In June, the Court of Appeal allowed the appeal by a 14 year old boy against a High Court decision that his parents had lawfully taken him from his home in the UK to Ghana, where he’d been left at a boarding school. You can read Sanchia Berg’s story here. We included the case in our March and July Roundups.
The appeal judgment has now been published – Re S (Wardship; Renoval to Ghana) [2025] EWCA CIv 1011. We’ll outline the court’s reasons in this post.
Factual background
The President summarised the facts as follows:
1. … In March 2024, S was taken by his parents, together with an older sibling, from their home in England to visit relatives in the Republic of Ghana. After a short time, S’ parents and sibling returned to the UK, leaving S in Ghana in the care of other family members and enrolled him in a boarding school there. S’ parents took his passport with them back to the UK, leaving him, effectively, stranded in Ghana.
2. With the assistance of solicitors in London, who accepted his direct instruction, in September 2024 S issued wardship proceedings in the High Court seeking orders requiring his parents to repatriate him to the UK from Ghana. Following a three-day hearing, Hayden J handed down judgment on 27 February 2025 refusing S’ application and discharging the wardship ([2025] EWHC 439 (Fam))…
Notable facts are that Hayden J found the boy’s parents had deceived him into travelling to Ghana and that their reason for this was the risk of his involvement in crime in England.
Grounds of appeal
In summary, the boy’s barrister argued:
- The judge had conflated an evaluation of whether the parents had been entitled to act as they had with the court’s own responsibility of determining the future care arrangements for S on the basis that his welfare is paramount. She went on to describe the psychological harm the boy was suffering through being away from home. In other words, the judge had paid too much attention to the question of what was within the scope of parental responsibility and not enough to balancing the harm S might suffer in Ghana with that in England.
- S was Gillick competent (i.e. mature enough to understand the consequences of his decisions) and the judge had not given enough weight to his wishes and feelings.
Decision
The President didn’t agree with the barrister’s argument that Hayden J had abdicated the court’s authority in the sense that he had merely concluded the decision to take S to school in Ghana was lawfully made by his parents and left it at that. However, he may have seen his own welfare evaluation too closely aligned with the viewpoint of the parents. Hayden J’s welfare analysis fully engaged with the evidence of the risks of future harm if S went back to England. However, his overall evaluation was flawed because:
- He made the final decision before the court had been informed of any firm or viable plan for S’s care in England, although there were possible options that had yet to be investigated
- Of the degree to which the judge ‘heard’ [S didn’t give evidence in person or speak to the judge] and took account of S’s wishes and feelings
- In contrast to his detailed description of the potential for harm if S were to return to England, the apparent failure of the judge to evaluate and take account of the potential for harm to S as a result of his parents’ actions and, in the future, if he is required to remain in Ghana.
The President explained that in wardship proceedings, the court is exercising PR and has to take a proactive approach and therefore Hayden J should have investigated options for S to live safely in the UK.
Hayden J had fully engaged with the parents’ evidence of their fears for S’s welfare in England. However he had not considered as fully S’s own wishes and feelings. It seems that if was S himself who decided not to give evidence or meet the judge, but the Court of Appeal said his unhappiness and distress in Ghana was clear from the legal documents. This was also apparent from the way he’d gone about finding lawyers in England. The judge therefore should have ‘heard’ his views.
The judge had evaluated the harm to S in England but had not fully evaluated the harm in Ghana. He had mentioned that S’s experiences there were distressing and a culture shock, but watered this down. The judge couldn’t balance the risks of harm as he’d only considered one side in full.
The Court of Appeal concluded that S’s application should be re-heard before a different judge. However, the evidence of the risks in England weren’t to be revisited. These were well established, and supported by evidence from the NSPCC and a social worker. The concluding paragraph of the judgment suggests that a different judge, having conducted the correct balancing exercise might come to the same conclusion, that S’s welfare is better protected in Ghana than England.
There’s a piece with some quotes from the judgments by Joshua Rozenberg here – Safer in Ghana?
We understand that the application will be re-heard in October. At that point, S will have been living in Ghana for 18 months, so it may be that circumstances will have changed in both countries.
Image: Photo of Black Star Square, Ghana – thanks – Ifeoluwa B. on Unsplash
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