Neutral Citation Number: [2017] EWFC 85
Case No: SD16C01342
IN THE FAMILY COURT
Sitting at the Royal Courts of Justice, London

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/12/2017
Before:

MRS JUSTICE THEIS DBE
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Between:

	Brighton and Hove City Council	Applicant	
	- and -		
	MM	1st Respondent	
	- and - 		
	FF	2nd Respondent	
	- and - 		
	MGM	3rd Respondent	
	- and - 		
	TG
(by Her Children’s Guardian Theresa Seale)	
4th Respondent	

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Mr Martin Downs (instructed by BHCC) for the Applicant
Mr Graham Campbell (instructed by Railtons Solicitors) for the 1st Respondent
Mr Peter Horrocks (instructed by Spearpoint Franks Solicitors) for the 2nd Respondent
Mr Thomas Wilson (instructed by Goodman Ray) for the 3rd Respondent
Ms Clare Ciborowska (instructed by MW Solicitors) for the 4th Respondent

Hearing dates: 18th & 20th December 2017
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Judgment Approved

This judgment was delivered in private.  The judge has given leave for this version of the judgment to be published, the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Mrs Justice Theis DBE:
 
1.	This court is concerned with deciding the future care arrangements for TG, born in 2016 now less than 2 years old. Her mother MM (‘mother’) and her father FF (‘father’). TG was removed from her mother’s care in July 2017 and placed with foster carers.

2.	I am giving this short judgment to explain the reasons for the orders I am going to make. It is not necessary to set out a large amount of detail as there is a case summary which I approve and have attached as an annex to this judgment.  That summary sets out the relevant history and provides cross references to the papers before the court today. Before going on to say any more I would like to express the courts enormous gratitude to the parties in the case, in particular the allocated social worker Ms Pierce and MGM, for all they have done to make sure this hearing could go ahead and be a final hearing. As a result of all their efforts there is no further delay in securing the final long term care arrangements for TG 

3.	These proceedings were started by Brighton and Hove City Council (‘the local authority’), due to their concerns that the care TG was receiving from her parents placed her at risk of significant emotional and physical harm. In summary, this risk was due to the volatile and unstable relationship between the parents, their use of drugs and the mother’s inability to consistently take up the support that was offered to her or finally separate from the father. The local authority provided considerable support to the mother to try to help her provide safe care for TG, but by July the risks of significant harm to TG became too high due to the mother’s behaviour and they sought, and were granted, an interim care order so they could place TG with foster carers, where she remains. The parents have had some contact with TG but, sadly, have not been reliable about when they have attended. 

4.	Following assessments of the parents, the local authority concluded that TG should not return to either of her parents’ care. In addition, they undertook assessments of the wider family. The wider family included MM’s mother, MGM, who is TG’s maternal grandmother. MGM lives in The Gambia. The initial assessment was over the telephone, a more in depth assessment was undertaken by an independent social worker, Ms Coker, who visited MGM at her home, spoke to her referees and undertook other enquiries regarding the care MGM could provide. Ms Coker’s two detailed reports provide a comprehensive assessment of MGM’s ability to provide long term care for TG. Ms Coker makes a clear and reasoned recommendation that TG’s welfare would be met by being placed in the long term care of MGM in The Gambia.

5.	Initially the parents supported this proposal, however at a court hearing on 3 November 2017 they informed the court they had reconciled and sought to put themselves forward as joint carers for TG. However, they failed to comply with directions from the court to file a statement setting out what they proposed, and did not participate in updated drug tests. As recently as a few days ago, the police had to be called due to arguments between the parents. The current position is they are separated again. The mother now supports TG’s placement with her mother. This was confirmed by the mother who attended court today. She said her separation from FF is final, she is working and, as her counsel Mr Campbell put it, is ‘getting her life back together’. FF has not been in touch with his solicitors since 3 November, despite their efforts to contact him. He knew of these hearing dates, as he was in court in November when they were fixed. The Children’s Guardian reports recent text messages she received which appeared to be from the father.

6.	The proposal of the local authority is to place TG in MGM’s care under a Special Guardianship Order (‘SGO’) pursuant to section 14A Children Act 1989 and for her to be given leave to remove TG from the jurisdiction to live permanently in The Gambia. The court is invited to make an SGO of its own motion pursuant to section 14A (6) (b). This provides the court can make such an order where the court is considering family proceedings (such as the care proceedings issued by the local authority) if the child’s welfare requires such an order to be made. Although this does not require MGM to apply for leave to make a SGO I am satisfied if she had needed to make such an application it would have been granted. As TG’s maternal grandmother she has a close connection with her, MGM’s position is supported by the local authority and whilst there will be some disruption to the child by what she proposes, TG would not be harmed by it. An SGO will give MGM parental responsibility, which she will share with the parents but pursuant to section 14C (b) she can exercise that parental responsibility to the exclusion of any other person with parental responsibility. It is what has been called enhanced parental responsibility; that is the final decision as between her and the parents regarding the exercise of parental responsibility in relation to TG rests with her. She is able to override the exercise of any parental responsibility by the parents. 

7.	MGM has filed an application seeking leave to remove TG from the jurisdiction to live with her in The Gambia and has filed a statement setting out what her plans for TG are. As described in more detail in Ms Coker’s assessment TG will live with her in the family home. MGM is 58 years, her husband died in 2005. They had three children, her other two children live and work in Canada although visit The Gambia at least once a year. Two of her nieces currently live with her and she has domestic support in the home. Following her husband’s death in 2005 she receives a pension from his employment, with additional support from two of her children who live in Canada. Details as to the available schooling are set out in Ms Coker’s report and in her statement MGM details the school she has chosen for TG to attend. MGM recognises the importance of the parents in relation to TG’s identity but it also alive to their respective failings as regards their care of TG. Ms Coker’s report is very positive and concludes that the care MGM proposes is highly child-centred and will help address any earlier omissions of care TG may have experienced whilst in her mother’s care. 

8.	MGM arrived here on 14 December and is being accommodated at the expense of the local authority. Her visa lasts until 18 January and she has a flight booked to return to The Gambia on 16 January. The parties have been able to agree the following arrangements:

(1)	An application for a British passport for TG. The application was made yesterday, and the passport is expected to be ready by 3 January 2018;
(2)	Suitable arrangements for TG to receive the necessary immunisations, with the expectation that the last one will be given on 11 January.
(3)	MGM plans to secure a Gambian passport for TG once they are back in The Gambia.
(4)	If the court makes an SGO today MGM agrees to TG remaining in the care of the foster carer whilst the agreed transition plan takes place, building up the time she has with TG prior to the move to The Gambia.
(5)	A SGO support plan has been agreed between MGM and the local authority whereby the local authority will make regular financial payments to MGM until TG is 18 years and provide other support as set out in the plan, such as managing contact between TG and her parents on any visits to this jurisdiction and providing financial support to enable MGM to make applications to secure her legal status in relation to TG in the Gambian courts.

9.	When it looked like placement of TG with MGM was a realistic option the local authority sought legal advice from Sagar C.T. Jahateh, a lawyer who practices in The Gambia. There are two written opinions from her in the papers, dated 19 October 2017 and 8 November 2017. In addition, there was a joint telephone call with her and the lawyers in this jurisdiction. I can summarise the advice she has given as follows:

(1)	On arrival in The Gambia the best option is for MGM to apply for TG to be made a Ward of the High Court of The Gambia pursuant to ss191 – 197 (Gambian) Children’s Act 2005 pending a hearing and determination of an application for a Guardianship Order in The Gambia. The wardship would be a temporary measure and for its duration the child would be directed to live with MGM and there could be orders providing some protection against removing the child from the care of MGM.

(2)	MGM can also make an application for a Guardianship Order under the Children’s Act 2005 ss 179 – 181. This application will, according to Ms Jahateh, take more time as it requires a welfare investigation to be undertaken prior to the court being able to make a final order. If such an order is granted in favour of MGM she will, as a matter of Gambian law, acquire parental responsibility for TG.

10.	MGM is fully committed to making the necessary applications to the court in The Gambia to secure her legal status in relation to TG as a matter of Gambian law and the local authority have agreed, as set out in the SGO plan, to provide the financial assistance to enable her to do so. Such assistance as the courts in The Gambia can give to securing TG’s placement with MGM, particularly by way of a wardship order in the short term pending the determination of an application for a guardianship order, will undoubtedly meet her welfare needs. Such orders would provide for the legal security and stability that her welfare needs demand.

11.	The plan in relation to continuing contact between TG and her parents is set out in the documents. MGM plans to visit this country approximately once a year and will facilitate contact between TG and her mother. In between time there will be indirect contact, which may include contact by skype or whatsapp. In relation to contact with her father MGM has set out her concerns about that and seeks support and guidance from the local authority. Whilst MGM recognises the importance of TG maintaining contact she has well founded concerns that direct contact with her father may not be in TG’s best interests.  

12.	Any order this court makes regarding TG is governed by her welfare needs, that is the court’s paramount consideration as set out in section 1 Children Act 1989, having regarding to the considerations set out in section 1(3).

13.	The options for TG’s future care are either to be returned to the care of her parents, be placed with MGM outside the jurisdiction in The Gambia, to remain in long term foster care here or to be placed for adoption. 

14.	It is clear neither of TG’s parents are able to provide her with safe and secure care. This is accepted by the mother. The father has not participated in the proceedings since early November 2017. Bearing in mind his past behaviour, in particular his drug use and very unstable lifestyle he is not in a position now to provide the day to day care TG would require, nor is he likely to be in that position in the foreseeable future as there is no sign he recognises any need to change. 

15.	The assessments of MGM, which I accept, are united in their recommendations that she will be able to meet her long-term physical, emotional and psychological needs. Inevitably there will be a change for her being placed in MGM’s care and moving to another jurisdiction but it is quite clear MGM has sensitively considered the right care for her, made plans in relation to schooling and will be able to provide the long-term stability within the wider family that meets TG’s best interests. Of course, a consideration is that, by placing TG out of the jurisdiction (in The Gambia) will limit the opportunities she will have for direct contact with her parents, but I am satisfied that the arrangements for future contact for TG with her parents will be honoured by MGM. She recognises the importance for TG, in relation to her own identity, of the need for her to grow up being fully aware of how she came to be placed with her and the background and circumstances of her parents. That security and stability that MGM can offer outweighs any loss of opportunity of additional direct contact with her parents.

16.	Whilst the option of long term placement with foster carers here would have the advantage of TG remaining in the same jurisdiction as her parents and the close support and monitoring of the local authority, such a placement would not provide the long-term stability she requires and would deny her the opportunity of being brought up within the maternal family. 

17.	A plan for adoption could provide long term security as it would be a permanent placement, and it would be in the same jurisdiction as the parents, but the effect of it would be to sever the links with the birth family, both here and in The Gambia.

18.	Having balanced the advantages and disadvantages of the placement options for TG I fully support the plan to place TG in the care of MGM under an SGO and for leave to be given for MGM to remove TG from the jurisdiction for the purposes of living permanently in The Gambia. Only that order will provide the long-term security TG requires, with the benefits of being brought up within the wider maternal family and her identity needs regarding her Gambian heritage would be met. She would continue to have contact with her mother, and maternal aunt and uncle. This will benefit TG’s emotional and psychological needs. MGM has a good understanding of the position of the parents and has shown herself willing to take advice and support from the local authority here about maintaining TG’s contact with them.

Annex

ABBREVIATED CASE SUMMARY 
FINAL Hearing 18th December 2017
APPROVED BY THE COURT

The Parties

1.	The Family Court in England is concerned with a child, TG (a girl) who was born in 2016 and is now less than 2 years old. Her mother is MM and her father is FF. 

2.	MM is from The Gambia but has indefinite leave to remain in the UK. FF is an Italian national living in the UK. 

3.	Proceedings were commenced in the Family Court in England and Wales on 14th December 2016 (when TG was 8 months old) concerning her welfare. The application was made by Brighton and Hove City Council, the Local Authority for the area where TG lives. 

4.	The proceedings were brought because Brighton and Hove City Council were concerned that TG was at risk of significant physical and emotional harm in the care of her parents. 

5.	The Court appointed Ms Theresa Seale to be TG’s Children’s Guardian (i.e. she speaks for her interests in court proceedings). In turn, the Children’s Guardian appointed Ms Barbara MacDonald to act as TG’s solicitor.  

The history
6.	The Mother came to the attention of Children’s Services in October 2015 during her pregnancy with concerns over her substance misuse, domestic abuse, unstable lifestyle, creating an unsafe home environment and because she had associates who it was felt were likely to pose a risk 

7.	The Father had been known to Children’s Services since April 2015. In previous proceedings relating to a son (by another mother), hair strand testing was conducted on the father and came back with a positive result for cocaine and cannabis [E23, E31]. Nevertheless, the father asserted he did not use drugs and had not undertaken treatment.

8.	There were six referrals to social services from the Police about violence between the parents within the family home between January 2015 and July 2016.  

9.	Even before TG was born, she was the subject of a child protection plan [E21] drawn up by Brighton and Hove City Council with her parents and following TG’s birth a written agreement was signed with both parents: it provided for the Father to have supervised contact with TG via an agency [E21], otherwise she was to have no direct unsupervised contact [E18].

10.	The mother tested positive for cannabis on 18 July 16 [E26], for cocaine on 21 July and 23 August 2016 and the maternal grandmother reported that the mother was using drugs in July [E22]).

11.	The mother struggled to sustain engagement with drug addiction services. Planned appointments with the Health Visitor were not kept on 17 and 22 November 2016; TG’s development was not assessed [E19] and she did not have her 16 week immunisations [E26, P2]. Additionally appointments with the Social Worker were not kept [E19, E22] and thus there was no opportunity to carry out drug testing [E22]. 

12.	The Father did not engage with Brighton and Hove City Council social services and he attended their offices without appointment, smelling of alcohol and became abusive [E23, E30]. The parents were also seen together and in July 2016 the maternal grandmother MGM informed a social worker that the Father was in the home and staying overnight [E22]; The Mother then asked for help to get him out. The maternal grandmother also reported the Father to be verbally and racially abusive to her [E23, E31].

13.	The parents did not attend meetings organised to see if there was any alternative to Court proceedings and so an application was made to the court on 14th December 2016. 

14.	There had been no court previous proceedings concerning TG but in March 2016, a Family Court had made Orders concerning another child of the father’s – SG (he has a different mother from TG). The child remained with the mother in that case with restrictions on the contact that his father can have with him.   

Family Court proceedings
15.	Brighton and Hove City Council made an application to the Family Court for a Care Order pursuant to the Children Act 1989 concerning TG on 14th December 2016. This order would allow the City Council to share parental responsibility for TG with her parents. 

16.	In the proceedings there have been thirteen hearings. The mother has been represented throughout by solicitor and barristers. 

17.	The father was notified of the proceedings on 6th January 2017 but the first hearing he attended was on 29th June 2017. He instructed a lawyer and has been represented at subsequent hearings.

18.	At the initial hearing before a Judge on 20th December 2016, the Court just ordered that the mother share parental responsibility for TG with Brighton and Hove City Council under an interim care order and subsequently an order was made on 9th January 2017 that she care for TG under the supervision of Brighton and Hove City Council. However, the mother did not follow the written agreement she had entered into about the care of TG that she had made with Brighton and Hove City Council and TG continued to be neglected. At the initiative of the Children’s Guardian, it was agreed that TG would move with the mother to live in a foster placement on 23rd January 2017 (after a court hearing on that day). 

19.	On 4th April 2017, Her Honour Judge Jakens presided over a hearing in which the mother agreed (the father was not present) that TG was at risk of suffering significant physical and emotional harm and neglect because of her parenting (amongst other factors); in particular as a result of: 

(i)	 the volatile and aggressive nature of the relationship between the parents before she was born. They had said that they had separated at her birth but continued to see each other (despite agreements with the Local Authority that they would not);
(ii)	The mother’s abuse of alcohol, cocaine and cannabis; and
      (iii) The father’s misuse of alcohol and drugs. 
  Additionally, both parents had struggled to engage with social workers and so it 
  was very difficult to keep TG safe. 

20.	TG and her mother appeared to do well in their joint foster care placement and the Local Authority proposed that TG be cared for by her mother (without the father) under a Supervision Order (this would typically last for a year).  However, this plan was undermined when the Mother and TG were found at the Father’s address by Police on 14 May 2017 in clear breach of the written agreement [E117-119]. The Case returned to Court and on 29th June 2017 a Judge agreed with the City Council’s change of plan to one whereby TG was removed from the care of her mother so that she lived with foster carers without the mother. TG was looked after by foster carers from that point. 

21.	The Mother produced a witness statement in August 2017 in which she made it clear that she did not oppose the LA final care plan but rather proposed a placement of TG with Mother MGM) in The Gambia or failing that, with her brother in Canada.

22.	On 26.08.2017 the Father filed hair strand tests which proved positive for cocaine and for crack cocaine use [G76]. He did not comply with any directions of the Court that he make a witness statement.
23.	The Local Authority commissioned an Independent Social Worker, Ms Henrietta Coker to assess the maternal grandmother. She authored two reports within these proceedings and recommended that TG move to live with her maternal grandmother in The Gambia.

24.	In her assessment, Ms Coker detailed the maternal grandmother’s generous and caring approach to life, describing her as ‘extremely kind’ [G99], and noted the number of children within her wider family and local community for whom she has played a meaningful role in raising and caring [G102]. Additionally, Ms Coker highlighted the maternal grandmother’s commitment to caring for TG, her insight into TG’s emotional needs, the challenges that she has faced, and the impact on TG of inconsistent and inadequate parenting throughout her short life [G143]. Ms Coker described the grandmother as ‘reflective about her own parenting’ [G149], and it is clear from the two reports that the grandmother recognised how well-meaning decisions taken by herself and her late husband contributed, in part, to her daughter’s current issues. 

25.	Ms Coker identified the maternal grandmother’s wide support network, comprising friends and family members. In particular, Ms Coker noted the number of people that the grandmother has supported and cared for over a number of years, and the collegiate nature of the grandmother’s social and familial networks. At [G133], Ms Coker notes that: ‘My impression was that MGM has access to a large amount of support and is unlikely to need much help from outsiders.’  Ms Coker described the grandmother as an ‘authoritative parent’, and concluded that the grandmother will be able to enforce boundaries in relation to the parents

26.	Brighton and Hove City Council formed the view that it would be in TG’s best interests for her to move to The Gambia to be cared for there by her maternal grandmother. 

27.	On 28th September 2017, the Court directed that a legal opinion be obtained in The Gambia from the Gambian legal expert, Mrs. Sagar C.T. Jahateh (who is a Barrister and Solicitor of the Supreme Court of The Gambia). She opined that Mirror Orders could be obtained in the Republic of The Gambia so that the maternal grandmother could be appointed as a sole guardian of TG (section 181 (5) Children’s Act but that these proceedings could take time. In the meantime, on arrival in The Gambia, Ms Sagar Jahateh said that the best option would be for the maternal grandmother to apply for TG  to be made a Ward of the High Court of The Gambia pursuant to ss 191 – 197 Children’s Act 2005 pending a hearing and determination of the Guardianship Order in The Gambia. The wardship would be a temporary measure and for its duration, the child could be directed to live with her grandmother and there could be orders providing some protection against removing the child from the care of the grandmother.

The position of the parties.  

28.	The matter was re-allocated to be heard by a High Court Judge, Mrs Justice Theis, and the proceedings culminated in a final hearing on 18th and 20th December 2017. At those hearings the Local Authority recommended that TG be made the subject of a special guardianship order in the name of the maternal grandmother, MGM in The Gambia.

29.	In the law of England and Wales, a special guardian has parental responsibility for the child. Subject to any other orders, a special guardianship order allows the special guardian to exercise parental responsibility to the exclusion of others with parental responsibility. 

30.	MGM flew over to the UK in December 2017 and the City Council paid for her to be provided with lawyers to provide her with independent legal advice. 

31.	TG’s mother conceded that she was not in a position to care for TG and agrees that it would be in her best interests to be looked after by the maternal grandmother. 

32.	The Father opposed the plan but did not attend court. 

33.	The Children’s Guardian concurred that the only realistic option for placing TG with her grandmother in The Gambia was under a special guardianship order and was satisfied that the Court could be assured that the plans to place TG in the care of her maternal grandmother were in place.