The unusual features of Re BB (A Minor) 2013
It is not unusual within care proceedings to be arguing whether a child’s parents are good parents, or whether they could be brought to the point of being good parents. It is not THAT unusual to be arguing about whether one of the parents is, in fact, not a birth parent of the child and that paternity lies elsewhere. It is pretty unusual to be arguing that NEITHER person claiming to be the child’s parent is in fact their parent.
That’s what happened here. The parents claimed that the mother had had a child in Ghana in 2006, and then that the father brought that self-same child into this country in 2010.
The immigration officers, however, had concerns that he appeared to be older than his given age. UK Border Agency records produced for these proceedings show that F asserted in the course of interviews with immigration officers that B was then five years old and he had been in the womb of his mother for twelve months and had always been big for his age ever since
When the child went to primary school, professionals became concerned that he was much older than his documented age, a paediatrician who examined him when he was ostensibly aged 5 instead concluded that he was 10.
Care proceedings began, no doubt with a view to getting to the bottom of all of this. DNA testing showed that neither parent was the biological parent of the child. There was a suggestion that the child might be related to the father in some other way.
All of this was problematic, since the child had been brought into this country by deception, and that deception rendered the decision by the UK Border Agency to allow him in null, thus meaning that he was here illegally and could be removed from the country, through no fault of his own.
- Pursuant to a further direction of the court, the parties then obtained an opinion from counsel specialising in immigration law to advise on the immigration status of F, C and B in the light of documents produced by the UK Border Agency under the earlier direction. In her report dated 25th February 2013, Ms Catherine Cronin, counsel, advised that the deception perpetrated to bring about B’s admission to this country tainted any immigration applications made by or on behalf of C and B. The deception rendered B’s entry into this country illegal and as such he was liable to be removed from the country. Furthermore, the deception provided the UK Border Agency with grounds for refusing not only the application for further leave to remain but also curtailing any leave which had already been obtained as a result of the deception. In addition, Ms Cronin pointed out that criminal offences may have been committed. If the evidence shows that F had been complicit in the deception, then it was possible, advised Ms Cronin, that his British citizenship granted on 1st May 2012 might be in jeopardy Recent amendments to the British Nationality Act 1981 allow the Secretary of State to deprive a nationalised British citizen of his acquired citizenship if satisfied that “deprivation is conducive to the public good.”
- On the other hand, Ms Cronin advised that immigration courts recognise that children should not be punished for the actions of their parents or their carers and that their welfare and best interests, whilst not determinative of an immigration application, are regarded as important and primary considerations. In this respect, Ms Cronin drew attention to a number of authorities and in particular the decision in Nimako-Boateng  UK UT 00216 in which the upper tribunal stated inter alia:
“The problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those best interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child’s best interests are independent of the interests of the parent as well as the necessary expertise in evaluating them. An informed decision of the family judge on the merits and, in some case at least, the material underlying that position is likely to be of value to the immigration judge.”
- Further to that advice from Ms Cronin, the parties, with the court’s permission, obtained a report from an expert in Ghanaian law, Professor Kofi Koufuor, who advised that the practice of not registering births in Ghana was still very common although registration of deaths was now much more a matter of routine.
- As this hearing approached, a particular concern was identified by the local authority and the guardian about how B was to be informed of the truth as to his paternity and age. This process was delayed unfortunately by reason of the ill-health of the guardian who was in due course advised to stand down and has been replaced by another guardian. Eventually a meeting was arranged to take place on 17th April at which the social worker and the guardian were due to speak to B. According to F and C, however, they were unaware that this meeting was to take place. Prior to the meeting F warned the social worker that B would not believe her if she told him about the DNA test and would only believe it if he told B himself. When the social worker and the guardian spoke to B and told him that F and C were not his parents, but that it was more likely that F was his brother, B indeed replied, “I don’t believe you,” and maintained that position throughout the interview.
Findings were sought on the following issues :-
(1) how old is B; (2) to what extent have F and C been deceptive as to his age and paternity; (3) has B suffered any significant harm as a result of this deception or, more generally, as a result of the care provided by F and C; and (4) what is the likelihood of B suffering significant harm in the future as a result of the deception perpetrated by F and C and/or their general care of him?
On age, the Court determined that B was 14 years old, having been born in April 1999 (some seven years older than the parents, at the time of the hearing, claimed)
The parents had lied about his age and paternity and blurred such memories as the child did have, causing him significant emotional harm. The Court were scathing about that, whilst accepting that for B, the best thing would be for him to live with F and C under a Residence Order and for them to be honest with him in the future.
- I find that the deception perpetrated by F and C has caused B very significant emotional harm. I accept that their physical care of B has been good. I also accept that they may have acted with good motives if it is the case that B’s mother died and they agreed to take on B’s care but, because of their extreme deceitfulness, I cannot make any finding to that effect. Other more sinister explanations for their behaviour are equally tenable. Once again, however, I avoid speculation. I am, however, very clear that by pretending that B was someone he is not, by pretending that he is much younger than he really is, they have caused B significant emotional and psychological harm. On the balance of probabilities I think it more likely than not that to some extent they have involved B actively in that deceit but I cannot make any detailed findings about the extent of his involvement. More may become clear about that in due course. To deny a child his true identity is likely to cause very considerable emotional and psychological damage, particularly when, as here, it is probable that he has a memory as to his true identity. The extent of the psychological damage is unclear because, as yet, there has been no psychological assessment, but I think it is almost inevitable that B will require at least counselling and possibly psychotherapy to help him deal with the difficulties he now faces.
- It is important to stress in this context that the harm does not end with this judgment. I accept the unanimous recommendation of the professionals that it is in B’s interests to remain in the care of F and C under a residence order. To uproot him from the home where he has received a generally good standard of physical care and where he is settled and where he is settled at school would not be in his best interests but that course brings with it certain acute and persisting difficulties. Unless and until F and C start telling the truth about his background, the true narrative of his past life, which starts with this judgment, will continue to be distorted by the lies they have told. That will merely add to B’s emotional and psychological harm and may in due course promote a crisis.
- There is a further factor that complicates this picture. The false account that F and C have given concerning B now jeopardises the immigration status of all three individuals as explained by Ms Cronin in her advice to this court cited above. That jeopardy is likely to influence the course that F and C now take. Their position is, frankly, very difficult and as a result B faces the possibility that he will now be deported. I accept Ms Cronin’s advice that there may be ways in which the situation can be salvaged for B but there is no guarantee that that will happen. For all these reasons there is a strong likelihood, in my view, that B will continue to suffer emotional and psychological harm for the foreseeable future.
The Court also made a Supervision Order. Sadly for my inner law geek (my inner law geek is just millimetres below my outer exterior, to be honest) the Court did not debate this interesting question.
s31 (2) of the Children Act 1989 sets out the threshold criteria – the test that must be crossed if a Court is to be able to make a Care Order or a Supervision Order
A court may only make a care order or supervision order if it is satisfied—
(a)that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)that the harm, or likelihood of harm, is attributable to—
(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii)the child’s being beyond parental control.
The significant harm here is not in doubt, there’s a clear judgment about the emotional harm that lying to a child about his age, background and identity and seeking to conceal that from those around him would cause, and it would not be reasonable to expect a parent to do this. But this couple were not parents. Is there an implied link in that ‘reasonable to expect a parent to give to him’ which means that the harm or likelihood of harm HAS to flow from a parent. (Admittedly that can often take the form of the parent exposing the child to, or failing to protect the child from, AN ADULT other than a parent who harms him). But here, whoever B’s parents were, it wasn’t them who harmed him, but the people who took on a parenting role.
It is very legal nit-picky, but that’s who I am. In previous cases, I have seen the harm established as a result the PARENT exposing the child to or failing to protect from the adult who did harm the child, or in the cases where the injury might have been caused by a child-minder, either exoneration of the parents (if they could not have predicted any risk) or a Lancashire finding (if the parents could not be excluded)
If there IS no implied link between significant harm and it being the parent who caused it, can significant harm (for s31 purposes) be caused by the child being at school and a teacher hitting or molesting the child? My heart says no, that unless there was a failing on the part of the child’s parents, whilst the child has undoubtedly been significantly harmed, the ‘harm being attributable’ limb is not made out. But a case like this makes me wonder a little.
[I think that the Court could have said, for example, to all extents and purposes, these people behaved as though they were parents, and will be treated as such for the purposes of s31 (2) – it is their actions in being his primary care-givers that places them in the context of ‘parents’]