be completed. Justice must never be sacrificed upon the altar of speed, but this of course needs to be balanced against any potential harm the children may suffer because of the delay.

The child has a right to family life and given that life changing decisions are being made on their behalf, this should arguably be explored in depth wherever possible as it would help them retain a sense of identity and maintain family ties. In 2019, CFAB research found that only 0.04% of looked after children were allocated international placements.

The courts may be hesitant to make an order for the children to be placed abroad with family due to the uncertainty surrounding whether courts in that jurisdiction would accept or enforce one made in this country. Similarly, if the placement breaks down, or any other issues arise, the court must be clear on the support available in the other country, as the English courts would not have jurisdiction to put protective measures in place.

Some judges and local authorities consider CFAB assessments are insufficiently detailed and do not provide enough information to satisfy the courts that a placement abroad would work.

Additionally, there is currently no body responsible for publishing data regarding children placed abroad and the results of these placements.

Arguably, there needs to be more support and guidance for local authorities around the monitoring of overseas placements and the consequences of a placement breakdown. If there was official government monitoring of the overseas placements, local authorities might be more inclined to explore them, as they would have more confidence that this is in the best interests of the children.

CFAB is currently campaigning for support and lobbying ministers for overseas placements to mirror what a child would experience in this country and that contingency plans are in place before children are placed abroad, as part of its Safe, Secure and Thriving plan.

But there remains concern about the lack of post-placement support offered to children transferred overseas to tackle issues such as psychological needs, culture shock and to ensure their educational needs are met.

Ultimately, a court must be satisfied that placement abroad is in the child’s best interests as their overall welfare is its paramount consideration, in accordance with Section 1 of the Children Act 1989.


About the author: Emily Rand is a trainee solicitor in Duncan Lewis Solicitors’ child care department in Luton. She joined the firm in December 2020 and has gained extensive experience working on a range of complex child care cases.

If you are affected by any of the issues in this article contact Emily for advice via email at emilyra@duncanlewis.com or telephone her on 020 7275 2674.