England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT LEYLAND

		Leyland Courthouse Preston
		28/05/2015

His Honour Judge Duggan sitting as a High Court judge:

1. This is the final hearing of care proceedings concerning two children S. born in 2009 and her brother C. born in 2012. The mother is an English woman from Blackpool. The father lives in Turkey. The couple met over the internet and married in 2007. The children lived with their mother but as the father was unable to come to England she divided her life with the children between the two countries. When the family were in Blackpool there was neglect and extensive involvement with the welfare agencies. This culminated in the children going to foster care on 20 August 2013. The father now seeks to look after the children alone in Turkey. The mother supports his plan. The local authority and Children's Guardian contend that children should stay with their foster parents who should have the status of Special Guardians.
2. The case has been subject to intolerable delay. The main cause has been assessment of the father in Turkey and then securing his entry to the UK for further assessment here. The High Court Judge who has managed the case has previously addressed the issue as to the country in which the case should be tried. The local authority has set out its case and assembled the material in two core bundles with which I am familiar. I have heard oral evidence from past and present social workers, the author of the English assessment report, the foster mother, class teacher, mother, father and Children's Guardian. I have viewed recorded material submitted by the father.
3. The local authority brings the case and carries the burden of proof on the balance of probabilities. The welfare of the children is my paramount concern and I have the welfare checklist at the forefront of my mind. Interference with family life must be necessary and proportionate before it can be justified.
4. It is necessary to be cautious with the contributions made by the parents. The father has very little English so his accounts to social workers and to the court have been through interpreters. The mother has significant hearing loss and a speech impediment. Dr Christensen indicated that she was on the borderline for the diagnosis of a mild learning disability. Care has been taken to follow his advice. Experience has revealed that occasionally participants in these cases do not tell the truth about a topic. However this does not necessarily mean that they have lied about everything.
5. The mother returned home with the children in May 2013. They had been known before they left in September 2012. S. again attracted concern. She was unkempt and hungry in the nursery. She had regressed back to wearing nappies and touched her genital area frequently. She could not communicate and her behaviour was uncontrolled. Mother was seen to be short with the child, physically pushing her away. The children were left to their own devices, home conditions deteriorated and mother was clear that she could not cope. There had been similar concerns during the previous period in England. Support from the agencies was unsuccessful.
6. In foster care C. was calm but S. had no boundaries. She could not be understood. She was particularly upset at night when she needed company. She was constantly touching her genital area both in public and in private.
7. The mother accepts that her care was inadequate such that she cannot be involved in the future care of the children. She accepts paragraphs 1 to 11 of the Threshold Document which is enough for these purposes, alongside the other findings made in this judgement. Significant harm to S. is manifest although a small contribution is probably attributable to mother's disability and perhaps to inheritance. It is unnecessary to be unduly critical of the mother. She has laboured against adversity, particularly her upbringing and she has tried her best. Her love for the children is clear.
8. The father seeks to care for the children. An important issue is his degree of responsibility in the past and whether his proposal is significantly different to the harmful care then provided.
9. The father said that S. was a very clever, well-behaved girl in Turkey. He said that she benefited from the Turkish system in which she received care from the wider family. There were no significant concerns, certainly nothing like those seen in England which he was shocked to see on his arrival in January 2015. His case is that this family care in Turkey was successful and represents the best future for the children.
10. I cannot accept the father's account. It is very improbable that S.'s serious behaviour problems disappeared when she went to Turkey in September 2012 and reappeared on her return in May 2013. The evidence is clear that her toilet training was lost during this period when she reverted to the use of nappies. On arrival the mother explained that she had left her husband because they argued over S.'s behaviour for which he blamed the mother. She described S. striking C... I cannot accept the mother's subsequent account that S. was a good child in Turkey and that their return was to obtain medical treatment. The paternal grandparents in Turkey reported to the assessor that S. was jealous and attention seeking in Turkey. The father is clearly minimising the problem of S. touching her genital area. This must have been more than a symptom of a short period of infection which passed. The picture on arrival in England is of a clearly established pattern of behaviour, either seeking comfort or attention. Similarly the father's account of S. speaking well in Turkey is inconsistent with the subsequent English experience. The Turkish assessor was not impressed by the father's account.
11. I conclude that S.'s problems were present in Turkey. I accept that they are the symptoms of neglect. S. returned to England before her fourth birthday and she had spent about 30 months of her life in Turkey. I am not persuaded that the care provided in Turkey was good and that all the problems arose in England.
12. The father's plan incorporates two changes. Firstly the mother will not be in Turkey. It is common ground that this would represent an improvement. However this is not the outcome desired by either parent. The father said that he loves his wife but would separate if the court requires it. I expect that child care arrangements could commence on this basis but it is difficult to see them being successfully maintained.
13. Secondly the father proposes to give up work. In assessment he was pressed to make this choice which he insisted was impossible. It now forms part of his plan, with financial responsibility falling on to the wider family since state provision is not available. It is positive for the father to propose this major role for himself but it is difficult to see it being sustained. When pressed he spoke of growing and selling vegetables which only emphasises the financial reality which originally drove him to reject this very proposal.
14. In the father's favour I make it clear that there is no finding that S.'s touching of her genital area is attributable to any sexual abuse. Similarly I do not find allegations of significant domestic violence to be established. Through the difficulties of communication the mother spoke of one incident long ago followed by recent verbal fighting. She now says the only incident was playful. The father agreed and said that he had been misunderstood by a social worker who reported him saying he had slapped her on more than one occasion in arguments. Neither parent was impressive on this subject under cross-examination. However at their height the allegations were not significant and I am prepared to attribute the inconsistencies to the clear problems of communication.
15. There are two realistic outcomes to this case; placement with father in Turkey or Special Guardianship with the current foster parents. I turn to the respective merits.
16. Special Guardianship would represent the long term confirmation of the current placement outside the family. Placements can break down and fail but this successful placement seems very promising for the future. No doubt there will be additional issues as the children get older but S.'s current challenging behaviour is being skilfully handled. The assessment of the foster carers as Special Guardians is very positive. It is not criticised by the parents if their own first choice cannot be achieved. However these carers are not family and represent only half of the cultural heritage of these children.
17. The father offers the special advantage of upbringing in the natural family. His own position will be supplemented by the presence of the wider family, in Turkey playing a really active role. If S.'s problems endure into adulthood they might feel a greater sense of commitment than would special guardians although this is a matter of speculation.
18. These are dual heritage children. Both plans see direct contact as the means of remaining in touch with the culture in which the children do not reside. The local authority plan was rightly criticised for the absence of detail and the apparent omission of this factor from the written analysis. The Children's Guardian's Analysis was also light on this topic. The foster mother however was impressive on the subject. She clearly had considered and researched the availability of food, prayers and community activity. It was regrettable to receive this information only from the witness box which may have created an impression of afterthought. However I found the witness to be impressive on this and all other topics. The father expressed doubt as to whether she could be trusted but himself remained silent as to how he would respect English culture. Presumably he would rely upon the children's contact with a parent overseas.
19. Since his arrival in January 2015, the father has exercised direct contact rather than the Skype contact he had from home. His contact has been of good quality. He offers stimulation and warmth. His management of the two children was praised by the Children's Guardian in the contact environment. However she thought he would be completely out of his depth as a carer for S.
20. The initial assessment in Turkey revealed the father's potential. However this must yield to the more complete analysis that is now possible. I do not give weight to the concerns expressed by the English assessor as to her inability to enforce requirements overseas. The provision and enforcement of welfare services in Turkey would be a matter for the judgment of those on the ground. The Turkish assessment establishes that the Turkish system is to be respected.
21. Against the father must be taken into account his presence in the life of S. in the period when she was suffering significant harm. He still insists that the standard of care in Turkey was satisfactory and that S. was largely without problems. I cannot accept this. He offers more of the same. S.'s presentation on her return to England clearly shows that she had suffered significant harm. This was far outside of the range of acceptable diversity of parenting.
22. S. is now a challenging child. The foster carer described her plight on arrival and the improvements achieved through security. The evidence from the school was illuminating. Deterioration of behaviour was described in recent weeks. The professional view of the Guardian was that this arises from S. perceiving by reintroduction to the father that her new security was threatened. It is important not to give excessive weight to considerations which may be short term if long-term advantages lie elsewhere. However it is difficult to disagree with the Children's Guardian who believes S. is so fragile and needy that it would be a disaster to move her from where she has become secure. The father is more skilful than the mother in contact but S.'s level of need is outside his comprehension. The needs were present when the child was in his care before May 2013 but were left unmet.
23. The needs of C. are more manageable. He reached Foster care before his first birthday and has not suffered in any way comparable to S. However it is common ground that it would be very harmful to separate these children who are very close through shared experience.
24. My welfare analysis drives me to the conclusion that the best interests of the children would not be served by placing them with their father. The advantage of placement in the family is not achievable due to overriding requirements of welfare. It would be seriously detrimental for S. to be uprooted from the security she has found, whether the alternative be in England or in Turkey. The period in which she suffered the harm from which she is recovering includes long periods in the father's home. He failed to identify or address the problems and offers more of the same.
25. The proposed Special Guardianship Order may preserve family relationships and contact, but it represents a major interference with family life. It is suggested that this is disproportionate and that a Turkish father should be allowed to engage with Turkish services and satisfy Turkish authorities. I have no wish or need to question what would be available in Turkey. My decision would be the same if it was possible for the father to plan to live in England. The case is not theoretical. S. has actually suffered a very significant level of harm. The harmful effects of moving her from her secure base would be much more serious than the transitory upset present in many cases. In addition, the risk of further harm in the father's care is actually established by his participation in the past. It is totally unrealistic to think that services can now shore up the position. The parents will be able to play an important continuing role in the life of the children. The father can underpin their cultural identity. I conclude that this outcome is proportionate to the serious level of harm in the case.
26. The plans for contact have matured during the hearing. I approve these plans and saw commitment from the proposed Special Guardian for their implementation.
27. I conclude this judgement by granting Special Guardianship Orders and inviting further submissions as to any further necessary terms of today's order.

Approved 28.5.15

RD