England and Wales Family Court Decisions (other Judges)

IN THE WEST LONDON FAMILY COURT CASE: SG10C00055

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF A CHILD ‘B’ (dob 3 January 2002)

HHJ CORBETT

 

JUDGMENT 5.6.15 (HEARING 15.5.15)

 

 

Introduction

1. This is the final hearing in proceedings concerning B, a girl now aged 13 years old. B is in long term foster care, pursuant to a final care order made on 16th November 2011.

 

2. This is the mother’s application for:
1. The discharge of the final care order.
2. A defined contact order of 12 times per year
3. If the application for discharge of the care order is not granted the mother seeks an order for further assessment of her; no application has been issued for any such assessment.

 

3. The day before the final hearing, the mother filed a statement seeking:
1. a transfer of proceedings to X, pursuant to Article 15 of Br IIR,
2. X to be joined as a party,
3. Assessment of two family members (a maternal aunt, D, and a maternal cousin, E).

 

Background

 

4. I will not repeat in this judgment the matters contained in my judgment dated 16th November 2011 and delivered at the conclusion of lengthy care proceedings.

 

5. The child’s mother is A. The child’s father is C. Both parents are X nationals and, therefore, so is B. The mother has another child, a boy born in 2014, who remains in her care. The father played no part in the care proceedings and has played no part in B’s life for many years.

 

6. B came to the attention of the local authority as a result of the mother’s abusive relationship with alcohol (and the consequent impact that it had on the physical and emotional care that she provided to the child) and the mother’s chaotic lifestyle. B was accommodated in June 2009. Care proceedings were then initiated and were finalised some 2 ½ years later in 2011. The reasons why a final care order was the only order which met B’s welfare needs were not because of current concerns about the mother’s alcohol abuse but because of:
1. The damaged relationship between the mother and the child (arising from neglect and emotional abuse),
2. The mother’s lack of insight into:

                                          i.     why the relationship was damaged; and,

                                        ii.     the concerns about the care that she provided generally,

3. The child’s wishes and feelings,
4. The uncertain timescales and prognosis for change,
5. The likely emotional harm that would be caused by returning the child to the mother’s care without the relationship having been repaired first.

 

7. The family psychotherapist for the local authority CAMHS, F, met and started working with the mother in October 2012 in order to identify ways in which they could secure an improved relationship with B. F had also previously been involved in supporting B through her move to her new foster carers. F sets out in her statement that B repeatedly told her that she did not want to talk about her mother, and wanted to see her mother less often not more. This was repeated by B to her carers. F recommended that therapeutic work with B should not take place as her behaviour was ‘demonstrating the level of distress to her sense of well being that the proposed work induces’. Senior Managers at the local authority agreed that attempts to conduct therapy sessions with B and with her mother be discontinued. This was kept under review at LAC reviews, but B’s view has remained that she did not want to rebuild her relationship with her mother. The mother made a complaint against F alleging malpractice which was investigated and not upheld, F did not have any further involvement other than providing support for the foster carer.

 

8. The contact notes set out that B avoids physical interaction with her mother, appearing often to distance herself, the descriptions are of largely stilted and limited communications. B has consistently asked for reduced contact with her mother and this was reduced in January 2015 from monthly to every 6 weeks.

 

9. When she was informed about this current application B became very distressed and tearful and ran out of the room, on her return being very angry and irritable, shredding tissue to vent her frustration.

 

10. The Children’s Guardian and her solicitor have obtained her views. She told them that she does not like going to contact and could not think of anything which would make it better. She wanted no contact with her baby brother and does not want her mother to know anything about her life. The Children’s Guardian is of the view that B’s attitude is likely to harden if her mother continues to make court applications.

 

11. The care plan is that B remain in long term foster care with supervised contact to her mother every 6 weeks for an hour. The Local Authority at the hearing on 15 ^th May committed to aim to ensure continuity of the supervisor for each contact. The Local Authority also agreed to review contact with the mother after each contact, with the aim of improving its quality. The Local Authority have made a referral to CAMHS for a therapist to work with the mother herself. The Children’s Guardian is of the view that the mother needs to undertake work in her own right so that she can deal with the consequences of the past. B is unwilling to undergo therapy at the moment but this is kept under review.

 

12.          On 14 ^th April 2015 I refused the mother’s applications for transfer the proceedings to the High Court and for expert assessment. The mother made an application for permission to appeal my decision, which appeal was refused on paper by Lord Justice McFarlane and certified by the Court of Appeal as wholly without merit. The mother had previously sought permission to appeal the care order made on 16 ^th November 2011 which was refused by Lord Justice Thorpe.

 

Mother’s position

 

13. The mother has filed lengthy evidence, did not wish to give sworn evidence and was content for the hearing to be by way of submissions. She told the court that she planned to go to live in X this summer with her son, and for the proceedings to be transferred there so that the X courts might decided whether B live with her or in foster care there. She said that her sister, D, lived 200km from where she, the mother, planned to live. If I were not to transfer the case she sought a discharge of the care order and that the court direct the Local Authority to work towards rehabilitation of B to her. Later in submissions she said that if the proceedings were not transferred she would not move to X.

 

She sets out in her statement in some detail her submission that the court in 2011 disregarded evidence and came to the wrong conclusion. She submitted that the X court should be seized of these proceedings as the extended family lives there, she wishes to live there and that any assessments of her would be better carried out in X.

 

14. She said that she wanted to apologise to B and wanted her to know that her mother accepted it was all her fault and that she wanted help to be reunited with B. When I asked her if she could explain her feelings to B in letter she readily agreed that she could, with help from the Social Worker.

 

15. The mother had said in her statement filed the day before the hearing that her ability to participate in the proceedings was affected in that her English is not good enough to litigate in person in England. This is the first time that she has raised this argument. If she had raised it earlier than the day before the final hearing, the Court would have provided a X interpreter to assist her (if satisfied that she did, in fact, need an interpreter). A said in court she did not want an interpreter and she understands everything the Judge and advocates say. She said her only problem was writing statements. For my part I consider that she speaks English well and I have not had any difficulty in understanding her orally, nor her lengthy and well written statements. In fact as she did not want an interpreter I ruled that there was as a consequence no need to adjourn the hearing.

 

The X government’s involvement

 

16.          The X government has written to the Court on 23 ^rd April 2015 requesting that the Court consider ordering the discharge of the care order. It has also, reportedly, written to the Speaker for the House of Lords, complaining about a local authority’s actions that appear to the court to be very likely to be the local authority’s actions in this case. The complaint and the Speaker’s response have been reported in an edition of the Guardian newspaper.

 

16. The Mother submitted that the ‘Central Authority for X’ wishes to join as a party but that they did not know how to do so.

 

17. As a preliminary point I ruled on whether I should join the Central Authority for X as a party to these proceedings. This was opposed by the Children’s Guardian and Local Authority. I agree with their submissions that the recent 3 page letter from the X Government makes no mention of any proposed application for party status, and I find it hard to accept the mother’s submission that they do not know how to apply. This oral application by the mother is made very late in the proceedings. A representative from the X Embassy has attended court twice; I gave permission at the first hearing on 16.3.15. If the X Government or Central Authority wished to apply for party status, it has not informed the court of that either by formal application nor in its letter dated 23.4.15. If I granted the mother’s application it would result in delay which I am satisfied is not in B’s best interest. I should note that there was no objection from the Local Authoirty if the embassy representative wished to address the court directly or cross examine the LA witness. I made a preliminary ruling dismissing the mother’s application to join X as a party, or to adjourn to enable a formal application to be made.

 

18. I also ruled that the mother’s request that I transfer the proceedings to X should be dealt with not as a preliminary point but in my judgment as a whole.

 

 

19. Article 15 transfer application

 

Brussels II R provides, in so far as is relevant:

“ Article 15

Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)  stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b)  request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a)  upon application from a party; or

(b)  of the court's own motion; or

(c)  upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a)  has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b)  is the former habitual residence of the child; or

(c)  is the place of the child's nationality; or

(d)  is the habitual residence of a holder of parental responsibility; or

(e)  is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property ・

 

I note that:

1. the provision for transfer is by way of exception to the general rule that habitual residence of the child will determine forum
2. The power to make a transfer is in respect of proceedings/ jurisdiction, not a transfer of the child’s physical presence from one member state to the other,
3. Transfer is permitted to take place where another Member State’s court is better placed to hear the matter.

 

20.          The issue of an Article 15 transfer has been raised at a very late stage. Care proceedings were issued and took place, over the course of two years and B has been placed in England under a care order for several years. The mother’s application for discharge of the care order was issued many months ago and, even though she had intimated that she might consider making an application for a transfer, she did not try to pursue the same until the day before the final hearing. In Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372 @ para 58 Sir James Munby P said:

 

“It is… vital…that the Art 15 issue is considered at the earliest opportunity…”

 

21.          In Re J and S (Children) [2014] EWFC 4 @ para 22, one of the reasons Sir James Munby P gave for refusing an application for an Article 15 transfer was that it came too late in proceedings.

 

22.          The mother did not make any application for transfer to X in the previous care proceedings, despite being represented by leading Counsel. She said at the latest hearing that she had asked her solicitor but that her solicitor had done nothing about it.

 

23.          This application to transfer is made very late, but given that the mother is a litigant in person I do not consider that I should dismiss it for that reason alone, but that I should go on to consider it on its merits.

 

24.          The court has to take a three stage approach and must be satisfied of all three stages prior to ordering a transfer:

1. The child must have a ‘particular connection’ with the receiving state,
2. The Court of the receiving state must be better placed to hear the case or a specific part thereof,
3. The transfer must be in the best interests of the child.

 

25.          (a) B has a particular connection with X in that she is a national of that country and so the first stage is established.

 

26.          (b) In my judgment, I agree with the Local Authority and Children’s Guardian that X is not better placed to hear the case for the following reasons:

1. B has been the subject of litigation in the English Courts since 2009,
2. The threshold and outcome of her care proceedings were determined in England,
3. All consequential appeals were dealt with in England,
4. The vast majority of the evidence is in English and derived from English sources. This evidence spans 5 years of local authority intervention,
5. B is placed in England with carers who are approved foster carers within the English system,
6. B is in the care of an English local authority.

 

27.          The only advantage that the X courts have over the English Courts is that the X court may be better placed to identify culturally appropriate foster carers for B. However B is well settled and happy in her foster placement now and it is hard to imagine how she would settle into foster care in a country she last lived in over 8 years ago aged 4 years old. Any assessment that might be thought necessary of the mother’s niece could be carried out within the English court proceedings by liaison with the X authorities as happens frequently in English cases.

28.          The mother says in her written evidence that her English is not good enough to litigate in person in England. This is the first time that she has raised this argument. If she had raised it earlier than the day before the final hearing, the Court would have provided a X interpreter to assist her. In fact as set out in paragraph 15 above, the mother did not want an interpreter, has prepared detailed statements in English and conducted herself very clearly in oral English. The mother did not pursue this point with any vigour at the hearing.

 

29.          As to (c), the question of the best interests of B is as to the location of litigation not to her wider welfare which is a narrower test than that under s1 Children Act 1989. I conducted the final hearing in November 2011, and all of the hearings within the current proceedings. The Guardian was appointed in both sets of proceedings. In my judgment it is in B’s best interests that this continuity be maintained.

 

30.          Despite B being a national of X, I am entirely satisfied that the second and third stages of the 3 stage test are not met and that I should dismiss the mother’s application to transfer the proceedings to X.

Assessment of family members

 

31.          The mother sought an adjournment of proceedings (or a transfer to X) for assessments to take place of two maternal family relatives, D (maternal aunt) and E. During the original care proceedings, the local authority assessed all family members that were put forward by the family. One of those carers was D who was assessed within the care proceedings and filed a witness statement within the care proceedings. The local authority did not support placement with the aunt, and D gave evidence on behalf of the mother. That evidence, I found, demonstrated a lack of understanding of B’s emotional needs and experiences (and the consequent impact on her placement and care needs). I am entirely satisfied that the issue of placement with D has been considered by the court already in 2011 and there should be no further assessment of D.

 

32.          D’s daughter, E was not proposed by the mother as a carer during the care proceedings nor at the CMH within these proceedings. I note that D and her daughter were in regular contact during the course of the original care proceedings. This proposal for assessment of her niece is made very late by the mother. The Local Authority have offered to make inquiries of the niece and establish whether she wishes to be play any role in B’s life and if so what. The Local Authority will write to the X authorities to provide background checks in addition, before considering whether and how to progress this.

 

33.          B is very distressed and unsettled by these current proceedings. If the application were adjourned for enquiries to be made as set out above, there would be many months of delay, with an uncertain outcome. The niece lives and works/studies in X and B expresses a very clear wish to remain living where she is, in London. The impact of further delay on resolving B’s proceedings is not justified in my judgment.

 

34. The mother proposed in her statement that she be further assessed. She has not made any application, nor does she have any expert or timescale in mind, save that in reply to a question from me she said “it could be CP” [who had prepared an assessment in 2011]. The mother said that an ISW could suggest to her what she could change in her attitude. It appeared to me that the mother was really describing therapy from an ISW, rather than an assessment. In any event the feedback after each contact as proposed by the Local Authority would provide the mother with advice about how she could conduct herself in contact. Moreover it is accepted that A has addressed her alcohol problem, there are no Local Authority concerns about her baby son, but there is a very fractured relationship with B. There does not need to be any expert or other assessment of that fact. I dismiss her application for further assessment by an independent Social Worker.

 

Discharge of care order

 

35.          In her evidence filed within this application, the mother raises a number of matters that were considered at length within the care proceedings. I agree with Counsel for the Local Authority who submitted that the account (and interpretation of events) put forward by the mother expressly contradicts findings made during the course of proceedings (for example the Judge found that the deterioration in the relationship between the mother and B derived from the sequelae of harm caused whilst B was in the mother’s care rather than professionals deliberately or inadvertently prejudicing the child’s feelings against her mother).

 

36.          The mother invites the Court to proceed on the basis that when my making decision in 2011 I erred and ignored the evidence before me. This argument is incorrect in law since a Judgment is final unless appealed or set aside on the basis of new evidence or other (limited) criteria such as fraud etc. The application for permission to appeal was refused by the Court of Appeal.

 

37.          The mother sets out in her evidence that inadequate steps have been taken to try to bring about the rehabilitation of B to her care since care proceedings were concluded. In my 2011 judgment I made recommendations that the Local Authority put into place therapeutic services; I am satisfied from the evidence of F that proper attempts were made. The reality is that it has not been possible to make progress since the conclusion of care proceedings and the therapeutic process has been discontinued, and on the mother’s own case, this discontinuation was on the recommendation of the therapist F.

 

38.          I accept the clear advice of the Children’s Guardian that B has been very upset by the mother’s applications which appear to have been counter productive to the mother’s wish for the order to be discharged. According to the Children’s Guardian ‘this application has made B more entrenched in her negative attitude towards her mother and her wider birth family’.

 

39.          The only proportionate order to make in 2011 was a final care order. My judgment sets out the reasons which were not due to current concerns about the mother’s alcohol problems but because of the profoundly damaged relationship that had been caused by the neglect that B had suffered in the care of the mother prior to her going into care. It is indeed laudable that the mother has overcome her alcohol problems but the focus of the mother and according to their letter, the X authorities, on the mother’s overcoming that difficulty is to miss the real reasons why I made the care order in 2011 and why it is necessary and in B’s best interests still.

 

40.          In their correspondence, the X authorities have stressed the obligation on the state to pursue rehabilitation under ECHR jurisprudence. Whilst such an obligation exists, the ECHR has confirmed that:

1. member states have a wide margin of appreciation in how they approach the reunification of families, Johansen v Norway (1997) 23 EHRR 33.
2. the obligation will adequately be discharged in different ways in in different cases; Hokannen v Finland (1995) 19 EHRR 139,
3. the interference can legitimately be anything and everything up to and including total and permanent separation (in exceptional cases); Johansen.

 

41.          I am entirely satisfied that this local authority is properly discharging its obligations pursuant to the ECHR and that the mother’s and B’s Article 8 rights are not breached. This is by:

1. Keeping B’s wishes and feelings under review,
2. Keeping under review the possibility of further CAMHS work,
3. Facilitating supervised contact in accordance with the care plan, providing feedback/review sessions for the mother after each contact session
4. Keeping the mother informed of developments in B’s life,
5. Keeping under review the possibility of introducing B to her brother,
6. Promoting B’s cultural heritage in so far as B will permit this to be done.
7. Contacting B’s cousin with a view to establishing whether she wishes to be assessed, now that she has been proposed by the mother

 

42. B’s welfare has to be my paramount consideration at all times. Her wishes and feelings are clearly expressed through her Guardian, that she wants reduced contact with her mother. I offered to meet with B but she politely declined, being satisfied that her Children’s Guardian and solicitor would express her views properly. I accept the Children’s Guardian’s professional opinion that any change in circumstance discharging the care order with a view to a return to her mother would be place B at risk of significant emotional harm. B is a X citizen who is placed in an English speaking foster placement. The LA is committed to promoting B’s heritage but B is quite resistant to this.

 

Contact

 

43.          B has repeatedly made her wishes and feelings very clear, that she does not wish for contact to take place at a monthly frequency. The local authority has attempted to undertake work to improve the relationship between B and her mother, but it has not been possible to progress this work as set out above. The contact notes reveal that the mother says things to B which have the effect of upsetting her eg In a recent contact she has shared with B her intention to write a book about her experiences. She appeared at the hearing to wish to take advice about what she says or doesn’t say to B. I hope that the review sessions assist with that. In addition if the mother is assisted by the Local Authority to write a letter to B, this may help B to accept her mother’s apology. I accept from the Children’s Guardian that B’s foster carer has a very good relationship with B and that she is likely to be of great assistance in helping B to read any such letter and to reply if she chooses to. If the mother were able to tell B that she accepts B’s wishes to remain in foster care, that may help B to feel more secure and in time to accept her mother more.

 

44.          The frequency of contact of every 6 weeks, or 8 times a year, strikes a proportionate balance between B’s expressed wishes and feelings, her age, the nature of the relationship, the long term plans for B, the need to promote her identity and the need to promote her relationship with her birth family. I am pleased that the Local Authority will aim to provide the same supervisor for contact, this will be of great advantage for B and her mother.

 

Summary

45.          This is indeed a very sad situation. B has a Guardian who has provided me with B’s clear wishes and feelings, and with the Guardian’s own professional opinion. Her reports clearly set out that B’s welfare needs are best met by remaining in foster care where she has settled and is doing so well at school. I accept the Children’s Guardian’s recommendations that I should not discharge the care order and that a fixed order for contact would not be helpful.

 

46.          The mother’s applications are dismissed.

 

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