All a matter of interpretation

The President’s decision in Re J and S (children) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/4.html

This was an application by parents for leave to oppose the making of adoption orders. The care order and placement order had been made in May 2013 by Theis J   http://www.bailii.org/ew/cases/EWHC/Fam/2013/2308.html

The President refused the application, the parents change of circumstances being put in these three ways

1. That they had lodged an application with the European Court of Human Rights
2. That the placement with a homosexual couple was contrary to the parents Slovak Roma heritage and their Catholic religious beliefs
3. That there had been changes to the home conditions

 There is reference within the judgment to a Slovak organisation which provides assistance to Slovak citizens who become involved in English care proceedings – it might well be worth following this up if you are a Slovak citizen or are providing advice to someone who is.

31 In the present case Ms Sparrow relies upon three matters as constituting a change in circumstances.

32 The first is the pending applications before the European Court of Human Rights. As I have already noted, the parents’ applications for Article 39 measures have been rejected on three occasions. The present position is that the substantive applications remain pending before the European Court of Human Rights and, as letters from the Court state, will be considered “as soon as possible” though due to the Court’s heavy workload “it is not possible to indicate when this will be.” I say nothing as to what the position might be in a case where the Court has made interim measures under Rule 39. This is not that case. I fail to see how the mere fact that there is an application pending before the European Court of Human Rights can possibly amount to a “change in circumstances” for the purpose of section 47(5). I agree with what Moor J said in The Prospective Adopters v IA and Another [2014] EWHC 331 (Fam), para 39:

“The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.”

33 The second alleged change in circumstances arises out of the fact that J and S have been placed with prospective adopters who are a same sex couple. The parents put the point very simply and very eloquently in their witness statement:

“Our family is a Slovak Roma family and we are practising Catholics and a homosexual couple as potential adopters is very different from what Mrs Justice Theis had in mind in her judgment as this will not promote the children’s Roma heritage or their Catholic faith … Whilst we have no doubt that the prospective adopters have been properly assessed by the Local Authority, they are a homosexual couple and as such their lifestyle goes against our Roma culture and lifestyle

The children will not be able to be brought up in the Catholic faith because of the conflicts between Catholicism and homosexuality. They would not be able to maintain their Catholic faith if they are adopted by this couple and even if it was promised that they would attend church the children would at some stage be taught or learn of the attitude of the church to same sex couples. This would undoubtedly be upsetting to them and cause them to be in conflict between their religion and home life.

Slovakia still does not recognise same sex couples and so their Slovak roots and values will not be maintained. In 2013 the Catholic Bishops in Slovakia condemned same sex marriage.”

They go on to say:

“If, as expected, our children will try to find us and their siblings and roots, then they will discover the huge differences between our culture and the couple with whom they have been brought up. This is likely to cause them great upset and to suffer a conflict within themselves such as to set them against their adoptive parents. This would therefore cause the children great psychological harm as homosexuality is not recognised in the world wide Roma community. Having Roma children live with homosexuals or being adopted by them would be found to be humiliating … Ethnic, cultural and religious identity is an important part of identity and this aspect of a child’s needs in an adoptive placement should be considered very carefully. We do not accept that this has been properly considered by Kent County Council.”

They add:

“By proceeding with the adoption process and supporting adoption by a homosexual couple the Local Authority are continuing to act in such a way that will change our children who are of Slovak Roma heritage into white middle class English children which is contrary to the human rights of us and of the children. This is social engineering and is a conscious and deliberate effort by Kent County Council to transform our children from Slovak Roma children to English middle class children.”

34 Put very shortly, what Ms Sparrow says is that J and S have been put in a placement of a kind that was not contemplated by Theis J and which is wholly unsuitable having regard to the children’s Slovak Roma origins and Catholic roots.

35 I do not see how this can be described as a change in circumstances. There is nothing in all the material I have seen to suggest that the children’s placement with the prospective adopters was inappropriate or wrong, let alone irrational or unlawful, having regard to the principles that the local authority had to apply. Everything I have seen indicates that the process was conscientiously and properly undertaken having regard, as the paramount consideration, and as section 1(2) of the 2002 Act requires, to the children’s welfare throughout their lives. Nor, despite Ms Sparrow’s characterisation, has it been demonstrated that the placement was of a kind not contemplated by Theis J. On the contrary, Theis J expressly held, as we have seen, that the children’s welfare needs “outweigh” the impact that adoption would have on their Roma identity.

36 Of course, any judge should have a decent respect to the opinions of those who come here from a foreign land, particularly if they have come from another country within the European Union. As I said in Re K; A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 26, “the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family.” But the fact is, the law is, that, at the end of the day, I have to judge matters according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative. They have made their life in this country and cannot impose their own views either on the local authority or on the court. Thus far I agree with the local authority. I have to say, however, that it was, in my view, unfortunate that the local authority should have referred at one stage in the proceedings to the parents’ views on homosexuality in such a way as to suggest that they are bigoted. The label is unnecessary and hurtful.

37 The third alleged change in circumstances (not canvassed either in the parents’ statement or in Ms Sparrow’s written submissions) relates to what are said to be improvements in the parents’ domestic and family circumstances. I am prepared to assume for the sake of argument that there have indeed been improvements of the kind Ms Sparrow refers to, but it does not, in my judgment, take the parents anywhere. The short fact is that nothing Ms Sparrow has said begins to suggest any change which bears in any way on Theis J’s findings in relation to the parents’ non-acceptance of other peoples concerns and their inability to change.

38 In my judgment, none of the matters relied upon by Ms Sparrow, whether taken separately or together, amount to a change in circumstances sufficient to take the parents beyond the first stage. They fall at the first hurdle. That being so, there is no need for me to go on to consider the second stage of the inquiry. I make clear, however, that even if the parents had been able to overcome the first hurdle, they would, in my judgment, have fallen at the second. Their ultimate prospects of success if leave to oppose was given are threadbare. They are entirely lacking in solidity. In truth, I have to say, they are little more than fanciful.

The part of the application which has wider implications than just for this unfortunate family relates to the initial hearing of this application on 7^th May, which had to be adjourned because the interpreters that had been booked did not attend.

8. The hearing on 7 May 2014

9. The hearing before me on 7 May 2014 was unable to proceed. Despite the order made by Judge Murdoch, and although HMCTS had, as was subsequently conceded by it, gone through the appropriate procedures with Capita Translation and Interpreting Limited (Capita) to book two interpreters, no interpreter was present at court. I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me – this, after all, was their final opportunity to prevent the adoption of their children – if the parents were unable to understand what was being said. Anyone tempted to suggest that an adjournment was not necessary might care to consider what our reaction would be if an English parent before a foreign court in similar circumstances was not provided with an interpreter.

10. I accordingly adjourned the hearing until 15 May 2014. I directed that HMCTS was to provide two interpreters for that hearing. I directed that Capita’s Relationship Director, Sonia Facchini, file a written statement (with statement of truth) explaining the circumstances in which and the reasons why no interpreters had been provided by Capita for the hearing on 7 May 2014. I gave Capita permission to apply to vary or discharge this order. It chose not to. I reserved the costs of the hearing on 7 May 2014 to the hearing on 15 May 2014 “for consideration of, inter alia, whether Capita should pay such costs.”

Capita did produce that statement, which raises more concerns than it resolved.

It indicated three matters of concern

1. Capita, although being paid to perform the Government contract of providing interpreters for Court eschews all liability if the interpreters they book don’t attend Court.
2. Capita don’t tell the Court until 2pm the day before the hearing that no interpreter will be coming, giving no time for alternative arrangements to be made
3. Capita say that on they have 29 Slovak interpreters, and on the day in question there were 39 separate court hearings that required them. Thus raising huge issues about provision of interpreters.

Anyone who does family law will have had experiences of interpreters being booked and not attending, or a wholly unsuitable interpreter attending, and trying to deal with the fallout from this. Capita’s explanation here provides some context for just how bad things have become

Capita

11  Ms Facchini’s statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.

12 Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.

I don’t think we will have heard the last of this issue.