Category Archives: international

Breastfeeding mother versus gay couple

Posted on May 5, 2015 by suesspiciousminds

 

I think that this case has probably been in the news, or is about to be.

It is yet another example of a case where arrangements that were made before the birth of a child where conception was not the routine (birds do it, bees do it, even educated fleas do it) method, but a complex arrangement between adults that the adults involved did not properly record.

Re H v S (surrogacy agreement) 2015.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/36.html

 

I will use fake names, because I find in these cases that the bare initials just leave you grappling around for what the heck is going on.

The child is M (Mary). Mary was born on 27th January 2014.

Mary’s mummy and daddy were not two people who loved each other very much and when a mummy and daddy love each other very much, they have a special cuddle.

Mary’s mummy S (Sarah) says that she wanted a baby, and a gay man that she knew, H (Harry) agreed that he would provide her with the genetic material to have a baby, and that when she had that baby, she would be the only carer for that child.

Harry, on the other hand, says that he and B (Bob) are in a committed homosexual relationship, wished to have a child, and reached an agreement with Sarah that Harry would artificially inseminate Sarah, and that after the birth, Harry and Bob would care for the baby together, but that Sarah would play an active role in the child’s life.

That is not so much a gap but a Grand Canyon in the different understandings of the people involved.

Ms Justice Russell said this:-

Very sadly this case is another example of how “agreements” between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.

The Court had to deal with this as a straight private law children dispute under the Children Act 1989, rather than an application by Harry and Bob for a Parental Order under Human Fertilisation and Embryology Act, because Sarah did not consent to the making of a Parental Order  (and the Court have no power to make one if the biological mother does not consent)

Also, some of these adults were Romanian, some had been raised in Romania but were of Hungarian birth, and so the child is of mixed Romanian and Hungarian heritage, although all concerned now live in England.

We add into the melting pot of complexity here that the three adults concerned are not all of the same religion and there was a dispute about what religion the child should be baptised into. There was a Court order that Sarah should not baptise the child until the Court had heard argument about this and determined the dispute, but she did, and she also lied about it. Also registering Mary with names that had not been agreed or even discussed.

 

On the 21st May 2014 the Applicants applied for prohibited steps orders regarding the child’s name and her baptism. The Respondent had registered the child on her own with her surname and with first names chosen by her that had not been discussed with the Applicants or agreed between the parties. The Applicants also applied for an order prohibiting S from having M baptised according to Christian Orthodox rites as although all three of the parties are Christian H is a Protestant and B is Roman-Catholic. An order was made by Recorder Bazley QC which prohibited any party form removing M from the jurisdiction or from causing or arranging for her to be baptised or christened. In the event S not only disobeyed the order of the court and had M baptised but lied about having done so. She informed the court and the parties that she had M baptised in October 2014 at the hearing in January 2015; this despite her assurances to the contrary to the guardian in December 2014 and to the court in her own statement dated the 7th January 2015.

 

Towards the end of the hearing, the Court heard that a Tweet had been sent about the case and that the tweet had been tagged with the name of a reporter at ITN, no doubt with the intention of stirring up a public debate.  {I think that I have seen that tweet, or retweeted versions of it on my own twitter feed, which is why I had been watching out for this judgment}

 

  1. At the outset of the trial the guardian (on behalf of M) and the Applicants drew my attention to the publication of information regarding the case on social media. The first was a posting on Facebook on the 5th October 2014 by a person known to be a friend of S. The guardian was made aware of this post soon after it was published but considered that there was no information by which M herself could be identified and decided not to bring it to the court’s attention. I accept from the information contained in it that the source of that information must have been one of the parties (or someone very close to them) and it is more likely than not that that source was S. The person concerned wrote to the court and had been involved in “mediation” between the parties. This is an example of S’s mode of conducting her case not through the court alone but by recruiting support from others to pursue her case in other arenas. I do not accept that he would have published this or the Tweet in January 2015 without her knowledge or consent.
  2. On the 16th January 2015 the guardian was made aware that the same person had made the following Tweet: “Wealthy gay couple force child from good mother’s breast setting bad precedent. Starts Mon19Jan 10am High Court RCJ, court 35,“
  3. The Tweet which was available to anyone online was tagged to alert a reporter at ITN. S denied any part in this tweet, and while it may be the case that she did was not directly involved in posting the tweet, it is in keeping with her conduct of the case during which she sent emails copious emails to the court, to the President of the Family Division and pursued an appeal against the order made on the 1st October 2014 apparently against legal advice. The solicitor for the Applicants, sent an email to the person who had tweeted requesting him to take the tweet down and informing him of the objections of the Applicants to him tweeting about this matter.

 

During the hearing, the mother raised two major arguments. The first was that as she had been breast-feeding Mary, that had led to a bond and relationship which would be damaging to break.

  1. S has made a great deal of her status as a breast-feeding mother and the disruption to M’s routine of staying with her father overnight; not least because M “co-slept” with S and was breast fed during the night. Although some weeks after the hearing concluded S changed her position and agreed to M staying over-night with her father and B it is evident that she did so as she accepted that she had to following the decision to refuse her permission to appeal. Prior to that S had, as I have set out above, used the fact that she continued to breast-feed M as a reason for reducing or limiting contact and claimed that it was in M’s best interest. It is the current orthodoxy, which the court does not gainsay, that breast feeding, if possible, for the first year or more as it provides many health advantages for a child. In her first statement in April 2014 S said that she wanted to breast-feed for the first 9 months; as time has progressed so the length of time she wishes to breast-feed has increased. In her oral evidence she was unable to say how long it would go on but indicated that it would be as long as M wanted it to which could be as much as several years into the future.
  2. Part of S’s case is that she sleeps with M which also provides the child with health and emotional advantages in respect of their co-attachment. The practice is not recommended for babies and small infants as there is a danger of over-lay and as a result may be considered to be more controversial, but that was not a matter that I was asked to decide. This practice when it takes place cannot be used as a reason to inhibit or curtail a child’s right to form a positive and substantial relationship with her other parent or parents; which was a direct effect of S’s practice in this case and she used it as part of her argument to support the curtailment of overnight stays. Based on the needs of a child, as M grows she must be allowed to become independent and grow as a human being separate from her parents and carers. At her age it is most unlikely that she will not suffer any harm sleeping on her own; indeed she has already experienced it without ill effect when she stayed with her father and his partner overnight.

The second was that Harry and Bob were in a gay relationship and that all such relationships were promiscuous and inherently wrong and unstable.

  1. I have now heard the oral evidence of all the parties and read copies of electronic communication between them. The dispute about the agreement is largely based on S’s assertion that she and H decided to parent a child together, and that B was to play no part other than as the child’s father’s “boyfriend”; to use her word. S has sought to present herself throughout the proceedings as a victim and someone whose “rights” as a mother and as a woman have been trampled over and abused. She claims, in terms, that H and B are attempting to remove her child, from her breast, in a cruel and calculated attempt to build a family and that she is being discriminated against and victimised. She describes H and B in an openly disparaging and dismissive way saying that they are not like a very well known celebrity couple (who she names) who have had children by surrogates; “They are not a gay couple having a child”.
  2. S repeatedly made allegations, wholly unsupported by any objective evidence, about H and B; about their relationship and about their lifestyles. About the former she repeatedly relied on stereotypical views on the nature of their relationship suggesting that she knew “they have an open relationship, what gay people call it, have sex in groups.” There is no foundation to this claim which I consider to be a reflection of her deliberate attempt to discredit H and B in a homophobic and offensive manner. At the outset of the case she filled in a form (C1A dated 19th February 2014) alleging harm and domestic violence. She said in this form that H “has an open view on class A drugs. He believes that it is OK for people to use class A drugs and has said he would like to try it himself” She went on that H “is a self-confessed antibiotics user he gets his own supply of very strong antibiotics from Belgium and use [sic] them all the time”. S went on to allege that H might give them to M if he had unsupervised contact; and to allege that there were “loads of people coming and going” from the Applicants’ address and that drugs may be used at that address. None of these allegations were followed up before or during the hearing when the Applicant’s gave oral evidence. The abandonment of allegations during the trial lends little to the weight that that court can give her evidence as a whole.
  3. I had the opportunity of re-reading the emails sent to the court and evidence filed by S both during this case and after it concluded. It is peppered with allegations, innuendo, offensive and disparaging comments about H and B. I do not need to set them all out or repeat them as most of it was never put to the Applicants and was not pursued in evidence. I had the opportunity to see the Applicants and S in court during the five days of the hearing and on other occasions when they have appeared before me. I saw S give evidence and observed her while she listened to the evidence of others. There was never the slightest indication of a cowed, submissive or victimised person. On the contrary she conducted herself in a very confident and most assertive manner throughout. She has sought to impose her will on the court and manage the proceedings. The need to express her breast milk while genuine was used to interrupt and disrupt the evidence of the Applicants. The evidence in support of this was the manner in which she could, suddenly, regulate it after their evidence was completed

 

On the factual dispute – whether this conception was intended (as Sarah says) to be a baby for Sarah to look after with Harry donating his sperm or (as Harry and Bob say) a surrogate arrangement where Harry and Bob would care for the baby but Sarah would play a role in the baby’s life, the Judge heard evidence and read a lot of emails between the main players.  The Judge concluded that the stated  intention between the parties  HAD been for Harry and Bob to be the main carers, and more significantly that rather than this being a case where mum changed her mind after the birth (as can happen), that she had basically tricked and manipulated these men into providing a baby for her when they would never have agreed if they had known it was always her intention to keep the child.

 

  1. The emails do not set out an agreement in terms and it is H’s case that after the beginning of February the discussions were oral and went on to include B. The fact that there are not any emails produced after February supported his case. It also fits in with the insemination taking place about the fourth week of April 2013, in the Applicants’ home with B there on at least one occasion. It is, and I use the term advisedly, inconceivable that B was not aware of what was going on before April and was not party to any of the discussions. In this as in much else I do not accept the evidence of S. Her later use, in evidence, of the term “sperm donor” is completely at odds with the tone and contents of her emails in February. It is not possible to accept both from what H told her in the emails and from the obviously close relationship of H and B (which I have seen at close quarters throughout the trial) that S could have ever thought that she was having a child with H to the exclusion of B; she says so herself in her emails. I conclude that she must have either deliberately misled the Applicants about her intentions or changed her mind as the pregnancy progressed.
  2. On the balance of probabilities, and for the reasons set out above and in the following paragraphs of this judgment, I find that S deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date. Having at first encouraged H to be involved S was already trying to exclude H not long before M was born from involvement with the birth and with the child. I accept the evidence of H and B that S was a part of the arrangements that were made to rent a larger property. If as she claimed they were aware from the outset that any child would be her’s and live with her there would have been no reason to go to the expense of moving and furnishing a larger home. It highly unlikely that S could ever have thought H, who had told her he so desperately wanted a child in his emails, would decide to act as a sperm donor for her, there was no reason for him to do and it would have been entirely at odds with his own plans and wishes.
  3. S has consistently done all she can to minimise the role that H had in the child’s life and to control and curtail his contact with his daughter. Far from being a child that she conceived with her good friend, as she describes it, her actions have always been of a woman determined to treat the child as solely her own. She made sure that H was not at the hospital when M was born; she registered the birth without putting H on the certificate and did not give the child any names except those chosen by her and did not reflect the child’s paternal family names in that choice. The history of these proceedings bears this out; H and B were left with no choice but to issue applications.

 

 

The question then was where this child should live during her childhood?  You need to read the whole judgment to get a proper feeling for the case, there was a lot going on, but it finally gets distilled here:-

  1. The evidence has to be considered in the light of the child’s best interests. I have used the welfare checklist as the basis for my decision because I am concerned with how to best provide for M’s physical, emotional and educational needs under the provision of s 1 (3) (a) CA. Although M is not yet at school it is more likely than not that the parent who can best meet all her other needs and is most likely to be able to provide her with a secure home and stable upbringing with room to grow emotionally for the remainder of her infancy is more likely to meet her educational needs fulfil her potential in the future. The latter requires that M is afforded the scope to grow up in an environment where conflict is at a minimum. M is not yet able to say as she is just learning to talk so I do not know her expressed wishes and feelings but I assume it that for the immediate future she would want to continue to remain with S and continue to spend time with and H and B, including overnight stays.
  2. Any decision that M lives with H and B and spends much less time with S is bound to affect her, likely to upset and distress her in the short term at least and necessarily amounts to a change in her circumstances. However familiar M is with her home with H and B she would miss her mother with whom she has spent most of her time. Against that I will weigh the harm that she is at risk of suffering if she remains with her mother. As she gets older she will become more aware of, and will be directly affected by, her mother’s negative views about her father and B. These views will affect her own sense of identity; negatively inform her view of herself and where she fits into the world.
  3. I can only judge S’s ability to parent M based on recent history and based on that history M is more likely than not to suffer harm; to continue to be taken to the GP and to hospital at times when it is not necessary in furtherance of S’s determination to control M’s contact with H and B or in respect of contact or any other dispute she may pursue over M with H in the future. It is likely that S will present H and B in a negative way to M and give her limited opportunity to understand the history behind her conception and of how she came to be here; nothing in S’s conduct of her case can offer any assurance to the court that S is capable of doing that for M in a balanced way that is free from S’s own agenda.
  4. At present S is able to care for M well physically but there are already grounds for concerns about her mother’s over emotional and highly involved role in this infant’s life. Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body. M spends most of her time with her mother who does not set out any timetable for returning to work, as S would have to, to provide for M and for herself. There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness.
  5. The attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand through out the day and night raises questions about the long term effect on M. From the point of view of this judgment it further begs the question as to who benefits most from the regime S has chosen to impose without reference to M’s father, H. I have little doubt that the breast-feeding was used a device to frustrate contact during the proceedings, a conclusion supported by S claiming at first that she could not express her milk which so reduced the time available for contact; subsequently when it was clear that M could be fed and was able to eat other foods S no longer had difficulty expressing milk. I am forced to conclude that S has shown herself to be unable to put M first and that she is unable to meet M’s emotional needs now and in the long term.
  6. The contact that S has with H and B has been very successful; the guardian who has observed it more than once described M as alert, happy and relaxed in her surroundings. Unlike S, H and B have not made a plethora of allegations against S; apart from those directly concerned with contact or her conduct towards them during contact. They have said that they want there to be as harmonious a relationship as possible between the adults and their support of M spending time with her mother is evinced by the level of contact they suggested. Their conduct has been consistent with this approach and while it is exemplified by an offer of contact which is greatly in excess of that proposed by the guardian they have never sought to exclude S from M’s life and to the end of the proceedings expressed the hope that the relationship between the parties could become more harmonious for the sake of M. The Applicants could easily have adopted the recommendation of the guardian that contact should be once a month but they have not done so.
  7. While to move a young child from her mother is a difficult decision and is one which I make with regret as I am aware that it will cause S distress I conclude that H is the parent who is best able to meet M’s needs both now and in the future. It is he who has shown that he has the ability to allow M to grow into a happy, balanced and healthy adult and it is he who can help her to reach her greatest potential. I accept the evidence of the guardian that H and B have had a child-centred approach throughout. It was obvious from their oral evidence and their statements. H, in particular, has always sought to put M first.
  8. H thought carefully about having a child and his discussions with S in the emails that they exchanged in February 2012 are an illustration of his awareness of the difficulties that would be encountered as well as a clear expression of his very great desire to have a child; and to have that child with B. It is highly unlikely that H would have reached any agreement about having a child without involving B, not least because it would have jeopardised his relationship with B and H’s future role as father to the child he very much wanted to have.
  9. The best that can be said for S is that she deluded herself about the nature of the agreement she was reaching first with H and later with H and B. It is very unlikely that such an obviously astute and determined woman would have left anything to chance when it came to having a baby. While I do not rely on the substance of the CA proceedings in Kent I do take account of the fact that S no longer has her daughters living with her and has limited contact with them. This situation, whatever its cause and whatever her role in it, will indubitably make it more likely that she wanted, as she said, to have another child for herself. The emails that she sent were deliberately misleading and S continued in the deceit, allowing H to believe that he and B would be the main carers for the baby until pregnancy was well advanced.
  10. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M’s identity and place within her family.
  11. M should live with her father H and his partner B as it is in her best interests to do so; I reach that conclusion having had regard throughout to the welfare checklist and to M’s interests now and in the long term.

 

 

The Court therefore decided that Mary should move from Sarah’s care to live with Harry and Bob.  We will wait to see whether the media reporting deals with the substance of the case that the Judge had to decide, or whether it follows the easy sound bite narrative of the tweet – Court rips child away from mother’s breast to give to gay couple…

 

There is a Reporting Restriction Order in place that the child and the adults involved not be named, and as ever it applies to me and any commenters, so if you do know the names, I don’t want to see them here.

 

16 Comments

Posted in case law, international and tagged , , , , , , , , , . Bookmark the permalink.

Angola – gross, inexplicable and unjustifiable delay

Posted on May 5, 2015 by suesspiciousminds

 

This is a judgment by a circuit Judge, His Honour Judge Wood, sitting in Newcastle. It is not binding precedent, but I think that it illuminates some important issues.

 

The mother in the case was Angolan, born in 1977. The eldest child had been born and raised in her early life in a refugee camp in Angola. The family came to England in 2005. It was sadly and brutally apparent that this mother had seen and experienced things that you would wish on no human being, and that obviously as a result, she had severe and serious need of help that she did not receive.

 

 

Re N (Children) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/37.html

  1. I have found this case simultaneously to be very difficult, very sad and also to have made me very angry. In reverse order, the anger flows from the failure of this Local Authority to meet these children’s needs in a significant way. First, the gross, inexplicable and unjustifiable delay, the breach of statutory duty under section 1(3). Secondly, this is a family with, if not a unique background, a relatively unusual and extraordinarily difficult one, which until Mrs Louw reported does not seem to the court to have been really considered at all and even following her report I question the extent to which it was properly embraced. The search for suitable cultural support has come really very late indeed.
  2. Thirdly, the likelihood of the parenting course that the mother was sent on barely scratching the surface was evident before the mother even went on it. I do not say that she learned nothing from it, she was able to explain what she had learned and spoke to me in quite complimentary terms about it, but the real difficulty identified by Mrs Louw was completely beyond its scope. Fourthly, the delay in obtaining the evidence from Mrs Louw was caused entirely by the Local Authority not identifying that need until these proceedings were issued. It was ordered at the earliest point at the case management hearing but by then 17 months had elapsed since the children went into care.
  3. Fifthly, the Local Authority knows about this mother’s isolation. It is apparent on all of the evidence. She belongs to a church but does not mix with other families, at school or elsewhere. She has, on her account, maybe one or two visitors from her church to her home but she does not visit the homes of her visitors and she has no other family or friends, certainly locally. As an asylum seeker from a war-torn country but with children brought up in a western educational system, the potential for cultural issues and expectations to give rise to conflict ought to have been obvious. I do not underestimate the difficulty of finding appropriate help. Even at the end of this hearing it is not clear what does exist but no real attempt was made even to mount a search until much too late. To criticise the mother for not having learnt from five group sessions of an effective parenting course is really just not fair.
  4. Sixthly, the background of being a refugee, particularly from Angola, even with an elementary knowledge of recent Angolan history and absent that an enquiry just on the internet, should have alerted the Local Authority to the likelihood that this mother had experienced real trauma likely to be of a severe kind which should have set alarm bells ringing as to her likely needs. On all of these scores the President’s textbook example of how not to conduct a care case seems to the court to have been met.

 

The Judge was rightly scathing about the delay between the Local Authority taking these children into care and issuing proceedings, some 17 months. With all of the features of this case, it should have been apparent that section 20 would not be sufficient and that proper plans for the long-term future of these children was needed.  Even worse than the delay was that the Local Authority took SEVEN MONTHS to issue the proceedings from the date that they wrote to mother’s solicitors saying that they were going to issue.  As the Judge points out – if the LA had issued when they said they were going to, the proceedings would have been concluded a month earlier than when they were actually issued.

[Even worse than this, the children had been taken into Police Protection a year before the section 20 accommodation, as a result of a physical assault, and then returned home, so the LA were seized of the issues and concerns for some 29 MONTHS before care proceedings were issued]

 

5. I want to say at the outset that the course that this case has taken in the hands of this Local Authority has been deeply unsatisfactory. Following a precipitating event in the middle of June 2013 the children were accommodated with the mother’s consent under section 20 of the Children Act 1989. Despite taking a decision in January 2014 that the plan was to be long term foster care and the Local Authority writing to the mother’s solicitor in March of that year to the effect that proceedings would be issued within seven days, they were not issued for another seven months on 22nd October 2014. As I observed when Miss Woolrich on behalf of the Local Authority addressed me, had the proceedings been issued when the Local Authority said that they were going to issue, they should have been concluded before the date when they were, in fact, issued. That they were not is bad enough but that bald fact ignores the period of nine months that preceded that statement of intent. Thus, these children were voluntarily accommodated for 16 months prior to the issue of proceedings and can properly be said today to have been in limbo now for 21 months.

  2. It is difficult to avoid a direct application of the words of Sir James Munby P in the recent Darlington Borough Council case reported at [2015] EWFC 11 in which he described that case as being, “Almost a textbook example of how not to embark upon and pursue a care case.” A specific criticism from that case that applies directly in this case is, “The misuse and abuse of section 20”, that the President said could no longer be tolerated endorsing, as he did, the observations of the Court of Appeal in Re W [2014] EWCA Civ 1065 and Northampton County Council v AS [2015] EWHC 199 quoting with approval the remarks of Keehan J recorded at paragraphs 36 and 37 of that latter judgment.
  3. This all lies entirely at the door of the Local Authority and requires addressing at the highest levels within Children’s Services and their legal advisors. That said, no parent in such circumstances is left without a remedy. Legal advice is available from the outset of notification of proceedings and it is a matter of both surprise and disappointment that the mother here was not encouraged to force the point as she was perfectly entitled, and I would say bound, to do in the circumstances of such gross delay by withdrawing her consent. I want to emphasise I do not blame this mother personally but it is the fact and a matter of regret that this did not happen long before the Local Authority belatedly got round to issuing proceedings. The effect of delay varies from case to case but in no sense could it here have been described, using the now disapproved term, as being purposeful. It served no identifiable purpose, it has delayed the outcome inordinately for young children wanting their futures decided and, as a matter of law, it has amounted to a complete and inexcusable breach of the statutory delay principle enshrined in section 1(2) of the Act.

 

The Judge sadly had to make Care Orders – one will never know whether if during those 17 months of drift the mother had been given the right help whether the outcome would have been different.

He decided that these failings were not solely those of the social worker but of the organisation and system as a whole, so followed the President’s decision in Darlington not to name and shame the individual workers

 I make a disclosure order to the head of service and to the independent reviewing officer in respect of this judgment which will be transcribed as anonymised, the cost of which to be shared equally by all parties. I should say that for the avoidance of doubt for the reasons that the President gave in the Darlington case itself, I have also directed that the two social workers who have been involved should be anonymised as well because it seems to me entirely unfair that, whatever individual shortcomings may have arisen, the criticisms that have been levelled against the Local Authority should be laid at their door or that they should be identified as responsible.

 

It also seems to me that with all of the demonisation of asylum seekers that goes on in both political discourse and the media reporting, it is worth reading this little passage and remembering that asylum seeker ought not to be used a synonym for ‘sponger’

The mother was born on 23rd October 1977 in Angola. By then the brutal civil war that shocked the outside world had been underway for two years. G was born in a refugee camp in Zambia in 2002 just after that war ended. The psychologist who reported in this case makes the point that the mother grew up and came to maturity in a war-torn country. The central province where she lived is said to have been devastated. The mother herself reports that there came a day in 1999 or 2000 when they “all ran different ways” and she thereby lost contact both with her parents and her sister. She has no idea where they might be – that is to say, assuming they are still alive – and somehow she ended up following a convoy of complete strangers that took her to Zambia. Little more than that is known, albeit the expert assessment of her presentation was consistent with her affirmative nod in answer to a direct question as to whether she had been jailed and/or tortured. She is likely to have experienced first hand, or at least witnessed, extreme brutality that has traumatised her to this day.

 

 

6 Comments

Posted in case law, international and tagged , , , , , , , , , , . Bookmark the permalink.

section 20 and Brussels II

Posted on April 7, 2015 by suesspiciousminds

 

If section 20 voluntary accommodation has been the Wild West for most of the 25 year duration of the Children Act 1989, then in the last few years the Courts have been polishing up the sheriff badges and bringing law and order to the Wild West.  As a result, the territory that remains wild and lawless is shrinking, and may in a few years be limited to a bare patch of land with tumbleweed and old-timers chewing tobacco and relaying curious yarns of how things used to be, way back when.

[If you want to sing that every cowboy has a sad sad song, just as every rose has its thorns, now would be the time]

 

We have had:-

 

Re CA (A baby) 2012  http://www.bailii.org/ew/cases/EWHC/Fam/2012/2190.html

  1. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.
  2. Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8 of the European Convention on Human Rights.
  3. Having made those observations, it is necessary specifically to consider how that may operate in respect of the separation of mother and child at the time of birth. The balance of this judgment is essentially limited to that situation, the one that arose in this case, though some observations will have a more general application.
  4. It is to be assumed (as was the fact in this case) that there were reasonable grounds for believing that the child and mother should be separated and that the officers

Re C (a child) 2014  – dealing with parents who were deaf and had cognitive issues  http://www.familylawweek.co.uk/site.aspx?i=ed128597

there was no provision for interpretation when the father made the important step of agreeing to his baby daughter being accommodated under section 20 of the Children Act. To rely upon the mother who, even if she did not have the unfortunate cognitive disability she has, to interpret complicated matters such as section 20 of the Children Act and the authority being given to the local authority to the father was to put an undue burden on her. Once one understands that she does have these disabilities, it seems to have been wholly inadequate for her to act as an interpreter for him at that crucial meeting

Re P (A child: Use of section 20) 2014 http://www.bailii.org/ew/cases/EWFC/HCJ/2014/775.html

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

Northamptonshire and DS 2014 http://www.bailii.org/ew/cases/EWHC/Fam/2015/199.html   :- The use of the provisions of s.20 Children Act 1989 to accommodate was, in my judgment, seriously abused by the local authority in this case. I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.

 

We can add to that now, this important passage from Hayden J in  RE SR (A child) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/742.html

I must emphasise that where there is, as here, obvious potential for a jurisdictional issue, protracted periods under section 20 voluntary arrangements are highly undesirable. For my part, I simply cannot see how it was ever thought that such an arrangement was appropriate in this case. It has led to avoidable delay and has proved to be inimical to SR’s welfare. Moreover, the objective within care proceedings must always be to consider any conflict of jurisdiction at the earliest stages and, if the matter needs to be tried, it should be so expeditiously.

 

In this case, there had been a very difficult argument about whether the child was habitually resident in England or Morocco. As you can see, the view of Hayden J was that section 20 was inappropriate in a case where there was a real issue about whether the English legal system had jurisdiction.

If you do Brussels II work, there is some very helpful advice about the Moroccan legal system as it relates to children, that would save hours of painful research.

I was persuaded, on the 12th January 2015, to permit instruction of an expert in Islamic and Middle Eastern Law to address key legal and cultural features of the Moroccan care system. Mr Andrew Allen was instructed, an expert in Islamic and Middle Eastern law, a practising barrister, formerly a Deputy Director of the Centre of Islamic and Middle Eastern Law at the University of |London. The child’s solicitor took the lead in Mr Allen’s instruction. Nine questions were identified which were answered succinctly in summary following, a more detailed exegesis of the law. They were ultimately non contentious. To complete my summary of the competing jurisdictional frameworks I set them out in full:

1. What are the principles that determine an application under Moroccan law for the following orders in relation to a child:

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

The basic principle applied in custody and access applications is the interests of the child.

2. Does Moroccan law provide as a matter of right or custom for custody changing from one parent to another or to another person during the course of a child’s childhood?

There is no shift from mother to father at a certain age, as is the case in some Muslim countries (unless the mother re-marries)Article 171 of the Mudawana provides that priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, unless a judge determines otherwise “in view of what would serve the interests of the child”. Applications can be made during a child’s minority and custody can shift. Article 170 states that “The right of custody shall be restored to the person entitled to it when the grounds for its withdrawal no longer exist. The court may reconsider custody when it is in the interests of the child.” Once a child is 15, the child may chose which parent to live with under Article 166.

3. Is there any form of public funding or legal aid available for making any application for orders identified in (1) above?

Public funding is theoretically available. I would tentatively suggest that the practicalities of finding a sufficiently informed lawyer to take on a case for a foreigner, under the Moroccan legal aid system are probably insurmountable.

4. Do the Moroccan courts have experience of recognising and enforcing orders between the UK and Morocco under the 1996 Hague Convention?

The Mudawana is drafted with express reference to Morocco’s international treaty obligations. I am unaware of any Moroccan case applying the 1996 Hague Convention in relation to the UK but the convention does apply as between Morocco and the UK. The existence of the Convention is not known by all Moroccan family judges. Its application is not uniform.

5. How long would it take for a Moroccan court to recognise and enforce an order made in England and Wales?

A Moroccan court would not simply ‘recognise and enforce’ a UK court order. It would give it due weight (in particular if the order is provided in Arabic translation). If Morocco became the habitual residence of SR, then the Moroccan Courts would have jurisdiction and will apply Moroccan law, taking into account UK law (or a UK court order) if appropriate. I do not have knowledge of how long any Moroccan family court process would typically take.

6. Can proceedings be initiated, and if they can which body would initiate them, in respect of a child who is suffering or may suffer significant harm in Morocco?

There is a child protection system in Morocco and the government of Morocco operates a child protection policy. However most child custody issues are sorted out within the family. There have been criticisms of the Moroccan child protection system as it has been applied to returned asylum seekers from mainland Europe (specifically Spain).[1] Under Article 177, the Office of the Public Prosecutor (which despite its name is a part of the judiciary and deals with civil, family and criminal matters) would initiate any court action necessary. Article 172 of the Mudawana states that “The court may resort to the assistance of a social worker to prepare a report on the custodian’s home and the extent to which it meets the material and moral needs of the child.”

7. In what circumstances would the proceedings contemplated in (6) be initiated?

In any of the situations covered by Article 54 of the Mudawana (as set out above).

8. Prior to the mother’s removal of SR from the jurisdiction of Morocco what rights did the father have under Moroccan law in relation to SR?

The father had obligations towards SR as a parent rather than rights. Custody would have gone to the mother under Article 171 of the Mudawana. The father would have had the right to contact under Article 180 and the right referred to in the question below.

9. Did the father have any right, without applying to court, to object to the removal of SR from Morocco by the mother?

Article 179 of the Mudawana gives the court the ability to impose restrictions. In the absence of a court order, the commentary that I have read appears consistently to state that a father must approve a child’s departure from Morocco. I have been unable to locate a specific statute or other piece of legislation confirming this point.

10 Comments

Posted in case law, children and families act 2014, international and tagged , , , , , , , , . Bookmark the permalink.

Children travelling to join ISIS

Posted on April 1, 2015 by suesspiciousminds

The Tower Hamlets case attracted quite a bit of media attention, and the judgment is now out. It contains quite a bit of practical guidance for all agencies where there is a concern that a child is going to be sent or going under their own volition to a country such as Syria with an intention that they join a terrorist organisation such as ISIS.

Tower Hamlets v M and Others 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/869.html

The case was heard, alongside another one mentioned in paragraph 6, by Mr Justice Hayden.

The Judge recognised that the seizure of the children’s passports did not require any evolution or extension of the law, but could be done under existing provisions, but did set out some practical recommendations to be followed.

 

  1. This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself. For example, the jurisdiction was recognised in Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.
  2. Both cases came before me last week on ex parte application. I was satisfied, on the evidence presented to me, both that the measures sought were proportionate and that there were strong grounds for believing the situation was urgent. I remain convinced of both.
  3. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly. Where only the State, in this case through the arm of the local authority, appears in court, it must never be forgotten that the court requires a very high degree of candour on the part of all of those involved.

 

The Judge went on to explain that by candour, he did not just mean honesty and that this was a given, but that the evidence presented to the Court for such an application must be the fullest possible, and that even evidence that would seem to be harmful or hinder the application must be shared with the Court.

  1. Rather, I wish to emphasise that the fullest possible information must be placed before the court in an entirely unpartisan way. Both the evidence which supports the application and that which runs counter to its objectives. Nothing less than that will suffice.
  2. This duty, in such an application, extends not merely to counsel and solicitors but to all involved: police; social services; whichever professional capacity.
  3. Moreover, the lawyers involved must take great care to emphasise and reinforce this obligation to their lay and professional clients in clear and unambiguous terms. This very high degree of candour must also be accompanied by careful consideration as to whether the facts present a real degree of urgency, which of themselves necessitate an application being made on an ex parte basis.

There were a couple of points in the Tower Hamlets case that prompted that – the first being that the orders made necessarily required the police to take a number of actions – the Court had understood that the police were aware and supportive, only to learn at a later stage that the police were unhappy about some of the things they had been asked to do.

This was very serious. Counsel for the Local Authority had specifically addressed the Court on this, and his instructions had been plain that the police supported the Local Authority applications and said so unequivocally to the Court twice. [I will make it really plain that the Judge was satisfied that Counsel had been sold a pup, rather than was intentionally misleading the Court]

 

  1. I had been told by Mr Barnes, counsel who appears on behalf of Tower Hamlets, at the first hearing, on 20 March, when the Local Authority appeared alone, that the police supported the Local Authority’s actions. In fact, I twice asked whether that was the case, and twice Mr Barnes reassured me, unequivocally, that it was. I have no doubt at all that those were his instructions.

Hoerver, after the orders were made, it had become obvious that the police had not been as involved in the process as the Court had been led to understand. To the point that the police had been liaising with the High Court tipstaff about wanting to see if the passports could be handed over voluntarily by the families, and the Judge suspended his orders.

 

  1. However, on Saturday afternoon, I received a telephone call from the High Court Tipstaff to inform me that the police considered that they had not had proper chance to evaluate the risk identified in the Local Authority’s application. And insofar as they had, they considered that enforcement of the orders might not be required.
  2. In essence, I was told, they wished to see if it might be possible to secure the surrender of the passports, as contemplated by the orders, by cooperation with the families.
  3. In view of the fact that this information, given to the High Court Tipstaff, came from a team specialist in counter terrorism, and I have been told authorised at very senior level, I ordered the immediate suspension of my earlier order.

 

That is obviously extremely serious, and the Judge rightly explored it further on the return date.

  1. However, during the course of that hearing, Mr Barnes confirmed that a misleading impression had indeed been given by the Local Authority to the court on 20 March.
  2. Whilst it is correct to say that the police had been informed of the applications, as I was told, investigation of how and when they were told, undertaken at my insistence, revealed that they had only been notified of the application at around 2 o’clock on 20 March by email and had, therefore, no real chance to consider their response.
  3. I pause to say that by 3.30 that afternoon the Local Authority were already before me.
  4. I regret to say that I have concluded that the Local Authority consciously misrepresented the extent of the police awareness of this application. I do not reach that conclusion lightly. It is for this reason that I have felt it necessary to restate that which, to my mind, ought properly to be instinctive to every professional in this field, that is to say the very high degree of candour required in applications of this kind.

Very serious indeed.

 

The second was that there had been an issue over whether one of the children’s passports was (a) missing and (b) whether it was expired in any event. This was obviously a very critical point, given that what was being sought was orders to prevent the children leaving the country. The Court had been given information about this, in good faith, that later turned out not to be accurate. (It is all set out at the end of the judgment if you want to know more)

 

I should like to take this opportunity to distil a number of core principles.

(i) The lawyers should take care to draft, at very least in outline, the scope and ambit of the orders they seek and in respect of whom they seek it. This should be undertaken before coming to court. That will not only expedite the subsequent service of the orders on those concerned, it is also a crucial forensic discipline, compelling the lawyers to think in a properly focused manner about the specific orders they seek;

(ii) Thought should be given, from the very outset, as to how quickly the case can be restored on notice. This is the essential requisite of fairness in the process, now buttressed by article 6 of the European Convention on Human Rights;

(iii) Even though these cases will, of necessity, be brought before the court in circumstances of urgency, they nonetheless require the instruction of senior and experienced lawyers. The issues have profound consequences, not limited to the individuals concerned, and will frequently require a delicate balancing of competing and potentially conflicting rights and interests;

(iv) All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas. It is essential that the court be provided with that material in appropriate detail;

(v) It will never be satisfactory, in applications of this kind, merely to offer verbal assurance, through counsel or any other individual, that the police, security forces or those involved in counter terrorism, are aware of and support the application. There must in future always be ‘hard’ evidence, i.e evidence which is cogent and coherent, placed before the court and capable of being subject to appropriate scrutiny. The format of the evidence may vary from case to case. It may require a police presence in court. There may be the need for police/counter terrorism officers to be represented, written and sworn statements may sometimes suffice. On occasion evidence may be received by secure telephone or video link;

(vi) Justified interference with the article 8 rights of a minor will always require public scrutiny at some stage in the process. In both cases this week, the press attended. It was only necessary for them to withdraw on one occasion, at the request of a very senior police officer present in court, supported by the local authority. The request was made because sensitive issues of policy and national security arose. Transparency, that is to say the attendance of accredited press officials in court, remains the presumption here, as it now is in all aspects of the work of the family justice system;

(vii) Recognising that there will be an urgency to these applications, careful attention, in advance of the hearing, should be given to the framework of reporting restrictions required to protect the child from publicity. In this exercise, it should be remembered that some of the families involved may already have excited a degree of press coverage. Indeed, they may, on occasion, have sought it out. There is a risk that identification of the children might be revealed by piecing together information already in the public domain, i.e. the ‘jigsaw effect’. As, in paragraph 1 above, and for similar reasons, the restrictions contended for should be drafted before coming to court;

(viii) Though it may appear trite to say so, an evaluation of the reporting restrictions, as I have been reminded by the press this morning, should always have at the forefront of the exercise the reality that publicity is not confined to the conventional or recognised media outlets, but extends, with inevitably greater challenges, to the wide range of social media likely to be the primary sources of information for these children, their peers and those with whom they interact more generally;

(ix) The importance of coordinated strategy, predicated on open and respectful cooperation between all the safeguarding agencies involved, simply cannot be overstated. An ongoing dialogue in which each party respects, and I make no apology for repeating the word respect, the contribution of the other, is most likely to achieve good and informed decision making.

 

Comments Off on Children travelling to join ISIS

Posted in case law, international and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

Children and parties

Posted on January 27, 2015 by suesspiciousminds

 

 

Not children’s parties, as in the woman who sent some parents an invoice for failure to attend at her child’s party at a dry ski slope resort.

Expert: Invitation to Child’s Party Not Enforceable

 

This is the Court of Appeal setting out whether children who are the subjects of an order can appeal that order, or be made a party to the appeal.

RE M (Republic of Ireland) (Child’s objections) (Joinder of children as parties to appeal) 2015

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/26.html

 

(The Republic of Ireland bit only refers to the country where the children were being ordered to return to – this is a classic Article 13 Hague Convention piece of litigation, and the principles apply across the board)

 

The Court of Appeal indicate a degree of growing tired of appeals about article 13 and indeed Brussels II, and I have to say that I feel their pain.

  1. In cases under the1980 Hague Convention, speed is of the essence. The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing. The longer the time that elapses following a wrongful removal or retention, the more difficult it becomes to return the child. In recognition of this, judgment is expected to be given no later than 6 weeks after the commencement of the proceedings (see Article 11(3) of Brussels IIa (Council Regulation (EC) No 2201/2003 of 27 November 2003, hereafter simply “Brussels IIa”) and Article 11 of the 1980 Convention. The procedure adopted is summary.
  2. It may be thought paradoxical that a summary procedure such as this should have generated the quantity of jurisprudence that the 1980 Convention has. Over the years there have been many technical and sophisticated legal arguments about how its terms should be interpreted and a significant number of appeals.
  3. Technicality of this sort gets in the way of the objectives of the Convention. In Re P-J (Children) [2009] EWCA Civ 588[2010] 1 WLR 1237, Wilson LJ (as he then was) observed, “Nowadays not all law can be simple law; but the best law remains simple law.” In recent times, it has become increasingly apparent that the law relating to child’s objections under Article 13 of the Convention, as it is presently perceived to be, is far from simple law. To judge by the number of applications to the Court of Appeal for permission to appeal on this point, it is not at all easy to put into practice. Does this have to be the case?

There were two major rows in this appeal. The first was whether a previously decided case, Re T  (which indicated that if a child did object to a move, that would probably be determinative of the application) was now wrong, in the light of the principles arising from the Supreme Court that children as young as 6 could voice an objection   – and the Court of Appeal decided that Re T doesn’t really stand up any more on that point – the child’s objection is one of the range of factors to be considered but is not determinative of the application.

The second was whether the children, who manifestly were objecting but the original trial judge had held were not, could be parties to the appeal or even bring an appeal.

 

The Court of Appeal decided that children CAN appeal or be joined and also give some practical guidance.

  1. There was no dispute that there was binding Court of Appeal authority establishing that the children could in principle be permitted to bring their own appeal, even though they had not been parties in the court below, see for example George Wimpey Ltd v Tewkesbury Borough Council [2008] 1 WLR 1649, referred to in Re LC by Lord Wilson at §11. Neither was there any dispute that they could be joined as parties for the first time at the appeal stage of proceedings. However, the procedural framework for their participation is possibly somewhat deficient.
  2. The FPR 2010 deal comprehensively with the participation of children in proceedings but it was agreed between the parties that when the question of the participation of a child arises for the first time at the Court of Appeal stage, it is not the FPR 2010 which apply but the CPR 1998, which do not cover the ground as thoroughly.
  3. I have already referred to Rule 16.2 FPR which provides that the court may only make a child a party if it considers that it is in the child’s best interests to do so. There is no equivalent provision in the CPR. Rule 19.1 and 19.2 CPR provide:

    “19.1 Any number of claimants or defendants may be joined as parties to a claim.

    19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period).

    (2) The court may order a person to be added as a new party if –

    (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

    (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

    (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

    (4) The court may order a new party to be substituted for an existing one if –

    (a) the existing party’s interest or liability has passed to the new party; and

    (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.”

  4. Rule 52.1 defines “appellant” and “respondent” for the purposes of part 52 as follows:

    “(d) ‘appellant’ means a person who brings or seeks to bring an appeal;

    (e) ‘respondent’ means –

    (i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and

    (ii) a person who is permitted by the appeal court to be a party to the appeal;”

    It includes no guidance at all as to when a person should be permitted by the appeal court to be a party to the appeal, let alone any guidance tailored to the situation of a child who wishes to participate. This does not mean, in my view, that welfare considerations are irrelevant to the decision whether to join the child; they are, as I observed in Re LC, “by no means out of place”. But they are not necessarily determinative and there is no best interests threshold such as there is in the FPR. Although not strictly applicable, I see no reason why regard should not be had to the guidance provided in Practice Direction 16A of the FPR to the extent that it may prove useful in the rather different circumstances of the Court of Appeal and the specialist sphere of Hague Convention proceedings. Lord Wilson referred to it at §§50 et seq of Re LC and I will not rehearse it further here.

  5. Neither is there any equivalent in the CPR to the provisions of the FPR which require or permit a guardian to be appointed for a child. It may be that the provision in CPR Rule 52.10(1) whereby, in relation to an appeal, the Court of Appeal has all the powers of the lower court, would provide a basis for the appointment of a guardian. But that does not arise for decision in this case. Adequate protection for the child’s interests on an appeal can generally be achieved in any event by means of a litigation friend appointed in accordance with Part 21 CPR.
  6. Part 21 CPR deals with children and protected parties. A ‘child’ means a person under 18 years of age (Rule 21.1(2)(b)). Rule 21.2(2) provides that a child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under Rule 21.2(3) permitting the child to conduct the proceedings without. Rule 21.2(4) provides that an application for an order under Rule 21.2(3) can be made by the child. If the child already has a litigation friend, it must be made on notice to the litigation friend but may otherwise be made without notice. The court may appoint a litigation friend by order (Rule 21.6). Alternatively, Rules 21.4 and 21.5 deal with becoming a litigation friend without an order.
  7. The functions of a guardian are well understood by family practitioners and are set out in the FPR. CAFCASS guardians (often with a social work background) are the most familiar guardians but they are not the only type. Lord Wilson observed in Re LC that, had Cobb J made T a party to the first instance proceedings in that case, she would have been required to act by a guardian but that such a status might have been conferred on her solicitor. He also observed (§55) that the grant of party status to a child leaves the court with a wide discretion to determine the extent of the role which he or she should play in the proceedings. He explained the sort of involvement he would have contemplated had T been a party and said that it would have been for her guardian to decide which of the documents filed in the proceedings should be shown to T.
  8. The functions of a litigation friend are no doubt fully understood in the usual civil context in which the system operates although the researches of counsel did not produce any authorities to enlighten us further about how they actually carry out their functions or as to the principles that the court should apply when deciding whether to order that a litigation friend is not necessary. How a litigation friend is to function in the very different environment of an appeal in a Hague Convention case is rather more opaque. No guidance is to be found about that.
  9. Fortunately, this area of work is well served by very experienced solicitors who are familiar with these sorts of proceedings and extremely capable of looking after the interests of the children affected by them. In this case, the solicitor for J and D was appointed as their litigation friend and appears to have been able to discharge that role efficiently and without encountering any difficulties in practice. This sort of arrangement may often commend itself where the question of joining children at the appeal stage arises.
  10. Children need to know that their views are being listened to and that their particular concerns are not being lost in the argument between their parents but it must be recognised that direct participation in proceedings can be harmful for children. As Lord Wilson said in §48 of Re LC, “[t]he intrusion of the children into the forensic arena….can prove very damaging to family relationships even in the long term and definitely affects their interests”. I therefore contemplate that it may be necessary for a litigation friend to guide and regulate the child’s own participation in the proceedings, just as a guardian would. He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing. In the very unlikely event that an intractable issue arises between the litigation friend and the child, there may be no alternative but to ask the court to give directions, but I would expect such a situation to be extremely rare. What I do not think a litigation friend can do is provide a welfare assessment for the court in relation to the child as a guardian would do. However, where the litigation friend is the child’s solicitor, as I anticipate will be so in the vast majority of cases, he or she will no doubt assess the case and guide and support the child in their approach to the litigation, as any solicitor would do for an adult client.

 

Just in case you were thinking that a door has been opened here, the Court of Appeal try to close it, just like you might if you open your door on a Sunday just as Sky Super Sunday is about to begin only to find two well-dressed people wanting to talk to you about Jesus. The door might still be technically open, but there’s no way that anyone is feeling like there is a welcome invitation to come in and break Jammy Dodgers with you.

I end this section of my judgment with a cautionary note. It should not be expected that an application for children to be involved in proceedings, either as appellants or as respondents, for the first time in the Court of Appeal will be received sympathetically. By the time the matter reaches the Court of Appeal, it is usually far too late in the day to address this sort of issue. I have said several times already, and make no apology for saying again, that this needs to be thought of at the very outset of the proceedings. As to how an application made at that stage may fare, nothing that I have said in this judgment is intended to affect the existing jurisprudence on the subject.

 

 

 

1 Comment

Posted in case law, international and tagged , , , , , , . Bookmark the permalink.

child abduction and child abuse

Posted on December 24, 2014 by suesspiciousminds

The case of Neustadt v Neustadt (child abduction) 2014 is an interesting and desperately sad one

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4307.html

 

The bare bones of it are that there were two boys, Daniel aged 8 and Jakob aged 6. Their father, who was Russian, took them to Russia on Christmas Day 2012 and it took 2 1/2 years for the mother to get them back, including having had to litigate in the Russian Courts.

 

The wider aspect of the case is probably in the name of it – although the case relates to child abduction and a state of affairs by the father which the Judge described as child abuse and brainwashing, the family’s real name is published.

That is unusual, and many readers might well be wondering why it is okay to do that in this case, but children’s names have to be anonymised in other court cases.

  1. The above judgment was handed down to the parties on 26 November, with a request for submissions on the question of publication. The response of the mother and the Children’s Guardian, represented by CAFCASS Legal, is to support publication in un-anonymised form. The father does not oppose publication in all circumstances, but suggests that the issue should be deferred until welfare decisions about the children have been made. He argues that there is a high likelihood of an adverse impact of publication on the fairness of the proceedings and on the children’s welfare and that the issue would be easier to judge at the end of the proceedings.
  2. I agree with the submission for the mother and the Guardian that there is a public interest in the true circumstances of this case being known, for these reasons: (i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.

    (ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyers work together across jurisdictions.

    (iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.

  3. Like the Children’s Guardian, I do not consider that any serious or lasting disadvantage will come to the children from further publication. The existing publicity does not seem to have had any adverse effect on them.
  4. It is clear that an anonymised judgment cannot be published as the identity of the family would immediately be obvious.
  5. The only remaining question is whether publication should be delayed, as the father suggests. I understand the general argument that in some situations publicity could put pressure on professional assessors, or even on the court, but I do not accept it on the facts of this case. The welfare assessment that will now take place will be carried out by experienced professionals. The court’s welfare decision will not be influenced by publicity. The British media has reported the case responsibly and in my view nothing is to be gained from postponement. On the contrary it is in the interests of the family that its time in the public eye begins, and thus ends, as soon as possible.
  6. Accordingly, this judgment can be published as it stands.

 

There were some dreadful details in this. One theme which kept emerging was the father taunting the mother in a very literary way.

On 22 January, the father e-mailed a poem by Nietzsche to the mother. It is entitled “Vereinsampt” [“Alone”]. The mother correctly interpreted this as the father crowing

 

and

On 7 March, the father ordered a book online that was delivered to the mother a few days later. This was “Glory” by Nabokov, which describes a Russian émigré who re-enters Russia secretly and succeeds in keeping his whereabouts unknown from family and friends.

 

I don’t think I have come across a case before where the menacing communication was by way of literary allusion, and a set of Cliff study guides would have been of assistance

The father had gone to extraordinary lengths with these children

The children lived in these bizarre and unlawful circumstances between November 2013 and June 2014. The only reliable source of information about how they were treated comes from their later accounts to their mother. They have told her that there were many rules of life. They were told that they were being hunted by violent “bandits” who were trying to kidnap them and that she was in the gang. They could only go outdoors one at a time so that no one would see both boys together. They were not allowed to go out on the same day. They were not allowed to look out of windows. On one occasion they had to crouch down in a car. They were given different names. They could not go to school. They were coached to say why they did not want to live with their mother.

 

 

 

  • 90The mother says that the protracted collection was “horrific”, despite what she describes as the very professional approach of the authorities. The father was out and the grandmother, who had stayed with the children, did everything she could to obstruct the process. Her behaviour included:
    • Refusing to open the door until the bailiff started to drill off the locks.
    • Grabbing the children and inciting them to panic by shouting phrases that the children repeated in a monotonous drone: “No, no, no! Mummy is bad!” “They don’t want to go to England, they want to stay in Russia!” The children later told their mother that they were doing what they had practised.
    • Refusing to release the children and smacking the mother’s hand when she tried to touch and reassure them.
  • Refusing to hand over the children’s passports.

 

and

On 4 July, the father wrote an article in a Russian online newspaper, describing the children’s “forcible seizure” and saying that:

“There are about 15 people in plainclothes who took part in the taking away of the children, among them were foreigners dressed as members of a US-centric religious organisation, as well as a bailiff brought by them, who refused to produce any documents for the removal of children, but explained that he was contacted by the USA Embassy and ordered to use force. … The persons who broke into the flat used force towards the children and dragged them away by force, parting them from their father and grandmother against the children’s will. The children resisted in every possible way, cried, screamed that they wanted to live in Russia with their father and would never agree to leave for the USA or England. The children, who think of Russia as their Motherland, were irremediably traumatised by such fascist punitive squad’s methods.

The children are Russian citizens; they are fully integrated in Russia, their only native language is Russian … My children and I are Russian citizens, who legally returned to Russia in 2012. … There were numerous offers of amicable settlement suggested to the foreign party, but they were fully ignored under the pressure of Russophobe milieu of the children’s mother. The father is the only legal representative of the children in Russia, and children love Russia and the Russian culture very much.

I am requesting that all mass media, Russian authorities and human rights activists should assist in the immediate search for and discovery of children’s whereabouts … in prevention of children’s isolation from their father and their removal to the USA via England. In case of such removal and full isolation from their father in the foreign-speaking environment, the children will suffer another psychological trauma which will haunt them their entire life.”

 

The Judge’s findings were powerful and moving

 

  1. My findings
  3. These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.
  4. The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.
  5. The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.
  6. Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.
  7. The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of the children’s lives. This was not just child abduction, it was child abuse.
  8. One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.
  9. The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.
  10. At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.
  11. Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.
  12. The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.
  13. The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.

 

Happy families are all alike; each unhappy family is unhappy in its own way

3 Comments

Posted in case law, international and tagged , , , , , , . Bookmark the permalink.

The tussels from Brussels

Posted on December 9, 2014 by suesspiciousminds

 

{Warning, this post contains some Brussels II stuff, but it also has something potentially important – I’ll try to keep it short}

 

A v D and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3851.html

 

It involves a 3 year old girl, mother is Polish, father English. They lived together in England but then separated. Father became worried that mother would remove the child to Poland, and applied to the English Courts for an order preventing that.

In April 2012, the father, concerned that the mother might remove E to Poland, issued proceedings in the Bournemouth County Court seeking a prohibited steps order preventing her from removing the child from the jurisdiction, together with a parental responsibility order. After two preliminary hearings, the matter came before District Judge Dancey on 3rd May 2012. A transcript if that hearing is now available. The mother, who was represented, gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the end of that period. The father, who was acting in person, indicated that he would not oppose the mother taking E to Poland for a holiday, although he expressed some unhappiness at the length of the proposed visit. On the basis of the mother’s undertaking, the District Judge made an order permitting the mother to remove E to Poland for the purposes of a holiday between 14th May and 16th July 2012.

 

It will not surprise any of you cynical hard-bitten readers to learn that she never came back from that holiday.

 

  1. Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the Bournemouth County Court stating that she did not intend to return. On 24th July 2012, the father filed an application with the Central Authority for England and Wales under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, (hereafter referred to as Brussels II Revised), seeking the summary return of E to this jurisdiction. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore. The father’s application under the Hague Convention was pursued via the Central Authorities but on 17th December 2012, it was dismissed by the district court in Ruda Slaska in Poland. The father’s appeal against that decision was subsequently dismissed on 24th October 2013.
  2. On 30th April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before me in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. In the reserved judgment delivered 31st July, I held that this court had jurisdiction to entertain the father’s application for orders concerning matters of parental responsibility. In the course of legal argument at the hearing, however, I indicated to Mr Edward Devereux, counsel for the father, that I proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland. Mr Devereux thereupon submitted that the court had no power to transfer proceedings under Article 15 because no party to the proceedings accepted the transfer, but seeing that this argument did not initially find favour with the court, he asked for further time to consider the issue, having regard to the fact that it had only arisen in the course of argument.

 

I’ll dash through it quickly, because everyone hates Brussels II. A Court can, and now must, consider whether the proceedings ought to be transferred to another EU Country to deal with, if they are better placed to deal with them AND the child has a connection to that country.

 

For these purposes, the connection is either:-

That the mother, who has PR, is now habitually resident in Poland

OR

that the child has acquired habitual residence in Poland AFTER the English Court started to deal with the case

 

The father’s case (and I have a huge amount of sympathy for him here) is that the mother and child are only in Poland because mum abducted him and breached Court orders, yet she is now being rewarded by having the Court case on home turf – to transfer would be to reward her for her wrong-doings.

 

  1. First, Mr Devereux informed me that this case presents a factual situation which, so far as counsel have been able to discover, has not been considered before in any reported case, that is to say a proposal, arising in private law proceedings following the unlawful retention of a child, to transfer the proceedings under Article 15 to the country in which the child has been unlawfully retained. Mr Devereux stressed the fact that E is only in Poland as a result of a wrongful act perpetrated by her mother. On any view this is a blatant case of child abduction and it is not right for a court to reward a party who has acted unlawfully. Furthermore, the mother appears to have committed perjury before the English court. A transcript of the proceedings before District Judge Dancey has now been obtained and demonstrates clearly that the mother gave a promise on oath that she would return E to the jurisdiction of this court in July 2012 at the conclusion of the holiday. The father has launched committal proceedings for contempt of court arising out of the mother’s breach of her undertaking and it is asserted on behalf of the father that he will continue to press this application. In those circumstances, proceedings will in any event be continued in this jurisdiction. Mr. Devereux submitted that it would therefore be undesirable for proceedings to be continuing in both countries.
  2. Mr Devereux further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.
  3. Mr Devereux further submitted that, all things being equal, E’s best interests would be served by having a relationship with her father and her father being involved in her upbringing. This court can ensure that this happens speedily by making a child arrangements order for contact and issuing an Annex III certificate which could be automatically enforceable in Poland. In contrast, if the case is transferred to Poland there is, submitted Mr Devereux, no guarantee that any application made by the father would be heard expeditiously nor, if and when it was heard, that he would be granted contact with his daughter.

 

As the Judge was Baker J, the law is flawlessly applied and set out, and the approach was really to answer the three questions posed by Munby J (as he then was)

In AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

Secondly, it must determine whether the court of that other Member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

Baker J found that the answer to all three questions was yes, and that the Polish authorities should be asked to take over the case.

Part of his thinking here was that with a mother who was living in Poland and adamant that she would not return to England and play no part in any Court proceedings in England, there was no likelihood of any actual contact for father getting underway.  [My reading of the case is that father was seeking to spend time with the child, rather than have the child live with him full-time. That might have made a difference, it is hard to say]

 

25. ..without the mother’s cooperation and participation in the proceedings, it is highly unlikely that any court will make any order for contact in this case. All the evidence suggests that the mother does not intend to take part in these English proceedings, and without her co-operation the father’s application for contact cannot be resolved by the English court. The fact that the father is intending to pursue his application in this jurisdiction to commit the mother for contempt makes her participation in any English proceedings concerning parental responsibility and contact even less likely. She may also be reluctant to take part in proceedings in Poland, but crucially the Polish court would have the power, should it choose to exercise it, to oblige her to participate. Although the father would be at a considerable disadvantage were he required to participate in proceedings in Poland, it is reasonable to expect him to do so to the best of his ability. It may be possible, however, for ways to be found to assist his participation in Polish proceedings.

  2. When one turns from the fact-finding hearing to the welfare stage of the proceedings, it is plain that the balance of the evidence on welfare matters lies in Poland. I agree with Miss Green’s observation that the Polish courts have a very real advantage by reason of the child’s presence within their jurisdiction. This makes it possible for all necessary enquiries and investigations as to her welfare to be carried out there. E is living in Poland. Her life centres round her mother and friends and family in that country. Any contact will inevitably have to start in Poland. There would of course have to be some investigation of the father’s circumstances, which would involve consideration of his home and life in this country. But the preponderance of evidence as to welfare matters will arise in Poland.

 

I don’t doubt that this is the right decision in law – I’m a fully paid-up member of the Baker J fan-club  (I have the badge, and I know the secret handshake), but God, this seems utterly unfair to this father. He did the right thing – he got an order from a Court to stop mum taking the child to Poland, only to find that in the teeth of someone who was prepared to breach it, Article 15 of Brussels II rewards her and punishes him.

And this happened without mum even ASKING for Brussels II to apply.

2 Comments

Posted in case law, international and tagged , , , , , , . Bookmark the permalink.

Dangerous Territory…. Assessment of a parent who is overseas

Posted on November 21, 2014 by suesspiciousminds

I have been somewhat sniffy about certain judgments this week, but once in a while I come across one that tackles a difficult issue and does so with compassion, verve and flair. This is one of those.

 

The Judge is Hayden J, and there is so much to admire in this short judgment.

 

Although some of the facts are very specific, I suspect that parts of this judgment will be of wider use to professionals and Judges picking their way through the potential minefield of assessment of a parent who lives in a place that the West might consider dangerous, and the issues that are thrown up.

 

London Borough of Tower Hamlets and D 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3901.html

 

 

The father in this case lives in Somalia and would be unable to come to England to be assessed. The Local Authority had explored various options for assessing him in Somalia and had been unable to get any of them in place (we’ll come onto that detail later). The father had identified an independent social worker who might be able to conduct the assessment, and the issue before the Court was whether to grant such an assessment.

 

By way of backdrop, Hayden J summarises the principles in assessing parents or family members in this way

 

I approach the task by identifying three principles:

 

 i) every opportunity should be made to explore the potential for a child being cared for by a parent;

ii) this obligation (for it is nothing less) is a facet of both the child’s and the parents’ rights pursuant to Article 8 ECHR;

iii) in evaluating the reality of the available options and the ambit of the assessment that needs to take place, it is the welfare of the children that remains the paramount consideration.

 

Weighing the measures required actively to promote the upbringing of a child by his or her parents will be a matter which is inevitably sensitive to the facts of the individual case. It will not always be “necessary” for there to be, for example, a comprehensive assessment of a parent. There will be cases where from the outset the obstacles to a parent’s wish to care for a child, no matter how genuine or profoundly expressed, will be so substantial as to make it obvious that other options require exploration as a priority eg: another family member.

 

 

Whether an assessment is “necessary” will therefore depend on the facts. Here the Local Authority, supported by the children’s guardian, submit that for a wide variety of reasons the father cannot and need not be assessed. The father, who is living in Somaliland, cannot obtain access to the U.K. but is represented by Counsel. Mr Millington, on his behalf, has endeavoured to address the obstacles that the father faces.

 

 

 

Hayden J touches on what a different climate we live in now than the one that existed when the Children Act was put together.

 

I should observe that, to my mind, even the prescient architects of the Children Act 1989 could not have envisaged the considerable cultural changes that were to take place in the United Kingdom in the 23 years that followed the implementation of that Act. British society is now multicultural. Assessing parents and family members may, quite frequently does, involve considering individuals based anywhere in the world. I do not believe that the obligation to explore the family option for a child is weakened in any way by geography, although it can provide real challenges to already overstretched resources. The viability of these options must, from the outset, be evaluated rigorously and reviewed regularly. The need for such assessments must be addressed at the very beginning of proceedings. Late identification of potential family carers abroad may bring two fundamental principles of the Children Act into conflict, namely the desirability, if possible, of a child being brought up in its extended family (where parents are for some reason unable to care for the child themselves) and the need to avoid delay in planning for a child’s future. Neither principle should be regarded as having greater weight. The recent reforms to the family justice system have sought to emphasise why it was that the avoidance of delay was given statutory force by the Children Act and the real and lasting harm delay causes to children, particularly in public law care proceedings. There will, in my judgement, be occasions when the obstacles to assessment of family members abroad create such delays that to pursue the option will be inconsistent with the child’s own timescales. These are taxing and exacting decisions but they require to be confronted with integrity and without sentimentality.

 

 

Hayden J goes on to warn of the risks of cultural relativism

 

The court must also be alive to the dangers of slipping into cultural relativism. The fact that a family member may live in a country where there are high levels of crime for example, or terrorism, corruption, or civil unrest will undoubtedly be relevant to the overall evaluation of the factors set out in s.1(3) of the Children Act 1989, but to my mind they will rarely, if ever, be determinative in and of themselves. It is the care offered by the individual that weighs most heavily and not the challenges faced by the State in which he lives. In any event these will often be facets of the child’s own cultural inheritance.

 

 

[The Judge manages to compress into ten lines something that took me nearly two pages in my article for Jordans http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-relatives-culture-and-cultural-relativism ]

 

 

The judgment then sets out the sad history of the case for these two children, which is desperate even by the nature of such cases, the mother having pleaded guilty to causing the death of their sibling by neglect – this neglect was also something that these children suffered from though not with such drastic consequences. {the details are terrible, including the paramedic saying that the child looked like someone from Auschwitz}

 

It then sets out the efforts that have been made to assess the father, who lives in Somalia.

 

The Parties attempts to address the International Obstacles

 

 

Earlier in these proceedings the local authority, guided no doubt by counsel, Ms. Cabeza, proposed to identify a Somali speaking social worker and dispatch her to Somaliland to undertake an appropriate comprehensive assessment, no doubt tailored to the particular cultural features of the father’s own domestic situation. However it quickly emerged that Somaliland would be too dangerous for the social worker to travel to. That information came from two sources: firstly, the Foreign Office and Commonwealth Office (F.C.O) secondly from C.F.A.B. (Children and Families Across Borders) formerly, International Social Services. The Foreign and Commonwealth Office advised against all travel to Somaliland except two cities, Hargeisa and Berbera, to which the F.C.O. advise only “essential” travel. The F.C.O. offers guidance to British nationals, that is part of its function. It recommends that any British nationals in areas of Somalia to which it advises ‘against all travel’ should also leave. Similarly, any British nationals in the two towns that I have referred to, who are not there for “essential purposes”, are also advised to leave.

 

 

There is a ‘high threat’ in Somalia from terrorism including kidnapping. Terrorist groups have made recent threats against westerners and those working for western organisations. The FCO believes that this is a “constant threat”, and according to its intelligence there are terrorist plans “in existence” to attack westerners in Somaliland. It considers that terrorist attacks could be entirely indiscriminate. They could take place in crowded areas or at high profile events. They could involve government officials and places frequented by foreigners. As is known internationally, there is also a significant threat of piracy in the Indian Ocean and in the Gulf of Aden.

 

 

The FCO advises that all areas in Somalia are suffering from significant food shortages and as a consequence there has been displacement of thousands of Somali people. The consensus understanding of the guidance is that where it refers to Somalia it also incorporates Somaliland, Somaliland itself not being internationally recognised. As a result of the food shortages there is a profound problem with food security which has led to dangerous levels of criminal activity not infrequently by armed militia. There have been murders, armed robbery and a number of incidents of kidnapping.

 

 

That already complex picture is further complicated by regular outbreaks of what is referred to “as inter-clan related violence”. There is particular tension on the Somali and Puntland border in the Sool and Sanaag regions which, on the map I have been shown, can be seen to be not far from where the father lives. That is the essence of the guidance given by the F.C.O. CFAB largely follow that guidance and advise that they have no international social services provision available at all in Somaliland.

 

 

Having considered that body of compelling evidence, the local authority inevitably concluded (rightly to my mind) that they could not send a social worker as they had originally envisaged. However they have been able to speak to the father on the telephone. All of this has informed their approach to the father’s desire to care for the children. On 2nd June Mr. Brian Sharpe filed a statement. Mr. Sharpe is the Local Authority’s court work case manager. He has oversight of all the Local Authority’s public law applications and his role is to work with social workers and their managers to improve standards and support good practice in their work with children who are the subject of care and supervision proceedings. In his statement Mr. Sharpe sets out, in a succinct and accessible way, the structure of the Local Authority’s reasoning informing its ultimate decision not to send a social worker to assess the father of the children.

 

 

Firstly, Mr. Sharpe emphasises (as in my view he is right to do and as I have already outlined) that the Local Authority had initially been prepared to send a U.K. social worker from a Somali background to undertake the assessment. He further stresses that their commitment to the assessment was evidenced by the fact that they had identified three Somali social workers working in the UK before in fact selecting a particular social worker. In addition they had explored the possibility of instructing an external, independent social worker. Mr. Sharpe set out how, on receiving the advice of the FCO and CFAB, the authority came to the conclusion that it would be simply unsafe for a social worker to visit Somaliland. The decision was taken by the Local Authority’s interim head of Children’s Services. Mr. Sharpe says that is an indication of the extent to which this Local Authority has subjected this matter to scrutiny, conscious as it is of it’s obligation to the children to explore, wherever possible, the option of children being brought up by their father. The conclusion was that it would be simply “reckless” to send a social worker to the area. A visiting professional perceived to be acting for the UK government was likely, on the available evidence, to be at increased risk. In the Local Authority’s view that was an unacceptable risk and, had that worker come to harm, Mr Sharpe considered “the Local Authority would be justly censured for acting against FCO advice”. I agree.

 

 

 

 

What else could be done? Those acting for father had a rather clever solution. Noting that the Foreign office guidance was that it was not safe for any British national or Western person to go to Somalia, they found an ISW with dual-nationality. [Let’s leave aside for one moment how we feel about sending two damaged children to live in a country where it is not safe for any Western person to visit…]

 

 

In relation to the FCO website entry which has been downloaded, copied and filed within these proceedings, Mr. Millington accepts that the advice is, “Against all travel to Somalia including Somaliland …”. However, he submits, the court should consider that the FCO advice is specifically tailored to British nationals and/or westerners generally. Mr. Millington said this is clear from the content of the website:

 

 

“Any British nationals in the area of Somalia to which the FCO advised against all travel should leave.”

 

Mr. Millington says the advice is directed to westerners and those working for western organisations. The constant threat of terrorist attacks identified in Mogadishu and the evidence before me of the existence of extant violence against westerners in Somaliland, is, it is said, really confined to westerners. To address this Mr. Millington identifies an independent social worker who is not, “a westerner” but has dual nationality, both British and Nigerian. This person, a Ms. Coker, has indicated that notwithstanding the parlous situation in Somaliland she would be content to travel there, undertake the assessment and do so on her Nigerian passport. However, there is no evidence at all upon which to substantiate the assertion that she would be less likely to be at risk as apparently a non-westerner whose purpose in Somaliland could be kept covert.

 

 

Furthermore, it is said that Ms Cole would be undertaking the assessment at the behest of the English court and therefore there should be no reason for anyone outside of the father’s immediate circle to be aware of this. I have been told that she has been referred to the CFAB and FCO guidance and is nonetheless still willing to travel. It is further submitted that if the court were to determine that there should be no further assessment of the father in Somaliland then given the likely problems with obtaining a visa, such a decision would effectively have the consequence of ruling him out of the children’s lives permanently as a long-term carer. Accordingly, it is submitted that so crucial is the assessment that it plainly falls within even the narrowest concept of “necessary” within the provisions to which I have alluded.

 

 

I have to say that if Ms Cole was willing to go to Somalia to do this assessment for the miserly Legal Aid Agency rate of £30 per hour, then she is a remarkable human being, and deserves a “big-up” . The Local Authority shared my doubts as to whether it would be safe for Ms Cole to undertake this assessment.

 

The local authority opposes any assessment of the father by an independent social worker. Mr. Sharpe did not accept the assertion that Ms. Coker was necessarily at lower risk than any British national merely by virtue of her dual nationality. Moreover he outlines some real practical issues: Ms. Coker would not be able to communicate directly to the father in his own language. He would require an interpreter and Mr. Sharpe says (in my judgment with some force) that the mere presence of the interpreter in these circumstances would draw attention to their situation and would heighten the risk to her. Logically, Mr Sharpe observes that it would therefore expose at least two people to risk: the social worker and the translator. In addition, it is said, the use of an interpreter will undermine the effectiveness of the assessment in the country. To my mind that is not a strong point. It will of course very much depend on the quality of the interpreter but the Family Court is used to taking evidence through interpreters, and to evaluating the nuances of language through translation.

 

 

More significantly, to my mind, it is also contended that there is an ‘irrevocability’ about any assessment undertaken in the circumstances contended for on behalf of the father. In the U.K., where assessments of prospective carers are undertaken with interpreters, the social work team aims to communicate with and to forge a working relationship with the family. The unfolding nature of this process, to paraphrase Mr. Sharpe, often provides an ongoing and continuing assessment throughout the course of the litigation itself. That simply would not be possible in these circumstances.

 

 

Moreover, it is submitted, that the pre-requisite to any recognised assessment model, however tailored to the particular circumstances (culturally and otherwise) of the case, is that there should be some background checks eg: in relation to what is on offer educationally, police checks and an assessment of what is available in healthcare and support. Mr. Sharpe considers these enquiries to be unrealistic and also suggests that they will further attract attention to the independent social worker and her translator and thus heighten risk.

 

 

 

The Court’s decision was that it could not sanction Ms Cole being sent out to undertake this assessment, whilst holding open the possibility that another solution might be found (perhaps involving the father coming to the UK to be assessed)

 

I have come to the clear conclusion that it would be no more appropriate for me to authorise Ms. Cole travelling to Somaliland to assess the father than it would be for me to sanction or encourage any other British national. However, to my mind, that is not the end of the matter, other options could be considered. More importantly in my view, is the obligation upon the parties and the court at this very early stage to look at the real viability of any proposals that the father seeks to advance through counsel.

 

 

The Court did however, set out the broader issues in relation to the damage these children had sustained (in particular that they HAD been receiving good care from their mother before that so drastically and dreadfully stopped, and the confusion that must have caused for them) and the significant needs that they have. The Court would have to, at final hearing, take account of both that and the circumstances in Somalia as part of the welfare checklist

 

I have taken some time to set out the circumstances in which the children were discovered in October 2013 because to my mind it is important not to divorce the facts relating to the requested assessment from the wider canvas of these children’s lives. Although they are coping well, they have been subjected to a profound trauma, not only the direct experience to themselves but the experience of losing their sibling. The ordeal they have endured is not merely one of truly profound physical neglect, it is also one of acute emotional deprivation.

 

 

Having likely received good care from their mother in the past it must have been very difficult for the children to comprehend why such care was no longer available from her. I do not require a psychologist or a therapist to tell me that it is likely that this period in their lives will take a long time to assimilate and for them to understand, if indeed they ever do. They are already being provided indirectly with therapeutic support via the foster carers who I have been told are providing an outstanding level of care, largely intuitively, as they are not specialist foster carers. The children are very lucky to have them, they have shown real insight.

 

 

In due course and when their futures have been settled by a decision of this court there is, I am told, to be a referral to Child and Adolescent Mental Health Services (C.A.M.H.S.). Conventionally, that will involve an initial assessment and most likely some program of specialist therapeutic intervention. This court also regularly hears that trauma in the early lives of young children often surfaces in adolescence where reactivation of mental health support and services is often required. This may be relevant when considering the legal framework for the longer term.

 

 

All this reveals a situation where the children face considerable challenges for the future. In evaluating the issue of assessment I also have to consider what is ultimately contemplated by the father’s application. Even if it were possible to surmount all the other obstacles identified, the proposal would be to take these children to a country and culture entirely alien to them and one in which the kind of therapeutic support they will need will be unavailable. The theoretical is ultimately eclipsed by the practical, the children’s needs and timescales cannot be accommodated by the father’s case. Logically, it is at this stage that the wider backdrop of the civil unrest in Somaliland becomes relevant, as part of the overall balancing of the factors in s.1(3) of the Children Act 1989.

 

 

I would not wish to discourage the father from applying for a visa if he chooses to do so. I am surprised that he has not already applied; Mr. Millington tells me that this is as a consequence of a misunderstanding on the father’s part and that he thought his solicitors would have applied for the visa. I have already expressed some scepticism about that explanation. Nonetheless, if he were to be able to obtain a visa to attend the hearing and to be available for assessment, I have no doubt that the local authority would and indeed should speak with him and assess in whatever framework available, such material as they can, in order that the father is provided with the maximum advantage to advance his case on behalf of his children.

 

1 Comment

Posted in case law, international and tagged , , , , , , , , . Bookmark the permalink.

With the profoundest respect

Posted on October 26, 2014 by suesspiciousminds

 

Firstly, apologies. I know that to lawyers, using that title is the equivalent of me going into a Wetherspoons pub, finding the drunkest person there, giving them a lot of amphetamines and telling them that (a) you were the person who stole their wife back in 1984 and (b) that they should go around your house and shout what they think of you through your letterbox.

 

Non-lawyers may not be aware of the lawyer code which is “with respect” = You absolute moron, you’re wrong.  “with great respect”  = ffs do you have anything between your ears, you are utterly wrong , “with the greatest possible respect”  –  I am going to have to get Malcolm Tucker to concoct a sentence which truly construes how annoyed I am with you and how wrong you are.  I honestly didn’t even know it went up as high as “with the profoundest respect”

 

So why am I dropping the P-R bomb on y’all?  Well, because that phrase appears in a judgment, and it is used by a High Court Judge, and he is using it about the Court of Appeal.

 

The Judge is Mostyn J (who has had a busy autumn), and the case is Re D 2014  http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

 

I wrote about Mostyn’s initial decision here https://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

I’ve written about the particular Court of Appeal decision here (and you can see that I may have been somewhat bored by it, because a lot of it ends up being co-written by Snoop Doggy Dogg – apposite given post 500)

And I ain’t talking ‘bout chicken and gravy

 

The gist of it, very quickly.

The father in the case was found to present a massive risk to children. I don’t think anyone (even Ian from Forced Adoption) could dispute that he would be a bad person to be around children. The real meat of the case was whether mother could separate from him and stay away from him.

The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

Care proceedings, mum and dad were both Czech, and had gone back to live in the Czech Republic. The baby was in care in England and the care plan of the Local Authority, shared by the Guardian was for adoption.  Mostyn J had to decide a Brussels II application, and in doing so, he raised an important philosophical question – if the outcome of the case would be radically different in another country (because England has non-consensual / forced adoption and the Czech Republic does not) should that be taken into account? Mostyn J did take it into account and decided that the case (and future of the child) ought to be transferred to the Czech Republic.

 

That was appealed, and the Court of Appeal in Re M (A child) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html decided that Mostyn J was wrong, that you decide Brussels II on the facts of the case and you give no regard at all to how another jurisdiction might decide the case.

Here are the 3 questions to be answered

” … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

 

 

So they told Mostyn J that the English Court would decide the case, overturned his decision and sent it back to him for determination.

 

I have never had the experience of going back into a case where the Court of Appeal have told the Judge he was wrong and then gave him the case back – it must be a somewhat trying situation. We now see from Re D, just how exasperating a Judge might find that experience.

 

[In the interests of fairness, I’ll throw my hat in the ring – I think Mostyn J first time got the right decision for the wrong reasons, and I think that the Court of Appeal had the right reasoning but reached the wrong decision, so I can see why there’s some rancour there.  ]

 

What follows is all genuinely from Re D (at least all the stuff in bold – a Judge thought of this, wrote it down and published it. For real – underlining is by me, for emphasis)

 

 

  • The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.
  • It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.
  • In my defence I would say this:

 

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal’s perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

 

 

The technology all broke down (I have sad real-life experience of how awful it can be to be involved in video-link evidence overseas, and it is like the course of true love in that it never runs smoothly)

 

The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

 

 

  • In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

 

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

 

 

The Judge discusses the expert witnesses from the Czech Republic who gave evidence via this flawed video-link. When you see that one of them said in writing that the mother could ‘definitely’ protect the child, you might have your antennae for “you’re going to collapse in cross-exam” twitching, and you’d be right

 

 

  • The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

 

“From a position of a psychotherapist working with the family, I can respond within my competence as follows:

Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children.

At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child.

As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother.

In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions.

Recommendation:

I recommend ED to be returned to his parents.

If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents.

I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care.

This opinion has been given on request of the High Court in London, England.”

 

  • In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.
  • Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined:

 

“For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.”

 

 

The Judge weighed up the evidence very carefully and rejected the proposals made by both sides (the mother seeking return of the child, the LA and Guardian seeking adoption)

 

 

  • These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.
  • I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated:

 

“It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

 

  • In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

 

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

 

  • The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.
  • Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

 

[You may remember the Court of Appeal case I recently discussed where the foster carers WERE putting themselves forward and the Court of Appeal said the Judge was not wrong to reject them – here they weren’t, but the Judge was trying to persuade them to do so]

 

I think that this is an important case – not for setting precedent – this won’t be relied upon in other cases and if it was attempted to be, I am confident that the Court of Appeal would have little hestitation in correcting Mostyn’s views here. But it frames an important philosophical debate – do the Court of Appeal really mean ‘nothing else will do”  – or do they mean “the other options must be considered and if adoption is the decision the Court must explain why they have been rejected”  – and Mostyn J raises the other major issue – are WE right in allowing forced adoption (together with two other countries in the EU, or are the other 25 countries right to have rejected it?

How long will it be before this is litigated, at length in the ECHR?  Y v UK set down the marker that Re B  and then Re B-S followed  [some observers, myself included think that ‘nothing else will do’ was an attempt to get English adoption law back in line with the ECHR view of it], but has there actually been a sea-change in the sort of cases that warrant adoption or have we all just swapped one set of ‘judicial window-dressing’  (draconian order) for a fresher one ‘nothing else will do’ ?

 

I have to say that it feels sometimes on the ground that we have just swapped our incantations for a newer form of words, rather than the radical re-think on adoption that Re B-S looked like a year ago.

 

What was Mostyn J’s plan if the current carers did not offer themselves up as Special Guardians? Well, here’s where it gets interesting. And remember, the Court of Appeal had said no to transferring this case to the Czech Republic under Brussels II.

 

If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

 

I.e, I’ll make a wardship order and place the children in foster care in the Czech Republic.

 

The LA and Guardian expressed some doubts on that, given that the agencies of the Czech Republic had been leaning more towards rehab to mother’s care.

 

 

  • If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.
  • In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.
  • I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

 

So, to suggest that the Czech authorities might return the child to mother’s care is highly chauvinistic and almost neo-colonial…

 

Let’s see what the Czech authorities had to say (AFTER the judgment was handed down. Again underlining mine for emphasis)

 

 

  • On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

 

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the Council Regulation (EC) No 2201 /2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 hereby states its position regarding the case of the child mentioned above.According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care.

As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland.

Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter “ECHR’) in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that “the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective ‘necessity’ for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with the child” (T v FINLAND, § 173)

Furthermore, the ECHR declared that “although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective ‘respect’ for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited” (KUTZNER v. GERMANY. § 61).

Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met.

Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation.

In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable.

This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

 

I might be highly chauvinistic and almost neo-colonial, but I read that as the Czech authorities dropping a pretty big hint that if the child is in their control, they view foster care as the last resort and a very extreme measure.

 

Now, one could of course argue – this is a Czech mother, a Czech father, a Czech baby – let the Czech Republic get on with it and make their own decisions, it is really their baby to make decisions about.  Except… that’s exactly what Mostyn J decided first time out and the Court of Appeal rejected that.

 

We don’t know yet what has actually happened. Here is my guess – either the LA and the Guardian began drawing up an appeal claim straight away OR a lot of pressure was put on the current foster carers to take up the offer of Special Guardianship to avoid further ligitation.

 

I’m not a huge fan of how Mostyn J has necessarily gone about this, but it is a real practical issue on the ground – we are having more and more babies in England and Wales whose parents are from other parts of the EU, those countries being ones who don’t have non-consensual adoption – should we be spending huge amounts of taxpayers money litigating these cases in England, or should the decisions about the children be taken in the parents country of origin?   (It gets ludicrously tricky if mum and dad are from different countries within the EU, of course)

 

The ECHR’s already tough line on non-consensual adoption was in a case where the UK was making decisions about the children of its own citizens – might they take an even tougher line when the first case of a foreign national’s children goes before the ECHR?  The Italian C-section case drew a lot of overseas attention – and if we have 3 countries within the EU who support non-consensual adoption and 25 who don’t, the UK government may not be preaching to the converted if a case of that kind comes up before the ECHR.

 

 

1 Comment

Posted in adoption, case law, inherent jurisdiction, international and tagged , , , , , , , , . Bookmark the permalink.

Working with foreign authorities – the DFE guidance

Posted on September 16, 2014 by suesspiciousminds

 

I know, I’m as beleaguered as the rest of you with guidance and strictures and practice directions and “you must do this”  and “It is outrageous that nobody took account of the 1412 French bylaws about how to proceed in a case where a parent has ever been within five hundred feet of a member of royalty, what were you all thinking?”

 

But this piece of guidance from the DFE is actually short and is trying to be helpful, which makes a huge difference.  I used to deal with a case involving assessment of an overseas relative once every year to year and a half. Now it is a monthly occurance. That’s not to bang the UKIP drum, it is just a reflection of the different make-up of our society now.

 

Click to access Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf

 

It provides guidance for when a Local Authority is considering placing a child overseas or conducting an assessment of relatives overseas. It would be worth handing out to lawyers and social workers dealing with those cases. It offers very practical guidance, and holds out the offer of support from other Government agencies (so at the very least, writing to those agencies and quoting them the guidance may be of benefit.

 

It also has a helpful list of contacts, recognising that family lawyers aren’t specialists in international law (if we were, we’d be doing international law and having much much nicer holidays and cars)

 

There were a couple of things new to me – firstly that there are countries where a social worker’s qualification and licence would not be recognised and thus they CAN’T conduct the assessment themselves, and secondly that there are countries where the STATE needs to authorise a child being placed in their country. It would be helpful, if the DFE were minded to, to produce either a list of both, or where that information can be found.

 

1 Comment

Posted in international and tagged , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →