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Tag Archives: article 15 brussells ii

Adoption and parents who had been people trafficked

 

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

 

Re N and P Children 2016

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

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

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

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

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

 

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

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

 

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

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

 

 

 

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section 20 and Brussels II

 

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.