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That’s when I start promising the world to a brand new girl I don’t even know yet

 

Next thing, she’s wearing my Rolex.

 

I wrote about Part 1 of the Pauffley J hearing about alleged radicalisation where all of the evidence that might prove whether threshold criteria existed or not was in the hands of the security services and they (having originally tipped off the LA that they should do something) decided they didn’t want to cough up the material.

https://suesspiciousminds.com/2016/12/28/cloak-and-dagger-threshold/

I feel very very uncomfortable about this sort of thing.  I fully understand that in order to protect the citizens of this country, the security services will watch individuals and don’t want those under suspicion to know exactly what the security services knows and how they know it. I get that. But by the same token, if a parent is being accused of being a risk to their child and faces the possibility of losing their child, they are entitled to see what the evidence against them is and to test it.

The alternative is that we end up with a set of care proceedings run along the lines that Christopher Booker imagines happens all the time, where the parents aren’t told what they are supposed to have done and don’t get to fight the allegations.

I’m not sure how you square that circle. My gut feeling is that the children probably stay with the family unless and until the security services either have enough to charge the parents with a criminal offence, decide there is no risk, or that the information known can be safely shared without putting others at risk.

Anyway, you may remember from Part 1, that it ended with the Security services telling the Court that they were going to get a Public Interest Immunity (PII) certificate signed by the Secretary of State about the documents.

This is what happened next.

http://www.bailii.org/ew/cases/EWHC/Fam/2017/692.html

C (A Child), Re (No 2) (Application for Public Interest Immunity) [2017] EWHC 692 (Fam) (31 March 2017)

 

Those representing the Secretary of State asked for a CLOSED hearing. In basic terms (and I’m massively oversimplifying to make it possible for normal people to follow) that means that the lawyers for the Secretary of State would address the Judge about the documents and why they could not be shared, and nobody else would be in the room.

 

 

Discussion of procedural steps

 

  • I quite accept that the courts and the SSHD are even now in the relatively early stages of grappling with the problems consequent upon proceedings of this kind. I would be the first to accept that I have been engaged in a learning exercise. I suspect the same may be true for those advocates who have not hitherto had much experience of dealing with cases where PII might be asserted in circumstances such as these.
  • There have been several complicating factors leading to delay identified by Ms Wheeler in CLOSED session which are inappropriate for inclusion within this OPEN judgment.
  • At all events, there are some obvious conclusions to be drawn from events in this case. The first is that where the SSHD is faced with disclosure orders relating to material which is or may be sensitive and where the likelihood is that PII will be asserted, it is incumbent upon the GLD to set up a process for early and definitive decision making.
  • The spectre of a potential PII claim was manifest in this case from as far back as 3 November 2016. On that day, I received an urgent letter from the GLD, indicating there was material which for reasons of national security the SSHD was not at liberty to disclose. A further period of 28 days was requested to further consider the information with a view to either effecting disclosure, advancing a claim for PII or seeking a declaration under s.6 of the JSA 2013.
  • By the time of the 2 December hearing, the indications were that if the SSHD was unsuccessful in her bid to revoke the 4 October 2016 disclosure order, she would claim PII. As I observed towards the end of the December judgment, until there was a PII Certificate containing the SSHD’s judgment as to the harm to the public interest that would be caused by disclosure and the weight to be given to competing public interests, there was no appropriate mechanism for action.
  • It is disappointing to say the least that the PII Certificate was not issued until 7 March 2017, some three months later, and at a time when no fewer than four distinguished legal teams had spent a great deal of time and effort considering a landscape which did not comprise a claim for PII. Had the claim been made sooner, those endeavours would have been largely unnecessary.
  • Doubtless the GLD is an over-stretched organisation with many competing calls upon the time of those who work within. However, with an eye to the future and other similar cases, it seems to me that there must be mechanisms for significantly swifter specialist advice and consequent action. Had there been an application for PII in the autumn of last year, it would have been resolved before Christmas; the hearing of 2 December would have been superfluous to requirements; and the care proceedings would not have been mired in procedural argument for more than three additional months pending resolution of these issues.
  • As Mr Twomey suggests, delays, lack of clarity and inconsistency in the approach of the SSHD are unhelpful and tend to give rise naturally enough to scepticism and suspicion. The earlier there is (can be) precision the better. The stop / start approach of the last four to five months has been distinctly unhelpful. By some mechanism or another, strategies for avoiding anything similar should be devised as a matter of urgency.

 

Potential for conflict

 

  • Arising out of events on 25 January 2017, there was the potential for unfairness which Mr Twomey was right to identify in his written submissions. As he correctly identifies, on 25 January I met briefly with two members of the GLD to take possession of a bundle of CLOSED material; and I concluded that a hearing in CLOSED would be required. Mr Twomey maintained that the parties were unaware of what was said on behalf of the SSHD on that occasion and what I was shown. In fact, as Ms Wheeler related in her submissions of 6 February 2017, the documents I had read were CLOSED submissions and a Sensitive Schedule (also known as a damage assessment) explaining why the SSHD contends material should be withheld, the nature of the damage were disclosure to be ordered and the reasons for delay in progressing a formal claim for PII. But I was not provided with the material over which a claim for PII is being considered.
  • As for anything discussed between the GLD lawyers and me on 25 January, I can confirm that nothing of any substance was said. The sole purpose of the meeting was so as to comply with the necessary procedures for dealing with CLOSED material. My clerk, for example, is not able to handle CLOSED material. Thus it was necessary for me to meet with Mr Fitzgibbons and Mr da Silva to take possession of and later relinquish the CLOSED file.
  • Mr Twomey asked me to confirm whether or not those documents form part of the PII application. If they did not, then it would be necessary to consider whether I could fairly determine the PII application and / or how those documents could be treated so as to ensure a fair hearing.
  • In response to those submissions, I indicated that Ms Wheeler’s CLOSED submissions from late January had not been made available to me in readiness for the hearing on 15 March. Ms Wheeler’s initial view had been that there was no need for me to consider her earlier submissions afresh given that more pertinent material was now available in the form of the OPEN Certificate. Given the potential for a sense of unfairness if the January submissions were not once more made available, a copy was provided in advance of the CLOSED hearing.
  • No party sought to suggest there was any reason associated with events on 25 January, materials read or discussions with the GLD, which could have prevented me from dealing with the claim for PII. Accordingly, satisfied as I was that there was no reason to recuse myself, I convened a CLOSED hearing at which I heard Ms Wheeler’s oral submissions and probed a number of issues.
  • There was no judgment at the end of the CLOSED hearing. I indicated I would be preparing an OPEN judgment.

 

 

 

The Court considered the principles in deciding whether documents should be withheld from distribution under the Public Interest Immunity process

 

 

 

The three steps involved in making a PII claim – R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274

 

  • There are three required steps when the SSHD considers whether to make a claim for PII. First, whether the material is relevant and passes the threshold test for disclosure in the applicable proceedings – (Certificate §11). Second, if the threshold test is passed, whether the material identified as relevant and subject to disclosure attracts PII. The test is whether there is a real risk that disclosure would cause ‘real damage’ or ‘serious harm’ to the public interest – (Certificate §13 and 19). Third, if applying the ‘real damage’ test, the material attracts PII, the question arises as to whether the public interest in non-disclosure is outweighed by the public interest in disclosure for the purpose of doing justice in the proceedings. The factors in favour are set out in the Certificate at §18; those against between §§19 and 26.

 

 

Slightly disappointed that Pauffley J did not indicate that R v Chief Constable of the West Midlands Police, ex parte Wiley is a party guy and he knows it, but bigger fish to fry, no doubt.

 

 

 

Positions of the parties

 

  • The local authority’s position is that it will await the outcome of the PII hearing and will then take stock. Ms Morgan understandably submits there is a limitation upon the assistance she can give in relation to the Wiley balancing exercise, given that she has no knowledge of the material over which the SSHD asserts her claim for PII. Ms Morgan does though make a number of observations particularly as to the sufficiency of primary evidence absent disclosure. Ms Morgan’s overarching observation is that I should approach the balancing exercise on the basis that if the care proceedings conclude for want of established threshold criteria, the likelihood of the local authority being in a position to safeguard the child – or justify interference in his life – in any effective way would be virtually non-existent.
  • Mr Twomey suggests that the very significant delay in making the PII application calls for an explanation and raises a serious issue as to the merits of the claim. Mr Twomey suggested that when I considered the claim there were a number of issues which may be relevant but which might only be probed in CLOSED session. He cited eight matters and asked a number of associated questions – all of them useful to me during the CLOSED session.
  • On behalf of the child’s guardian, Mr Parker suggests there are two points which undermine confidence in the SSHD’s evaluation. First, that the unwillingness to provide disclosure was a position arrived at long before the balancing exercise set out within the Certificate. There is a risk, accordingly, that the Certificate is simply an ex post facto justification of the SSHD’s position. Mr Parker’s second general point is that the premise for the balancing exercise is flawed in that the SSHD understands the local authority’s application is for a supervision order whereas the interim measure does not reflect the true nature of the proceedings.
  • Mr Parker makes four points in relation to the Wiley balancing exercise which, he submits, increase the balance in favour of disclosure – the insufficiency of available primary evidence, the inappropriateness of the Channel programme as an alternative method of safeguarding, the current unavailability of the Desistence and Disengagement Programme and the unreasonableness of requiring the mother to surrender her travel documents permanently.

 

1. Relevance

 

  • The first question, as to relevance, is simply satisfied. The SSHD proceeds on the assumption that the material is relevant and, in principle, disclosable as the result of the 4 October 2016 orders for disclosure. That is clearly right.

 

2. Would disclosure damage the public interest?

 

  • The second issue is confronted within the Certificate in this way. The SSHD identifies that the Government’s approach to PII requires her to focus specifically on the damage that would be caused by the disclosure of the particular material in issue and to assert PII only if satisfied that disclosure of that material would bring about a real risk of real damage to an important public interest. The SSHD expresses herself satisfied that the material referred to in the sensitive schedule would cause serious harm as it includes information of one or more of eleven specified kinds.
  • Within her OPEN submissions, Ms Wheeler explained that the reasons include those relating to national security though it is not possible to be more specific in OPEN about the nature of the harm that would be caused by disclosure. The effect of the material engaging national security considerations was that disclosure would create a real and significant risk of damage to national security (§19 of the Certificate).
  • I have sound reasons for agreeing with the SSHD’s evaluation based upon materials provided to me in CLOSED.

 

3. The Wiley balance – factors for and against disclosure

 

  • The last part of the Wiley exercise involves balancing the factors in favour of and against disclosure. The SSHD when considering the impact of non-disclosure takes into account three specific points – the nature of the material, the open and available material and other powers to protect the child.
  • The SSHD considers the factors in favour of disclosure to fall into two categories. First, the strong public interest in ensuring that children are protected from the risk of harm and that the material of potential relevance should be available to parties to family court proceedings. And second, that in general legal proceedings should be conducted openly; open justice principles are in play and are an important factor in protecting the rights of individuals and maintaining public confidence in the justice system.
  • To my mind, the most significant, weighty and powerful of the factors militating against disclosure is that the material engages considerations of national security. The SSHD formed the view that disclosure would create a real and significant risk of damage to national security. I accord great respect to and share that assessment on the basis of the material made available to me in CLOSED session, namely Ms Wheeler’s CLOSED submissions and the Sensitive Schedule (or damage assessment).
  • The conclusion of the SSHD that national security considerations are engaged, a judgment formed on the basis of comprehensive materials made available to her, in Ms Wheeler’s submission, should properly be accorded great deference. As Lord Templeman observed in R v. Chief Constable of the West Midlands Police, ex parte Wiley [1995] 1 AC 274 @ 281, “As a general rule the harm to the public interest of the disclosure of the whole or part of a document dealing with defence of national security or diplomatic secrets will be self-evident and preclude disclosure.

 

Other available evidence

 

  • Ms Wheeler urges me to consider the other factors put forward in favour of non-disclosure. Firstly, the existence of other available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied. Second, in the event that the threshold criteria could not be satisfied and thus a public law order was unavailable, there could be recourse to other safeguarding measures such as the ‘Channel Programme’ and a new Home Office initiative, the ‘Desistence and Disengagement Programme.’ Thirdly, steps could be taken to disrupt travel plans involving flight to a war zone by continued passport restrictions.
  • It is clear that the SSHD’s contention as to the availability (and sufficiency) of other evidence causes the local authority, in particular, very real anxiety. Unwittingly, I suspect that I have contributed to the problem by observations made in the December judgment which play into the argument that further disclosure from the Home Office was (or is) necessary: see §§ 35, 39 – 42.
  • At that stage, however, I had not been required to consider the Wiley balancing exercise, I was not privy to Ms Wheeler’s CLOSED submissions and I had not considered the Sensitive Schedule. The landscape now is very different and disclosure questions call for a modified response.
  • Ms Wheeler is right to draw my attention to the available evidence. It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews.
  • More detail of available evidence is set out within paragraphs 3 to 8 of Ms Wheeler’s submissions dated 14 March 2017. Furthermore, Ms Wheeler makes the valid point that the letter from HM Passport Office dated 3 August 2016 refusing the father’s application for a replacement passport is of significance. It can and should be taken into account, argues Ms Wheeler, as part of the evidential picture.
  • I agree with Ms Wheeler’s submission that the Home Secretary’s decision to exercise the Royal Prerogative so as to refuse to issue the father with a passport (based on the assessment that he is an Islamist extremist who seeks to travel to Syria for jihad) is ‘evidence.’ The Home Secretary’s decision is amenable to judicial review but there has been no challenge.
  • I also agree with the suggestion that the denial of a replacement passport on the basis of the exercise of the Royal Prerogative would not be, of itself, sufficient to establish the threshold criteria. Clearly it is a factor of relevance which could be taken into account as part of the evidential picture though it is impossible to assess quite how much weight might be attached in advance of any hearing.

 

As I said earlier, these cases leave me uncomfortable. Yes, a flimsy and vague threshold could be constructed on the basis that the parents have been stopped at airports and questioned under the Terroism Act and that the Secretary of State has seen material such to persuade them to refuse to issue the father with a passport, but if the parents assert that these actions were wrong, mistaken or the result of some form of racial profiling without foundation in reality, how is an LA to prove likelihood of significant harm?

 

The Judge says something very important about the documents that have not been shared. In essence, they wouldn’t themselves establish threshold even if they could be seen and relied upon

Nature of the material – future progress of litigation

 

  • With the future of these proceedings in mind, it is appropriate that I should discuss a matter which arose during the course of CLOSED session. It seems highly unlikely that the material upon which the SSHD has formed her assessment leading to the application for PII would advance the local authority’s case to any significant degree. On any view, the material could not be provided to (and therefore be used by) the local authority for the purpose of legal proceedings, whether to inform its assessment of risk or for the purpose of commissioning any expert intervention. Moreover, the material does not advance an understanding of the parental relationship or contact with or intentions towards the child.

 

 

The judgment and story rather fizzles out there. Perhaps there was an application to withdraw the proceedings, perhaps not. We may never know.

 

 

 

Nepal-ing behaviour (I’m sorry, I’ll just get my coat)

I wrote about part 1 of this curious case where a couple living in Dubai adopted a child in Nepal, then they separated and the Court was having to deal with (a) was this a lawful adoption and if not could it be made lawful and (b) where should the child live

 

https://suesspiciousminds.com/2016/06/29/application-to-dismiss-a-guardian-for-bias/

And as you can see from the title, part 1 was chiefly about the mother’s application that the Guardian was biased (which did not succeed)

 

Part 2 doesn’t disappoint either.  It was heard by Mr Justice MacDonald, who does get interesting cases and does them well.

Re QS v RS & Anor 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2470.html

 

T, the girl adopted from Nepal is now 12 years old. She has been living with one or both of this couple since 2008 and within the 8 years of her time with them, SEVEN have been in profoundly acrimonious court proceedings. It is hard not to think that she might have been better off remaining in Nepal.

 

She was adopted in 2008 by the couple, who were at that time British citizens living in Britain. (Nepal at the time of the adoption was not one of those countries where the UK has an arrangement that makes adoptions from that country lawful if a process is correctly followed. It is now, however. )   The parents then lived for a time in Dubai and then they separated, with the adoptive mother moving back to the UK.

 

As MacDonald J explains, the history of litigation about this child has been horrendous and protracted

 

 

  • The background to this matter is in part contentious. Regrettably, the parents have now been engaged in one form of litigation or another since 2009. Within that context, I made clear to both parties at the outset of these proceedings that in determining the issues before the court I would not be assisted by a detailed forensic exploration of each and every allegation and counter-allegation levelled by the parents over the course of the past 8 years. It is within this context that I begin by examining the background that leads up to the present situation.

 

 

Curiously, although T is 12 years old, she was born (will be born?) in 2062.

 

Yes, you read that date right. 2062.

 

That’s because the Nepalese calendar works differently to ours

It has been possible to further refine the details of T’s early life from documentation that has become available since I gave my first judgment in this matter on 15 October 2015. By the Nepalese Bikram Samvat calendar, on 20 August 2062 T was found abandoned in a temple in Chitwan in the Federal Democratic Republic of Nepal (although I note that other documentation seen by the expert appears to suggest that T was discovered near a bridge in Kathmandu).

 

It does strike me as somewhat peculiar that in our financially challenged times  that the High Court is spending time and legal aid in litigating about a girl born in Nepal, who lives in Dubai and won’t be born for another 46 years….

 

Under the law of Nepal the adoption of T was lawful in Nepal. Following the adoption, the parents took her from Nepal to Dubai, and in Dubai T was granted British Citizenship. If you are thinking to yourself, hang on, what power has anyone in Dubai got to grant British citizenship on a girl from Nepal, you are not alone

 

  • Following their adoption of T the parents moved with her to live in Dubai. Following her arrival in Dubai T was granted British Citizenship. I have had sight of a Certificate of Registration dated the 16 September 2008, registering T as a British citizen. The precise circumstances in which T was granted British Citizenship remain, despite considerable efforts by the parties, unclear. However, the ‘Adoption Guarantee Letter’ dated 5 December 2006 to which I have already referred states the intention to grant British citizenship for T upon her adoption by the parents by way of the discretion afforded to the Home Secretary by s 3(1) of the British Nationality Act 1981. That letter was signed by the British Consul in Kathmandu. Within this context, and in accordance with the intent of the ‘Adoption Guarantee Letter’ T’s Certificate of Registration makes clear that she was registered as a British Citizen by the Home Secretary pursuant to the power conferred by s 3(1) of the 1981 Act on 16 September 2008.

 

 

 

After the parents split up and mother issued her petition for divorce in Guildford County Court, she moved to Sharjah with T. If you were not previously aware that Sharjah was all that close to Guildford, it was news to me also.

There then followed all sorts of peculiarities, culminating with the mother requiring a Royal Pardon AND a Court decision in Dubai that neither the mother nor the father were the legal parent of T, but custody (I use the term that’s in the judgment) was awarded to the father. The mother was then deported and came to England.  The mother in Dubai has no legal rights regarding T and no right to see her.  Also, given the difficulties that she had with the Royal Pardon, entering Dubai places her at risk of a complaint being made and her being detained and prevented from leaving.

 

The Judge remarks upon the mother’s Facebook campaign

 

 

  • One further matter of background requires mention. Following her deportation, the mother commenced a campaign on Facebook, with a Facebook page entitled “Rescue T“. Whilst the mother contends that this site evolved, ultimately, into a blog through which she seeks to assist people in a similar situation to her own, it is plain on the mother’s own evidence that over a significant period of time she placed into the public domain information that concerned matters intensely private to T. The mother also used the medium to address T publically. The father asserts, in evidence that was not challenged, that at Christmas 2014 the mother posted publically the following message to T “he even abandons you for a significant part of the Christmas holiday to go abroad leaving you alone with a maid for days on end. How utterly, incredibly selfish! Again, you best interests are being ignored. I would NEVER, NEVER do this to you!” The father had been compelled to travel abroad to see a dying relative. At the instigation of the mother the case also featured heavily in the press. The father contends he has been vilified on social media and that the mother has given a false account of him to the newspapers.
  • Within the context of the mother’s online activity, the father contends that his efforts to facilitate contact between the mother and T from June 2013 onwards, including the offer of shared holidays in a neutral country provided proper arrangements for T’s passport were put in place and offers to pay for the mother to visit T at Christmas 2013, were met with no response. The father states that he encouraged T to send emails to her mother on special occasions and there are examples of those messages in the bundle.
  • The mother concedes that she did not reply to emails from T wishing her mother a happy birthday in November 2014 and a happy Valentine’s day in February 2015. The mother asserted during her evidence that she could not be sure that the emails were from T although, significantly in my judgment, she later said that she did not reply because this form of communication did not “fit” with her (the mother’s) requests for contact. The mother further conceded that she did not respond to a request from the father that she provide him with T’s vaccination records, following which refusal T had to be re-vaccinated and suffered a dangerous reaction to one of the additional inoculations, leading to her admission to hospital.

 

 

 

 

The Judge carefully explains the process by which an adoption which is not currently lawful in English law can be recognised and legitimised by English law. Care has to be taken, because this child is ordinarily resident in Dubai where court proceedings have made a determination that the adoption is not lawful and that neither mother or father have any legal rights over T and are not her parents. So the Judge has to tread softly.

 

The statutory power is fairly simple

 

 

  • if the court is satisfied that it is appropriate to recognise the foreign adoption at common law the court may, if the requisite conditions are met, make a declaration pursuant to the Family Law Act 1986 s 57, which section provides as follows:

 

57 Declarations as to adoptions effected overseas.

E+W

(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either—

(a) a Convention adoption, or an overseas adoption within the meaning of the Adoption and Children Act 2002, or

(b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the High Court or a county court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2) The said declarations are—

(a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 the adopted child of that person;

(b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

 

 

A trusty barometer of whether things in law are going to get complicated is where the Judge has to begin their overview of the law with a Lord Denning case, particularly one itself that refers back to a case decided before electricity was something other than an amusing new phenomenon that made dead frogs’ legs twitch and so it proves to be here

 

 

  • The Adoption and Children Act 2002 s 66(1)(e) defines “adoption” as including “an adoption recognised by the law of England and Wales, and effected under the law of any other country”. It has long been established that the recognition of a foreign adoption may be achieved by recourse to the common law. In Re Valentine’s Settlement at 841, a case concerning the recognition of an adoption effected under the law of South Africa, Lord Denning endorsed the observation of James LJ in Re Goodman’s Trusts (1881) 17 Ch.D 266 at 297:

 

“I start with the proposition stated by James LJ in In re Goodman’s Trusts: ‘The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilised country, should be respected and acknowledged by every other member of the great community of nations’. That was a legitimation case, but the like principle applies to adoption. But when is the status of adoption duly constituted? Clearly it is so when it is constituted in another country in similar circumstances as we claim for ourselves. Our courts should recognise a jurisdiction which mutatis mutandis they claim for themselves: see Travers v. Holley [1953] P. 246, 257; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794 , C.A. We claim jurisdiction to make an adoption order when the adopting parents are domiciled in this country and the child is resident here. So also, out of the comity of country when the adopting parents are domiciled there and the child is resident there.”

Lord Denning concluded further as follows in relation to the circumstances in which a foreign adoption would be recognised at common law:

“Apart from international comity, we reach the same result on principle. When a court of any country makes an adoption order for an infant child, it does two things: (1) it destroys the legal relationship theretofore existing between the child and its natural parents, be it legitimate or illegitimate; (2) it creates the legal relationship of parent and child between the child and its adopting parents, making it their legitimate child. It creates a new status in both, namely, the status of parent and child. Now it has long been settled that questions affecting status are determined by the law of the domicile. This new status of parent and child, in order to be recognised everywhere, must be validly created by the law of the domicile of the adopting parent. You do not look to the domicile of the child: for that has no separate domicile of its own. It takes its parents’ domicile. You look to the parents’ domicile only. If you find that a legitimate relationship of parent and child has been validly created by the law of the parents’ domicile at the time the relationship is created, then the status so created should be universally recognised throughout the civilised world, provided always that there is nothing contrary to public policy in so recognising it. That general principle finds expression in the judgment of Scott L.J. in In re Luck’s Settlement Trusts, Walker v. Luck [1940] Ch. 864, 907-908; sub nom. In re Luck, Walker v. Luck, 56 T.L.R. 915; [1940] 3 All E.R. 307 C.A. I think it is correct, notwithstanding that the majority in that case created a dubious exception to it. But it is an essential feature of this principle that the parents should be domiciled in the country at the time: for no provision of the law of a foreign country will be regarded in the English courts as effective to create the status of a parent in a person not domiciled in that country at the time: see In re Grove, Vaucher v. Treasury Solicitor (1888) 40 Ch.D. 216; 4 T.L.R. 762 , C.A. (legitimation by subsequent marriage); In re Wilson, decd., Grace v. Lucas [1954] Ch. 733; [1954] 2 W.L.R. 1097; [1954] 1 All E.R. 997 (adoption). I ought to say, however, that in order for adoption to be recognised everywhere, it seems to me that, in addition to the adopting parents being domiciled in the country where the order is made, the child should be ordinarily resident there: for it is the courts of ordinary residence which have the pre-eminent jurisdiction over the child: see In re P. (G. E.) (An Infant) [1965] Ch. 568, 585; [1965] 2 W.L.R. 1, 11; [1964] 3 All E.R. 977, C.A. The child is under their protection and it would seem only right that those courts should be the courts to decide whether the child should be adopted or not.”

 

  • Within the context of the present case, I also pause to note the dissenting judgment of Salmon LJ in Re Valentine’s Settlement at 852:

 

“It has been suggested that according to the theory of our law no foreign adoption should be recognised unless, at the time it was made, both adopted child and adoptive parent were domiciled within the jurisdiction of the foreign country and that this appeal should be decided accordingly. Our law, however, develops in accordance with the changing needs of man. These have always been ascertained by experience rather than by the rigid application of abstract theory. Experience has shown that there are sound sociological reasons for recognising an adoption in circumstances such as these. Adoption – providing that there are proper safeguards – is greatly for the benefit of the adopted child and of the adoptive parents, and also, I think, of civilised society, since this is founded on the family relationship. It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents. The laws of adoption in South Africa are very nearly the same as our own. The principles underlying them are the same. The whole emphasis is upon the welfare of the child and elaborate precautions are laid down for assuring that the adoption order shall not be made unless it is for the benefit of the child; the consent of the natural parents is required. It is difficult to see why in these circumstances, unless compelled to do so, our courts should refuse to recognise these adoption orders made lawfully in South Africa which conferred nothing but benefits on all the parties concerned.”

and at 854:

“Mr. Templeman, in the course of an exceptionally able argument, emphasised what he described as the danger and absurdity of a childless man and wife being able to go abroad for a short holiday and return the mother and father of three children. It may or may not be absurd but the danger would exist only if the considerations for adoption in the foreign country concerned were quite alien to our own and our courts were obliged to recognise the adoption whatever the circumstances. This is not so, for it is always open to our courts on grounds of public policy to refuse to recognise a foreign adoption even when the domicile of the adoptive father is impeccable.”

 

  • I further note that it is clear that Dankwerts LJ came to his conclusion that he must concur with the judgment of Lord Denning with some reluctance (Re Valentine’s Settlement at 846) and that Lord Denning himself recognised that the observations of Salmon LJ cast doubt on his conclusion that the courts of this country will only recognise an adoption in another country if the adopting parents are domiciled there, stating at 843 that:

 

“I may, however, be wrong about this: because I recognise the force of the opinion which Salmon L.J. will express, namely, that the courts of this country should recognise an adoption in another country if it is effected by an order of the courts of that country, provided always that their courts apply the same safeguards as we do.”

 

 

  • Nonetheless, the common law rule established by Re Valentine’s Settlement is clear and has been applied consistently since 1965. Within this context, pursuant to the Adoption and Children Act 2002 s 49(2) domicile (or, in the alternative, habitual residence) is still a part of “the circumstances we claim for ourselves” when constituting a valid domestic adoption, a valid application for an adoption order under the Act requiring at least one of the couple (in the case of an application by a couple) or the applicant (in the case of an application by one person) be domiciled or habitually resident in a part of the British Islands.

 

 

 

In very broad terms, if another country has similar adoption provisions to ourselves, and we would be prepared to make an adoption order of say Nepalese parents who are domiciled here and who adopt a child, we should do the same if British parents adopt a child in Nepal. The difficulty here, however, is that when the British couple adopted T, they were NOT domiciled in Nepal – they were there purely to adopt a child and had no intentions whatsoever of residing or settling there.  That is not a scenario in which a Nepalese couple could adopt in Britain  (it is perfectly legal in Nepalese law, but their law does not have the domicile element – that the person has to be living in the country where they adopt)

 

 

  • Within the foregoing context, the criteria for determining whether the court should recognise an adoption made in any country outside Great Britain and valid by the law of that country at common law were articulated by Hedley J in Re T and M (Adoption) [2011] 1 FLR 1487 and Re R (Recognition of Indian Adoption) [2013] 1 FLR 1487 as follows:

 

i) Were the status conditions required by English domestic adoption law replicated or fulfilled in the foreign jurisdiction, including the status conditions as to domicile or habitual residence;ii) Was the adoption obtained wholly lawfully in the foreign jurisdiction in question;

iii) If so, did the concept of adoption in that jurisdiction substantially conform with the English concept of adoption;

iv) If so, was there any public policy consideration that should mitigate against recognition of the foreign adoption.

 

You can immediately see that whilst the parents can answer yes to (ii) the answer to (i) is going to be no. The Court therefore have to consider how much the concept of adoption in Nepal marries u with the English concept.

 

This is becoming terribly niche, so suffice to say that if you are involved in a case where you need to know the law on a s57 Family Law Act 1986 application to legitimise an overseas adoption, this is the case to find it all in. The Judge DID legitimise the adoption in English law.

 

 

  • In this case I am satisfied that recognition would be manifestly in T’s best interests. Recognition of the adoption at common law would confirm the legal relationship of parent and child that T no doubt assumes exists between her parents and herself. In circumstances where Mr Power is clear that T, as a child adopted from a foreign country with parents who have separated, has an enhanced need for certainty as an adopted child in a trans-racial placement, recognition of her adoption will assist in providing this and will assist T developing and making sense of her identity as she grows older. Recognition will also provide T with greater legal certainty throughout her life with respect to such matters as inheritance rights. I agree with Mr Bagchi’s submission that the balance sheet in respect of recognition contains no entries in the debit column from T’s perspective.

 

 

The Judge then had to consider where T should live and with whom she should spend time. All of this is very fact specific, but there’s one issue of general principle.

If you are ever in the witness box and you are asked whether a parent loves their child, THIS is not necessarily the best way to answer that question

 

 

  • The mother was unable even to acknowledge the father’s love for T, saying that “in as much as he can love her, I imagine he does” and that “it is a domineering and controlling love done within certain conditions“. The mother’s concluded position in oral evidence appeared to be that T was “probably” physically safe in the care of her father but that she was not emotionally safe, claiming “it is damaging for her to remain with her father, in emotional terms“. These firmly held views of the father’s parenting and his physical and emotional care of T are entirely at odds with all of the other evidence before the court.

 

 

 

The Judge considered all of the issues relating to T and made an order that she should live with the father and have contact with the mother, either in the UAE or England.

Woman kept in a cage

 

This case, involving an 18 year old woman who had lived in England until she was nearly 17 and then went to live with her father in Saudi Arabia, attracted a lot of press attention – the headline of this piece is how it was portrayed in a lot of the Press coverage. The story was that this woman was locked up by her father, to keep her away from men, and was locked up in a cage – the High Court made orders that she be released (although with an acknowledgment that there was nothing the English Court could do if the father didn’t comply)

 

The case is now reported, so we can see the facts.  Al Jeffery v Al Jeffery (Vulnerable Adult : British Citizen) 2016

 

Not "JEFFREY"  - Al-Jeffrey (But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don't use gavels)

Not “JEFFREY” – Al-Jeffrey
(But on fleek to find a Rainbow picture that has a court vibe. Yes. I am aware that UK Judges don’t use gavels)

 

 

(Let’s be honest, when the other members of Rainbow zipped up Zippy’s mouth, it is hard not to see that as a deprivation of Zippy’s liberty)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2151.html

 

In a similar way to the “woman who sparkled” case, once again, the Press don’t come out of it too well – they had access to this information, and of course used it to doorstep the woman’s relatives. Stay classy, San Diego.

 

I am aware that this has led to considerable publicity in print and online, much of it under a headline “Woman kept in a cage” or words to that effect, the accuracy of which I will later address. I was told (and if it is true, I regret it) that this led in turn to press harassing members of the family in Wales

 

The ‘cage’ element is obviously the major motif of the story,  but there is perhaps more to that than one might think from the Press coverage

 

 

The “cage”

 

  • I refer under a discrete heading to the issue of a “cage” because I am aware that this has given rise to some rather sensational headlines in the media. Further, in two national newspapers last Saturday (it may have been in more) I myself saw large colour pictures of the photograph now at bundle p.C84. It is the case that Amina herself has referred to her being kept “in a cage” or “in a massive cage”. This may have led headline writers and/or their readers to visualise that she was being kept actually in a cuboid cage of the type that an animal might be kept in with some form of bars all around and on top of it. That is not what happened; and the purpose of this section of this judgment is to create some objectivity and proportionality, and to describe as best I can what appears actually to have happened. I stress, however, that I have not heard any oral evidence and I have only seen the two photographs at pp.C84 and 85.
  • Within the father’s flat there were two vertical barred panels. One, now seen at p.84, is yellow. It is a large metal framework of bars upon which is affixed, probably by welding, a metal diamond shaped lattice grille. Each diamond shape in the lattice is smaller than an adult hand. It is the sort of security structure that could be fixed over windows or doors to prevent entry, or could be used as a security partition in, for instance, a store room. It is a form of caging, but not itself a cage. The other, now seen at p.C85, is, in the photograph, a mid-brown colour. It is roughly the size and shape of a full height vertical door. It consists of a hinged metal frame with metal vertical bars through which an adult could not squeeze. It is the sort of security structure that is occasionally seen as an added security door or gate outside a front door, or could be used as a security door or gate in a corridor. It, too, is caging, but not itself a cage.
  • The father admits that both these structures were affixed within his flat. He says through Mr. Scott-Manderson that the yellow lattice grille is simply affixed over external windows to prevent Amina from shouting out to the street below, the flat being on the fourth floor. From the appearance in the photograph at p.84 I am sceptical about this. Amina herself is in the foreground, with the grille beyond her, so the windows could not be in the foreground but off the photograph. Beyond the grille there does, indeed, appear to be a wooden framework which appears to contain glass panes, but they do not have the appearance of external windows. They do have the appearance of an internal glazed screen or partition, like a “room divider”. I say that, because it appears from the photograph that in part of the area beyond the grille there is a hanging cupboard or something similar, and above that the appearance of artificial electric light shining through from beyond. The father says that the glass panes are, indeed, external windows and that the light is merely a reflection from a light within the room. The father says that the purpose of the brown barred door or gate seen at p.C85 was, indeed, to restrict Amina’s access to parts of the flat, including the front door, but that it was removed several months ago. He describes it as a “barrier partition”.
  • On the father’s own account, the purpose of both these structures was to restrict Amina, whether from access to parts of the flat and the front door, or from simply looking or calling out of the window. Further, the father does admit that when he himself leaves the flat to go to his part time work he does lock her in. I conclude that Amina was not literally in a cage, but that her freedom of movement was, and is, admittedly constrained in a way that I would regard as severe, having regard to her age and full capacity. She was, and, so far as I am aware, still is, deprived of her liberty and could be described as “caged”, although not “in a cage”.

 

 

It reads more as being in a room that had a barred window and that she was not permitted to leave the home and had very restricted access to the outside world – as Holman J says, she was deprived of her liberty and could be described as being caged, but she was not ‘in a cage’

 

[Google image has let me down here – I really wanted a picture of Andromeda from Clash of the Titans (1981) in her gilded cage that Calibos was keeping her in.  With a vulture jailer, no less, who would pick up the cage in his beak and carry her off… But no joy. Bah. Anyway, here’s a picture of her as she is awaiting for Poseidon to “UNLEASH THE KRAKEN”  and her liberty is definitely being deprived]

 

There was no doubt in my mind aged 11 that I wanted to rescue this lady

There was no doubt in my mind aged 11 that I wanted to rescue this lady

 

The Judge had made as part of his order that the father must allow his daughter to speak to her solicitor in confidence to provide instructions. That did not happen

 

 

  • Notwithstanding the father’s position as recited in the order and summarised above, the order made three orders, each qualified as being “without prejudice to the issue of jurisdiction”: [i] continuing forced marriage protection orders; [ii] for the immediate return of Amina to England and Wales; and [iii] directing the father to make Amina available for an interview at the British Consulate prior to the fact finding hearing. By the time of the next directions hearing on 5 July 2016, Amina and the father were represented respectively by Mr. Henry Setright QC and Mr. Marcus Scott-Manderson QC who represent them again at this hearing. The order recited that the court had determined that “arrangements must be made for [Amina] to give instructions without fetter or any perception of fetter to her solicitors privately and confidentially” at the British Consulate in Jeddah. Paragraph 15 of the order itself ordered the father to facilitate the attendance of Amina at the consulate “… in order to enable her to speak privately and confidentially to her solicitors from those premises, for the purpose of giving instructions for, and approving, the statement” which another part of the same order ordered Amina to file and serve. I will for convenience refer to that particular provision of the order with regard to attendance at the consulate as “the paragraph 15 order”. Overarchingly, the order of 5 July repeated by reference the order to cause the immediate return of Amina to England and Wales.
  • The father has not returned Amina to England and Wales and has not complied with the paragraph 15 order. As a result, Miss Hutchinson has not been able to speak privately and confidentially and without fetter or any perception of fetter to Amina, and she has not in fact been able to communicate at all with Amina since June 2016. As to the father’s non-compliance, Mr. Scott-Manderson said at the hearing that:

 

“The father consciously decided in breach of paragraph 15 not to take her to, or make her available at, the consulate, although he knew all the detailed arrangements which had been made and no excuse or explanation (e.g. ill health, car breakdown etc.) is put forward. There is an impasse.”

The result was that the fact finding element of the hearing which had been fixed for last week was completely ineffective. Mr. Setright and Miss Hutchinson have no recent instructions from their client. They have no “proof of evidence” from her. They have been unable to take her through, or seek her instructions upon, the several statements and exhibits filed by or on behalf of the father. And, of course, they have been unable to prepare any statement from her. The father did, as required by another paragraph of the order of 5 July 2016, take Amina to the Hilton Hotel in Jeddah last Monday at the start of the hearing, from which evidence was to be given by each of them by video link (or, as I was told on the day, by Skype) to the Royal Courts of Justice. However, Mr. Setright was, in my view quite rightly, unwilling to embark on any consideration of oral evidence in those circumstances. It is elementary that a client is not, as it were, put into the witness box blind. It is elementary that an advocate does not cross-examine without having his own client’s instructions as to what the case is. There were in any event no safeguards of any kind as to the circumstances of Amina in the hotel or what pressures, influence or “fetter” she might be under. For these reasons, too, I myself would in any event have been quite unwilling to embark upon the projected “fact finding” exercise.

 

  • I wish, therefore, to make crystal clear that the reason I did not, and could not, embark upon the “fact finding” that had been scheduled for this hearing was, and is, entirely because of the conscious decision of the father not to comply with the paragraph 15 order. It is his responsibility, not mine, that I am impelled to decide the outcome of this hearing on a consideration of the documents, untested and un-supplemented by any oral evidence. Precisely because that evidence is lacking, I do not by this judgment make any considered judicial finding as to any of the disputed facts. I merely record them, although I must comment upon them.
  • Although the father consciously did not comply with the paragraph 15 order, with its more rigorous terms and safeguards and the express purpose of enabling unfettered communication with Miss Hutchinson, he had complied with the earlier order of 12 May to the extent of permitting Amina to have a meeting at the Hilton Hotel in Jeddah with a British consular representative, Amna Ghulam. The father personally was not in the room. However, he insisted on a lady being present who has been described during the hearing as “the father’s representative”. That lady made a note, which has since been typed up in English and is now at bundle p.C165, and she has made a statement that her note is accurate. In view of para.6(b) of the order of 5 July 2016, I will omit parts which make or include allegations against individuals other than the father who is now the sole respondent to these proceedings, but the note requires to be read in full by any court subsequently engaged in this case.

 

“Note: Amina appears dishevelled, strangely unlike her sister covered with a niqab. She appears to have written ‘kill’ or ‘killing’ on her right wrist with blue ink and red or pink ink.

When asked what were her (Amina’s) future plans, if she wanted to stay in Saudi Arabia or if she wanted to leave the country, Amina responded that she would like to leave the country but her family are not allowing her to leave.

Amina stated that she has been locked up in her room for over a year.

Amina stated whilst the British court case is continuing in the UK her family have informed her that she will only get her freedom (study and work) only after the case in the UK closes.

… Since [she dropped the last case] Amina stated she was abused and locked up, which is why she would like to return to the UK.

When asked why is her older sister allowed to have a phone and she is dressed well and not covered, Amina responded that two years ago she kissed a guy (in KAUST [a university in Saudi Arabia]) who proposed to her twice but her family refused him.

Amina stated her family manipulated her younger sister even before she came to Saudi Arabia that Amina is an evil girl and that she should not speak to Amina. Amina continued to say that when her younger sister came to Saudi she already had a bad image of [Amina] but when she came to Saudi Arabia she found a locked up girl with a shaved head.

… [Her father] is the one who locks me up. And the reason for that is because she had kissed a guy two years ago.

Amina was asked if she is still locked up. She responded that the metal bars are no longer in her room but she is still locked up in the house and she is not allowed to use the phone or internet.

… Amina confirmed that the reason why she ran away and build a case … is because she wants to study, work and get married.

When asked if she wants to get married by her way or her family way, Amina responded that she does not care who she marries, she wants to get out in any way possible …

When asked why she chose to come back and live with her family after running away and not choose the shelter, Amina responded that she did not have the choice, the police threatened her with jail if she did not return to her father. She continued to say that her father has the choice to take her to prison and that he always threatens her with it, she also added that the Saudi police advised her father to take her to prison after hearing what she did.

Amina stated that she would like to inform the judge that she is put in a difficult situation because she will get in trouble with her family if the case does not end. But at the same time she does not trust her family.

When asked to clarify what she wanted, Amina responded that her family wants her to say that she lied about her accusations. She stated that it is not true. And that the judge should know that she is not lying. Amina is afraid that if the case continues her father will continue to hit her.

When asked if her father still hits her Amina responded yes. She stated that her father recently threatened her that if she decides to leave he would take action against her.

Amina continued to say that her father pretends to be cooperative with the Saudi authorities, she stated that he once informed a Saudi judge that if she wanted to complain about him he would take her to the police himself. Amina stated that she had asked her father to take her to the police station after he hit her and strangled her, but he refused.

When asked again if her father hits her, Amina responded yes …

Amina is afraid for her safety if she cannot leave Saudi Arabia. She asked that the court would allow the British Embassy to check up on her every month … She also stated that [she was] prevented from going to the bathroom for one month, she was forced to urinate in a cup. She stated that she would get punished when she used her room as a toilet.

Amina requested to speak with her lawyer.

By the end of the meeting Amina had a phone conversation with her lawyer in the UK.

A note was passed under the table to the British representative.”

 

  • The conversation with the lawyer in the UK was not with Miss Hutchinson but with her assistant, Mrs. Wendy Ramus. I do not know what was said, being privileged, but in any event it was not the private, confidential and lengthy opportunity to take instructions without fetter which the later paragraph 15 order required. The consular representative, Amna Ghulam, with whom the meeting took place, has supplied to Miss Hutchinson by email her own account of the meeting. The existence of the email has been disclosed to the court and to the father’s lawyers but the contents are stated by Mr. Setright to be privileged, as the intended purpose of the meeting (thwarted by the presence of the father’s representative) had been to provide a conduit for information and instructions from Amina to her solicitor, and her lawyers here (who cannot obtain her instructions) do not consider that they can, or should, waive the privilege. As the father’s representative’s note was, of course, prepared in the first instance for the father, I do not know what else may have been said which the father’s representative decided not to record. Mr. Setright indicated in veiled terms, but in open court, that Amina’s team consider that Amina could be at heightened risk if her father saw the consular representative’s own email. The note of the father’s representative refers at the end to “a note was passed under the table to the British representative”. As I understand it, that note has not itself been transmitted here to London. Photo shots of it made by a mobile phone have been. They are apparently hard to decipher, but in any event Mr. Setright asserts that similar considerations apply to it as to the consular representative’s own email record and they claim privilege. I have not seen it and I do not know what it says.

 

 

Far from what was needed, which was the chance for this woman to talk in private with her lawyers, to be able to speak freely and to obtain advice.

 

It was a very difficult scenario. On the one hand, the Court was looking at someone who was an adult living in another country – a country where rules and law and customs are not exactly the same as ours and the potential of interfering with that sovereign state, and on the other there was a British citizen crying out for help and no prospect of it arriving if the English Courts did not intervene.

 

Discretion

 

  • The question now is whether, in my judicial discretion, I should actually exercise jurisdiction and make an order and, if so, what order. I have, indeed, approached this case with very great caution and circumspection. I have had firmly in mind from first to last the risk of exorbitance. Caution and circumspection obviously do not depend on the length of hearing alone, but I did hear this case over four long days, during which I heard sustained argument from very experienced leading counsel. I have had very considerable “thinking time”, both during the hearing and since, while preparing this judgment. I have in fact moved during the course of the hearing from a starting position in which I openly expressed extreme doubt and reservation whether I should actually exercise a discretion to make an order, to the position (which, anticipating the outcome, I now disclose) that I should do so. In my view, the admitted or core facts of this case all point to Amina being under a constraint from her father which, having regard to her age, is severe. Her father admits to locking her in the flat for several hours when he goes out. He admits that until recently the barred door in the photograph at p.C85 was in position, restricting her access to parts of the flat, including the kitchen. He admits that the yellow grille at p.C84 is still in place, and although he says that its purpose is only to prevent her from shouting out of the window, that in itself is a constraint upon her means of communication with the outside world. As I explained at para.33 above, I am sceptical that that grille is not in fact restricting her movement within the flat as well.
  • I agree with Mr. Setright that the terms of the document of the Saudi Arabian court dated 12 April 2016 at bundle p.D12 themselves indicate a person under severe constraint. Although now aged 21, she undertakes not to challenge her father’s authority over all her affairs and not to leave the house without his permission. The father’s own evidence in para.15 of his statement dated 16 June 2016 is that if she were to run away, the police, far from offering her protection from her father, would put her in prison. The very recent events in this case, and the father’s refusal to comply with para.15 and to allow Amina even to have unrestricted confidential and secure access to her consul and her own solicitor, vividly illustrate and underline the degree of continuing control and constraint being exercised. Overarchingly, she is under constraint if, at the age of 21, she wishes to leave Saudi Arabia, whether to travel to Britain or anywhere else, and is being prevented by her father from doing so.
  • In all these ways, Amina is disabled from functioning as an independent adult, not merely just out of childhood at the age of 18, but already aged 21. Amina is a citizen of Saudi Arabia. These constraints may be acceptable and even the norm under the law and culture of Saudi Arabia. But she is also a British citizen, and under the law and culture of Britain they are not. They are, indeed, totally unacceptable, and do represent in the words of Munby J in Re SA “… some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do”. If Amina chooses voluntarily to remain in Saudi Arabia, of which she is a citizen, she must, of course, respect and adhere to the law and culture of that society. But the current constraint is denying to her the right to choose to be British and to live in Britain and to respect, adhere to and be regulated by the law and culture of British society. It is true that she is currently present and habitually resident in Saudi Arabia, but that results from her obedience to the will of her father in 2012. It is accepted that she did not travel there voluntarily and of her own free will.
  • In my view, the current circumstances are such that this British person does require protection, in the language of Lady Hale and Lord Toulson in Re B at para.60; and she is currently in a peril from which she requires to be “rescued”, in the language of Lord Sumption in that case at para.87. Nevertheless, I must exercise great caution and not be exorbitant. There are other factors which weigh in favour of exercising jurisdiction. They include that not only is she British, but she was born and brought up and educated in Britain until the age of almost 17. This is a very significant factor. I would take a very different view of this case if Amina had been born and lived her whole life in Saudi Arabia but happened to be British by descent. Her mother and several of her siblings currently still live in Britain and, although she may be estranged from them, their presence here still indicates the continuing connections between this family and Britain.
  • However, there are also powerful factors which militate against exercising jurisdiction. Her father is Saudi and Saudi alone. She herself has dual nationality. The Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws done at the Hague on 12 April 1930 provides at Article 4 that “a State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses”. Britain is a signatory to that Convention, although Saudi Arabia is not. The view of the British Government, expressed in para.3.2 of its Home Office Nationality Instructions, is that:

 

“Commonly known as the ‘Master Nationality Rule’, the practical effect of this Article [viz Article 4] is that where a person is a national of, for example, two States (A and B), and is in the territory of State A, then State B has no right to claim that person as its national or to intervene on that person’s behalf …”

This may in part explain the position taken by the Foreign and Commonwealth Office in their letter of 14 December 2015 that “Amina is a dual national … there is little that we can do to assist her”. But I am being asked to make an order against the father personally. I am not being asked to “afford diplomatic protection” or in any way to act “against” the State of Saudi Arabia in the language of Article 4, and there is no question of my doing so. In any event, in Re A the child concerned had dual British and Pakistani nationality and that was not suggested by the judgment of Baroness Hale to represent an obstacle to the exercise of jurisdiction, save to the extent that dual nationality was one of the considerations which had been raised by Mr. Setright and referred to in para.64.

 

  • The fact that Amina is present and habitually resident in Saudi Arabia undoubtedly militates against the exercise of jurisdiction, but is tempered in this case by the circumstances in which she came to be there: her father’s insistence and command, from which she has since been unable to escape. In Re B at para.59 Lady Hale and Lord Toulson identified “three main reasons” for caution when deciding whether to exercise jurisdiction. First, that to do so may conflict with the jurisdictional scheme applicable between the countries in question. There is no jurisdictional scheme between Britain, or Wales and England and Saudi Arabia. Second, that it may result in conflicting decisions in the two countries. In view of the proceedings in Saudi Arabia in April 2016, this is, of course, a weighty consideration in the present case. As I understand it, however, the “decision” in the Saudi court in April was not so much a decision imposed by the court in the exercise of its own judgment; rather, it was that court expressing its approval of that which the parties themselves had agreed. Whilst Mr. Scott-Manderson argues that Amina’s more appropriate remedy is to make some application of her own to that court, her ability freely to gain access to that court may itself be limited by the constraints, and she certainly has no means with which to fund a lawyer. Further, I regret that I lack confidence that that court would permit and enforce against the father that she is able to return to Britain, since Saudi Arabia does not recognise dual nationality. The court might not, therefore, recognise what might be the fundamental basis of her application, namely her British nationality.
  • The third reason identified by Lady Hale and Lord Toulson is that it may result in unenforceable orders. In relation to that reason, they said on the facts of that case that “it is possible that there are steps which an English court could take to persuade the respondent to obey the order”, although, so far as I am aware, those steps were not further identified. Enforcement is undoubtedly a significant issue in the present case. Generally, courts do not make orders which they cannot effectively enforce, although almost daily judges of the Family Division do just that in relation to children who have been abducted to countries which are not parties to the Hague Convention on the civil aspects of international child abduction. I accept that there is little or nothing that this court could do to enforce against the father in Saudi Arabia any order which it may make if he was determined not to obey or comply with it. There are no conventions in operation between Wales and England, or Britain and Saudi Arabia. There is no reciprocity. The courts of Saudi Arabia would not even recognise the basis upon which I claim and assert jurisdiction, namely the British nationality of Amina, since the State of Saudi Arabia does not recognise dual nationality and, therefore, her British nationality.
  • The father has no assets here of which I am aware, unlike in the case of Re B (see para.21 of the judgment of Parker J at [2013] EWHC 3298 (Fam) at the remitted hearing), but that does not preclude the persuasive force of an order, particularly one made after a very full and thorough hearing in which, although not personally present, the father engaged and fully participated and was fully heard throughout. The situation that will pertain after this judgment is very different from the situation that pertained under the earlier orders, many of which were expressed to be “without prejudice to the issue of jurisdiction”. By this judgment the issue of jurisdiction has been resolved. Further, the father himself voluntarily chose to live for many years in Wales; to educate and to bring his children up here; and to subject himself to both the protection of, and the constraints of, the laws of Wales and England and the legal system of Wales and England. His wife, from whom he is not estranged, and several of his children continue to live here. He may later, if not sooner, wish or have reason to visit Wales or England again, but he could not safely do so if he remained in breach of a significant order of this court, for he would be liable to be punished (if still in breach) for his continuing contempt of court.
  • For all these reasons, I consider that, although the father may ultimately decide to defy any order I make, this court does have considerable moral and also practical “hold” over him. There is no reason why I should assume or suppose that he will not obey any proportionate order which I may make; and I consider that I should proceed on the assumption that he will obey it.
  • There is one further factor to which I should refer. In Re A at para.65(vi) Baroness Hale referred to the absence of any enquiry being made about how the children in that case were. In Re B at para.86 Lord Sumption referred, rather similarly, to an independent assessment of the situation of the child abroad and said “unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country”. This led Mr. Scott-Manderson to submit that, before making any stronger order, this court should first direct or request some similar assessment of Amina by some appropriate authority in Saudi Arabia. There is, however, the significant difference that Re B concerned a child aged seven by the time of the hearing in the Supreme Court who could not speak for herself. The present case concerns an adult aged 21 who (subject to the constraints) can and does.
  • Balancing all these considerations, I have come slowly and cautiously, but ultimately very firmly, to the conclusion that I should exercise the jurisdiction and should make such orders as I can to protect Amina. If citizenship means anything at all, it does include the right to seek help and protection and, weighing all those factors, I should not deny help and protection to Amina. To do nothing at all would, in my view, amount to a dereliction towards Amina and in effect just giving up on her.

 

What order?

 

  • The next and final question is what order I should actually make. There was much discussion during the hearing about my simply repeating an order in the terms of para.15, hoping that now that a full hearing has occurred the father would permit a private meeting to take place at the consulate. He has, however, persisted in his position that he will not do so unless the Foreign and Commonwealth Office give a prior written assurance that if Amina were to seek diplomatic protection or “sanctuary” in the consulate, the consulate would not give it to her, but would hand her over to the Saudi authorities of the Ministry of the Interior. I see little point or purpose in repeating a para.15 order. Its main purpose when made on 4 July was to enable instructions to be taken from Amina so that a detailed up to date statement could be prepared for her, and an effective fact finding hearing could take place. That having been thwarted by the father, I am not now willing to set up another projected fact finding hearing in inevitably several months’ time. There has been far too much delay already in proceedings which ultimately concern liberty and which were commenced now almost eight months ago last December.
  • There has also, incidentally, been far too much expense. I was told by Mr. Setright that the costs and disbursements of Amina, all funded by English legal aid, are already of the order of £50,000. The litigation has not yet cost the father personally anything, since his costs and disbursements are apparently all being funded by or through the Saudi Arabian Embassy, although he may be required later to repay them.
  • In my view, I should, rather, move directly now to an order against the father personally that he must permit and facilitate the return of Amina, if she so wishes, to Wales or England and pay the air fare. He must at once make freely available to her both her British and her Saudi Arabian passports. She needs the former to enable her freely to enter Britain. She needs the latter to enable her freely to re-enter Saudi Arabia if later she wishes to return there for any purpose. I will specify the date by which Amina must be enabled to return as Sunday 11 September 2016. That allows about five and a half weeks for the father to reflect on this judgment and to make orderly arrangements. I myself will be sitting again here at the Royal Courts of Justice from Monday 12 September 2016, and very shortly after that date this case must be listed again before me. If Amina is, indeed, here, she must attend and I will decide what further orders, if any, should be made. If she is not here, I will similarly decide what further orders should be made or action taken.
  • As I require Amina personally to attend, that hearing will, in the first instance, be listed in private so she is not initially burdened by the presence of the media. However, at or before the conclusion of the hearing I will in some way (by judgment or by a statement) inform the public and any interested representatives of the media the gist of what has occurred between now and then. I wish to make crystal clear that, apart from requiring her attendance before me at that hearing, if she has indeed voluntarily returned to Wales and England, I do not make any order whatsoever against Amina herself. The purpose is not to order her to do anything at all. Rather, it is to create conditions in which she, as an adult of full capacity, can exercise and implement her own independent free will and freedom of choice. To that end, I will give further consideration with counsel after this judgment to what mechanism can now be established to enable her freely to state, if that be her own free decision and choice, that she does not now wish to avail herself of the opportunity provided by my decision and this order to return to Wales or England.
  • I conclude this judgment by expressing my sincere thanks to Mr. Setright QC and his junior counsel Mr. Michael Gration, and to Mr. Scott-Manderson QC for their sustained and distinguished written and oral arguments in this case; and to the solicitors on both sides who instruct them.

 

 

See-Saw

 

Although the President reads this blog or at the very least is aware that it is “a well-known and respected law blog”* :-

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1668.html

 

(*sadly that’s probably stronger empirical proof that he DOESN’T read it)

 

my beautiful piece of legislation, the Residence Schemesidence Act is still not on the statute books.  To gaze upon my works, ye mighty and despair, look here

 

https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/

 

Instead of which, we have this distillation of the many principles on habitual residence in family law, derived from a variety of judicial authorities.  Now, bear in mind that this distillation is the work of someone extremely dilligent and bright and who slaved long and hard to make the judicial authorities as SIMPLE as possible.

 

B (A Minor : Habitual Residence) [2016] EWHC 2174 (Fam)

http://www.bailii.org/ew/cases/EWHC/Fam/2016/2174.html

 

  • In her document Ms Chokowry distils a number of propositions that she contends can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 FLR 111 (“A v A”); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772 (“Re KL”); In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038 sub nom Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) (“Re LC”); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, sub nom AR v RN (Habitual Residence) [2015] 2 FLR 503 (“Re R”); Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 (“Re B”).
  • I think that Ms Chokowry’s approach is sensible and, adopt it here, with my own amendments:

 

i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).

ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child’s life that is most likely to illuminate his habitual residence (A v A, Re KL).

iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is ‘shaped in the light of the best interests of the child, in particular on the criterion of proximity’. Proximity in this context means ‘the practical connection between the child and the country concerned’: A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46).

iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R);

v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child’s habitual residence which is in question and, it follows the child’s integration which is under consideration.

vi) Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B);

vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (Re B); (emphasis added);

viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46);

ix) It is the stability of a child’s residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi);

x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added);

xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) those ‘first roots‘ which represent the requisite degree of integration and which a child will ‘probably‘ put down ‘quite quickly‘ following a move;

xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R).

xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child’s best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, “if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former” (Re B supra);

 

  • If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child’s day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the Court to have to drill deep for information about the child’s life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these enquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties. Thus:

 

i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);

ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention;

iii) An application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response;

iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children’s lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.

The simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration.

 

 

I greatly admire Hayden J here for being able to spell out those THIRTEEN principles and then in the next breath use words like ‘clear’ and ‘simple’.

 

Anyway, with those 13 principles in our mind – we’re now super confident that we can deal with any question on habitual residence.

 

Let us examine the facts of the case at hand

 

 

  • Mr Gration, who appears on the half of the mother, has provided a convenient chronology setting out the extent of B’s travels. I pause to note that neither the mother nor the father seemed to have any sense that this level of chaos in their child’s life might be detrimental to her welfare. Indeed, the mother seems to have believed that the opportunities for travel, before she started school, were a good thing for her daughter. I emphasise that B is, at the time of this hearing, still only 3 ½ years old.
  • Another striking fact of this case is that both parent’s call their child by a different name. The father was asked, by Mr Gration, whether he thought that was a bad thing for his daughter. He responded that he had come to realise, during the course of these proceedings, that other people might think this was a bad idea and he volunteered, in future, to call his daughter by the mother’s chosen name. Mr Gration submits that this reveals little insight into the needs of a child. In addition I also note that when in her father’s care, B has found herself cared for, for quite long periods by babysitters that the father has engaged to look after her and who sometimes have been entirely unknown to her.
  • Mr Gration’s chronology, which is agreed, requires to be stated in full:

 

a) November 2014 – December 2014, to Amiens, France with the mother and the father;

b) 19th December 2014 – 21st January 2015 to London, England with the father;

c) 21st January 2015 – 24th January 2015 to Lille, France with the father;

d) 24th January 2015 – 9th February 2015 to Italy with the father;

e) 9th February 2015 – 16th February 2015 to Paris, France with the father;

f) 16th February 2015 – 18th February 2015 to London with the father;

g) 18th February 2015 in London with the mother;

h) 20th February 2015 – 6th March 2015 to Paris, France with the mother;

i) 6th March 2015 – 28th March 2015 in London with the father;

j) 28th March 2015 – 8th May 2015 to Senegal with the father;

k) 8th May 2015 – 5th June 2015 in London with the father;

l) 5th June 2015 – 22nd July 2015 to Paris, France with the mother;

m) 22nd July 2015 – 29th October 2015 in New York, USA with the mother;

n) 30th October 2015 – 31st October 2015 to Paris, France with the mother;

o) 31st October 2015 – 11th January 2016 in London, at times with the father but also being cared for by others;

p) 11th January 2016 – 13th March 2016 to Senegal with the father.

 

  • By way of completeness it should be added to the above that between the 13th March 2016 and 22nd April 2016 B was in London with the father.

 

 

Erm, yeah

 

 

With masterful understatement, Hayden J says this:-

 

It is obvious from the chronology that B’s habitual residence does not reveal itself instantly.

 

(I applaud, but ‘back it up’ also works)

 

Moving on to the see-saw

 

 

  • In my review of the case law I note the observations of Lord Wilson in Re B (a child) (supra):

 

“Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”

Well, you know, I’m the dude who explained adoption law with a riff about iguanadons, so I’m perhaps not the UK spokesman for simple analogies. But I have to confess that I’m not sure where the see-saw analogy gets us to with that sort of chronology.

The sensible conclusion, with that sort of chronology is that for the best part of 18 months, this child never had a settled COUNTRY never mind home. The longest B ever goes is about three months before moving across the Atlantic one way or another.

The Judge applies the 13 principles and comes down on London as being the habitual residence.  I think you could make a case for New York, London, Paris (not Munich, annoyingly) or Senegal.

Whereas on my rules, probably Paul Young gets some new fans, and the child is habitually resident in Dudley.  On the plus side, the complexity of habitual residence law now means that you can ALWAYS make some sort of argument and run up a huge legal bill and squander the scarce resources of the High Court. Oh wait, that’s not actually on the plus side column.

Er, okay, on the plus side, if you read out the case headnote, 2016 EWHC 2174 (fam), the last bit makes you sound ‘street’, because “Fam” is slang now.  (Like ‘blud’  or ‘bred’ren’ or ‘squad’ or indeed ‘homies’ if you’re taking it back to the old school).

Suesspicious Minds –  law blogger  (Fam)

 

 

Back off War child. Seriously

Yet another alleged radicalisation case, this time private law.

Amongst the many allegations, that the father had wanted to give the child a name which in Arabic meant “War”

 

And if you think that a Point Break reference is beneath this blog, then you haven't been paying attention

And if you think that a Point Break reference is beneath this blog, then you haven’t been paying attention

 

Re A and B (Children : Restrictions on Parental Responsibility : Extremism and Radicalisation in private law) 2016

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/40.html

 

There were two children, aged 3 1/2 and 2. The parents are separated. The mother alleged in private law proceedings that the father was showing signs of extremist behaviour and that he presented a risk to the children as a result.

 

Outwith the extremism allegations, there were some very serious domestic violence episodes, and as a result the father was imprisoned and there was an order for his deportation

 

 

  • On the 13th June 2014, in breach of the order made the preceding November, F came within the area of M’s address in Cheltenham, he was carrying mobile phones and various other items and wearing protective motorcycle-wear (he had driven there by car). F was found by a police officer in M’s garden behind the shed and he was arrested, charged and remanded in custody. This incident, which ultimately led to F’s conviction, resulted in a multi-agency risk assessment (MARAC) collating evidence about what the local authority and police considered to be a high risk case of domestic abuse. M said in her statement, and I accept, that she was regularly warned by the police and other professionals that they were worried about her safety and that of the children. She and the children were moved from Cheltenham, to a location which remains confidential. M has become highly anxious, has had counselling (to which I have already referred) and CBT. She describes herself as on a constant state of high alert and is frightened to let the children out of her sight; even to the extent that she is too fearful to allow them to go to nursery school.
  • Following the June incident on 14th October 2014, M applied for a further non-molestation order without-notice; a further injunction order was made forbidding F from using or threatening violence against M or from going near her property; the order made expires on 14th October 2016. On 15th December 2014, while on remand, F applied for CA orders including, somewhat unrealistically, a child arrangements order that A and B live with him and a prohibited steps order. Meanwhile, as arranged by the authorities, M had moved to another address in a different area of the country to stop F attempting to get to her and the children again.
  • F’s criminal trial took place at Bristol Crown Court on 26th February 2015 and 2nd March 2015; he was convicted on two counts of a breach of a non-molestation order and was sentenced by His Honour Judge Tabor QC, on 9th March 2015, to consecutive sentences of 3 years’ imprisonment. The judge made a 10 year restraining order. The court also made a recommendation for deportation as F is a foreign national who had received a sentence of more than 12 months.

 

In case you want to know what the ‘various other items’ were:-

 

 

  • On 13th June 2014 F was in breach of a non-molestation order when he was found by police hiding in the rear garden of M’s home with various items concealed about his person, including a black face covering, a torch, an aerosol spray can, camouflage gloves, a black cutting tool and holder, an eye mask, safety glasses, iPhone and Samsung phone. Another bag containing a hammer and screwdriver was discovered in F’s hiding place behind the garden shed (later found to have traces of F’s DNA) and a search of F’s car revealed two further mobile telephones.

 

Brrr.

 

In the criminal trial, father denied everything

 

 

  • F denied having been in M’s garden at all and said that the police had made up all the evidence and that he was the victim of a big conspiracy. As His Honour Judge Tabor said F had, since the moment of arrest, sought to cast the blame on everyone but himself. F had accused practically every person concerned with the case of lying, including M, M’s family, the two arresting officers, the interviewing officers, the social worker who interviewed F on behalf of the court, and the psychologist who F had seen. F accused his family case solicitors of incompetence and his wife’s solicitors of incompetence. This mirrors F’s evidence in the case before me where, when he is not denying everything he is accused of, he systematically seeks to accuse everyone else of lying about him.
  • In his sentencing remarks, the judge went on to say that the fact was “that no-one really knows who you are. You claim to be Syrian but you came to this country with no passport. You are a man who is a stranger to the truth. It is difficult to believe a word that you say. More concerning is the fact that you appear to be completely unconcerned about the terror that you have inflicted upon your wife, who naturally now fears for her life and that of her children. You are so consumed yourself that you totally ignore the pain that you inflict on others.”
  • His Honour Judge Tabor made reference to the fact that F had chosen to sack his counsel during the criminal trial (he has done so during these proceedings too); he said “when this case started you were represented by a highly able member of the Bar. He would not have allowed this case to start if it had not been ready. On the second day after your wife had been cross-examined, you chose to dispense with his services. I have no doubt that this was your plan all along as you wished to control proceedings. I believe you are a dangerous man, particularly dangerous to your wife and children. You are devious and self-obsessed. There is no mitigation in this case at all other than the fact that you do not have a criminal record.”
  • F denied all the evidence against him in the criminal trial, indeed he continues to do so. In respect of all the items found in M’s garden, F said that PC Rogers had lied to the court and made up his evidence about having found F in the back garden, he was never there. He claimed that the glass cutter found in the bag at the scene had come from his car and was in an emergency bag; that the camouflage gloves were his driving gloves for use when he adjusted his tyre pressures; that the black cutting tool was part of an emergency kit from America to cut his seatbelt. He told the jury that the black face covering was a pollution mask which he used because he was very conscious about his health and that the safety glasses were to protect his eyes when driving because he could not use the air conditioning. His DNA had been found on the handle of the screwdriver, but he denied it and would not accept the evidence. Similarly, F denied that the foot spray found at the scene belonged to him and said that the police had made up this evidence to “spice the case up”. Unsurprisingly the jury did not believe F and found him guilty.
  • The judge passed a total sentence of three years which reflected the seriousness of his offences. These were not minor breaches of a properly imposed injunction but serious and pre-planned breaches which involved another person and F travelling from London having located M and the children. He came fully armed and prepared; as His Honour Judge Tabor said on the 12th of June 2014, having been foiled in his attempt to use his friend to gain access, “you made a far more sinister plan. You went and hid in the garden of your wife’s home in the late afternoon. You had with you: glasses to protect your eyes; a face mask, which would also prevent you from inhaling noxious fumes; a large pair of gloves – it was June; a glass cutting tool; a sharp-bladed tool; a hammer, screw-driver and torch. I have no doubt that you sat in the garden and waited for an opportune moment to break into the house. Furthermore, I infer from your activity, and with what you had brought with you, you were not only going to force your way into your wife’s house but also to do her harm or abduct the children, or both. You were caught in the act of hiding behind a shed in the garden by a police officer who chased you across several gardens before you were finally apprehended. You were to complain that you suffered from a slipped disc, but as the officer pointed out, you appear to have cleared large fences in your bid to escape. This was one of several maladies that you complain of.”
  • This feature of F’s evidence, remarked on by the judge in the Crown Court, was replayed in this court. There was no medical evidence in support supplied by the prison doctors despite F’s attempts to get it. In addition to the three-year term of imprisonment there is a ten year restraining order in place until 9th March 2025. F is forbidden to contact M or the children directly or indirectly (except through a solicitor). He cannot go to any address where she is resident. He cannot enter Gloucestershire except to attend the family court or for pre-arranged visits to see the children. He is not to instruct anyone or encourage in any way any person to contact M or the children (except through his instructing solicitor). On 5th July 2016 my clerk was sent an email purporting to be from F’s father, from whom the court has heard nothing and who had filed no statement within the proceedings. It had had attached an email to M which, on the face of it, was an apparent attempt at breaching paragraph 4 (set out above) of the restraining order by contacting M through the court.

 

 

The radicalisation evidence begins here

 

M claims that A has been caused emotional harm by F’s behaviour towards him; that while still an infant F exposed A to violent films which he watched and told A of his expectation of how A should fight; F had purchased a replica AK47 with laser as a present for A’s first birthday in October 2013 which was unsuitable for his age, and had then posed with his infant son in a ‘Freedom Fighter’ pose.

 

 

  • It was said by Miss Isaacs, in the schedule prepared by her on M’s behalf, that the evidence in support of this included F’s expressed beliefs that non-Muslims are inferior to Muslims, that homosexuals are unnatural and should be killed and that women are subservient to men; and specifically that F “expressed acceptance of the use of violence as a means of ensuring compliance with his views and beliefs”. That it was F’s “expressed beliefs [sic] that it is acceptable to kill those who have left the Muslim religion”; that F had “expressed admiration and respect for Syrian ‘Freedom Fighters’ and [that it was] his expressed view that he would like to go there and fight with them”.
  • It was further said that the risk of radicalisation could be found in “F’s expressed glorification of war including wanting his child or children to be called ‘War’ in Arabic and posing for provocative [sic] photographs”; and that F had purchased bullet proof clothing, gas masks, knives, night time goggles for the purpose of sending to friends in Syria, with similar items having been found and seized by police during an authorised search of F’s flat. This was neither confirmed or denied by the police. The email from the Andrew Fairbrother of the MPS Directorate of Legal Services said that M had not provided a witness statement from them and the MPS investigation “came about in consequence of information that [M] provided on or around the 28/01/14 to the Gloucestershire Police that was passed on to the MPS, and also in consequence of a letter the [M] sent to the Secretary of State for the Home Department dated 11/02/14 that was referred to the MPS on or around 21/02/14”.

 

There was also evidence presented to the Court about father’s controlling behaviour towards mother

 

 

  • It was said by M that F has caused her emotional harm by the use of coercive and controlling behaviour, including financially abusive behaviour. M said that he did so by assuming control of the family finances and isolating M from family, friends and the wider community. In fact, F accepts that M was socially isolated when they lived in London and said in his statement dated 23rd February 2016 “she did not go out at all”. He then goes as far as to say they had arguments because she would not take her head scarf (hijab) off at all, claiming that he “could see no reason for her to be veiled at all times but she insisted on this.” Later in the same statement he says that the family “went out rarely but sometimes went on outings to shops, parks and museums…” At no point in his written evidence does he mention having friends at the home, but later after he had concluded his oral evidence he attempted to have the case adjourned to have further evidence filed or disclosed, including from some friends who, he claimed would give evidence that they visited F and M at home and that M and F had visited in return. Not only was this never mentioned previously, it contradicts his own evidence.
  • To return to complaints made by M she said as part of his controlling behaviour F had forbidden her to speak to men without his permission; and that F forced M to walk on the inside of a pavement when in public to avoid attracting male attention; that F shut her in the bedroom to avoid males when they visited the family home. M said that F used the threat of taking A away from M to make her compliant with his wishes. M said that on several occasions F told M that he would kill her and/or her son if she contacted the police or tried to leave him; and that F made reference to the use of violence as an appropriate ‘tool’ to discipline women to ensure her compliance.
  • F further undermined M both by repeatedly telling her that she was a bad mother and by making complaints to professionals which, in part, led to two investigations by social services departments (which uncovered no reason for concern). M said that his controlling behaviour included F following her to the local social services offices, on 6th November 2013, and that his presence caused her to feel intimidated and anxious. She complained that F was manipulative and that, specifically, he put her under pressure to agree to A being circumcised, disregarding her wishes and causing the baby pain and infection. His manipulative behaviour extended to his withholding information about his mental health, for which he received treatment and he forbade M from mentioning it; during these proceedings he has continuously made allegations that M is mentally ill or unstable.
  • It is M’s case that she and the children are at risk of future serious physical and emotional harm from F because of his behaviour and the threats he made during the time they lived together. She places reliance on the occasion on the 14th October 2013, when F assaulted M while she was pregnant with B, he threatened to get rid of the thing she loved the most, implying that he would kill A if M reported his abusive behaviour to the police. M has said that F frequently implied that he would kill her or A or both of them if she left; he also threatened to take A away from M and to take him to Egypt.
  • It is M’s case that the action taken by F on 13th June 2014 constitutes evidence of an advanced plan by F to abduct or cause serious harm or even death to M and the children. This concurs with the sentencing remarks of His Honour Judge Tabor made in February 2015.
  • As evidence as to the extents that F would go, M relies on what she said that F did during their reconciliation between August and October 2013, when F covertly placed a tracking device in the baby’s pram in an attempt to monitor M’s movements; she says that she discovered by the device on 23rd October 2013.

 

 

 

The father did not redeem himself in the evidence he gave before the Family Court, deploying as his defence that his wife’s behaviour following pregnancy was so hormonal that it had led her to behave badly towards him but that he now forgave her.  You will not be amazed that Ms Justice Russell was not persuaded by this novel defence.

 

 

  • F has filed two statements in these proceedings, dated 23rd February and 23rd May 2016. To the first he exhibited certificates from various courses he attended in prison which, he said, meant that he was a changed man. His case remained that M was lying and had “started a conspiracy against me with the bad people to get rid of me completely.” The identities of the bad people remained unclear. According to F, M had abused him throughout their marriage; had behaved in an aggressive way and had racially abused people, in particular he claimed she was “severely anti-Semitic“, when she had ventured out from wherever they were living. His second statement, which he prepared himself, amounted to little more than a lengthy diatribe against M, the “British Justice System” and an exposition of his view of women based on what he said he had learned in prison. “These courses taught me there is no pregnant female in the world who is herself when she is pregnant. This can last for up to two years after she has given birth, she will recover slowly not only physically but psychologically and emotionally therefore I forgive [M] for what she did to me.”
  • If this is indeed what F was taught in prison those courses are in need of serious and extensive revision and overhaul. His oral evidence was more of the same, an attempt to blame M for everything that happened and to exonerate himself, by applying the platitudinous, misogynistic stereotype of the mentally unstable and emotionally volatile woman, whose behaviour was such that it would have tried the patience of any man to breaking point.

 

The Judge made some powerful findings of fact

 

Findings of Fact

 

  • I have considered the evidence of the applicant and respondent and for the reasons I have set out above, and below, I accept the evidence of M and reject that of F. I find that the applicant’s case is made out and that, apart from the allegations regarding radicalisation, to which I shall return, the specific complaints made by M about F’s violence and controlling behaviour I find to have been proved on the balance of probabilities. F has during their short relationship, which lasted little over two years, repeatedly threatened and used violence against M. The violence had not been slight, or at the lower end of any scale; on several occasions he has seized M by the head and neck and attempted to choke or strangle her; once while saying that he would be able to break her neck in one twist. He has slapped her, kicked her, shaken her and thrown her to the ground when she was pregnant. These are all serious assaults and the choking or attempted strangulation must have been terrifying to endure.
  • These violent assaults took place when A was there and I find that F assaulted M on at least one occasion while she was tending to A which must have caused him distress and probably instinctive fear, even if he was too young to be aware exactly what was going on. I find that he bought the baby a replica assault rifle for his first birthday, which F later posed with himself; and that he watched violent films when the child was there. This behaviour would have caused M to fear for A and that his father was exposing him to, and encouraging him in, the use of violence. I do not accept that F is, as he has said, a peace loving man who would not even harm animals because he is a vegan; as his evidence about this was another example of self-serving evidence which suddenly appeared during his oral evidence without any previous mention of it.
  • F behaved in a threatening and intimidating way towards M frequently throughout their relationship, this included him threatening to kill A on one occasion and, on numerous occasions, to carry out an “honour” killing on her if she ever left him. He was abusive and controlling of M. This abuse included financial abuse with F controlling the family’s finances. I accept that she only had access to the money in the joint account and that the amount of money available in that account was entirely controlled by F. Even on his own account M was isolated from friends and family, but I do not accept that this was her choice, rather I find that he set out to keep her isolated and refused to allow her to mix with other people. I find that he forbade her to speak to other men without his permission; he intimidated her when they were out by making her walk in the inside of the pavement and avoid contact with other men; he shut her in the bedroom when his friends visited him; he repeatedly threatened to take A away from her to get her to comply with his wishes; he threatened to kill her and A if she left or contacted the police; and, that he explicitly told her that violence was the appropriate way to discipline a woman.
  • F made repeated claims to professionals that M was not fit to be a mother; this he continued to do throughout these proceedings and in his oral evidence. There have been two social service assessments of the family because of referrals due to domestic abuse. The first was by Kensington and Chelsea in August 2013 when M and A (then 9 months old) were referred by a senior care health advisor, to whom M had disclosed that F had grabbed her round the neck, causing bruising to her throat, amongst other physical abuse. This description corroborates the evidence in her statements. M was interviewed by a social worker and by the police; she was then taken by her mother from the police station to her mother’s home. As M and A were considered to be living in a “place of safety” outside the borough the case was not taken any further. When M and F reunited this triggered a further referral in September 2013; this time the referral was by the health visitor. M told the social worker that she was a practising Muslim, but not as strict as her husband, and that she had not been in agreement with circumcision, however F had gone ahead with it; M had felt it was cruel and painful for the baby and that it was not necessary (further corroboration of M’s evidence). The risk of further domestic abuse was considered to be raised by M’s being pregnant. The risk was assessed as High. These two s47 CA assessments corroborate M’s evidence.
  • In October 2013 Kensington and Chelsea carried out a further assessment, by which time M had left and gone to Cheltenham, having obtained non-molestation orders against F with support from another agency, Advance. The assessment recorded that the domestic abuse she was experiencing was of the “controlling and intimidation nature [sic]”, such as putting a tracking device in A’s pram, following her when she was out on errands and checking her mobile phone each time she received a phone call or message. F was described as minimising the incidents and that he made out that his wife was “sensitive and over-reacts”. It was recorded that it was not possible to discuss the domestic abuse in detail with M who feared she would be placed at more risk of domestic abuse at home had she done so; as the assessment records the “the fact that [M] fears the consequence of this discussion is evident [sic] of the level of intimidation and worry that his behaviours have had upon his wife.”
  • Again the assessment corroborates M’s evidence. I find that F did place a tracking device in A’s pram, and that he did follow M when she went out; specifically, I find that he followed her when she went to social services offices. As he had done so it was unsurprising that the assessor made the comment about the evidence of the level of intimidation experienced by M. To go to the extent of putting a tracking device in the baby’s pram is an example of the extreme lengths that F would go to try to control and monitor M’s movements; when this was coupled with following her she must have been left feeling terrified, undermined and powerless. I have no doubt that F intended that she should feel that way.
  • It is behaviour such as this which then led to F’s planned, calculated and determined attempt to get to M and the children in Cheltenham. The breaches of the non-molestation order were very serious, as was reflected in the sentences handed down, and armed with a plethora of sinister implements F can only have been intending to cause harm to M and the children or intending to abduct them as the judge said in his sentencing remarks. F posed a considerable and a serious risk to M and to the children at that time and there is no evidence before me that would support a finding that the risk is in any way diminished. F continues to use all means at his disposal to try to circumvent the restraining orders, the fact that those means are very limited is only because he remains behind bars. Based on his past and current behaviour, his denial of his criminal convictions and the absence of any remorse the likelihood is that F would again attempt to track M and the children down and to harm M and abduct the children. Abduction causes lasting harm to children and the risk that it is likely to occur must be taken into account by this court when considering how safe it is to allow F’s involvement in the children’s lives now and in the future.
  • The fear of being tracked down has directly affected the children as it has undoubtedly affected their mother; to live in fear and anxiety will have made her, as their guardian observed, less emotionally available to the children than she otherwise would be. This fear has led to her, and therefore the children, leading much more restricted lives than they otherwise would have done. She was, and is, frightened that F could track her down as he did when she was living down in Gloucestershire and is so fearful that he would manage to do so again that she cannot bring herself to let the children out of her sight. This fear is not ill-founded, it is all too easy to access information on the internet, and F has done this before. For that reason, she has not enrolled A or B in a nursery and it is for that reason that she seeks an order to allow her to change the children’s names.

 

 

Changing a child’s surname is not an easy thing to do, where one parent objects, but I am sure that most readers would be 100% satisfied that it was justified in this case, and so was the Judge.

 

The extremeism elements were more difficult – the police disclosure had not provided any evidence, and as a reader, I was left with the impression that this man was violent, controlling, manipulative and probably a fantasist who enjoyed leading his wife to be fearful of him. In terms of hard evidence that he was connected to Daesh or radicalised, the absence of any police or Counter Terrorism investigation into him made that difficult to prove.

Given the very strong evidence against him in almost every other regard, it wasn’t really necessary to prove those matters. Ms Justice Russell was critical of the attempt to include such matters in the schedule of findings sought.

 

 

  • In private law proceedings where allegations of extremism or radicalisation are pursued as part of the case or findings sought against another party, then it must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • The President’s Guidance: Radicalisation cases in Family Courts issued by Sir James Munby P, on 8th October 2015 sets out a checklist of factors that the court is to be alert to, and emphasises the need for a co-ordinated strategy predicated on the co-operation between agencies. There was no lack of co-operation in this case, but there was a lamentable lack of a properly constructed and focussed preparation of M’s case, based on the evidence, particularly in respect of the allegations of radicalisation, and the way in which this was prosecuted on her behalf. When applications for disclosure were made by counsel it was not even clear which police service was being asked to disclose information about F; the Gloucestershire Constabulary or the MPS. Draft orders for disclosure were addressed simply to “the _ Police”; which can only indicate the lack of information on which those applications were based. No application was made to make use of the 2013 Protocol, and it is difficult to reach any other conclusion other than that the applications were a speculative attempt to bolster the case on behalf of M.
  • In cases where there is accusation or allegation of extremism or radicalisation the party making those allegations cannot rely on them without evidence. Where there are current or past criminal investigations it is necessary to wait for disclosure before the schedule of findings is produced and finalised. In private law, as in public law, the party bringing the case carries the burden of proof; it is on them that the duty lies to adduce evidence in a timely fashion and in compliance with the FPR 2010. Any finding of fact in private law or public law family proceedings, and indeed in all civil cases, must be based on evidence.  As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation“.
  • I am not, however, persuaded by any submission on behalf of F that M pursued the allegations of radicalisation to add to the gravity of the case against F “because someone for his background is an easy target.” M had converted to Islam herself before she met F, but from M’s point of view F is someone who has seriously assaulted, attacked and threatened her. He has tried to control and intimidate her even after she left him and I do not doubt that M felt that F had used his religion to justify his appalling behaviour towards her. She probably said so to the police. I did not hear any evidence about how the investigation of F originated in Gloucestershire and it is not possible to exclude the possibility that the police had seen in what M told them evidence of extremism and had escalated the case as a result. Certainly some of his behaviour was bizarre and had included posing in a museum and elsewhere in battle-dress and with weapons; he had purchased night-vision goggles, gas masks and bullet proof clothing and had shown an active interest in the conflict in Syria (but not in the actions of Daesh per se) so it would have been that behaviour about which M properly spoke to the police.
  • F’s faith and his practice of Islam is a matter for him and his conscience. I was left with no clear idea of the extent and nature of his faith. At first he refused to swear on the Qur’an but when I asked him why he then did so. During his evidence he broke the Ramadan fast, and those, and other aspects of his behaviour, were inconsistent with strict religious observance. I do not doubt, therefore, that he, personally, chose to use his religion both as a means of justifying his violent and controlling behaviour and as a way of intimidating M; such as by saying that women who left the faith would be killed and that if M left him she would be killed.

 

 

 

The father wanted the children to be brought to see him in prison, but the Judge rejected that and made the unusual (but completely warranted) order that father should have no contact.

 

 

  • There is no evidence before the court that would permit me to conclude that F would be able to promote the children’s interests if contact was allowed; or that he is capable of behaving in a manner that would produce a safe and nurturing environment for these two little boys whilst he remains in denial as to his actions and the impact of those actions. Moreover, he has continually been negative and hostile towards M and, even if he were able to have contact without harming M or attempting to take the children, the evidence is that he would use any and every opportunity to undermine her, as their mother, during contact.
  • The impact of direct contact on M is something to which the court can properly have regard, and I take regard of the considerable impact F’s behaviour has had on M already. I have made findings that the extent of the fear he has induced in M has led to her curtailing the activities she and the children can, and do, participate in and has effectively limited their integration into the wider community in which they live. I have no doubt that any order for contact would have a profoundly negative affect on M and would seriously undermine the quality of care she is able to give the children. The guardian is “of the view that these are exceptional circumstances which would, sadly for the boys, merit there being no direct contact.” It is the conclusion of this court that there is no arrangement or available way in which contact can take place so that the children would be safe from the risk of significant harm from F; it remains a fact he has already harmed their mother and caused them to leave their home on more than one occasion.
  • F says he wants to have contact with the children in prison, one can see the benefit for him, particularly in regard to his argument against deportation, but any such contact would be without benefit for the children. They have no relationship with F (because of his behaviour) and so these very young children would need to be brought to prison to be introduced to him; there is no-one to carry out this sensitive work with the children. It is highly unlikely, given their previous assessments, that any agency, local authority or child-care professional would undertake this work or consider it to be in the children’s best interests. Moreover, F is likely to be deported to Egypt in the short term so the likely distressing effects on the children and their mother would be for the short term gain for F alone. In any event, the court will not order contact to take place, even if F were to avoid deportation, because the risk he presents is overwhelming.

 

 

 

 

 

 

 

Jihadi Toddler

Of course the toddler himself didn’t have any Jihadist inclinations, but this is the judgment from the care proceedings where a mother actually took her toddler to Syria, into the war zone and photos were taken and used by Daesh for propaganda of both her and her toddler. She then came back to England and was arrested and convicted in a criminal Court.

This case contains really valuable information about what really went on in Syria and what awaits these Jihadi brides – it makes a very useful companion piece to the recent Hayden J decision about a teenaged girl who had been sucked into this radicalisation and recruitment.

 

Re Y (A child : Care Proceedings :Fact finding) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/30.html

 

 

  • This is a judgement deciding issues of fact and welfare concerning a little boy who was born on 22nd August 2013 and is now two and three quarter years. He was removed by the police from his mother’s care when she arrived back in the UK from Syria in early 2015 and she was arrested by officers of the Counter Terrorism Unit. He was the subject of protective measures for 18th February 2015 when taken from his mother by the police. He has been the subject of an interim care order since 20th February 2015. At first he was placed with foster carers then moved and placed with another foster family in June 2015 and there was some delay in the local authority carrying out assessments.
  • Y’s mother (T) is in prison serving a six-year sentence following her convictions for intentionally encouraging acts of terrorism and being a member of a terrorist organisation (Daesh).

 

The mother’s case, broadly, was that she accepted the facts that she had travelled to Syria and lived  there with her little boy, and then came back to England. She had little choice about that, given the conviction, but she disputed that these events had caused significant harm to the boy – with a view to fighting for his return to her care on her release from prison (which will probably be in about 2-3 years time)

 

Conviction for terrorism offences

 

  • T was convicted on 1st February 2016 at Birmingham Crown Court. The jury found the prosecution case proved that T had been in touch with a known terrorist and was a supporter of ISIS; developing a following on Twitter. T was found to have published statements that encouraged terrorism; images that supported Daesh/ISIS and were intended to encourage people to commit, prepare or instigate acts of terrorism.
  • T was found to have travelled to Syria via Turkey, in order to travel without arousing suspicion. She had had the assistance of a named member of Daesh and as a result was transported to Raqqa in Syria which is a Daesh/ISIS stronghold; Daesh had declared a caliphate in Raqqa. She had left letters for her family saying that she did not intend to return. In the sentencing remarks of the Recorder of Birmingham, His Honour Judge Melbourne Inman QC, said “Exactly what occurred in Raqqa is far from clear. You told lie after lie to the Police and to the Court between February and November 2015 including that you were kidnapped, were not responsible for any tweets and any incriminating photographs were staged against your will. You pleaded not guilty and told more lies to the jury which they have understandably rejected.”
  • The judge continued, “What is clear from the evidence is that you had researched and were well aware of what assistance women could provide for ISIS. Your role would not be to fight; it would be to be a wife and mother – to produce the next generation of fighters“. The expert evidence before the Crown Court was to the effect that women, single women in particular, were subject to very strict rules and allowed virtually no personal autonomy and were subject to savage penalties, including death, for disobedience. This was accepted by T in her evidence before this court.
  • As could be seen from the pictures posted by T she was, as the judge said, “…trusted to have access to firearms and indeed you stated that you had fired one accidentally. You boasted to your family that you had an AK47 and a pistol. The photographs recovered from your phone show you posing with a pistol and at least one form of rifle or automatic weapon”. Unusually for a woman under Daesh control T was allowed to travel alone to Raqqa, it is not clear from the evidence before this court or the Crown Court why this was allowed but T has said that she was married to a fighter.
  • In the sentencing remarks the judge spoke of the fact that T had taken Y with her; “Most alarmingly however is the fact that you took your son and how he was used. In your own evidence you described Raqqa as the most dangerous place on earth. That is one aspect of the aggravating feature of exposing your son to life with terrorists. The most abhorrent photographs however were those taken of your son wearing a balaclava with an ISIS logo and specifically the photograph of your son, no more than a toddler, standing next to an AK47 under a title which translated from the Arabic means ‘Father of the British Jihad’. Someone else took that photograph and sent it to you but it can only have been done with your agreement. You have no control over that image or reproduction.”
  • As the judge observed T was “well aware that the future to which you had subjected your son was very likely to be indoctrination and thereafter life as a terrorist fighter”: this was said after a lengthy criminal trial throughout which he had been able to observe her demeanour. The judge continued in his summing up to say Having seen you give evidence I saw no evidence of remorse about what you had done or done to your son”.
  • T was found to have intended to encourage terrorism; she had 75 followers on Twitter, the statements she posted were considered to have been focussed, published over a period of two months and concerned with the conflict in Syria and the encouragement of terrorism. The promotion of terrorism via the internet is considered a matter of national concern by the criminal courts. T was found guilty of serious offences. She was convicted of a “course of conduct” in travelling to Syria, via Turkey, to join Daesh. The judge considered that particular factors were of great significance in considering culpability and harm and that taking Y with her was a major aggravating feature. In supporting Daesh/ISIS she had been “willing shamelessly to allow your son to be photographed in terms [or poses] that could only be taken as a fighter of the future.”
  • In mitigation it was accepted that T had returned to the UK; that she may have been more vulnerable to recruitment as her marriage had ended after considerable unhappiness; and, that there was the possibility that she had had a change of heart; there was some reduction in her overall sentence as a result. Nonetheless T was convicted of terrorism offences and the sentence of six years reflects their seriousness. She is now subject to an order under the Counter Terrorism Act 2008 (s 47) which places a requirement on her to notify the police of personal details, including her address for 15 years.
  • T will be eligible for release on licence in 2018. She agreed to Y being cared for by his paternal grandmother while she is in prison but it would seem likely that she will seek to have him returned to her care on her release.

 

 

 

 

It may seem to the casual reader that it would be hard to dispute that taking your two your old to a war zone which was being bombed and associating with terrorists would pose a risk to him, but as the criminal court had not convicted her of child cruelty (no doubt having bigger fish to fry) it was open to her to at least argue it. And she was entitled to a fair hearing, so she had very able lawyers to put her case the best way that anyone could.

 

 

  • The local authority asserted that Y would have been likely to have been frightened by the bombing which took place in Raqqa (which T sent WhatsApp messages about at the time) which would have caused Y to suffer significant emotional harm. T denied that Y had suffered significant emotional harm.

 

Let us look at a bit of the detailed evidence about the bombing – remember that her son would have been around two years old

 

  • It is a matter of common sense that Y was likely to have suffered significant emotional and psychological harm during the three months when he was in Raqqa and that it would have been as a consequence of living in conditions where, not only was his mother in fear and crying during the night, but the house they lived in was in an area that was constantly being attacked and bombed. Before I go on to consider the evidence of the frequency of the bombing, the lack of any real concern displayed or voiced by T that Y might have been affected by his experience is, in itself, worrying. If she remains unable or unwilling to think about the effects of her actions in the future, the risk of future harm to Y will remain.
  • The evidence before this court was that the level of bombing was very frequent indeed, this is based on T’s oral evidence and on what she put in her messages on WhatsApp, where it (the bombing) was a constant topic of discussion and a regular occurrence. I set out some examples here:

 

•    On the 1st December 2014 on WhatsApp “no bombs today” and images of buildings on fire.

•    On the 13th December 2014 in conversation with her brother on “They do bomb a lot but we will stay in another place when you visit…”

•    On the 17th December messages with a friend “Do they bomb close to your house?” T answers; Yes very close to the housethe house shakes” and “they just bomb from the sky“.

•    On the 25th December 2014 at 10.58 from T “they bomb my house every day – – my house shakes…

•    On 25th December 2014 conversation with her friend who asks “why won’t I like it” – “because too much bombs and not like England war here never going to end???”

•    On the 27th December from T “they bombed once today – gave number to friend if we die she will WhatsApp u

•    On the 30th December 2015 a message from M referred to “30 bombs” falling in one day

•    When she was interviewed by the police on 19th February 2015 T is recorded as saying “it’s no place for a child…. when they would bomb we would have to go into the basement – you could see the smoke – close smoke …”

 

  • In her oral evidence, however, T tried to minimize the frequency, impact and close proximity of the bombing giving a different picture from the one that had emerged from the messages she had sent in December, including of the house shaking and of bombing being every day (so much so that it was remarked on when there was no bombing on 1st December 2014). The images on her phone and the messages she sent are of frequent bombing close to the house, and as she said to the police, of close, smoking buildings.
  • In her oral evidence T said that on the first occasion, when they were in Raqqa, that bombing took place “everyone was ordered to go to another place in the house…we went to the basement and waited…” T said she was “panicked” felt “frightened and scared” and was worried she would be killed. Y was with her while all this was going on; it is inconceivable that her fear and panic was not transmitted to him. She said “All the women had gone to this place and we stood together and there were looks of fear, some were crying. Everyone walked to a basement and waited in fear”
  • T then tried to minimise the event she had been describing by saying that there had been no immediate panic and that there was a lot of women who were quite content to die as they would have been seen as martyrs. In a further attempt to diminish the dangerousness of their situation she said, when questioned about an image on her phone of a building with a large column of smoke coming from it taken on 1st January 2015, that the building was not on fire it was just smoke and that the building “looked closer than it was.” To try to reduce the evidence of frequent bombings she said that on occasion they would hear a bang in the distance. As she also said that “on one occasion there was 30 bombs” dropped, this was a further contradiction in her evidence which raised questions as to her credibility. It was her evidence that while she and Y were in Raqqa there were about 15 occasions altogether when bombs were dropped, this contradicts the messages she was sending at the time. Nonetheless she did concede that; “It’s not a place for anybody …I would never want my family there.”
  • When she was asked during her oral evidence about the effects of the bombing on the children T said that Y would not have been aware of the bombing or upset because “we just distracted them [the children]“. She had and gave no further explanation of how they had distracted the children or why she felt sure or understood Y to have been unaffected by the bombs going off, the noise, the building shaking and the panic and fear surrounding him.
  • I find it very unlikely that Y, or any of the children, could have been unaware of the bombing. I find it unlikely that he was not upset by it; it is simply not credible. In reality T’s oral evidence amounted to further evidence of a chronic lack of insight, empathy and understanding of what her child must have gone through. T said of Y that “he never cries, on one occasion it startled him but [he] never cried. It made him jump once”. This was in stark contrast to her evidence about the effects on her; when 30 bombs fell she said that the missiles “sounded like when a firework goes off…its very scary…the most scared I have been in my life.” Moreover, I find that it is most unlikely that Y did not wake up and that he stayed asleep as bombs fell all night and the house shook around them as T suggested in her evidence to me.

 

 

 

Even ignoring the risk to her son’s life and limbs in being in a warzone where bombs were being dropped that frequently, the loud noises and panic must have been very frightening for him.  One might argue – I don’t think anyone tried here – that surely not all of the children who lived through the Blitz in World War II also suffered significant harm though of course none of them had mothers who deliberately chose to put themselves and their children at such risk.  I suspect we really won’t know the impact on this little boy until much later in life. I hope with loving care from his grandmother and the right sort of support he will have very limited memories of the experience.

 

 

The mother did describe the impact that it had on her

 

 

  • When she returned to the UK from Syria T said that she had continued to be affected by her experiences “when I first came back a loud bang would make me think what is that!” She went on to agree, when it was put to her, that the bombing did make Y jump and that he was “probably scared“. I find that it is more likely than not that Y was frightened by the bombing in Raqqa. When taken as a whole it is T’s own evidence that she, and therefore Y too, had lived in situation of heightened anxiety and fear, which was also experienced by the other families and children around them. This must have had an emotional impact on Y that was harmful, exposed as he was to frequent bombing, noise, anxiety and the panicked reaction of the other children and their mothers; and, most significantly, given his tender years, the fear and anxiety of his own mother. He was present when, as she told me, she was fearful for her own life. I have little doubt that he suffered emotional harm as a result.
  • The emotional harm would have been compounded by the fact that his mother had taken him away from all that was safe and familiar to him, and from the rest of his family. T severed those relationships and placed him in what was, on her own account, a harsh, restrictive and punitive atmosphere where he was kept imprisoned in a house full of total strangers. It would be quite remarkable if he was unaffected psychologically. T has never given any evidence, description or detail of how she manged to ameliorate this situation to the extent that Y remained unaffected; at the very least he would have suffered harm as a result of being taken away from home, family and safe and familiar surroundings; when one adds the bombing, fear, panic, restriction and threatening atmosphere along with the effects of fear on his mother it is not credible to suggest that he did not suffer significant emotional harm.
  • I find on the evidence before me that there was frequent, if not daily, bombing close to the house; so that on occasions the house shook and that the bombing resulted in damage to other buildings that were close enough to be photographed on a phone. The bombing meant that the other people in the house, adults and children alike, were repeatedly panicked, scared and anxious, that Y, too, would have been frightened at the time of the bombing and that afterwards he would have been anxious about it all happening again. He would have been worried, anxious, distressed and frightened by his mother’s fear and panic. I find that Y was emotionally and psychologically harmed as a direct result of his experiences in Syria.
  • The flight from Syria as described by T must have been a frightening experience for Y, she certainly found it to be so. Later in the detention centre in Turkey, surrounded by yet more strangers, he became ill and was hospitalised. The court was given no details of his illness and treatment by his mother, in what can only be a further attempt to minimise or deflect attention from the effects of her actions on her very young son.

 

 

 

The Court also considered the emotional harm to the child of being drawn into the propaganda and manipulation of Daesh for their own ends.

 

 

  • Y would have been confused and probably caused some anxiety and distress as a result of being photographed in a number of poses which are potentially abusive as they were taken with the intent of promoting violence and terrorism. His image was posted under the title “Abu Jihad Al Britani” next to an AK47 which had been arranged with a caption; it can only have been taken with the purpose of reproducing his image to use as propaganda. There are five images of Y wearing a Daesh logo balaclava and a further three images of Y wearing a Daesh balaclava in the court bundle. There are also images of Y and his mother under a Daesh flag; on the 27th December 2014 T sent a message to a friend asking that they “send me the pictures of me and Zaeem by the flag at Umm Salama maqar.”
  • While the fact that Y was only two years old means that he will not have fully appreciated the potentially exploitative and abusive nature of the photographs it does not alter the fact that his mother manipulated him or allowed others to do so. I accept the local authority’s case that there remains risk of emotional harm when the child becomes aware of these images in the future and of his mother’s role in their production.
  • I find that T was well aware of the use that such images could be put and was aware of the use of children as part of Daesh propaganda as she had stored an image on her own phone of a very young child reading with Daesh flag. T’s explanations in her evidence for the photographs were confused and evasive. T had told me that she had something of a celebrity status in the house in Raqqa because of the activity she had been party to online before leaving the UK and because of the notoriety her case had attracted in the media when members of her family had spoken about her after she left. She attempted to deny knowledge of the pictures such as the “Abu Jihad” photo she said to me “I have no knowledge of this picture…. I didn’t know this photo existed…” She tried to suggest that the picture was a fake by saying, “If there was an expert to tell me this is a real picture…” When she was asked what use the photo may be put to she said “it was never used” thus contradicting her assertion that she did not know of its existence. When it was pointed out to her that she said Y was always in her care and so no-one could have taken pictures of Y without her knowledge the best explanation she could come up with was, “I could have been in the shower…”
  • T’s evidence about the other pictures was equally unconvincing; she said that those in which Y was wearing the ISIS balaclava had happened because it “it belonged to the man of the house….at the time my son liked to wear hats and things on his head at that time. It was not about what it had written on it”. Once again she betrayed in her evidence an absence of any concern or consideration about the potential harm to her son. T claimed, somewhat bizarrely, that the picture taken under the flag was “to show where I was from.” T claimed that she did not think the person who had it would use it for propaganda. As T had both notoriety and “celebrity” status that it was a wholly disingenuous suggestion.
  • From the pictures taken in the house in Raqqa and from T’s evidence Y had been living in an environment where there were a range of guns and where those weapons were used and brandished by his mother and others. Self-evidently the risk of physical harm or even death is high in such a situation. The court had before it numerous images of T and others with guns, including images of T next to a firearm, images of T and other women posing with guns on the balcony. In one such picture there is an image of a child in the foreground which is more likely than not to be Y. There were numerous images of T and other women posing with guns. On the 1st December 2014 she sent a message to M “I have a gun” followed by 11 images of a gun in which a female hand is seen holding the gun and that person is wearing a garment in which T was frequently photographed. On 17th December T sent a WhatsApp message to M “– Wallah I have the same gun as you – AK 47”. Despite telling M in the WhatsApp conversation she had a gun she then claimed in her oral evidence never to have owned a gun; she then said all people involved in Daesh have a gun and said that the “man of the house” and his wife had a gun but could not explain how she came to be holding it in a photograph.
  • T told me in respect of a picture of her with an AK 47 “I’m not holding it in this picture…I am taking a selfie and the person next to me is trying to get me to hold the gun”. To say that T’s evidence in respect of this and other pictures lacked credibility would be to understate the case, her oral evidence is directly contradicted by the images in the court bundles which were also seen by the jury in the Crown Court. In one instance T claimed that she had taken a picture of a woman holding a gun rather than accept that she was the woman in the image herself. She had frequently said that Y was not present while insisting in her evidence that Y was always with her and then, finally, said, “not sure if Y would know what a gun is”. The evidence of the social worker is that Y is all too aware of what a gun is and becomes over-excited by the suggestion of guns and shooting, and runs around mimicking shooting and makes noises of gunfire.
  • T’s evidence regarding the pictures, their use and the role of Daesh “logo” is a brazen attempt to deny something that she is well aware of; when she gave evidence to this court she had not long been convicted of being a member of Daesh/ISIS and of encouraging terrorism (as set out above). The impact of being in the environment of the Daesh household on Y would have been emotionally harmful, and her evidence to the contrary is wholly unconvincing.

 

 

What a world we live in, when a mother could even contemplate this being a suitable life for a toddler. I despair.

 

 

 

If you found this piece interesting, or you’ve enjoyed the blog generally, please pre-order my book, which should be out around December with your support. Many thanks!

 

https://unbound.com/books/in-secure

The Hungarian Games

 

A peculiar case where the parents were agreeing to adopt their child and the fight was about whether that would be in the UK or Hungary.

Hence the title. And not by any stretch of the imagination, a cheap opportunity for a Jennifer Lawrence photo.  Goodness looking through those photos to find a decent one was a terrible hardship.

 

 

I mean, seriously, I had to research the heck out of J Law for this piece

I mean, seriously, I had to research the heck out of J Law for this piece

 

Re AO (Care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/36.html

 

And yes, this Judge was setting me up for an A-O Let’s Go, Ramones * title, and I spurned it. I feel bad and all, but c’mon. J Law!

(*yes I lost my mind in first draft and put the Buzzocks)

In this case then, the parents were both Hungarian, but had been living in England for some time. They had a baby and didn’t feel able to care for the baby, so they contacted the Local Authority to say that they wanted to relinquish the baby for adoption. They understood what was involved and freely agreed to it.  The LA felt that the baby should really grow up in Hungary, to be in touch with the parents culture.  The parents were adamantly against this. That argument meant that the only way the baby could be adopted in Hungary would be if the LA obtained a Placement Order. And in order to do that, they would need to prove that the section 31 Children Act threshold criteria were met – that the child was suffering significant harm, or likely to do so.

Tricky to do.

Let us see how the LA argued that threshold was met.

 

 

  • In this case, the local authority’s case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

 

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

 

  • In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents’ actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.

This position was supported by the children’s guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents’ withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare

 

I think this is skilfully put together, but it is nowhere near establishing threshold.

Unusually, the parents here shared the same silk, Frank Feehan QC, but each had their own junior counsel. I haven’t ever come across that before. But if you think that Frank Feehan QC (of Re B fame) was going to swallow that threshold, you haven’t been paying attention.

 

 

  • On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of “harm” in section 31 (9), and also reminded me of the provisions of section 31(10):

 

“where the question of whether harm suffered by a child is significant turns on the chart’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child”.

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

“society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

 

  • The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO’s background, the parents had in fact given brief but full details of their own families and background and upbringing.

 

 

 

The Judge, Mr Justice Baker, was also mindful of public policy issues – if you make it too difficult and too onerous and too intrusive for a parent who wants to give their child up for adoption to do so, well then you’ll return to the days of children being left in wicker baskets on the doorsteps of hospitals and police stations. There has to be a balance

 

 

  • In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

 

“Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes.”

I observed (at para 47 of Re JL, Re AO)):

“It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home.”

 

  • As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
  • It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother’s care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother’s care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
  • The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
  • Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

 

 

 

As it was not possible to make a Placement Order without either parental consent or satisfying the threshold criteria, it wasn’t NECESSARY for the Judge to rule whether it might be better for the child to grow up in Hungary rather than England  – but Baker J made it plain that he would not have done so in any event

 

Welfare

 

  • In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO’s overall interests, and I here set out the brief reasons for so concluding.
  • The local authority’s consistent view throughout these proceedings was that it was in AO’s interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been “turned into” an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
  • In reply, the parents’ consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
  • The children’s guardian supported the local authority’s plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
  • Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority’s plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
  • I accept that, other things being equal, it would be in AO’s advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO’s needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO’s needs.

 

 

 

A good decision, in my book. And it clarifies the position for other Local Authorities, and indeed parents.

 

Sometimes the law can be fair and kind, despite all the complex language and mystique.

Oh boy, did someone say “Mystique?”

 

Yes, these images are completely necessary to convey the legal niceties of the case

Yes, these images are completely necessary to convey the legal niceties of the case