England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING IN THE ROYAL COURTS OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2017

Mrs Justice Theis DBE:

Introduction

1. This matter concerns what orders secure the welfare needs of two young children, KG age 10 and SG age 8. They have lived with their current foster carers since March 2015, following being placed in police protection having been found by immigration officers at a UK port of entry in the boot and foot well of a car, believed to have entered this country illegally. At that time they were only 8 and 6 years old.
2. The three family members the children who were with them at the time were arrested and charged with offences of facilitating unlawful immigration. In October 2016 they were sentenced to terms of imprisonment; the paternal uncle, RA, for 9 months following a plea of guilty and the paternal aunt, SS, and maternal aunt, SA, for 12 months each, both having been convicted following a trial.
3. The children are Tamil and the family originates from Sri Lanka but sought refuge in Tamil Nadu, Indian in or about 2008. Their father died in a motorbike accident there in 2012. Their mother, SG, is currently in a refugee camp, Mandapam Camp, Tamil Nadu, India with the children's younger sister, N, age 7. At the time the children were found here the mother was in a detention centre in New Dehli having apparently been detained there following her arrest trying to board a plane to follow her children. According to the mother, KG and SG were placed in the care of the paternal grandmother in Madras in 2013 when the mother was living with them in Mandapam Camp. According to the family in 2015 the children went from the paternal grandmother's home and unknown adults took them on a plane to France, and provided the children with false passports. It was from France the children illegally entered the UK.
4. It has been a deeply troubling feature of this case that despite members of the wider maternal and paternal family who live here giving oral evidence to the court in May 2016 that they had not had contact with the mother, didn't know where she was and could give very little coherent information about how the children got here, it subsequently transpired the wider family have been in regular contact with her throughout. Despite the strenuous efforts of the Local Authority to understand the children's history how they got here there remain huge questions about that, and what part the mother and wider family played in that.
5. For reasons which were never properly explained, the Local Authority failed to issue care proceedings until a year after the children were found. This has meant there was inevitable delay in making orders to secure these young vulnerable children's future. Pending the issue of these proceedings there was no-one in this jurisdiction who had effective parental responsibility. Such a delay by the Local Authority not only prevented these children getting effective decisions made about their care, but also meant there was no one to advocate on their behalf. Additionally, it built in further delay in seeking to properly understand how these two young children had come to be in the perilous situation they were in, where their parents were and what, if any, part they played in the situation. Despite the unacceptable delay in the Local Authority issuing proceedings the children have had the enormous benefit of continuity of care and social worker. The allocated social worker has been tireless in her efforts to secure information about the birth family, particularly the mother. She is to be commended for the creative ways she has sought to obtain this critical information and it is very much for the benefit of these children that she will remain allocated for the foreseeable future.
6. This hearing was listed to be the final hearing, to determine where the children should live. The Local Authority seek care orders, with a plan for the children to remain living with their current foster carers long term. That is supported by the Children's Guardian, Ms L.
7. Ms Meusz, counsel on behalf of the mother, was able to take instructions from the mother by telephone, with the assistance of the interpreter at court. The mother's position is that whilst she loves her children and wishes to be able to care for them, she recognises the position she is in, that the children have been with their current carers since 2015 and wish to remain living with them. The mother is anxious that the children have information about their cultural background and remain in contact with the members of the wider birth family who live here. The mother had filed statements from her niece, SS, who very recently has put herself forward as a carer for the children. Although the Local Authority recently carried out a viability assessment of SS, which was negative, they recognised the important role she could play in having contact with the children. SS was present in court for the hearing today and no-one objected to her speaking directly to the court. She very eloquently set out that she did not want the children to think the birth family had forgotten them and did not want to care for them, but she too recognised the children were very settled in their current placement and wanted to remain living there. She was very anxious that when the spotlight of these proceedings have gone contact between the children and the family may not be prioritised, to the detriment of the children. The Local Authority have been able to agree, with the assistance of the Guardian on behalf of the children, an addendum to the care plan which emphasises the importance of the children having contact with the family, in particular SS and her children. SS and the Local Authority have signed an agreement that provides a framework for contact on a minimum of six occasions a year, for SS to be invited to the Child in Care meetings, for her to be the point of contact between the Local Authority and extended family members and to meet with the foster carers.
8. No party sought to call any oral evidence.
9. Having considered the submissions made by the parties I reached the clear conclusion that KG and SG's welfare needs could only be met by this court making a care order. Such an order accorded with their wishes, it provided them with the stability and security they needed and would provide a sound base from which they can enjoy contact with the birth family, either in person here, or by Skype with their mother and sister in India. Such contact undoubtedly meets their welfare needs to help them understand their identity, cultural and ethnic background. Whilst recognising the mother and SS's respective wishes to be able to care for the children, neither of them are in a position to meet their needs. It still remains unclear what knowledge or involvement they had in the children coming here. The mother is in the most precarious position as regards her living circumstances and is simply unable to come to this jurisdiction in any reasonable timescale. SS's circumstances are also uncertain, she has just resumed her relationship with her children's father after a period of separation, they live in uncertain accommodation and KG and SG hardly know her. In my judgment placement with them will expose KG and SG to the risk of significant emotional harm as it would be contrary to their wishes, would expose them to the uncertainties surrounding how they came to be here and would significantly risk the progress and stability they currently enjoy in their education and psychological welfare.
10. Whilst I do not consider either the mother or SS are in a position to care for the children, I am clear their continuing contact with them is a critical component of the children's future welfare needs and must be fully supported by the Local Authority and the current foster carers. The reports from the weekly Skpe contact between the children and their mother and sister are positive, as have been the very recent contact that have taken place with SS. The Local Authority have confirmed their commitment to ensuring this contact continues, providing it is in the children's best interests to do so. As KG and SG grow older they are likely to ask more about how they got to where they are and why. Maintaining a sustainable link with the birth family here and in India will help them gain a better understanding.

Relevant Background

11. KG was born in Sri Lanka to parents of Tamil ethnicity. The mother was aged 16 at the time and not married to the father. The family appear to have fled to Tamil Nadu in Chennai, India before SG's birth. She was born in India in the Mandapam camp, a large refugee camp in Tamil Nadu state, as was N. Their father was killed in a motor bike accident in 2012.
12. The mother was supported by family members who lived in the UK and her mother in law would visit the family. According to the mother, it was her mother in law who persuaded her to allow KG and SG to be cared for by her in Madras in 2013 and then to the UK for a better future. The family account is that after two years the paternal grandmother stated she was unable to care for the children. In those circumstances it is said the extended family arranged for the children to fly to Paris with false travel documents. As Ms Cronin, the expert instructed to advise on the children's immigration status, observed 'Chennai is a well- known smuggling route and the family would have no difficulty finding agents to create the false documents and a courier to accompany the children on the flight'. The children then seem to have spent a few months living with a paternal aunt, KK, in France. This placement was not working and in those circumstances the family based here arranged to smuggle the children here, were apprehended on 15 March 2015 and the children placed in police protection.
13. The Home Office confirmed that based on the evidence, there were not reasonable grounds to believe that the children have been trafficked and it was more likely that the children were smuggled as opposed to being trafficked. The children were subsequently given limited leave to remain in the UK for 30 months, expiring in April 2019. Any application to regularise their position in the UK permanently will need to be made prior to April 2019. The Local Authority have sought expert immigration advice from Kathryn Cronin, who has outlined the applications that can be made on their behalf. The Local Authority care plan provides for the relevant immigration applications to be made, the outcome of which will be entirely a matter for the Home Office.
14. The Local Authority liaised with the British Deputy High Commission in India, the Law Department Secretariat Chennai, the UNHCR Chief of Mission in India, High Commission of India in London and the Red Cross. The Social Worker made a referral to Children and Families Across Borders but this organisation was not able to trace the children's mother. Referrals were also made to the UN Refugee Council and the Government of Tamil Nadu, for assistance in locating the children's mother.
15. The Local Authority issued care proceedings in March 2016. The family members here provided limited information about the mother's whereabouts, claiming in oral evidence given to the court in May 2016 not to know where she was or how to contact her. In July 2016, after negative viability assessments of them, they informed the Local Authority they had found the mother (some months before, but had not disclosed this information then) and had found a solicitor to act on her behalf. The mother at this time was located with her youngest child N in a detention centre in New Delhi, India. The mother was represented at the hearing on 29 July 2016, and confirmed that she sought the return of the children to her care.
16. The Local Authority convened a family group conference on 9 March 2016. SS was present at this conference. Three family members put themselves forward to be assessed. They were: SS, paternal aunt to the children; RA, the children's paternal uncle and his wife VR and SA, the children's maternal aunt and her husband AS. The viability assessment of these family members were carried out June 2016 and were negative.
17. The mother remained in the detention centre in New Delhi and the Local Authority ascertained through the Sri Lankan High Commission in London and the British High Commission in India that neither a parenting assessment (by a British social worker) nor DNA testing of the mother could take place whilst she was in the detention centre in India and not until she returned to Sri Lanka. This was the position at the hearing on 10 November 2016. By the time of the hearing on 10 November the three family members Mr A, Mrs S and Mrs A were all serving prison sentences. Other family members attended court and indicated that the assessed family members were hoping to obtain legal advice about their respective positions in relation to their negative viability assessments. The extended family members were directed to file and serve a statement in response to the final evidence (including any challenge to the LA assessments of them) by 1 December. The mother was still in the detention centre in New Delhi at this time and the information from the Sri Lankan High Commission and the British High Commission in India was that there was no indication of when the mother would be released or be due for release. At court the children's cousin, SS informed the court that the mother had notified her by telephone that she might be released on 19 November and that if she was intended to return to Mandapam camp where she had lived previously, and not return to Sri Lanka). Directions were made towards an Issue Resolution Hearing on 6 December and a final hearing on 14 December.
18. On 16 November 2016 the social worker, the previous Children's Guardian, Ms R and the mother's solicitor had a telephone conversation with the mother from her solicitor's office, via an interpreter. The mother indicated that she wanted to speak to her children; she stated that she expected to be released from the detention centre on 19 November and to make her way to a refugee camp (Mandapam camp) to join her mother there. She confirmed that there would be Skype facilities there.
19. On 23 November 2016 the social worker, was notified by email that the mother had been released from the detention centre and has been taken to Mandapam camp. The mother filed a statement on 9 December 2016 seeking the return of the children to her care in India. At the first final hearing listed on 14 December 2016, the court found that it had jurisdiction in relation to the children on the basis of their habitual residence at the relevant date, namely 4 March 2016 and heard an application by the mother for an adjournment and an assessment of the mother in India by an independent social worker (ISW) Ms B. The court granted permission for instruction of Ms B. Her detailed report was filed on 10 February 2017 and whilst it acknowledged the mother's deep distress from the children not being in her care, it concluded that the mother displayed no insight into the concerns of the Local Authority or into KG's and SG's interim or long term developmental needs. Ms B did not recommend that the children should be returned to the care of their mother.
20. At the hearing on 23 February 2017 directions were made leading to a final hearing on 26 July for three days. Permission was given to the mother's solicitor to ask further questions of Kathryn Cronin, specialist immigration counsel, in relation to the mother's immigration to the UK. Her further report was received on 25 April 2017 sets out the considerable legal difficulties faced by the mother in seeking any reunification, whether temporary or longer term with the children in the UK.
21. In her response to Ms B's report the mother did not accept the conclusion and sought the return of the children to her care in India.
22. The Local authority filed its addendum final evidence and care plans on 11 May 2017 seeking final care orders for both children, for them to remain placed in long term foster care with their current foster carers. The Children's Guardian, Ms L filed her report on 11 May 2017. She supported the making of final care orders on the care plan for long term foster care.
23. At the pre-trial hearing on 4^th July 2017 the mother made an application that SS and her partner be assessed as alternative carers for the children. The mother confirmed at that hearing that she did not oppose the threshold criteria on the basis of the Amended Final threshold document dated 6^th March 2017, and the court found the threshold criteria to be met in this basis. The mother's position at that hearing was although she wished her children to return to her care, she supported SS being assessed as carer for the children. The Local Authority agreed the allocated social worker and the Children's Guardian would visit SS and her partner once they had filed statements as directed by the court, and that the LA would file a viability assessment of them by 25^th July. The case remained listed for final hearing on 26th July.
24. On 14^th July 2017 the social worker and Ms L visited SS and her partner at SS's parent's home in New Cross. The viability assessment report dated 25^th July considers the background information about the couple and their two children. It raises the concern that the request to be assessed came so late in the proceedings, when SS has been aware of the Local Authority involvement with the children before proceedings were commenced. The report considers that although SS was observed to be kind and attentive to the children at a recent contact, she and her partner have no relationship with the children and have no insight into the traumatic time experienced by the children in being removed by strangers away from their mother to France and onward to the UK. The social worker concluded that she does not support a placement of the children with SS, to move the children now from where they are settled and secure would, in her view, have a detrimental impact on their emotional wellbeing. The Children's Guardian, Ms L agreed with that conclusion
25. As described above, the court did not hear oral evidence but carefully considered the papers filed and heard submissions from all the parties. Ms Meusz said all she could on behalf of the mother and SS. She realistically recognised the reality for the children in wanting to remain where they are and the strong wishes of the mother and SS to provide future care for the children or, if not permitted to care for them, to remain in regular contact with KG and SG to maintain the important link with the birth family.

Legal Framework

26. The court has found the children have suffered and are likely to suffer significant emotional harm as set in the threshold document dated 6 March 2017. The finding is founded on the children being separated from their mother and ending up being found entering this country illegally in March 2015, when only 8 and 6 years of age. The mother and family have sought to minimise the significant emotional harm caused to the children by these actions that put them at such risk.
27. Any decision about future placement of the children is governed by each child's welfare, which is the courts paramount consideration under s 1 Children Act 1989, having regard to the welfare checklist set out in s 1(3).
28. In considering what placement option best meets the children's needs the court needs to consider the options and their respective advantages and disadvantages in accordance with the principles set out in cases such as Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.

Discussion and Decision

29. Whilst placement within the family would help secure the children's identity and cultural needs, that needs to be balanced against the reality of the mother's position. It is obvious from all the reports, in particular the one from Ms B, that the mother desperately loves her children and misses them greatly but she has not seen the children for a number of years, lives in conditions that are far from secure and directly or indirectly permitted them to be put at risk of significant harm with little insight of how those actions have harmed the children. Despite that background it is obvious the children greatly enjoy the weekly Skype contact they have with her and their sister. It is very much to the credit of the Local Authority that they have remained committed to establishing and maintaining this contact, recognising how important it is for these children.
30. SS's position as a potential carer for the children would have the advantages of maintaining their cultural and ethnic heritage but has to be weighed with the fact that they have no existing relationship with her, her relationship with her partner has only recently resumed, is untested and her role and understanding in how the children came here remains far from clear. SS's mother was in the car when the children were found and convicted of immigration offences relating to that. However SS's initial contact with the children was positive and if she can't care for them she is committed to having contact with the children, and doing all she can to support their current placement.
31. Whilst it is recognised the current placement may not meet the children's cultural needs, it does meet their needs in many other ways. The children are obviously happy and settled there, they are thriving at school from that secure home and have consistently said they want to remain living long term with their current carers.
32. As Ms L describes in her report the children have benefitted from having the same foster carers and the consistency provided by the continuity of social worker. Ms L continues in her report 'The children have experienced separation and loss since the death of their father. They have been moved with little preparation from one country to another by family members they barely knew and must have felt frightened, bewildered and confused. When their relatives were arrested in Dover they were taken to this foster placement where they have been treated with kindness, understanding and emotional warmth. The children have blossomed in this placement responding to the good physical care and the child focussed routine.', she continues later in the report to say 'I am satisfied that the children's identity needs are being supported and recommend they remain in this placement where they have made positive relationships and are making good progress in their physical, emotional and intellectual development'. The current foster carers support contact with the birth family, they facilitate weekly Skype contact with the mother and N. The foster mother has met SS, and a further meeting is planned.
33. Having considered each of the placement options for these children I have reached the conclusion their welfare needs will be best met by them being made the subject of care orders, endorsing the plan for them to remain long term with their current carers. It is that plan that accords with their wishes, maintains the security and stability they currently enjoy which has provided the secure foundation for their emotional and education progress and development. Continuing contact with their mother by Skype and SS and the wider family in person here is undoubtedly in their interests. It will assist with their identity needs in a tangible way that does not undermine the security they currently enjoy. Their current carers are wholly supportive of the children's cultural and ethnic needs being met through contact with the birth family, and their support for such matters as Tamil language classes.
34. In the difficult circumstances these children found themselves in a care order will now provide the long term security their welfare demands.