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Adoption and parents who had been people trafficked

 

This is the hottest of hot potatoes that can be thrown at a Judge at the moment.  (And for me, in writing about it, because it involves Brussels II  and Slovakia, which always irks my commentator Andrew when I say “Slovakian” at any point rather than Slovak or the Slovak Republic.  For this particular occasion, any use of Slovakian is taken entirely from the judgment itself, and is not my own creation)

 

Re N and P Children 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/4.html

The children concerned had been born in England. At the time of the decision, one was just over two and the other just over one.

The mother was Hungarian, but had been raised “on the street in Slovakia as part of a homeless family.”

The father, who is 36 years old, is Slovakian but also speaks Hungarian”

It is alleged that the parents were the victims of people trafficking. The mother’s account is that on arrival at Dover they escaped from the traffickers and travelled across England, staying at various locations, but ending up in Bournemouth.

 

Care proceedings were taken as a result of domestic violence / disturbance incidents.  in early 2015, the parents were evicted from their accommodation and subsequently returned to Slovakia and have had no further contact since that date. Their present whereabouts are unknown although it is understood that the mother has given birth to another child.

The parents did not play any further part in the proceedings, and their whereabouts is unknown.

 

 

  • On 19th January 2015, HH Judge Bond made a further case management order directing the local authority to write to the Slovakian Embassy to inform them of the proceedings and invite a representative to the following hearing and further directed the local authority to liaise with the Embassy to ensure that any independent social worker instructed to undertake an assessment of the grandmother in Slovakia received appropriate clearance. In a series of emails, the local authority was informed that the Slovakian authorities would not support an English independent social worker undertaking the assessment and instead offered the services of the relevant local authority in Slovakia to prepare a report. At the next hearing on 11th February, which so far as I am aware was not attended by a representative of the Slovakian Embassy, the court gave directions facilitating the assessment of the grandmother by the Slovakian authorities. The assessment was duly arranged by the Central Office of Labour Social Affairs and Family and carried by social workers in the branch of that office local to the area where the grandmother lives.
  • In March 2015, the Central Office indicated that the paternal grandmother was willing to care for the children, but the final assessment by those authorities revealed that there had been serious concerns about the grandmother’s care of her own children, including allegations of neglect, and the unexplained death of a baby some years earlier. The condition of the grandmother’s home was also described as unsuitable. The assessment concluded that the grandmother was an irresponsible person who had neglected her obligations to care for her own children and recommended that neither N nor P should be placed in her care.

 

That was then leaving the Court with two options – to make Care Orders and Placement Orders, with a plan of adoption – or to transfer the case to “the Slovakian authorities ” as per their request.

 

Those authorities had set out what they would do with the children if they were returned.

 

 

  • The recent letter from Ms Marcinova has clarified the plans of the Slovakian Authorities for the care of the children, if they are sent to that country. Ms Marcinova stated that “the facility for enforcement of court decisions is a children’s home” which “temporarily replaces a child’s natural family environment or a substitute family environment.” She explained that children’s homes provided care by means of two types of organisational arrangements, namely autonomous groups or professional families. An autonomous group, in which care is provided to a pre-determined number of children, is set up in a separate family house or in a separate section of the children’s home. Professional families are also organisational units of children’s homes. A professional parent is an employee of a children’s home; he or she takes care of 1 to 3 children in a family house or flat provided by the children’s home, or in a property owned by the professional parent. The professional parent has all the powers and responsibilities normally vested in birth parent, although no legal relationship is created between the professional parent and the child. Ms Marcinova stressed that the care provided by a professional family is not the same as substitute family care, but it did provide an opportunity for the provision of individual care to a child placed in institutional care by decision of a court.
  • Ms Marcinova confirmed that the placement of a child institutional care, whether it be in an autonomous group or in a professional family, was regarded as a temporary solution, the aim being to return the child to its original family as soon as possible provided the family was able to resume care. In the alternative, if this was not possible, the child would be placed in a substitute family – foster care or adoption.
  • Upon arriving at the children’s home, a child may first be placed in an autonomous group where they can meet and interact with the professional parent identified as a potential carer. An assessment process is carried out, which may include psychological assessment and counselling. Once the child has been placed with the professional family, there are regular checks and assessments, and the children’s home and other agencies co-operate with the biological family in drawing up a joint plan of social work with the aim of facilitating the child’s return to the natural family
  • Ms Marcinova stated that a secure placement at the children’s home at Renetske Hamre is available for N and P. They could be placed together with a professional parent, in a flat with above-average modern furnishings and equipment, situated in the centre of the town with good access to all relevant facilities. The professional parent identified is Slovak. Ms Marcinova advised that she does not speak English but would be able to communicate with the aid of a dictionary. If necessary, the children could be helped by an interpreter during the adjustment phase. After placement, the authorities would cooperate in providing support to and mobilising the biological family with the aim of securing substitute care for the children within the family. A decision to place the children within the family would be a matter for a court.

 

The Court therefore had to decide whether the proceedings should be transferred under Brussels II, where that would be the plan, or kept in England, where the only concievable plan was adoption.

 

  • In analysing the options, the welfare of the children is my paramount consideration and I must assess the relative merits of the options by reference to the statutory welfare checklist.
  • The advantage of moving the children to Slovakia would be that it would provide an opportunity of either being placed with members of their birth family or having greater contact with the family. It would also provide them with the best opportunity of growing up with an understanding and experience of their culture of origin. Cultural needs are important, but in my judgment in this case they are manifestly outweighed by the children’s emotional needs for stability and security. At present, their needs – physical and emotional – are being met very successfully by their current carers with whom they have formed a close attachment. Given the disruption they endured in the first months of their lives, when they were neglected and ill-treated by their parents, their future security and stability are vital. A move to Slovakia would cause a sudden interruption to their lives, however sensitive and skilful the professional parent to whose care they were entrusted. Such a move would inevitably cause great distress and, I am satisfied, a high degree of emotional harm to two children who have already suffered significantly in this regard.
  • In short, in terms of the statutory welfare checklist, I conclude that in this case the physical and emotional needs of the children, the capacity of their current carers to meet those needs, the adverse consequences of a change in their circumstances, and the very strong probability of harm they would suffer if moved to Slovakia, all outweigh their needs for maintaining a relationship with their birth family and the opportunity to grow up within their culture of origin. In any event, I am satisfied that their need to acquire and maintain an understanding of their culture will to a very substantial extent be met by their current carers, who have been selected carefully for this very purpose.
  • The disadvantages of a placement in Slovakia in this case are in fact so great that I do not regard it as a realistic option. To my mind, the only realistic option is that they remain in their current placement. The realistic options are therefore long-term foster care or adoption. Having regard to the factors already identified and all relevant matters in the statutory welfare checklists, in particular their need for stability and security, the balance plainly comes down in favour of adoption. I take account of the likely effect on the children (throughout their lives) of ceasing to be members of their birth family. In my judgment, any disadvantages are outweighed by the emotional security they will acquire as adopted persons.
  • I therefore accept the clear recommendation of the local authority and guardian. I repeat my expression of gratitude to the Slovakian authorities, and in particular Ms Marcinova, for their careful and thorough response. Given the particular needs and circumstances of these children, and the length of time since they were removed from their family, I do not consider that placing them in temporary care of a professional parent in Slovakia, with the prospect of a further move in due course, to be a realistic option. Although long-term foster care in this country would in theory enable the children to maintain relations with their birth family, the reality is that these children have been abandoned by their parents and such links as exist with the birth family are extremely tenuous. The children are currently in an excellent placement where they have thrived and are being well cared for. Their carers have links with eastern Europe, in particular Slovakia and Hungary and are well qualified to maintain and nurture the children’s sense of identity.
  • It is manifestly clear that this is a case where only an adoption order will fully meet the needs of these children. I therefore approve the local authority care plan and make a care order in respect of both children. I conclude that the children’s welfare requires them to be placed for adoption, and for that reason dispense with the parents consent to such a placement and make a placement order in respect of both children.

 

[What doesn’t occur in this case, which could have occurred, is the Hungarian authorities putting in their own claim for the children. The children were born in England and have lived here for their entire yet short lives. The mother was born in Hungary. The father was born in the Slovak Republic. The English Courts have had a hell of a job trying to decide between two competing jurisdictions. We are surely going to get a case soon which involves three competing jurisdictions. Or four.  What are we going to do with the first children who live in England, but were born in Ghana, and have a Lithuanian mother and a Peruvian father?]

Cases like this tend to be fact specific – the balance might well have tipped if the parents whereabouts were known, and they or the extended family might have continued to have contact. As it stood, the Judge was balancing cultural issues against the benefits of permanence, and decided that in this case, permanance prevailed (though in this specific case the children were fortunate enough to have carers who could meet the cultural needs). Different facts could result in a very different outcome.

 

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. More interesting and also more important are I think those cases where a pregnant mother flees the uk to avoid forced adoption of her baby and so gives birth in Ireland, France,or elsewhere;Time and again the UK authorities issue a care order after the birth abroad and then pursue the mother and child in courts in Ireland ,France,and other far flung destinations demanding the “return ” of the baby to the UK despite the baby never having visited the UK at any time in its short life ! Luckily they fail more often than not………..
    Why are they so anxious to put the taxpayer at extra and often huge expense with court proceedings in two or more countries,,paying agencies to find foster parents ,and then again to find adoptive parents in UK rather than allow the authorities in Ireland,or France, or whichever country mum and child find themselves to deal with the situation?
    Could it be pure vindictive vengeace to punish the mum for getting away? Social workers discussing cases often speak of “risk of flight” but perhaps that is because those social workers whose relatives direct or who have shares in lucrative adoption and fostering agencies wish to frighten other mothers who may be considering flight to avoid forced adoption of their babies at birth? Those that get away could turn a trickle of escapees into a torrent !

    • I think that you make a reasonable point Ian. I would absolutely love to have a Court of Appeal authority that just clearly states “Make the referral to France or X and close your file”, that would solve a great deal of nuisance and running around. At the moment, individual Local Authorities and workers aren’t sure whether they will be held responsible if the child is injured in France, or whether the responsibility is just to tell the French authorities and all other responsibility lies with France.

      [I myself had one of these recently and did exactly that, passed the information across to the new country and closed the case.]

      • Stastistically, England, Scotland and Wales population, hold the world record for Child Abuse, the industry and employees is the largest industry, the UK now has, and this fact has spread worldwide

      • ashamedtobebritish

        I can understand nervousness at whether a child is injured abroad after closing the file, I think what Ian is speaking of is children who have never stepped foot in the UK after being born abroad. These children should not be under UK jurisdiction, As Ian has stated, they cannot be brought back to a place they never were in the first place, the UK la tend to think they have rights over any child who has UK citizenship.
        This happens even when there has been no court to first seize upon the case, it’s extremely frustrating fighting a jurisdiction issue with a council who simply will not accept they aren’t getting what they want, which is an adoption

    • I agree with Ian! (There’s a first time for everything!!)

      The law is very clear that English social workers (and English courts) must treat the child protection services and courts of other EU states as competent to protect children within their jurisdiction. But in my practice I see, time and time again, social workers and their managers being unable to trust foreign services to do a proper job and chasing these children around Europe.

      One of the great difficulties is when local authorities try to render a lawful removal an unlawful retention by applications for ICOs. In light of the new, more expansive, attitude towards habitual residence from Re B, one can imagine local authorities issuing in respect of children who have been out of England for some time.

      I can’t help but suspect that all this will one day going to create some international tension when a (probably eastern-) European court decides to non-return a child on Art 20 grounds purely because we have an attitude towards non-consensual adoption is incompatible with social values in the requested state.

    • Why is it we never hear of this happening on behalf of any other country in the world???
      Have we become such a vindictive nation, where did all this industry in child molestation by the state come from, Lack of any other industry????????

  2. You are forgiven the Slovakian as it is a quotation from somebody who ought to know better!

    I sit as a JP (lay although I am a lawyer) and in the Chair recently in setting out the facts I had to use the abominable N-word. It seemed very strange; the last time I spoke that word I was at Infants’ School and it was part of Eenie, Meenie . . . and we got told off for using it. About 1958, I would guess.

  3. Great to hear Andrew that we have agreement on this.The vast majority of parents who flee abroad are pregnant mothers desperate to save their babies from forced adoption since this does not exist in France,Ireland ,and most other European countries;If such mothers knew for sure their new babies could not be forcefully adopted very few would leave.
    Incidentally academics often produce stats to show that “adoption without parental consent” does exist in many European countries .True enough; since these figures include abandoned children whilst “forced adoption” means adoption by force in a court of law despite opposition from parent(s) in court after court !
    Only in the UK are family courts all over the country packed and overloaded by parents trying to keep their kids and by local authorities determined to take them !

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