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.
suesspiciousminds 