England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		8 September 2014

IMPORTANT NOTICE

Mr Justice Peter Jackson:

1. This judgment ends long proceedings concerning Amanda, now aged seven years old. Her parents – her mother is Zimbabwean and her father American – are separated and estranged. Her unsettled life history falls into three chapters: until the age of three, she lived with both parents and her older siblings in Zimbabwe; she was then taken by her father to the United States and kept in his exclusive care until the age of five; then, in November 2012, as part of a habit of continuous travel, he brought her to England where she was soon removed by the local authority and placed in foster care. Now each parent seeks her return to their care.
2. The local authority and the Guardian support Amanda's permanent return to her mother's care and do not support any contact between Amanda and her father in the current circumstances.
3. Between 2010 and 2012, Amanda's father deprived her of any contact with her mother or siblings. Since her arrival here, her mother has been unable to visit England, and only now has she received a visa allowing her to travel from South Africa, where she now lives. As a result, Amanda and her mother met last week for the first time in four years: it was a joyful occasion. Meantime, the father, who remains in England, has not had contact since February 2013: as a result of his approach to contact, supervision was directed, but he has been unwilling to see Amanda with supervision.
4. The local authority began care proceedings in December 2012. Their protracted course is described in my judgment of 30 July 2014, which can be found on Bailii as Re F (Habitual Residence) [2014] EWFC 26. At that point I found that this court has jurisdiction to make decisions about Amanda. That arid issue (arid because no one wanted the case tried anywhere else) had been pursued by the father on appeal after some nine months during which he took no part in the proceedings. The consequence has been that the better part of a year has now been lost. This delay has been damaging for Amanda. She has known since August 2013 that the plan is for her to be placed with her mother and is too young to understand the legal labyrinth that her case has since been through. As her social worker puts it: "I feel she is probably questioning how it can possibly take this long." In the meantime she has had one parent who refuses to see her and another who has been unable to do so. With the removal of her father's powerful influence, she has been in limbo, becoming more attached to her devoted foster carers all the while.
5. It is therefore ironic that the father, having demanded a review of the court's jurisdiction, has chosen not to attend or be represented at this welfare hearing. Since July, he has participated in an independent assessment of his parenting abilities and has been served with all documents. He sets out his position in a one page statement dated 5 August in these terms:

• He contests the care proceedings.

• He seeks sole custody.

• He is "quite obviously" capable of caring for Amanda and is willing to do so provided that her mother, the local authority and anyone else are not involved in any way

• He refuses to have contact with Amanda while she is in foster care

• "His fragile health condition cannot withstand the physical and mental rigors associated with searching for and instructing a solicitor in a foreign country and travelling to distant London for an extended hearing."

6. As to this last matter, while the father does have an underlying health condition, I do not accept for a moment that it has prevented him from participating in this hearing. Only a week earlier, he had appeared in front of me for three days, during which he was in good health and represented himself with relish. It was only after hearing the judgment that he first intimated that he might once again withdraw from the proceedings.
7. Accordingly, I am entirely satisfied that the father, having been served and having had every opportunity to prepare his defence and to participate in the proceedings, has absented himself of his own free will. It is characteristic of him that if he cannot have everything he will not have anything. The history shows that parenting Amanda without being in exclusive control of her holds little attraction for him.
8. The United States authorities have been informed of the current circumstances. They recognise that decisions about Amanda are a matter for the United Kingdom authorities and offer any necessary assistance.
9. I shall set out the history, the law and my analysis of Amanda's welfare.

The history

10. For ease of reference, I repeat the history as described in the earlier judgment.
11. The father is aged 49. He is a United States citizen and has lived for much of his life in New York State. His father, now deceased, emigrated from Derbyshire to the US at a young age. His mother died on 21 September 2012. He has three older sisters from whom he is estranged. He has a medical condition that is controlled but requires constant monitoring.
12. At around the age of 30, the father began to travel. He entered into a customary marriage with a Zimbabwean woman living in the United States by whom he had a child. He met the mother in 1996 in Zimbabwe and entered into a customary marriage with her.
13. The mother is aged 35. She is a Zimbabwean citizen. She and the father have four children: R, a girl aged 14; H, a boy aged 12; Amanda, aged 7; and I, a boy aged two. The father has never met I and has not formally accepted his paternity, but the evidence shows both parents acting as if he is I's father.
14. R, H and Amanda, although born in Zimbabwe, are US passport holders. The mother is not, and nor is I, who was born in South Africa.
15. In 2010, the parents agreed that they would leave Zimbabwe. On Amanda's third birthday on 14 August 2010, the father took her to South Africa and on 7 September they left South Africa, arriving in the United States on 11 September via Frankfurt and Heathrow. They went to live in New York State with the father's mother, who was unwell. This had been the father's home in his younger years.
16. Also in September 2010, the mother moved to South Africa with the two older children, living first in Cape Town and then in Johannesburg, where she remains. At the time that she moved to South Africa, she was pregnant and I was born in March 2011 in the father's absence.
17. There is an issue between the parents about the nature of Amanda's move to America. In July, I heard evidence from both of them about this.
18. The mother said that the plan was for the father and Amanda to go on ahead to the United States and make the arrangements for the rest of the family to follow as soon as possible. She said that, once he got to America, the father did not carry this out and that she was left in South Africa with the two children, pregnant, penniless, and separated from Amanda.
19. The father said that, before leaving Zimbabwe, he and the mother had reached an agreement to divide responsibility for the children between them. He was to have absolute, sole responsibility for Amanda, with the mother being in that position towards the other children. He said that such an arrangement would not be uncommon in African culture and that the mother did not have a strong relationship with Amanda anyhow. He said that any plan for the mother and the other children to come to the United States was a long-term project and would not necessarily involve them living together as a family.
20. In considering the parents' credibility, I had some opportunity during the hearing in July to assess the mother, who gave evidence for over two hours by video link, and a considerable opportunity to assess the father over the course of two days, during which he represented himself and gave evidence for more than four hours.
21. There is no indication in the mother's evidence that she was being untruthful about her understanding of the family's plans for the future after leaving Zimbabwe. Her complaint that the father had misled her about his intentions to bring her over to the United States is mirrored in their scant e-mail correspondence at the time. She robustly dismissed his account of an agreement to split up responsibility for the children, saying that it was "not normal". I found no reason to doubt her evidence that Amanda's separation from her and from the other children has been painful. After Amanda left Zimbabwe, she had no contact of any kind with her mother until she came into foster care in England over two years later, since when she has had some contact by Skype.
22. The father is highly articulate and in July he presented his case in writing and orally with ability. He showed himself to be intelligent, manipulative, intensely egotistical and not lacking in charm. Every aspect of the evidence reveals a man with grandiose and often irrational views, who navigates his way through life in a state of perpetual motion and continuous attrition with others. He has no home, no occupation and no real friends. He describes himself as a meticulous planner, but his plans are in reality no more than a series of short-term schemes prompted by whatever ideas are uppermost in his mind at the given moment, or whatever threats he perceives from people in authority.
23. It would not be beyond the father to devise the idea of a partition of the children, and he may even have persuaded himself by now that the mother agreed to it. In one context he described himself as "the leader" and her as "the subordinate", but when it suited him better he said that she was "very equal" to him. His account is that the project was "to break up the family in a sustainable manner and keep the authorities out of our affairs". His only explanation for the mother's contradiction of his account was that she wanted to "stick it" to him.
24. I am in no doubt that the mother's account of the plan to go to the United States is to be preferred to the father's. Even making allowance for cultural differences, it is inconceivable that she would have agreed to the children being split up indefinitely, and for her to be left in such an extremely vulnerable position in South Africa. I find that once the father arrived in America, he reneged on what was expected of him and set about taking total control of Amanda's life. The mother did not even receive a photograph of her daughter from America, nor did she know that the father and Amanda were in South Africa for two months in the autumn of 2012, nor did she hear of the grandmother's death until three months later from one of the father's sisters.
25. The father pursued his constant foreign travel without telling the mother what he was doing, let alone seeking her agreement. This travelling was inhibited while the father and Amanda remained at the grandmother's house between September 2010 and April 2012. The father was close to his mother and looked after her during this period. He and Amanda nonetheless went to Columbia for eight weeks in December 2010, and for a trip along the River Rhine of 10 days in April 2011, and for a six-day trip to the Netherlands in January 2012.
26. In April 2012, the grandmother's health had deteriorated so that she needed to go into residential care. At that point, instead of remaining in the home, the father embarked with Amanda upon a series of five world trips. Between 29 April and 8 November 2012, they spent only six weeks in the United States. They travelled to Belize between 29 April and about 8 May; to Columbia via Costa Rica and Panama between 12 May and 24 June; to Belize between 4 and 8 July; to five South American countries between 17 July and 10 August before going on to South Africa, where they remained for over two months, returning to the United States on 18 October.
27. Whenever the father and Amanda were in the United States during this period, they stayed in a series of hotels or camped.
28. The grandmother died on 21 September while the father and Amanda were in South Africa. They returned on 18 October and attended her funeral on about 21 October. On 6 November (coincidentally the date of the Presidential election, in which the father took an intense interest) the father saw a social worker at his medical centre. The social worker, who had known the father for many years, was sufficiently concerned about Amanda's situation and her father's mental health to make a referral to the Child Protective Services, who wrote to the father on 7 November, notifying him of an investigation.
29. On 8 November, the father and Amanda made their final trip, leaving Newark for the Netherlands and flying onwards to England on 14 November. The father said that the single tickets from the United States to the Netherlands had been bought well before 6 November. In the absence of proof of booking, I cannot be sure. Nor can I be sure that the father received the letter of 7 November from the CPS. However, I am quite clear that a major (if not the sole) motivation for the father's departure from the United States with Amanda was to "keep the authorities out of our affairs". I reject the father's account that he knew nothing of the child protection investigation, if for no other reason than that I accept the evidence of Mrs Hunter, Amanda's social worker, about a conversation that she had with him on 3 January 2013. In it, he said that people had been wanting to take Amanda off him for some time. She asked him if he meant in this country and he replied "Yes, and in the States". Mrs Hunter had no previous knowledge of any American child protection investigation: the father untruthfully denied making this statement.
30. In his evidence at the hearing in July, the father variously says that the trip to England was "to finalise everything", "to get confirmation of British nationality", "to explore all options for the future of my family" and "not to burn any bridges". He gave a convoluted account of it being part of a plan to make his way to Zimbabwe. At that point he wanted to deal with what he described as "the risk" from the mother by "getting her to the US embassy in Harare to pin her down". I take this to mean that he wanted to make failsafe arrangements for the other children to come under his control in the United States without risk of interference from their mother.
31. When the father and Amanda arrived in Derbyshire, they lived in a tent. On 10 December, the father applied for British citizenship. On 19 December, he brought Amanda to a hospital for a medical test. The doctor made a referral to social services out of concern for the child's living conditions and the history given by the father. Amanda and the father were placed in bed-and-breakfast accommodation and, following further consideration, an Emergency Protection Order was applied for and made on 21 December, at which point Amanda was placed in foster care. The care proceedings were issued on 28 December and on 7 January 2013, an interim care order was made after a contested hearing and the matter was transferred to the High Court.
32. Shortly after that, the father dispensed with the services of his solicitor and by March 2013 he had disengaged from the proceedings. He was out of the country between then and July. In December, he instructed solicitors again. The subsequent course of the proceedings has already been described.
33. In December 2013 the mother unilaterally sent R (14) to the United States to stay with a cousin of the mother's, and in August 2014 she sent H (12) to stay with D, a sister of the father. She has also put herself forward to look after Amanda if her mother cannot.
34. In February 2014, the father lodged his appeal on the issue of jurisdiction. This was allowed by the Court of Appeal in May and the issue was tried before me on 28-30 July.
35. On 1 September, the mother arrived in England and on 4 September she met Amanda for the first time since the day of her third birthday.

The law

36. In these care proceedings, the threshold conditions for any state intervention are stated by subsection 2 of Section 31 of the Children Act 1989:

(2) A court may only make a care order or supervision order if it is satisfied –

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to -

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.

37. Subsection (9) provides that

"harm" means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

"development" means physical, intellectual, emotional, social or behavioural development;

"health" means physical or mental health; and

"ill-treatment" includes sexual abuse and forms of ill-treatment which are not physical.

38. In this case I find that that the grounds for intervention are abundantly made out. If find that in December 2012 (the date that the local authority took protective action), Amanda was suffering and likely to suffer significant emotional and psychological harm in that her emotional, social and educational development had been and was likely to be impaired. This harm was attributable to the care given to her by her father not being what it would be reasonable to expect a parent to give in the following respects:

(1) He failed (and still fails) to recognise that Amanda's needs are separate and distinct from his own.

(2) In August 2010, he separated her from her mother and siblings, with the intention of doing so indefinitely, and in doing so deceived the mother. As a result, Amanda was deprived of contact with her mother until September 2014 and of contact with her siblings Rebecca and Harold (ongoing) and has never met her brother Isaac despite having been in the same country, South Africa, for two months from August 2012.

(3) He encouraged Amanda not to trust others, including her mother.

(4) His lifestyle and attitudes caused Amanda to be socially and emotionally isolated from her own family and from broader society.

(5) He travelled continually with her from April 2012 so that she had no home, friends or school.

(6) Amanda's education was significantly delayed in her father's care.

Welfare analysis

39. Section 1 of the Act provides that:

E+W(1) When a court determines any question with respect to—

(a) the upbringing of a child; …

the child's welfare shall be the court's paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3) In the circumstances mentioned in subsection (4), a court shall have regard in particular to—

(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b) his physical, emotional and educational needs;

(c) the likely effect on him of any change in his circumstances;

(d) his age, sex, background and any characteristics of his which the court considers relevant;

(e) any harm which he has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

40. I will address those factors in subsection (3) – the welfare checklist – that impact upon Amanda's welfare.
41. The court's powers. The fact that the threshold is crossed opens the door to the placement of Amanda outside her family, but this can only happen if it is necessary. If possible Amanda should live with a parent and with siblings. Failing that, she should live with another family member (such as the father's sister D). Only as a last resort can she be placed outside her family.
42. Amanda's background. Since the age of three, she has had no settled life. Her future has been clouded by uncertainty.
43. Her wishes and feelings. Amanda expresses a preference not to see her father, having become uncomfortable with the conflict that surrounds him. She has been excited and nervous about seeing her mother, having been kept waiting for so long, and now wants to return to her care. At the same time, she is naturally anxious about being separated from her foster carers.
44. Her needs. Amanda has a pressing need for a secure family life with as much normality as possible. Given her family's diverse roots and current fragmentation, this may not be smooth and easy. If she lives with her mother, it will be with a parent who is struggling to establish herself and her children in better conditions. But what matters to Amanda is whether there is love, emotional stability and consistency of care.
45. Her mother's capacity to meet her needs. In July 2013, an independent assessment of the mother was carried out by a South African social worker, Ms Mapho Madzivhandila. It is a detailed piece of work. The mother is described as being warm. genuine, and concerned about Amanda's situation. She has a job. Despite facing serious financial and immigration issues, she has the help of her own mother and she has coped. She seemed attuned to the older children who appeared well-adjusted socially and academically. The report recommended that Amanda be reunited with her mother and siblings.
46. It is the mother's long term intention to be reunited with all her children. I am satisfied that she has sent R and H to the United States for their benefit, and not her own. She has shown the ability to overcome considerable difficulties in order to meet these children's emotional and educational needs and there is no reason to believe that she will cannot do the same for Amanda. I accept her assurance that she will not allow herself to be parted from Amanda in the foreseeable future.
47. Considerable attention has been paid to the mother's immigration situation in South Africa. Expert advice, which it is unnecessary to set out here, establishes that she is likely to be able to remain in South Africa with Amanda and with I. In the less likely case that this was not possible, the mother and children could return to Zimbabwe.
48. The warmth of the reunification between the mother and Amanda gives good hope that the mother has the motivation and commitment to meet her daughter's needs. I find that she has the capacity to do so.
49. The father's capacity to meet Amanda's needs. It is apparent from my findings in relation to the threshold that I do not consider that the father is able to meet Amanda's needs for emotional stability and security. A resumption of life with him would be disastrous for Amanda's future development. Confirmation of this appears from the independent social work report of Christina Pugh dated 20 August 2014. In her detailed assessment, Ms Pugh concurs with other professionals in considering that the father has failed to consider Amanda's emotional needs, but has his own agenda which he has kept to regardless. His parenting meets his needs by training Amanda on his terms rather than allowing her to develop as an individual. He shows no potential to change or to work with others, but is rigid and immutable. Amanda has a highly ambivalent attachment to him and shows no separation anxiety at his disappearance or enthusiasm for his return. Ms Pugh cannot recommend that Amanda is placed in his care.
50. This assessment mirrors that of Amanda's social worker, Mrs Alison Hunter, and her Children's Guardian, Mr Gareth Jones. Their involvement stretches back to the beginning of the proceedings. Both have been subjected to unsparing criticism by the father, which I find to be groundless. Because he lacks the capacity to weigh other points of view, the father's reaction to disagreement is to attack the other person's good faith and competence. I instead commend Mrs Hunter and Mr Jones for their patient commitment to Amanda's best interests. They have approached their responsibilities objectively and professionally and I accept their advice.
51. I note that the father has been psychiatrically assessed by Dr Richard Pool. In his first report (June 2014) he gave the opinion that the father is not suffering from major mental disorder that would impact upon his ability to care for or have contact with Amanda. However, in July 2014 he provided an updating report on the basis of further information. In this he provisionally diagnoses the father to be suffering from delusional disorder. Dr Pool's report contains a detailed account of his interview with the father, which I have read. However, I have not taken his diagnostic conclusions, original or revised, into account in reaching my conclusions. In the light of all the wealth of other information, it is not necessary to do so.
52. The capacity of others to meet Amanda's needs. Amanda's paternal Aunt D has selflessly offered her a home (which currently includes her brother H) if she cannot be placed with her mother. An independent assessment by the American social worker Michelle Kenefick dated 29 August 2014 demonstrates that this placement, while crowded, could meet Amanda's needs were it necessary to look elsewhere than the parents. In particular, although Aunt D is the father's older sister, she has no illusions about him.
53. Any harm that Amanda has suffered or is at risk of suffering. The threshold findings indicate harm suffered in the past. Looking to the future, there is a risk that Amanda will suffer further harm as a result of her father's actions and attitudes. In the great majority of cases it is in the interests of the child to have the active involvement of both parents, sharing parental responsibility. Unfortunately, this is not such a case. The father has not only said, but demonstrated, that he is not able to share parental responsibility. Any future unregulated involvement by the father in Amanda's life is likely to be seriously and damagingly disruptive. It is essential for Amanda's future development that she and her mother are protected from this. It is not possible to know what steps the father might take, but he is likely to want to impose his plans upon Amanda if he gets the chance and I find that there is a real threat of a further abduction. I would urge that these risks are treated seriously by any agency having the power to offer protection to the mother and Amanda and support the plan for legal orders to be obtained in other jurisdictions as necessary.
54. In reaching this conclusion, it is not my intention to demonise the father or to overlook his better qualities. But while he lacks any insight into the damage that he has done, and could still do, to Amanda, he is unfortunately not to be trusted. I hope that the day may come when Amanda can safely resume her relationship with her father, but without change on his part there is no sign of this being possible.
55. The effect of a change of circumstances. A detailed plan for Amanda's transfer into the care of her mother and return to South Africa has been agreed between the parties present at this hearing. I approve it. There are a number of imponderables, but these can be worked around. For Amanda, moving back into the care of her mother and meeting her brother I for the first time will be a huge change, but it is one that she welcomes and that is likely to be beneficial.

Conclusion

56. I find that the threshold conditions are met but that it is in Amanda's best interests to be placed in the care of her mother and for her not to have contact with her father in the current circumstances. An interim care order and an order preventing contact with the father will continue until the eve of Amanda's departure from England. At that point, there will be a child arrangements order providing for her to live with her mother.
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