England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/03/2016

See also: [2016] EWFC 38

Mr Justice Keehan :

The Application.

1. This is an application by Northamptonshire County Council for Care Orders in respect of three children: A who was born on 16 August 1999 and is sixteen years of age; B who was born on 26 January 2001 and is fifteen years of age; and C who was born on 28 May 2012 and is three years of age. The mother of all three children is the first respondent, The mother. A's father is Father of A; B's father is Father of B; C's father is Father of C.
2. The local authority assert the threshold criteria of section 31(2) of the Children Act 1989, (the 1989 Act), are established on the basis of (a) the mother's history of violence and abusive relationships, and (b) the involvement and arrest of the mother in a conspiracy to supply a very, very substantial quantity of amphetamines. There is no issue taken by any party that the threshold criteria are satisfied on the basis asserted by the local authority.
3. The substantive issues for me to decide are where and with whom each of the children should live.
4. The local authority seeks Care Orders in respect of each of the children on the basis that A and C should live with their maternal aunt and uncle in New Zealand, and that the court should sanction their placement there pursuant to the provisions of paragraph 19 of schedule 2 of the 1989 Act prior to the aunt and uncle being granted domestic orders in the New Zealand Family Court.
5. For B the local authority propose that his wishes and feelings should be respected and that he should remain in this jurisdiction with his foster carers until he has completed his A Level examinations before moving to live with his father in Australia.
6. The mother's initial position was that the children should live with her. The difficulty with that proposition is that the mother pleaded guilty last year to a charge of conspiracy to supply some £800,000 of amphetamines for which she is likely to receive a substantial custodial sentence. After the conclusion of her oral evidence she conceded she could not care for any of the children; this was an entirely realistic concession.
7. Father of A respects A's wish to live with her maternal aunt and uncle in New Zealand.
8. Father of B seeks a child arrangements order in his favour for B to come and live with him and his wife in Australia.
9. Father of C agrees to C being placed with his maternal aunt and uncle and with A in New Zealand.
10. At the two older children's request I saw A and B on 12 February 2016 and I again saw B at his request on 7 March. A told me she wants to live with her maternal aunt and uncle even though it will mean she will be separate and apart from B. B has told me that he wants to remain in foster care in this country until he has completed his A levels, then he would want to move to live with his father in Australia.
11. The children's guardian supports A and C moving to live with their maternal aunt and uncle in New Zealand. In respect of B he advances a case different from B, namely that he should remain here in foster care until he has completed his GCSE examinations when he should then move to live with his father in Australia.

The Law

12. When considering the applications in respect of the children I have well in mind that the welfare best interests of each child are my paramount consideration, s.1(1) of the 1989 Act. Further, I take account of the provisions of the welfare checklist of s.1(3).
13. I have had regard to the Article 6 and Article 8 rights of each of the children and of each of the parents, but I bear in mind that where there is a tension between the Article 8 rights of a parent on the one hand with the rights of the child on the other, the rights of the child prevail: Yousef v The Netherlands [2003] 1 FLR 210.

The Background

14. I propose to deal with the background very shortly. The mother has had a series of relationships which were characterised by alleged episodes of domestic violence. The last relationship was with a man called AC. He has served a prison term consequent upon his conviction for assaulting the mother. There is an issue about whether, and if so to what extent, the mother has renewed her relationship with him and/or maintained contact with him. I confess I do not fully understand the circumstances in which the mother became involved with drug dealers and this conspiracy to supply a vast quantity of class B drugs. For reasons that follow, I am not satisfied that the mother has been entirely frank or honest in her divers accounts that she has given to the court on this issue.
15. Whilst the threshold criteria of section 31(2) of the 1989 Act are satisfied on the basis of the past domestic violence in the mother's relationship and her involvement in the drugs deal, it is important that I should emphasise that A, B and C, from all that I have read and heard, and in respect of the older two as I observed when I met them, are delightful, intelligent and well-mannered young people or a young child. It is plain that, whatever mistakes the mother has made, for much of their lives they received good and effective parenting. Further none of the matters relied on in support of the threshold criteria reflect adversely on Father of B. The evidence is all one way, namely that he is a dedicated and loving father who has given and has much to offer B. Their mutual love for each other is clear.

The Evidence

16. I heard evidence from the former and current social workers, from the mother, Father of B, from Maternal aunt and uncle –who live in New Zealand – and the children's guardian. I also heard evidence from a New Zealand lawyer, John Rykin, who had been jointly instructed to give an expert opinion on New Zealand family law, and I accept his advice and opinions. I propose to focus on the evidence of the mother, Father of B and the children's guardian and on my meetings with A and B.
17. The mother was, I regret to find, a most unsatisfactory and unreliable witness. She lied in her evidence on a number of important matters. The principal examples are:

i) The mother asserted that her accounts that she "sort of got back with AC" or that she was in some sort of relationship with him were the wrong choice of words. I reject that explanation;

ii) The mother had told the social worker that one of her co-defendants, a man called S, had lent her money prior to her becoming involved in the drugs conspiracy. She denied telling the social worker that he had given her money and again repeated that it was a loan. I prefer the evidence of the social worker;

iii) The mother asserted that her pre-sentence report recommended a non-custodial sentence. I emailed the resident judge at Stafford who kindly checked the court file and told me that the pre-sentence report conceded that a custodial sentence was inevitable;

iv) The mother denied any of the drugs had been stored or found in the family home as opposed to in her lock-up garage. When a position statement was put to the mother in cross-examination, which had been filed on her behalf and asserted a contrary basis of plea, she denied ever having seen that document. I asked for enquiries to be made of the mother's solicitors as to why an unapproved and misleading document had been filed with the court. I was given an account by the mother's solicitors, supported by emails sent to and received from the mother, which clearly demonstrated that the mother had not only seen but she had expressly approved the contents of that self same position statement; and

v) The mother's accounts of a serious assault by AC in December 2015 were written with serial and substantial inconsistencies which lead me to the clear conclusion that she was lying.

The morning after the conclusion of the mother's evidence she conceded she could not put herself forward as a carer for any of the children. That was a sensible concession and in my judgment an inevitable conclusion.

18. During the course of the hearing prior to her giving evidence, the mother had read and had heard the assessments of professionals about how very close B was to his mother and of how he felt a clear duty and desire to protect her. It was, therefore, with some very considerable alarm and concern that I was told at the resumption of this hearing on 7 March that the mother had not only made a suicide attempt in the intervening days, but that she had seen fit to tell the children about her suicide attempt. I am appalled at this conduct. In my judgment, knowing how loyal and loving and vulnerable B was and is, the mother told him of her suicide attempt either (a) to persuade or put pressure on him not to go to live with his father in Australia, or (b) because she gave no thought whatsoever as to the potential adverse impact on B. I tend to believe it is the former but in either event this episode demonstrates the harm this mother can and will do to the emotional and psychological well-being of B.
19. Father of B moved to Australia in October 2003. He has remarried and his wife is fully supportive of his wish for B to live with them. She attended the first part of this final hearing with him and was present when the father attended the adjourned hearing on Monday of this week by video link as she does again today. There is no issue at all about the quality of the home, education, lifestyle and care they could provide to B in Australia. He is, as his counsel described him, an exemplary father.
20. During the midst of the mother's involvement in the drugs deal various very serious threats were made by the mother's co-defendants or their henchmen against the mother and the children, one of which included a threat to behead C. Since the immediate aftermath of the mother's arrest and release no direct threats have been made against the children. I well understand Father of B's concern for his son consequent upon the mother's sentencing for the conspiracy which is scheduled to take place before the end of April. I consider, however, that (a) the absence of any credible threats over the last almost two years, and (b) the fact that the local authority and B's foster carers are alive to the risks and threats he may face, the risk to B of physical harm from the mother's co-accused and/or their associates, albeit serious, are small. Thus whilst I fully understand Father of B's genuine concerns, I have come to a different conclusion from him on the assessment of the risk to which B is exposed whilst living in this jurisdiction.
21. The children's guardian makes a final recommendation which is contrary to B's expressed wishes. The guardian recommends that B be permitted to remain in this jurisdiction to complete his GCSE examinations before moving to live with his father in Australia. I confess I did not understand nor agree with the guardian's initial recommendation that B and C should return to their mother's care on the assumption that she received a non-custodial sentence or at least a sentence of no more than six months' imprisonment. For reasons I will explain later in this judgment the Guardian has reached his final conclusion by asking himself the wrong question and not focussing on the essential issue.
22. I was very impressed with both A and B when I met them on 12 February. They were both charming and mature young people.
23. After the mother conceded she could not care for the children I was asked to adjourn to enable the mother and father to speak with B to tell him of that decision and of their joint view that B should live with his father in Australia. The following day I was informed that B had not changed his mind and remained of the view that he should live with his foster carers until he had completed his A levels, that is until the summer of 2019.
24. In light of the divergent views between B and his children's guardian, it was agreed that his solicitor would represent him and he would be permitted to file and serve a statement setting out his views and his reasons for the same. I was told B wished to have a further meeting with me and I saw him on 7 March before the commencement of the resumed hearing. B confirmed that his first wish was to complete his secondary education in this jurisdiction but he was, at my suggestion, prepared to review matters after he had completed his GCSE examinations. When I asked him about his loyalty for and need to protect his mother he paused and was obviously very emotional about this topic. He told me he felt he would be abandoning his mother if he left to live in Australia and that indirect contact would not be the same as visiting her even if she was serving a custodial sentence. B was plainly a deeply troubled young man with a mix of very strong emotions pulling him in different directions.

Analysis and Discussion

25. Given the unanimous view on the appropriate outcome for A and C, I have no hesitation in approving their placement with the maternal aunt and uncle in New Zealand. I have, however, found the decision to be made in respect of B a most difficult one.
26. The local authority contend that they support B's wishes and feelings to remain here in foster care until he has completed his A levels. The mother supports B moving to live with his father in Australia either now or in the foreseeable future. B's father favours him moving to live with him and his wife in Australia forthwith. The children's guardian supports B staying here to complete his GCSE examinations and then moving to live with his father in Australia. The guardian took account of the need for B to have some stability in his education to complete his GCSEs but then to have some opportunity to experience the culture and life in Australia whilst undertaking the Australian equivalent of A levels before making serious life-changing decisions about the direction of his tertiary education.
27. For some period of time I was inclined to favour this option. I was also influenced by the argument of the local authority to accord primacy to B's wishes and feelings. I wish to assure B that I have, of course, accorded very great weight and respect to his views, most especially given his age. I was very impressed with the young man that I met on 12 February and 7 March. I was, however, concerned about the weight of the burden he shouldered in respect of the plight of his mother, especially when I met him again on 7 March. That burden no doubt was massively increased by the impending date of the mother's sentencing hearing and most particularly by having been told by his mother of her recent drugs overdose.
28. At one stage I was, I now consider, at risk of viewing this case solely on the basis of the paramountacy I should accord to B's wishes and feelings. I am most grateful to Mr Hepher, counsel for Father of B, for submitting an alternative view, namely whether I would consider making a Care Order and placing a young person in foster care because an exemplary father and a mature and intelligent fifteen year old had had a disagreement about the timing of when that young person should move to live abroad with his exemplary father. The answer is a resounding no. This is the situation I find myself in, in this case.
29. All relevant parties, that is the local authority, the mother, the father, the children's guardian and B, agree he should move to live with his father at some stage in Australia. The only issue is when. If the father were the subject of any adverse findings or criticisms by the local authority which found favour with the court it may well be the case that this court was best placed and should make that decision. On careful reflection I do not believe this court is best placed or should make that decision. The father is an exemplary father to whom I should entrust, via a child arrangements order, the decision about where B should live and when he should move. For the avoidance of any doubt I am not approving or sanctioning B's immediate move to live in Australia. I am not accepting that I consider him to be at serious risk of harm from the mother's drug associates or co-defendants. I am not riding roughshod over B's wishes and feelings. I know B's father will bear well in mind that B, as close to his mother as he is, will be very anxious about her sentencing and about her resulting mental health well-being. B is acutely conscious of it being thought that he has abandoned his mother if he moves to Australia. B is also worried, understandably, at the prospect of the unknown, that is life in Australia. He has had an unsettled life in terms of schools and friends recently and is reluctant to lose the stability he has now achieved, including friends and a girlfriend. I am, however, extremely concerned about the emotional pressure the mother will place on B, especially for so long as he may remain in the United Kingdom and the emotional harm that will cause him. What I am recognising is that it is neither proportionate nor necessary for this court or for this local authority to interfere in the lives of this father and this young person. They must resolve their issues and difficulties together, having due respect to the rights, duties and responsibilities of the parent and the wishes and feelings of the young person.

Conclusion

30. I am entirely satisfied that it is in the welfare best interests of A and C to be placed with their maternal aunt and uncle in New Zealand. Accordingly, and with the consent of all relevant parties, I approve the care plan for both of them and I grant permission pursuant to paragraph 19 of schedule 2 of the 1989 Act for both of them to be placed with the maternal aunt and uncle in New Zealand.
31. The aunt and uncle gave undertakings to me that they would return one or both of the children to this jurisdiction if so ordered by this court. The English Family Court orders would be discharged and the jurisdiction of this court would come to an end in respect of these children after the making of orders by the New Zealand Family Court to secure their placements with the aunt and uncle. I approve the proposals for future contact between the children and their parents and between themselves. I am most grateful to this local authority for the generous commitment it has made to enable and support contact to take place now and in the long-term.
32. I am entirely satisfied that it is in B's best interests for a child arrangements order to be made in favour of his father. When it is in his best interest for him to move and live with his father and his wife who are in Australia is a matter for the father and B to resolve. I very much hope that in attempting to secure an agreement between them they both have close regard to the preceding paragraphs of this judgment. Importantly, my finding is that B is not at undue risk if he were to remain living in this jurisdiction pending the completion of his GCSEs. As I have already observed, Father of B is an exemplary father. B is a very mature and intelligent young man who has a hugely promising future before him. They both love each other greatly. I am satisfied that it is for this exemplary father in discussion with his son to determine his future residence rather than for me to impose a decision upon them.