Neutral Citation Number: [2018] EWFC 21 
 
IN THE FAMILY COURT

  
Date:   1 March 2018 

Before :

Mr Justice Moor
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Between :
 
A County Council
Applicant
-and-
KO 

First Respondent
-and-
RL 

Second Respondent
-and-
ML and MML 
(by their Guardian)

Third Respondent
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Ms Beverley Golden for the Applicant
  Ms Janet Haywood for the First Respondent
  Mr Christopher Rice for the Second Respondent
 Mr Adam Smith for the Third Respondent

Hearing dates:  26 February to 1 March 2018
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JUDGMENT
 
MR JUSTICE MOOR:-

1.	I have been hearing an application by A Local Authority (hereafter “the Applicant”) for orders relating to two children, ML and MML.  ML was born on 2010 and is therefore aged seven.  MML was born in 2017 so she is nearly aged one.
 
2.	The First Respondent, KO, is the mother of both children.  I will refer to her throughout as “the Mother”.  The Second Respondent, RL is the father of both children and I will refer to him as “the Father”.  The children are represented by their Cafcass Guardian.

3.	Although not parties, I am also concerned with the Father’s sister and the children’s paternal aunt, MB (hereafter “the Paternal Aunt”).  She was born in 1983 and so is aged 34.  She is married to FB, who was born in 1979, so he is 38.  They have two children, both girls.  T was born in 2007, so she is aged 10.  K was born on 3 November 2012, so she is aged 5.  Although they lived inland in their country in Africa for a while, they have recently returned to live on the coast, where they own a house, laundry, car wash and hair salon.   I will refer to this country as “Z”.
 
The relevant history

4.	The Mother was born on 1981 in Z.  She is therefore aged 37.  The Father was also born there in 1981, so he too is aged 37.  
 
5.	The Mother came to this country in 2004 on a working holiday visa.  She says it was extended as a student visa until 2012.  She then applied for permanent residence which was refused in September 2013.  In April 2016, her application for asylum was refused.  She is therefore an “overstayer”.  She applied again in April or May 2017 following the birth of MML based on an Article 8 (right to family life).  She says she has not heard further since she filed the application.  It follows that, at present, she is in this country illegally and is not, in consequence, entitled to work or to claim benefits.  Moreover, she is at risk of eventual deportation.  As part of one of her earlier applications, the Mother claimed that she had been subject to physical and sexual abuse in Z before being trafficked to this country.  She now says that all these claims were false.  She says that she was put up to this by her then immigration solicitor and she admitted the deception in court.

6.	The Father came to England at around the same time as the Mother also on a two-year working holiday visa.  He is in exactly the same position as her in that he is also here illegally and classed as an “overstayer”.  It appears that he managed to remain “under the radar” for many years.  Indeed, as will become clear, he managed to work using a false passport.  He has now made a similar right to family life claim since MML’s birth.  He is undoubtedly at risk of deportation, particularly given that he has a criminal record following the discovery of the false passport.   

7.	The parents met in Lancashire and commenced a relationship shortly after they had both arrived. They subsequently moved down to the south of England.  They have three children.  The eldest is RL.  She was born in 2008.  She is therefore aged ten.    The parents sent her to Z to be cared for by the Father’s relations in 2008 when she was approximately three months old.  Other than via Skype, neither parent has seen her since.  There is a small dispute as to whether she was sent to Z to be cared for by the Paternal Aunt or whether she was sent to the paternal grandmother but was collected at the airport by the Paternal Aunt.  There is no doubt, however, that the paternal grandmother, insisted on taking over RL’s care.  More recently, RL has been cared for by another paternal aunt, P who is aged 22.

8.	I have already noted that ML was born in 2010.  In March 2012, the Mother made a domestic abuse complaint against the Father, alleging he slapped her on different parts of her body.   In June 2013, the UK Border Agency was concerned as to the whereabouts of RL.  When they discovered she was living in Z, an investigation was undertaken and it was found she was receiving good care.  

9.	The same year, the parents were refused leave to remain in the UK.  The relationship between the parents broke down around this time.  The Mother alleged the Father was domineering, emotionally and physically abusive.  She alleged he shouted at her and belittled her.   

10.	On 19 January 2014, the Mother said she did not see the Father regularly but a further incident was reported between them very shortly thereafter on 24 February 2014 when she alleged he grabbed her around the face and neck before using force to push her head backwards.  

11.	On 27 February 2015, a referral was made due to the Mother’s alleged depression.  The concern was that it was leading to neglect of ML.   On 13 July 2015, the Mother’s immigration solicitor sent an email to the Local Authority saying that the Mother had talked about wanting to end it all and that she had tried to smother ML with a pillow whilst he was asleep.  It is reported that she said ML woke up and asked her what she was doing.  It is further alleged that she said that she sometimes wants to drown him during baths and that she slapped him last week.  It is said that the Mother was failing to take her medication.  She denies saying or doing these things to ML.  There is, however, no doubt that, at least at school, ML became a selective mute, refusing to speak to anyone.    In July 2015, the Police exercised their powers of protection.  Initially, the Mother agreed to the Local Authority looking after ML pursuant to section 20 of the Children Act but she later refused an extension leading to the institution of care proceedings.  

12.	In September 2015, ML was placed with the Father and his then partner, Ms LA.  The Father and LA have one child together, FL who was born in 2015 and is therefore two years old.  

13.	On 2 November 2015, a psychologist, Dr HZ, reported that ML had a good but not a secure attachment to the Mother.  On 23 November 2015, a consultant psychiatrist, Dr MC reported that the Mother had suffered from Post-Traumatic Stress Disorder as a result of the abuse she said she had suffered between the ages of 15 and 23.  She was depressed due to stress which included the domestic abuse she had suffered at the hands of the Father; the threat of deportation; and a lack of money.  She was at continuing risk of impulsive and ill-judged behaviour.  

14.	The same Cafcass Officer, represented ML in these earlier proceedings.  She reported on 8 March 2016.  She said that there was no doubt that ML had made much positive progress living with the Father and Ms LA.  He had been physically well cared for by the Mother but her mental health difficulty was a significant risk factor.  ML was not happy at the time.  She recommended that his best interest was served by remaining with the Father and LA.

15.	On 9 March 2016, an agreement was reached as to threshold.  It was accepted threshold was crossed.  The agreed document said that the Mother had told her solicitor that she had thoughts of attempting to strangle ML the previous month while he slept and that she wanted to kill herself and her son.  ML was described by the school as selectively mute.  The Mother had been diagnosed with PTSD and depression.  Although she has the capacity to meet his emotional needs, her mental health issues impacted on her ability to do so consistently.  A supervision order was made to the Local Authority for one year.   A child arrangement order was made for ML to reside with the Father and Ms LA.  Contact was to take place between ML and his Mother to be facilitated by the Father.  The order provided for visiting contact twice midweek after school until 5pm and a third occasion on Sundays from 10am to 3pm.  It appears that this was subsequently increased to four times per week by agreement between the parents.

16.	During the summer of 2016, the Mother became pregnant again.  Initially, she refused to provide the name of the father of the baby.  She later said it was a Mr CJ. It is clear that Ms LA thought it was the Father as she told me she believed the Mother and Father had recommenced their relationship.  The Father was spending hardly any time at home with her.  He says he was just working very long hours to make ends meet.

17.	Foolishly, the Mother refused to undertake any pre-birth assessments saying she was under too much stress at the time and that any assessments should be conducted after the birth of the child.   On 22 December 2016, Ms LA reported three separate allegations of domestic violence against the Father.  On 14 January 2017, the Father was arrested for a further incident of domestic violence against Ms LA.  He was remanded in custody.  A false passport of his was found in the home by the Police in the name of KFCJ.  It is alleged that, in at least one of the incidents, ML had tried to protect Ms LA.  

18.	It appears that the Mother took ML overnight on 14 January 2017.  She also had him for two nights the following weekend, 21/22 January 2017.  On 21 January 2017, the Mother took ML to see the Father in prison.  It is said that ML found this distressing.  The Father gave the Mother a letter to give to Ms LA in which he said the Mother should look after ML.  There is a dispute as to the exact circumstances in which the Mother retained ML for the two nights.  The Mother says that she said she wanted to take ML to school on the Monday morning whereupon Ms LA could collect him from school that afternoon.  Ms LA does not accept that but there is no dispute that Ms LA objected to the Mother keeping ML on the Sunday night.  It is further alleged by the Local Authority that the parents had planned to return ML to the Mother at the conclusion of the Supervision Order on 9 March 2017 but they deny this.

19.	On 1 February 2017, the Mother told the Local Authority that the father of her unborn baby might be the Father or it might be Mr CJ.  In February 2017, the Father was sentenced to six months in prison for possession of the false passport.  His release date would have been in April 2017 but, due to his status as an over-stayer, he was transferred to a Detention Centre.  He remained in custody until December 2017 when he was finally granted bail.  

20.	With the Father in custody, Ms LA came to the difficult decision that she could not continue to care for ML.   In consequence, the Local Authority applied in early March 2017 for a care order in relation to ML.  Later that month, MML was born by caesarean section due to the Mother having high blood pressure.  The same day, the Local Authority applied for a care order in relation to MML.  On 13 March 2017, an Emergency Protection Order was granted until 22 March 2017.  MML was placed with foster carers.  HHJ Jakens considered ML’s care proceedings on 14 March 2017.  She made an ICO in relation to ML, who was placed with different foster carers.  Ms LA was dismissed as a party.  

21.	The Mother then informed the Local Authority that she had fabricated Mr CJ as being the father of MML and it was in fact the Father.  Given that Mr CJ was the name on the false passport, it would not have been a surprise to anyone who knew about the passport.  The matter came before Pollard DJ on 22 March 2017.  Interim care orders were made in relation to both children.  The parents did not consent but they did not actively oppose the orders being made.

22.	The Mother replied to threshold on 24 March 2017.  She accepted that threshold had been made out in the previous proceedings.  She denied that the children were at risk of significant harm from her.  She said that the allegations she had made of her being abused in Z were invented by her immigration lawyer. She had been discharged from the Crawley Mental Health Team in 2016.  She had now made friends and was able to cope much better with stress.  She was no longer financially dependent on the Father and was not vulnerable.  She did not engage in the pre-birth assessment as she did not want any additional stress at the time and she felt bullied by the social worker.  In a statement dated 3 April 2017, she said she was not in a relationship with the Father and did not intend to be in a relationship with him in the future.

23.	The Local Authority began to consider placing the children with the paternal Aunt and her husband in VB.  An initial viability assessment dated 7 April 2017 concluded that the Paternal Aunt would protect the children and not return them to their parents.   VB is a chef working on a large fishing vessel.  At the time, the family was living in a three-bedroom property in northern Z but the property needed to be completed.  Although a placement with the Paternal Aunt and her husband was viable, there needed to be further assessment.   

24.	A psychiatric report on the Mother was prepared by Dr MC and is dated 19 May 2017.  He had reported on her for the previous proceedings.  The Mother said she had tried to end her life in 2010 (by drinking washing powder) and in November 2014 but she denied any such attempts since.  She had not taken any anti-depressants since she became pregnant.  She was unhappy but she did not present as clinically depressed.  There was no evidence of delusional thinking or any other mental illness.  His original PTSD diagnosis was predicated on her account of trauma which now appears to have been fabricated.  The most likely scenario is that she experienced a moderate depressive episode which had since largely remitted.   

25.	The Father’s first statement is dated 24 May 2017.  He said he had made an application for leave to remain in this country based on his right to a family life.  He said he is a committed father.  He denied any domestic violence and further denied being controlling.   

26.	The Local Authority Social Worker, Ms CS prepared a parenting assessment of both parents and it is dated 7 July 2017.   She said that both parents have been dishonest with professionals.  She was concerned that there have been concerns for several years as to ML’s emotional well-being and development.  He has been a selective mute and there remained concerns regarding his withdrawn presentation.  He has been exposed to domestic violence and had tried to intervene in incidents.  He will require a high standard of reparative care where his needs are prioritised and he is protected from harm.  Ms CS concluded that there was an unacceptable level of risk involved in placing the children with either parent as it would place them at risk of emotional harm, physical harm and neglect.  In consequence, they needed to be placed elsewhere.  

27.	An independent social worker, FR prepared a special guardianship assessment of the Paternal Aunt and her husband on 19 July 2017.  In doing so, she travelled to Z to see them.  A parenting assessment had also been prepared of another paternal aunt, P and the paternal grandmother, but had ruled both out.  The Paternal Aunt said that she had to give RL to her mother as she had no legal rights over RL.  Ms FR was unable to recommend approval at the time but recommended that the Paternal Aunt should travel to the UK to be assessed with ML and MML.  She made the point that they would need financial assistance.  

28.	A lawyer from Z, GJ was instructed to advise as to the legal position in Z and, if appropriate, how placement with the Paternal Aunt and her husband could be secured.  He said, on 13 September 2017, that the overriding principle in Z was the best interests of the child.  A primary care giver can apply to become a legal guardian.  He later confirmed that it was possible to register an order in Z. Unfortunately, he did not respond to further requests for information and, eventually, the parties decided to approach a different lawyer.   

29.	A psychological assessment of ML was undertaken by Dr TK, a chartered clinical psychologist, and is dated 14 September 2017. ML was welcoming, friendly, curious and interested although he was initially hesitant and cautious.  It seems likely that he has experienced some level of relational and developmental trauma and toxic stress during his childhood as well as some inconsistent and unpredictable parenting.  He presented as a “frightened child”.  At times, he would have received sensitive and attuned care from the Mother but not at other times.  He was unable to show his feelings and was overly compliant.  Although he was relatively settled in foster care, he was confused and unsure as to the future.  At times, he has been withdrawn, quiet and reserved as well as avoidant and hyper-vigilant with deactivated emotional expressiveness.  At different times, he has been mute.  He will benefit from a consistent, safe and stable home environment.  He is below average at school “across the board”.  Dr TK did feel it was important he should have contact to both his Mother and Father.  
 
30.	The Paternal Aunt and her children, T and K, travelled to the UK on 18 September 2017 for the assessment.  The visit went well.  All three got on well with ML and MML after some understandable initial reserve.  They returned to Z on 24 September 2017.    

31.	HHJ Jakens transferred the case to me on 3 October 2017.  She made a declaration as to the children’s habitual residence being here but notified the Z Embassy of the case given the children’s Z heritage.  

32.	A comprehensive assessment of the Paternal Aunt was prepared by the Social Worker, Ms CS and is dated 12 October 2017.  Ms CS considered that the Paternal Aunt appeared genuine in her wish to care for the children and had given it significant consideration.   She presented as committed with insight and understanding.  There were no significant concerns.  The children interacted well and it is a close family.  They were relaxed in each other’s company.  T and K were happy, polite and engaging children.  MML became distressed easily but that is not surprising but she should adapt more easily than an older child to the move.  ML may struggle to adjust and he will need therapeutic intervention in Z.  The Paternal Aunt appeared sincere in her view that she would not allow the parents to take the children.  There was a cautious recommendation for placement with the Paternal Aunt in Z but she should travel here a second time. 

33.	The Mother’s second statement is dated 3 November 2017.  She said that ML’s reluctance to speak in front of strangers runs in the family.  He is only mute when he feels like it.  He has been held back in foster care.  He is not sad but quiet.  Bed-wetting is not a new issue.  He misses his family.  The Mother said she had not had a relationship with the Father since 2013 apart from one incident of sexual intercourse when he had popped over to her home to change a lightbulb.  She accepted that she failed to protect ML by allowing domestic abuse in his presence.  She regretted returning RL to Z.  In consequence, she has not seen RL for nine years although she has telephone contact with her every month.  She experienced low mood in 2009 but refused medication.  She denied attempting suicide.  She accepted medication in 2015.  Her tenancy is in joint names with the Father.  Either she or he could parent on their own.  If the children do not come back to live with her, she will return to Z.  She did nothing to ML and her immigration solicitor made up the incident with the pillow.  There was once incident when the Father slapped her across the face which ML saw.  She denied he was the Father of MML due to her concern not to upset LA.  She accepted she had said untrue things to stay in this country.  She suffered from extreme stress and upset when she was pregnant in 2016/2017 and she found social work involvement very upsetting.  She felt pressurised into an assessment but it was not the right time.  She would not oppose a supervision order if the children were returned to her.  If they cannot be returned to her or the Father, she would agree to them going to Z to live with the Paternal Aunt.  If she returns to Z, she will live with her family in the North West of the country.   
 
34.	The Cafcass Officer filed her first report on 2 November 2017.  She was unable to recommend that the children be placed in either parent’s care.  She was, however, unable to make a final recommendation about Z until she had seen a more comprehensive care plan and there was greater clarity as to the legal issues.  

35.	The Local Authority’s final threshold document is dated 6 November 2017.  As threshold is in dispute, I will deal with it in detail when I make my findings of fact.  In essence, however, it relies on the previous threshold findings; the Father’s domestic violence and the effect of that on ML; the parents’ deceit; the Mother’s refusal to cooperate with a pre-birth assessment; her failure to have insight into ML’ emotional needs; and her mental health, general circumstances and parenting capacity not having changed since the last threshold document.   

36.	I heard the IRH on 6 November 2017.  I set this final hearing down to commence on 26 February 2018 and invited the Paternal Aunt to attend the hearing.   

37.	The Father filed a second statement on 15 November 2017. At the time, he was in the Colnbrook Detention Centre.  He said he wished to care for both children but, if he or the Mother could not do so, he would agree to them being placed with the Paternal Aunt and her husband.  He said that he had had virtually no contact with the social worker and that he had not been given a chance. He added that his family had been let down by the system.  He would cooperate with professionals.  He said everybody deserves a second chance and he was seeking the opportunity to prove himself.  He had concerns about his son moving to Z as ML does not speak the language.  He was distraught he had not even met his daughter although he accepted she is well cared for.  He did not accept that this was true of ML who, he said, did not seem happy in foster care.   

38.	Dr FR produced a second report dated 5 December 2017. As the Paternal Aunt and her husband had been unable to afford to complete the work on the house in northern Z, which would have cost a further £3,000, they had decided to return to their home on the coast where there were no concerns as to the house.  She included a number of photographs to support her view.  The Paternal Aunt and her husband remain committed and the Aunt has found a psychologist near their coastal home who can help ML adjust to life there.  A Special Guardianship Order will not be recognised in Z but it will enable the children to be placed there so that the legal process can be started in Z.  She remains optimistic as to a satisfactory outcome.   

39.	By now, the Paternal Aunt had approached a second lawyer, Ms KN who seems much more committed to assisting.  However, her initial advice seemed to be predicated on the assumption that the matter would be a consent order as she said that she would require a statement by the Father accepting the placement as well as from two witnesses that he would choose who would agree and there would have to be a psychiatric report on the Mother saying she was mentally unfit to care for the children.  The process will take five months.

40.	In December 2017, the Father was released from detention.  Initially, he was placed in accommodation provided by the UK Border Agency in Wales but he has since moved to East London.  He shares a flat with three other men so there are two to each room as it is a two-bedroom property.  He has been travelling to the South Coast weekly for contact to both children.  He has been seeing both separately apart from one occasion when the two contact periods overlapped.   

41.	The Father’s former partner, Ms LA filed a statement on behalf of the Local Authority dated 30 December 2017.  She met the Father in the autumn of 2014 shortly after she arrived in this country.  She became pregnant in February 2015.  FL was born in November 2015.  LA said that she knew something was going on between the Mother and the Father in 2016 when the Father spent increasingly more time away from their home.  She detailed a number of separate incidents of domestic violence that she said the Father perpetrated on her.  He was controlling.  He slapped her in November 2016.  ML was present and she was holding FL.  ML was crying and telling his Father to stop.  In October 2016, the Father held her tightly by the arm such that she was bruised and he slapped her.  She fell on the bed.  On another occasion, he gave her two slaps.  She was shaking.  In December 2016, he slapped her and put his hands around her neck.  ML was not present.  There was a mark on her face and neck.  Finally, on 14 January 2017, he held her neck such that she could not breathe.  She started to see blackness.  ML was screaming for him to stop. It lasted one minute and he also slapped her such that she fell.  The Father took ML.  ML later apologised that he could not protect her. The Mother took ML to see the Father in prison and would not, thereafter, return ML to her.  She exhibited photographs of her alleged injuries, including bruising to her arms; linear marks on her neck and bruising to her left eye.   
 
42.	Ms FR produced a third report dated 3 January 2018.  The house near the coast in Z is in the joint names of the Paternal Aunt and her husband.  A paternal uncle, J has moved out.  The Paternal Aunt was clear that she was not in contact with her mother the paternal grandmother.  The Aunt says she can supervise direct contact to the birth parents up to three times per annum.   

43.	On 23 January 2018, Ms CS filed her final statement. She said that Ms KN has said she can obtain an order in Z within three weeks of the children arriving.  Oral evidence suggested that this might be some form of an injunction against the parents/other relations to prevent removal of the children from the Paternal Aunt pending the making of final orders.  Ms CS said that, given the parents were ruled out, the only alternative to the Paternal Aunt would be adoption for MML and long-term fostering for ML.   

44.	The Mother’s final statement is dated 5 February 2018.  She accepts she took ML to the prison on 21 January 2017 but says she informed LA who agreed to the trip.  She never intended to keep ML and told Ms LA that all she wanted to do was to take him to school on the Monday morning.  Placement in Z would be very difficult for the children.  ML is already struggling at school.    

45.	The Father filed a further undated statement around the same time.  He said he was really shocked by Ms LA’s statement.  It is full of lies.  He has never been violent to her although they did argue and shout.  He denies ever cheating on her.  He wishes to remain in the UK even if his children are sent back to Z.  He makes the point that he has attended every contact and says that ML cries at the end of contact.  

46.	The final Cafcass Report was filed on 15 February 2018.  The Cafcass Officer says she cannot recommend that either the Mother or the Father care for the children.  ML is very settled in foster care.  There is no upset or anxiety surrounding contact.  The parents love and care about the children a great deal.  The Mother remains in good health but she has a complex relationship with the Father which endures.  The Father is warm and affectionate to the children but he would rely on others to care for them if they lived with him.  ML is quiet and shy.  He has witnessed much trauma.  He was unsettled by the two other children in his placement moving on. ML and MML are Z children. She supports them being cared for by the Paternal Aunt and her husband but, given the legal complications, it will be a “leap of faith”.

47.	The psychologist in Z found by the family, BE filed a statement dated 16 February 2018.  The house near the coast was a project house.  The Paternal Aunt works from home managing the laundry, car wash and hair salon (although she is in reality the landlady).  It is noisy as the house is located on a busy main road. It is a three- bedroom house but the third bedroom is, at present, being used as the kitchen but the kitchen can be relocated to the living room. The house is neat, warm and cosy as well as being in good condition.

48.	The Independent Reporting Officer, Mr AAS has indicated to the Local Authority that he does not agree with its care plan.  He visited ML on 20 February 2018 when ML told him that he would like to live with his Paternal Aunt in Z and he would not like to live with his Mother.  His foster carer was present.  Contact to the parents is good.  ML has been soiling himself in bed.  He needs reassurance and may have a hearing difficultly.  He has been “traumatised and damaged”.  The care plan is unlikely to meet his wellbeing and developmental needs consistently.  Mr AAS was concerned that a Special Guardianship allowance would only be paid for three years and he asks the rhetorical question as to what would happen thereafter.  In fact, the Local Authority has since clarified that it intends to pay the allowance until the children are aged 16 in the sum of approximately £300 per week.  

49.	Ms Golden, who appears for the Local Authority, told me, in her opening document, that the Z High Commission had originally said that passports could be processed quickly for the children but that they now say that applications for citizenship must be submitted first.  However, travel permits could be issued immediately by the High Commission here.  Mr HE (Second Secretary at the High Commission) attended court on 27 February 2018.  I was very grateful to him for doing so.  He was not sworn as he has diplomatic immunity but he gave me some very helpful information voluntarily from the witness box.  He confirmed what Ms Golden had told me.  The children are entitled as of right to Z citizenship given that both parents are from Z.  He said it was possible that citizenship and passports could be issued by 17 March and he will encourage expedition of the process but I did not gain the impression that he thought they would be issued by then.  I am, however, satisfied that there will be no difficulty in obtaining citizenship and passports in due course.  He was clear, however, that he could and would issue emergency travel documents for 17 March and suggested travel via Germany.   He acknowledged that there was no such thing as special guardianship in Z.  
 
50.	The Paternal Aunt and her husband came to the UK with their children on 26 February 2018.  The two adults attended court and gave evidence before me on 27 February 2018.  The Paternal Aunt will remain here until 17 March when, if I make a Special Guardianship Order in her favour, she is intending to return to Z with ML and MML.  Her husband and their two children will return on 3 March 2018.   

51.	The positions of the parties are therefore clear.  The Local Authority and Guardian invite me to make Special Guardianship Orders in favour of the Paternal Aunt and her husband and to give them permission to remove ML and MML permanently from the jurisdiction to reside in Z.  The Mother and Father deny that threshold is crossed.  The Mother says she can provide good enough parenting to the children.  If the court rules her out, the Father should care for them.  If both are ruled out, she supports the move to the Paternal Aunt in Z rather than adoption or long-term fostering.  Essentially, the Father’s position is identical save that he says that he should care for the children and they should only be placed with the Mother if he is ruled out.  He also supports the move to Z as a last resort.

52.	I heard oral evidence from the Social Worker, Ms CS; the IRO; Ms LA; the Paternal Aunt and Uncle; the Mother; the Father and the Guardian.  

The law I must apply

53.	Before I turn to the evidence that I heard and my findings of fact, I must deal with the law. To establish the threshold criteria, I need to be satisfied that the children are suffering or are likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to them, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)].  If I am so satisfied, it does not automatically lead to a care order.  I then have to go on to consider their welfare.

The burden and standard of proof
 
54.	The burden of proof is on the Local Authority.  It is for the Local Authority to satisfy me, on the balance of probabilities, that it has made out its case in relation to disputed facts.  The parents have to prove nothing.  I must be very careful to ensure that I do not reverse the burden of proof.  It was rightly said by Mostyn J in Lancashire v R [2013] EWHC 3064 (Fam) that “there is no pseudo burden or obligation cast on the respondents to come up with alternative explanations.” 

55.	The standard of proof is the civil standard, namely the balance of probabilities.   The seriousness of an allegation makes no difference to the standard of proof to be applied in determining the truth of the allegation.  The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies (Re B (Children) (FC) [2008] UKHL 35; [2008] 2 FLR 141).

56.	If the evidence in respect of a particular finding sought by a party is equivocal then the court cannot make a finding on the balance of probabilities as the party seeking the finding has not discharged either the burden or standard of proof (Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20; [2004] 2 FLR 200).   

57.	My task is therefore:-

(a)	To apply the civil standard of proof on the balance of probabilities;
(b)	In so doing, to have regard to the seriousness of the allegations and the strength and quality of the evidence;
(c)	To give the evidence “critical and anxious” examination; and
(d)	At all times, to apply “good sense and appropriately careful consideration to the evidence”.

58.	Findings of fact must be based on evidence and not on hypothesis.  The court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence. As Munby LJ observed in Re A (Fact-finding Hearing: Speculation) [2011] EWCA Civ 12:-

“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation”.
 
59.	The wide canvas is of fundamental importance.  In Re T [2004] EWCA Civ 558, Dame Elizabeth Butler-Sloss P put it as follows:-

“Evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof”.

Lies

60.	There are issues in the case as to the extent to which the Mother and the Father have lied to this court and/or to professionals investigating the case.  Indeed, the Mother accepts that she has lied to professionals in the past but she is adamant that she has told me the truth.  First, I must decide whether a particular witness did deliberately tell lies and, if so, the extent of those lies.  If I find that someone did, I have to ask myself why they lied.  The mere fact that a witness tells a lie is not in itself evidence that the person concerned has behaved in the way alleged against them.  A witness may lie for many reasons.  They may possibly be innocent ones in the sense that they do not denote responsibility for the various allegations made in the case.  For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other disreputable conduct unrelated to the allegations made in relation to the treatment of the children; or out of panic, distress or confusion. 

61.	It follows that, if I find that a witness has lied, I must assess whether or not there is an innocent explanation for those lies.  However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of what happened.  I will refer to this hereafter as the Lucas direction.

Language difficulties

62.	The parents are both from Z.  I am not entirely clear as to what is their first language.  They both speak English very well but, at times, it was clear that they were at a disadvantage and not able to understand all the expressions and phrases used by the advocates.  For example, the Mother told me that she had been evicted at the time of the previous proceedings on more than one occasion, when it was clear that she meant that she had received a notice to evict.  In the same way, Ms LA’s first language is Y.  In all three cases, I must take great care in assessing their evidence, given that processing information provided in a foreign language may put the participant at a disadvantage.  I must guard against the very real possibility that questions or answers or both are misunderstood or at the least nuances and shades of different meaning are lost in the process.   I have taken all this into account in assessing the evidence of both parents and Ms LA.  

Special measures

63.	Ms LA gave evidence first from behind a screen.  I agreed to this special measure at her request.  Her evidence is, however, to be treated in exactly the same way as a witness who gives evidence without such a screen.  The presence of the screen does not cast any aspersion against the Father or in any way enhance or detract from the evidence of Ms LA.  I treat her evidence as though the screen was not there and place entirely out of my mind any consideration as to why she asked for it or whether she was justified in so doing.    

The welfare checklist

64.	If I find threshold proved, I must go on to consider section 1 of the Children Act 1989.  The children’s respective welfare during their minorities is my paramount consideration.  I must consider the welfare checklist in section 1(3). In particular, I must have regard to   

(a)	The ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding);
(b)	His or her physical, emotional and educational needs;
(c)	The likely effect on them of any change in their circumstances; 
(d)	Their age, sex, background and any characteristics which I consider relevant; 
(e)	Any harm which they have suffered or are at risk of suffering; 
(f)	How capable each of their parents, and any other person in relation to whom I consider the question to be relevant, is of meeting their needs; and
(g)	The range of powers available to the court under the Act in the proceedings in question.

65.	I must not make any order unless I consider that doing so would be better for the children than making no order at all.  It is clear, however, that I must make orders in this case.  

66.	I am invited to make Special Guardianship Orders pursuant to section 14A of the Children Act 1989 as amended.  First, I can make such an order pursuant to section 14A(6)(b) even though no application has been made.  Second, pursuant to section 14C, a special guardian is given parental responsibility of the children concerned and is entitled to exercise that parental responsibility to the exclusion of the parents.  This does not, however, extinguish the parent’s parental responsibility entirely.  First, the special guardians need permission to remove a child permanently from the jurisdiction.  Second, they are not allowed to change the surname of a child without parental consent or permission of the court. Third, the parents are entitled to apply, with leave, to vary or discharge the order.  

67.	It is therefore clear that special guardianship orders are very different to ordinary section 8 child arrangement orders.  They are designed to give far greater security and permanence to a placement with the special guardians than would otherwise be the case.  Such orders therefore require very careful consideration before they are made, particularly when they involve moving a child from one jurisdiction to another.   
 
68.	Ms Haywood, who appears on behalf of the Mother, submits to me that it is draconian to remove children from their birth parents.  I do accept that it is always preferable, if at all possible, to place children with one or other of their birth parents but, if the court has established that the threshold criteria has been made out, it follows that the child is at risk of significant harm if placed with those parents. I accept that I must take great care. In Re G [2006] 2 FLR 629, the House of Lords held that the child’s welfare is the paramount consideration.  There is no question of a parental right that might override that consideration although the availability of a natural parent is an important feature to be weighed against the other factors.    

69.	I do, moreover, remind myself of the well-known words of Hedley J in Re L (Care: Threshold Criteria) [207] 1 FLR 2050 at Paragraph [50].  I repeat them now.  He said that “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting.  In any event, it simply could not be done”

Parental responsibility
 
70.	The Father asks that I make an order that he have parental responsibility for MML.  Pursuant to section 1(2A) of the Children Act 1989, there is a presumption that the involvement of the parent in the life of the child will further the child’s welfare unless the contrary is shown.  Section 1(6)(a) defines “parent” for these purposes as a parent who can be involved in the child’s life in a way that does not put the child at risk of harm unless [section 1(6)(b)] there is evidence before the court to suggest that the involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of involvement. 

The witnesses
 
71.	Before I turn to my findings as to the threshold criteria, I propose to make some preliminary observations as to the evidence I heard from the parents and Ms LA.  

72.	I was very impressed by the evidence of Ms LA.  I consider that she was a witness of truth doing her very best to assist the court.  She had no reason to come to this court and lie to me.  I find that she told me the truth as she remembered it.  I accept that her statement said that both the Mother and the Father where abusive to her when in fact, her evidence is that the Mother was not abusive to her but she corrected this in her evidence in chief and was entirely open in saying that her statement was wrong in that regard.  In relation to the allegations that she makes as to what the Mother said to ML over the telephone, she was clear that she put the telephone on speaker phone and the Mother did tell ML that she would not be able to see him ever again.  It is difficult to conceive of why she should make this up or get it wrong.  I am satisfied she did not do either.  Her recollection was accurate and she told me the truth.

73.	She was adamant that the Father had assaulted her on a number of occasions.  She had the photographs that gave clear support to what she said. It is impossible to think what other explanation there is for them.  They show bruising to her arm, her neck and her face.  The Police witnessed the injury to her face.  I accept her evidence.  It follows that, on at least two occasions, ML was present.  I further accept that he tried to intervene despite his tender years. 

74.	The evidence of the Mother was in stark contrast to that of Ms LA.  I had absolutely no confidence in anything she said to me.  Indeed, I have come to the conclusion that, in general, I cannot accept her evidence without some corroboration for it.  She accepts she told lies to the Immigration Tribunal.  She blames her solicitor entirely.  It may well be that her solicitor did put her up to this but she was the one who told the lies.  Indeed, she repeated them to a number of different professionals.  She accepted, for example, that she told Dr MC that she had been abused in the past in Z.  This led to a false diagnosis of PTSD. She accepts that she lied to the Local Authority as to the identity of the Father of MML.  This of itself proves that she had not learned her lesson.  I reject entirely her explanation to me that this was to protect LA.  It was not. It was to protect the Father.  I have considered the Lucas direction I gave myself and I have come to the conclusion that there is no innocent explanation for these lies.  I am therefore entitled to take this into account in my assessment of the rest of her evidence but I intend to do so with caution.
 
75.	She also lied to me in many other ways.  For example, she told me that she has no relationship with the Father.  She told me she only went to the prison as his family asked her to do so “to hear what happened”.  That is nonsense.  She went because she wanted to go.  Indeed, the evidence is clear that they spoke on the telephone whilst he was incarcerated at least three times per week and possibly as often as daily.  She told me that he had only been to see her once since he was released from prison to collect his clothes.  I do not know if that is the case.  If it is, it may well be a matter of convenience.  I reject as absurd the suggestion that virtually her only contact with him in 2016 was when he came to change a lightbulb and they ended up having sexual intercourse.  LA was convinced they were back together again due to the lack of time the Father spent in her home compared to before.  I reject the suggestion he was working the whole time, even though I accept he has worked very long hours.  It is too much of a coincidence that LA thought they were back together again and then the Mother ends up pregnant by him.   Again, I have not been told the truth.

76.	Another area where the Mother simply lied to me was about what she was saying to professionals at the time of her depression.  She did accept that she told the GP that she wanted to kill herself and her son by whatever means.  I am, however, satisfied that she also told various professionals that she wanted to drown ML in the bath on occasions.  She was taken to an email sent by her immigration solicitor, BA on 13 July 2015 to the Local Authority which said that the Mother had told the solicitor that she tried to strangle her son but her son woke up and started to cry, saying “what are you doing mummy?” and “leave me alone”.  Her response was that she did not say anything like that to the solicitor.  She also denied saying to others that she sometimes felt that she wanted to drown ML in the bath and that she said she smacked him on the face and he cried.  She told me she only slapped him on the bottom.  I do not believe any of her denials.  These things were all said.  There would be no reason for the immigration solicitor to make it up.  It did not advance the Mother’s immigration case at all.  Quite the contrary.  I do not, of course, know whether or not the Mother did actually do these things.  It matters not.  These were extremely serious matters that could, potentially, have led to the death of a child.  
 
77.	Finally, in relation to the Mother, I find that she has not shown a commitment to cooperate with the Local Authority since the institution of these proceedings.  The social worker, Ms CS told me that she told the Mother she could not help her unless the Mother gave her the information she needed but MS CS added that it is very difficult to do it with someone who doesn’t want to do it.  She tried several times.  She was constantly asking the Mother questions but would get only a one-word answer or she was told to read the papers.  I accept this evidence.  It was corroborated by what I saw of the Mother in the witness box.  The Cafcass Guardian told me that the Mother had found it very difficult to engage fully. The Mother was not comfortable speaking with her.  There was a level of denial and untruths bring risks.  She had no confidence that the Mother would be truthful if she got ill again or if she got back together with the Father.  Ms Haywood put it to her that she had only had a conversation with the Mother outside court and it was perhaps not surprising that the Mother would not engage at that point.  I consider there is some force in this but it is clear that this is a problem deeper than just not wishing to talk due to the stress of a court hearing.    

78.	The Father’s evidence was of exactly the same character.   I am quite satisfied that he did not tell me the truth on multiple occasions.  I had great difficulty in knowing if anything he said to me was true.  I accept he showed great passion, including obvious commitment to ML but his evidence was riddled with falsehoods and untruths.  He gave a blanket denial of any responsibility for domestic abuse or violence to either Ms LA or the Mother but he had no credible explanation for the injuries shown on the photographs or seen by the Police.  He suggested to me the marks were caused by bugs in the house but they were clearly not bite marks.  I reject any suggestion that they were an allergic reaction or eczema.  After all, the mark on the neck is in a straight line and the bruising round the eye did not relate to a bug bite.  It was caused by a slap as Ms LA said.  He then seemed to be saying that these injuries could not have been caused by him because his hands are so large and Ms LA is so small that he would have done far worse damage.  I reject this fanciful explanation.  It may, however, be fortunate that he did not cause any more serious injury to her.  He then told me that the social worker put Ms LA up to it. I consider this to be a disgraceful suggestion that did him no credit whatsoever and is entirely untrue. He accepted that ML was present at least once but put all the blame on the incident on Ms LA saying she was screaming and holding on to his arm and pulling him.  I reject this explanation but he did, at least, have the decency to accept that ML was upset but said he told ML everything was going to be ok.  There was a particularly poignant piece of evidence which was that Dr TK asked ML what worried him and ML mentioned a number of things such as wasps and snakes before saying “fighting; punching; hitting; grabbing necks; punching faces; throwing drinks at people”.  The Father’s response again did him no credit saying this was made up.  It was not.  ML witnessed exactly what Ms LA accuses the Father of doing.   

79.	He also emphatically denied any violence to the Mother in February 2014.  I have to be careful here because I have disbelieved much of what the Mother told me but there is a contemporary record of the Mother saying that he grabbed her around the face and neck and pushed her head backwards.  The Mother confirmed this to me in her oral evidence and I have already found that he did exactly the same sort of thing to Ms LA.  On the balance of probabilities, I find he assaulted the Mother as well.   

80.	He denied telling the social worker that he would go back to work and that the Mother would look after the children if he was successful in having them returned to him.   He claimed that what he said was that, if he was released, he would work but the statement of the social worker was a “total lie” and “unprofessional”.  It was not a lie.  It was not unprofessional.  It was what he said to her.  Finally, he made complaint to me that he had not been given a chance.  I find it almost impossible to see what he means.  He was given a chance to look after ML and, within a year of an order being made, he was leaving virtually all ML’s care to Ms LA, whether on his case or hers.  He had fathered a child with another woman.  He had been arrested for assaulting Ms LA and then sent to prison for having a false passport.  He is most certainly not a victim who has been treated badly.  He also said in his recent statement that he had never cheated on Ms LA.  I cannot understand that either given the Mother’s pregnancy.  He tried to justify it by saying that his relationship with Ms LA was over by then but we are talking about June 2016.  It was yet more nonsense.

My conclusions on threshold

81.	I am absolutely clear that threshold is proved in this case.  Threshold in relation to ML was undoubtedly found proved by the court on 9 March 2016.  I am satisfied that the Father perpetrated domestic violence on both Ms LA and the Mother.  I do not need to find how many occasions this took place but I am satisfied it was on at least four such occasions.  ML was present on at least two occasions and I find he tried to protect Ms LA when she was being assaulted by the Father.  The Father was working illegally using a false passport. Although not at first sight a threshold allegation, I am satisfied that it is relevant as, if a man has the care of his children but he is committing a criminal offence that is likely to get him arrested and imprisoned, that is likely to cause the child significant harm.  
 
82.	The Mother did take ML to see the Father in prison.  I accept that, contrary to the threshold document, this was with Ms LA’s knowledge but I am satisfied it did distress ML.  The Father wrote an insensitive letter saying that the Mother should take over the care of ML.  The Mother did not return ML to the care of Ms LA on 22 January 2017 despite knowing Ms LA did not agree to her keeping ML.  I am unable to say for sure what the Mother would have done on 23 January 2017 had the Local Authority not ensured ML was returned to Ms LA.  

83.	I accept that the Mother said over the telephone to ML that she was not going to see him again.  I accept Ms LA’s evidence. I cannot see why she would make it up.  This distressed ML considerably which is entirely understandable. I do not believe the Mother necessarily meant it but her emotions ran away with her.  It follows that I accept that the Mother fails to have insight into ML’s emotional needs and vulnerabilities.   Allegation 7 is proved as I find the parents were in a relationship and they undoubtedly concealed it from professionals.  The same is true of Allegation 8.  The Mother was unwilling to disclose the Father’s details and then lied about it.  She refused to undertake the pre-birth assessment.

84.	The most difficult allegation is the final one.  I accept that the Mother’s mental health has improved since the last proceedings and the last threshold document found that her parenting capacity was not in doubt if she was well.  I do not believe that she could “pull the wool over the eyes” of Dr MC.  The difficulty, however, is that she is totally untrustworthy. To that extent, her circumstances are very similar to those in 2016 that ruled her out.  Something made her very ill in the past on more than one occasion.  It may have been her relationship with the Father; or her lack of status in this country with all the difficulties that flow from that.  I am not satisfied that her relationship with the Father is over and her circumstances in this country have not improved significantly.  It may be that she is not financially dependent upon the Father anymore but that is only because of her sharing a bedsit with two others and working in menial jobs which she is not permitted to do. 

85.	The really serious aspect of this, however, is the lack of trust.  If she gets back with the Father, she will not tell anyone and he certainly won’t.  If she gets ill again, I have grave reservations that she will make any disclosure in time. Ms Haywood said that protective measures could be put in place but, short of watching her 24 hours per day 365 days per year, I do not see how that can be the case. She has simply not learned her lesson of the need for honesty, openness and cooperation.  I suspect that, like many people in her position, she has a genuine fear of authority figures but that does not help ML.  I remind myself that this was a very serious case.  It was not just the threat to the life of the Mother and ML but the effect upon him of what was happening.  He became mute.  Ms Haywood pointed to a school report that suggested that by the summer of 2015 things were better but this was the very worst time in the cycle of the Mother’s mental ill health.  I find a different allegation 9 proved, namely that the Mother’s dishonesty and failure to engage with professionals means that there is a likelihood of significant harm to the children due to the inability to protect them from any deterioration in the Mother’s mental health and her circumstances.  

Outcome
 
86.	I have already said that, even where the threshold criteria is established, it does not automatically lead to a care order.  I have to consider all the options with the children’s welfare as my paramount consideration.  
 
87.	I will consider all the options holistically but I deal, for the sake of convenience, with the parents first.  I am absolutely clear that the Father has to be ruled out.  I recognise that he loves the children very much.  He has shown a passion for ML.  If at all possible, children should be with their parents but I have found serious allegations of domestic violence proved against him.  The terrible effect on children of witnessing domestic violence is now very well documented.  It causes them untold harm.  I have found that he is untrustworthy so no professional would truly know what was happening.  I also find that he has never been the primary carer of any of his children.  That function has always been undertaken by his partner, whether that be the Mother or, more recently, Ms LA.  I am sure that would be his first choice if I was to direct that the children live with him.  I find that his intention, when he spoke to the social worker, was that the Mother should fulfil this role.  I find that, on the balance of probabilities, that she is still his preferred option so that he can work and provide for the family. Of itself, that is not an unworthy aspiration but it is not appropriate if a parent is putting himself or herself forward as a primary carer.  Finally, his current circumstances are not remotely suited to caring for two young children.  He could be deported any day although I accept that may well be less likely if he is caring for the children but I doubt very much whether a suitable property would suddenly be magically found for him by the Border Agency.  Whilst it may be said that these difficult circumstances should not stand in the way if it was right for him to care for these children, he has only himself to blame for his current predicament.   Finally, it is not at all attractive that he says he will attempt to remain in this country even if his children return to Z.  It is difficult to see how that is putting his children first.
 
88.	I have found the situation slightly more difficult in relation to the Mother but, again, I have come to a clear conclusion.  I also accept without reservation that she has a real love and commitment to her children but she was ruled out of caring for ML in 2016 as a result of some very serious threats to his safety and well-being.  Her mental ill-health had a profound affect upon him.  He became selectively mute.  This suggests serious underlying difficulties that a court cannot ignore.  In short, there was a genuine threat to his very life and he had undoubtedly suffered significant harm as a result of his Mother’s ill health even if it was not her fault that she became depressed.  Whilst her mental health has improved since, there are many other problems that she has simply not addressed.  She has not cooperated.  She refused to be involved in the pre-birth assessment.  I accept the evidence of both the social worker, Ms CS and the Guardian that she has not been forthcoming to them during these proceedings.  I accept the point that it may have been difficult talking to the Guardian outside court, but she has given no indication that she is truly committed to a partnership with this Local Authority.
 
89.	Much more seriously, however, she has been thoroughly dishonest with both the Local Authority and this court. Put simply, she cannot be trusted.  I accept that a parent can be reluctant to involve professionals in difficulties, particularly if they are at risk of deportation.  There can be fear that their children will be taken away.  Almost inevitably, the failure to be honest leads to the very thing that they feared, namely the removal of their children.  I have absolutely no confidence that this Mother would tell professionals if her mental health deteriorated once again.  Given all the pressures of caring for two young children, one of whom is no more than a toddler, particularly when you face serious financial and other problems from your lack of status in this country, I consider there is a real risk that the Mother’s health will deteriorate once again.  Equally, I cannot see how she can cope realistically without the support of the Father or some other unknown future partner.  Again, her dishonesty makes it impossible for me to have any confidence she would be forthcoming as to this.  It is alleged a previous partner was also violent to her.  If she resumed her relationship with the Father, I consider the chance of future domestic violence to be very high indeed.  The damage that this could do to the children would be significant.
 
90.	I have found that she failed to cooperate with the pre-birth assessment but that she has also not been committed to cooperation since the institution of these proceedings.  I am also not satisfied that she has any real insight into the difficulties that ML has faced as a result of her ill health.  The Cafcass Officer told me that the Mother had “not shown any insight”.  She said the Mother had not really acknowledge that ML was a troubled little boy in her care or the reason that he was selectively mute.  I accept this evidence.   

91.	Like the Father, her circumstances are not at all easy.  She is only currently surviving by having two other ladies in her single bedsit.  They could not remain if the children were there.  She is not allowed to work but could not do so anyway if she was caring for two children.  I do not believe it likely that the Border Agency would come to the rescue and, if I dismiss the care proceedings, it is difficult to know what obligation there would be on the Local Authority to help even if it was legal for it to do so.   She also could be deported at any time, although I again accept that is less likely if she is caring for the children.  Having said all that, if it was right that the children should return to the Mother, I would make such an order notwithstanding these difficulties.  It is the other matters relating to the effect of her dishonesty and lack of cooperation that have led me to come to the sad conclusion that I must rule her out as well.

92.	 Other than the IRO, no party contends for an outcome that involves long term fostering of ML or adoption of MML.  Indeed, given that adoption is a last resort when there is no other order compatible with a child’s welfare, it is impossible to see how such an order could be made when there are family members who are able to care for the children.  I am quite satisfied that it is not in the interests of these children to languish in the care system for years on end with all the difficulties that may bring.  These children deserve far better than that.  It would be particularly odd if they were in this jurisdiction subject to care orders but the parents were deported to Z.  Mr AAS was entirely right to raise his concerns with the court. He has not, however, had the close contact with the Paternal Aunt that other professionals have had.  Whilst I thank him for the very great and obvious consideration that he has given to this case, I cannot accept that his reservations are sufficient to lead me to conclude that I must make orders that involve the children remaining in this jurisdiction in the care of the Local Authority.

93.	I therefore turn finally to the position of the Paternal Aunt and her husband.  I remind myself that both parents, albeit very reluctantly, support placing the children with her if they are ruled out.  I also remind myself that the parents themselves sent their eldest child, RL to Z voluntarily so it shows that they did not think that was contrary to her best interests.  I was extremely impressed with the Paternal Aunt.  She has clearly been placed in a difficult situation given the strongly held views of her own brother, the Father.  I am satisfied that she is committed to these children.  The fact she has travelled here twice with her own children shows that of itself.  It was clear to me that she was a warm and nurturing mother who is committed to those within her care.  She told me that she returned to the coast as she was born and raised in the town and her children are used to it.  She did not think ML would like to live in northern Z.  There would be communication difficulties whereas English is spoken in the school ML would attend near the coast and the education is better there.  The weather is closer to that of the UK.   K and T speak English as their first language.  The school uses the Cambridge system.  There are only about twenty in each class.  ML likes T and K and they get on well with him. T attends the same school.  She told me that ML did not have self-confidence and that he had lost a lot of people whereas MML was not a big concern given that she has not experienced abuse.  ML is happy to be with his sister.  I find that she showed insight into the problems ML faces. 
 
94.	She was asked about RL and said that RL had been sent to her mother as she had no right to hold onto her as she was really just babysitting.  I consider she was in a very difficult position there.  This situation is very different as, if I grant the applications, she will have the authority of my court order and the ability to utilise my judgment.  In any event, I am quite satisfied that she will stand up to any relative that tries to take over the situation.    She told me she will apply for a court order and said that Ms KN will get a “protection order” until she gets guardianship.  I take this to be some form of an interim prohibited steps order.  I certainly assume this is available as it had the “ring of truth” to me.  She said there would be a welfare investigation and I remind myself that her lawyer will be funded by the Local Authority.   In relation to contact, she said that she would facilitate the children seeing their parents three times per year, namely once every school holiday.  She said she had to be present as she did not trust the parents. She did not want them “brainwashing the kids”.  I accept her evidence.  I thought she showed insight and commitment.
 
95.	I heard briefly from her husband.  He is clearly the breadwinner of the family and is away from home for much of the time.  This is not a criticism and does not undermine the placement.  He appeared to me as a quiet and reserved man, very different from his brother-in-law, the Father.  His evidence did not cause me any concern.

96.	At one point in her evidence, the Paternal Aunt said that, if the children are not with her, what will happen to them?  She did not want ML in foster care.  She said he should be with relatives.  She said that she was unable to say what the parents did but, if they cannot have their children “please give them to me”.   This was powerful evidence.  I have seen the photographs of the home. I have read the reports.  I am encouraged by the involvement of Ms BE. I have been very impressed by the Paternal Aunt.  I remind myself that ML and MML are of Z heritage.  Their full sister lives there, even though they have never seen her.  I recognise that it will be a considerable change for ML but he has said he wants to go and I am satisfied he will be well looked after and his emotional needs will be catered for by a combination of the loving care of the Paternal Aunt and the assistance of Ms BE.  The Local Authority will be providing an allowance of approximately £300 pw.  I am entirely satisfied that this will be an appropriate figure to ensure that ML and MML have a comfortable and secure life, with proper education and psychological support.

97.	Is there any reason not to sanction this placement?  I accept that the legal position is not clear.  However, I do not share the view that this is a “leap of faith”.  Indeed, in her oral evidence, the Guardian herself said that she no longer thought that an appropriate description.  I do not have to rely entirely on the legal system.  I am satisfied that the Paternal Aunt will protect these children and ensure they remain with her.  She will have the benefit of this judgment and my order but she will also be able to apply to the Z Courts.  I am clear that the Z courts operate a child focussed welfare jurisdiction applying the Children’s Status Act 2006.  The wording in the Act is remarkably familiar to English family lawyers.  Section 3(1) sets out that the best interests of the child are the paramount consideration.  There is then a welfare checklist which is almost identical to our section 1(3) as set out above. Whilst I accept that an English Special Guardianship order cannot be enforced as a matter of right, I have no doubt that this judgment will be given the most careful consideration by my counterpart in Z.  I believe that the original opinion of Ms KN was based on the misapprehension that this would be a consent order.  There is nothing in the Act that suggests that consent is the only way an order can be obtained.   There was some suggestion that I should make a child arrangement order which might be immediately recognised in Z but that would not enable the Special Guardianship allowance to be paid.  Adoption by the Paternal Aunt and her husband is not appropriate.  These points do not matter.  I am more than satisfied that a combination of the Paternal Aunt and the Z courts will safeguard these children and achieve my aim. Indeed, I understand that, in accordance with the advice of Mr GJ, the Local Authority will attempt to register my order in Z even though a Special Guardianship order is not specifically recognisable there.   
 
98.	It follows that, although I have found threshold proved, I do not make care orders but I approve the care plans.  I make Special Guardianship orders in favour of the Paternal Aunt and her husband. I give the Paternal Aunt and her husband permission to remove the children from the jurisdiction permanently to reside in Z.  I certainly hope that they will be able to leave as soon as 17 March 2018.  I direct that there be direct contact between the children and the parents to be supervised by the Paternal Aunt on at least three occasions per year and indirect contact in between by Skype/Facetime or telephone in the discretion of the Paternal Aunt.  

99.	I further give permission to disclose any necessary papers from this case, including this judgment, to the Z lawyer; the Z courts and Ms BE.  I also grant the Father parental responsibility for MML as I accept that there is no legitimate reason that it should be withheld from him.  

100.	I finally wish to pay tribute to the immense help I have received from the advocates in this case.  I make it clear that nothing more could have been said or done on behalf of either the Mother or the Father.

Mr Justice Moor
1 March 2018