England and Wales Family Court Decisions (other Judges)

THE FAMILY COURT SITTING AT OXFORD               

Before Her Honour Judge Owens

                                                                                               CASE NO: OX18C00147

21 ^ST MARCH 2019

 

OCC v D & DJ

 

Mr Sampson, Counsel, for OCC

Ms Pugh, Solicitor, for the First Respondent Mother, M

Second Respondent Father, F, in person

Mr Ferry, Solicitor, for the Third and Second Respondents, acting through their Children’s Guardian

 

 

This judgment is being handed down [in private] on 21 ^st March 2019. It consists of 18 pages and has been signed and dated by the judge. The Judge has given permission for the judgment (and any of the facts and matters contained in it) to be published and noting in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the adult members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.

 

 

Introduction

 

I am dealing with an application to discharge Care Orders which were made on 10 ^th December 2015.  The Applicant is OCC, the Local Authority.  The two children who are subject to the Care Orders are A and B.  They are aged 5 and 4 years respectively.  Their mother is M and their father is F. 

 

Background

 

The original care proceedings took place in 2015.  The primary issue in those proceedings was causation and perpetration of injuries which B suffered whilst in the care of her parents.  Those injuries were a fractured clavicle and bruising.  On 24 ^th February 2015 I gave judgment in respect of fact-finding concerning those injuries and found that they were non-accidental and inflicted by one or other of the parents.  On 8 ^th December 2015 I dealt with the final part of the care proceedings and gave judgment on the welfare stage of those proceedings.  By that point both parents had been assessed by Dr Melissa Jackaman, clinical psychologist.  Her conclusions were that neither parent seemed to accept that the other could have caused the injuries and there seemed to be little understanding from either parent as to how the other may be more proactive in ensuring greater safety for the children given what had taken place.  Dr Jackaman also concluded that M had a number of complex issues which needed addressing, including allowing her emotions to build up until she had an aggressive outburst which she struggled to control.  In relation to F, Dr Jackaman concluded that she had concerns about his ability to recognise his own levels of stress and that F was not able to ask for help appropriately. Considering Dr Jackaman’s evidence, that of the social worker and various parenting and kinship assessments filed, and the evidence of the Guardian, as well as the parents themselves, I concluded that it was not safe to return A and B to the care of their parents and that the only remaining realistic option for their long-term care was placement with their paternal aunt and uncle in Madeira.  This was the final care plan of the Local Authority for each child, supported by the Guardian.  I granted full Care Orders with that placement plan.  For the purposes of this judgment, being aware that the authorities in Portugal will need to have full judgment for the purposes of Brussels II Revised, I adopt my two earlier judgments and the findings made in those which I have just summarised.  A and B moved to live with their paternal aunt and uncle in Madeira, and their paternal cousin who is also a child, on 18 ^th January 2016.  They have remained there since.

 

The application I am now dealing with is brought by OCC on the basis that the Care Orders can now be discharged and replaced with private law orders to enable A and B to remain living with their paternal aunt and uncle.  OCC specifically seek Special Guardianship Orders supported by Child Arrangements, Specific Issues and Prohibited Steps Orders governing where the children should live and with whom, as well as setting out parameters for the exercise of parental responsibility.  The application for discharge was made on 14 ^th November 2018.  Proceedings were allocated to me as the application was for discharge of orders that I had made and I conducted a case management hearing on 30 ^th November 2018.  At that hearing the case was initially timetabled to an Issues Resolution/Early Final Hearing before me on 11 ^th February 2019.  On 11 ^th March 2019 the issues were narrowed considerably in that neither parent sought to actively oppose the discharge of the care orders or for orders to be granted to enable A and B to remain living with their aunt and uncle in Madeira.  There was potentially an issue around the arrangements for the contact that A and B would have with their parents, though parties indicated that they were not necessarily seeking an order to define that contact.  The Guardian’s final analysis and recommendations, dated 8 ^th February 2019, had only been received on 9 ^th February 2019.  In it the Guardian (at paragraph 20) made some recommendations for more contact than was either outlined in the Special Guardianship Support plan or requested by M or F.  The uncle and aunt had not been fully appraised of the Guardian’s recommendations about contact, and the Local Authority were also proposing to amend the Special Guardianship Order support plan in relation to contact in any event.  To enable the aunt and uncle to be fully informed of what was proposed, and if need be make any necessary representations or applications to me, I therefore adjourned the case to this final hearing.

 

By agreement of all concerned, it has not been necessary for me to hear oral evidence in deciding the outcome of this case.  I have therefore made my decision having read the contents of the Court Bundle, having considered the written case summary of the Local Authority, the position statements of M and the Guardian, as well as oral submissions made by the parties at this hearing.  

 

Parties’ positions

 

As I have already noted in this judgment, the Local Authority are asking me to discharge the existing Care Orders, to make Special Guardianship Orders appointing paternal aunt and uncle Special Guardians for A and B of my own motion, and to make orders under section 8 of the Children Act 1989 setting out where and with whom the children should live and to govern the exercise of parental responsibility.

 

M does not actively oppose the Local Authority application and does not seek an order setting out what contact A and B should have with her.

F also does not actively oppose the Local Authority application and does not seek an order setting out what contact A and B should have with him.

 

The Guardian supports the Local Authority application. 

 

Relevant legal considerations

 

An application for discharge of a Care Order is made under section 39 of the Children Act 1989.  I have to consider whether it is in the welfare interests of the children that the Orders should be discharged.  Section14A (6) (b) of the Children Act 1989 empowers a court to make a Special Guardianship Order of its own motion in any Family Proceedings, ie without a separate application from a party for a Special Guardianship Order, as long as there are other Family Proceedings underway.  Before a Court can make a Special Guardianship Order, even of its own motion under section 14A, it needs a Special Guardianship Report (section 14A (11)).  That report must be prepared by the Local Authority addressing the suitability of the proposed special guardians to be special guardians, the matters specified in the Special Guardianship Regulations 2005 and as amended by the Special Guardianship (Amendment) Regulations 2016, and any other matter which the Local Authority considers to be relevant (section 14A (8)).  If a Court considers that an order under section 8 of the Children Act 1989 should be made, then no application is necessary (section 10(1)(b)). 

 

The recognition and enforceability of any orders made in this jurisdiction in Madeira is governed by the procedure established by virtue of Brussels II Revised (BIIR) regulations.  Enforceability flows from Article 28 of BIIR, and there is provision under Articles 39 and 41 for a Court to issue a certificate of enforceability in a standard form specified in Annex III if certain criteria are met with regard to giving parties an opportunity to be heard (potentially including the children concerned unless this is inappropriate in view of their age or degree of maturity), and there is also scope for judgment in default to be sufficient as long as certain other requirements are met with regard to adequate notice and establishing that the person concerned has accepted the decision unequivocally.  An Article 41 or Article 39 certificate avoids the need for someone to obtain a declaration of recognition of enforceability under Articles 21 and 28 before asking the authorities in another EU member state to recognise and enforce (if required) a judgment.  The term judgment is also significant in legal terms in view of the issues in this case as BIIR relates to the recognition and enforceability of judgments rather than orders since an order is simply the mechanism by which a judgment is enforced.   In light of the advice provided by Mr Sampson at C222-272 in the Bundle with regard to the fact that Special Guardianship Orders do not exist in an equivalent form in Portuguese law with regard to where and with whom the children should live, it may also be necessary for this Court to consider orders under section 8 of the Children Act 1989 to set out where A and B should live, with whom they should live and how parental responsibility should be exercised.  Section 9(6) of the Children Act 1989 is also therefore relevant, as this sets out that section 8 orders should ordinarily last until a child is sixteen years of age unless a Court considers that there are exceptional circumstances to justify orders lasting until a child reaches 18 years of age.  Section 1 of the Children Act 1989 is also relevant to these proceedings, setting out as it does the matters potentially to consider in relation to the welfare of the children concerned (welfare checklist contained in section 1(3)) and that the welfare of the children shall be paramount in these sorts of proceedings (section 1(1).  It also sets out the presumption of there being no order unless a Court considers that making an order would be better for the child than making no order at all (section 1(5).

 

Findings and orders

 

Firstly, I am satisfied that it is in the welfare interests of A and B for them to remain permanently in the care of the proposed Special Guardians and for the care orders made on 10 ^th December 2015 to be discharged.  The evidence contained in section C of the Bundle make it abundantly clear that they are thriving living with their paternal aunt and uncle despite having had some issues in adjusting to this placement initially.  As is noted by the social services department of Madeira in their report dated 30 ^th August 2018: “As a result of the monitoring of this household, we consider that the uncle and aunt continue, by and large, to present as responsible, dynamic and loving carers, assuming a position of proactiveness and assertion with regard to this placement.  For that reason and considering their own intention in continuing with the placement on a permanent basis and considering the degree of integration of the children in the household, we consider that the conditions for the application of a definitive procedure have been met, namely in respect of a Special Guardianship Order” (C13).

 

Both children are too young to be able to reliably and independently articulate their wishes and feelings, but it is clear from the evidence in section C that they have a close and loving bond with their aunt and uncle.  The evidence from the Guardian in section E in his final analysis and recommendations dated 8 ^th February 2019 also sets out that the children have adjusted to their new home and are now settled.  He also notes that the parents have been supportive of the placement. The children have also been supported by their aunt and uncle to maintain their relationships with their birth parents and other relatives residing in the UK.  Whilst they may not be able to articulate this, I have no doubt that they would want to maintain those relationships but also to remain with their aunt and uncle where they are now settled and happy.

 

The placement with their aunt and uncle is also one that meets all their needs, but particularly their physical, emotional and educational needs (the next relevant welfare checklist heading).  Again, the unchallenged evidence in the Bundle provides ample support for this conclusion, particularly the report from the Madeira social services at C7-13.

 

Likely effect on the children of any change of circumstances is the next welfare checklist heading.  In this case, it is proposed that the children should remain in a placement that is meeting their needs and in which they are settled and happy.  It would potentially be a harmful change to their circumstances if they were to have to leave this placement and it is therefore in their welfare interests to remain where they are for the long term.

 

Age, sex, background and any characteristics of the children is the next relevant welfare checklist heading.  As both the social worker and Guardian acknowledge in their evidence in the Bundle, the children are of mixed English and Portuguese heritage.  They are both also comparatively young and A has had a period where he has struggled to adjust to being the eldest in the placement.  Placement where they are settled and happy, and where their mixed heritage identity needs can be met by exposure to Portuguese culture and life but also ensuring that they maintain their English language skills and have contact with their English family members, is important for these children.

 

The next relevant welfare checklist heading is any harm which the children have suffered or are at risk of suffering.  Given the findings that I made in the previous proceedings, the starting point for these proceedings is that the children would be at risk of further significant harm if they were to be returned to the care of their parents.  The evidence in the Bundle about how settled and happy the children now are also supports a finding that they would be at risk of harm if they were to have to move from their current placement.  The professional evidence before me in the Bundle also notes that the children had experienced instability and insecurity the past - see particularly the Guardian’s report at paragraph 12 which notes that they moved from the care of their parents to separate kinship placements before moving in January 2016 to live with their aunt and uncle in Madeira.  It is greatly to the credit of the parents in this matter that they do not oppose the children remaining with their aunt and uncle as a permanent placement.

 

The penultimate welfare checklist heading is how capable each of their parents, and any other person to whom the Court considers the question to be relevant, is of meeting their needs.  Again, my previous welfare findings were that neither parent was capable of meeting the needs of A and B.  They have very bravely accepted that they are not in a position to argue that anything has significantly altered since I made those previous findings.  This inability on their part to parent A and B to a good enough standard is also well-documented in the unchallenged evidence in the Bundle. I therefore find that the parents in this case remain unable to parent A and B to a good enough standard.  In contrast, the evidence from the social services department in Madeira in section C of the Bundle, the Special Guardianship Order assessment and addendum also in section C, and the evidence from the Guardian at section E, shows that the aunt and uncle are more than capable of meeting the needs of A and B.  In particular, they have not only met their needs to a good enough standard, but have weathered some significant challenges arising from the children undergoing a period of adjustment to their new family.  The aunt and uncle have coped with some challenging behaviours, particularly from A, and have appropriately sought advice and support from social services in Madeira.   The letter in the Bundle at C232-333 from the aunt and uncle about contact proposals contains some very moving evidence about the impact on their family of providing a home for A and B, and the extraordinary efforts that they have taken to overcome the challenges this has posed for them. As a result, there is compelling evidence before me of the aunt and uncle providing better than good enough care to A and B, I find.

 

Finally, the range of powers available to the Court under the Children Act in the proceedings in question have to be considered. As I have already noted in this judgment, I am being asked by all parties to consider making Special Guardianship Orders appointing the paternal aunt and uncle Special Guardians for A and B and to do that of my own motion, rather than on an application from a party.  I also earlier noted that there are certain procedural requirements which have to be met before I can make such an order.  I have the required Special Guardianship Order reports for the prospective Special Guardians at C80-146 and C216-217 in the Bundle.  The Special Guardianship Order support plan is at C46-61.  Before making a Special Guardianship Order, a court must also consider “whether, if the order were made, a child arrangements order containing contact provision should also be made with respect to the child” (section 14B Children Act 1989).  I also have before me the views of the proposed Special Guardians about contact and the exercise of parental responsibility at C323-333 and in an updating statement from the social worker at C307-308.

 

The proposed Special Guardians are supportive of direct contact between the children and their parents continuing.  They have been responsible for arranging and facilitating this contact for at least the last year, as the social worker and Guardian acknowledge.  Both the Guardian and social worker are of the opinion that contact needs to be led by the aunt and uncle as the people caring for A and B.  The social worker in particular notes that the views of A’s psychologist are very significant to this aspect as the psychologist “states that A a) continues to have difficulties managing change, and b) has expressed anxiety about being removed from [paternal uncle and aunt’s] care” (C307).   Whilst M has been content with the current contact arrangements, in her witness statement at C292 paragraph 8 she set out that she would ideally like consideration to be given to the contact increasing from 5 hours on one day to contact over two consecutive days during the summer visits as these coincide with birthday celebrations for the children.  This increase is one that the Guardian not only supported but suggested could apply to all contacts so that they would be over two consecutive days (E1-8).  However, the proposed Special Guardians’ response at C323-333 makes it very clear that they do not feel able to increase contact to two days at this stage, nor host the contact in their own home.  They have not entirely ruled out an increase in future and do not rule out visits taking place at their home in future.  As they say “We believe it will be reassuring to them to see the place where their children live and to get to know a bit about their routines and their belongings.  This will not happen right now, but we believe that it will take place in the near future” (C326).   They also point out the impact on the whole family of the time commitment that contact already entails for them, as well as the impact on the children emotionally after they have seen their parents. 

 

It is very clear to me on the evidence before me, particularly from the social work evidence indicating the views of A’s psychologist, that contact is potentially very unsettling for the children and does need to be managed sensitively in the welfare interests of the children.  All parties agree that this is the case, including the respondent mother who has noted how child-focussed the reasons provided by the aunt and uncle are and is not asking me to make an order for contact.  This is very encouraging as it suggests to me that they are all working hard to put the needs of A and B first.   I find that is it necessary for the purposes of providing clarity and to aid recognition of my orders in Portugal to make a Child Arrangements Order for the aunt and uncle to make the children available for contact with their parents as is set out in the Special Guardianship Support plan, namely in Madeira for up to five hours on one day four times per year and this to be supervised or supported by the Special Guardians, but there may be such other contact arrangements as is either agreed between the Special Guardians and the parents or that the Special Guardians consider is in the welfare interests of the children.

 

I am satisfied that the welfare of A and B requires that I make Special Guardianship Orders appointing their paternal aunt and uncle Special Guardians for them and endorse the Special Guardianship Support plan which will provide them with necessary support and assistance considering the ongoing challenges they face caring for A and B.  A child arrangements order setting out where the children will live and with whom is also required in this case.  This is because, as I have earlier noted, a Special Guardianship Order does not have an equivalent in Portuguese law. 

 

I am also satisfied that it is necessary and proportionate to protect the welfare of the children in this case to make an order setting out that the children are not to live with either or both of their parents unless a risk assessment confirming that they no longer pose a risk of harm to the children has been completed by a child assessment service or social services, or there is a court order permitting the children to live with either or both parent.

 

It is abundantly clear on the evidence before me that the children need certainty and stability which is best achieved by confirming that they will permanently live with their paternal aunt and uncle.  The Special Guardianship Orders will last until the children reach 18 years of age in accordance with section 91(13) of the Children Act 1989.  The effect of making the Special Guardianship Orders will be as set out in section 14C (1) of the Children Act 1989: “while the order remains in force – (a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and (b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).  As set out in Mr Sampson’s advice at C230, I find that it is also necessary to make an order granting the Special Guardians parental responsibility to ensure recognition of this aspect in Portugal.

 

As part of the exercise of their parental responsibility under the Special Guardianship Orders, I will also order that the Special Guardians have power to appoint a testamentary guardian and that they may select and place the child in schools and arrange for such medical treatment as they see fit without consultation with the parents.  This is necessary to provide them in Portugal with similar powers to those held by Special Guardians in this jurisdiction, as again is set out in the advice from Mr Sampson at C230.  The Special Guardianship Orders would also have the effect of discharging the Care Orders in accordance with section 91(5A) of the Children Act 1989 even if no application to discharge had been made by the Local Authority.   In accordance with section 14D of the Children Act 1989, the parents would need leave of the court before they can make an application for discharge of these Special Guardianship Orders.  I will direct that a recital shall be recorded on the face of the order from today setting out that the test for obtaining such leave is that the court may only grant such leave to apply where it is satisfied that there has been a significant change in circumstances since the making of the Special Guardianship Orders (section 14D (5) Children Act 1989.

 

The other aspect of Special Guardianship Orders which would apply in this jurisdiction is that no person may cause the children to be known by a new surname or to be removed from the jurisdiction without either the consent of every person who has parental responsibility or the leave of the court (section 14C (3) Children Act 1989).  Section 14C(4) of the Children Act 1989 does allow a Special Guardian to remove the children from the jurisdiction for up to three months without the consent of every person with parental responsibility.  I will make equivalent Prohibited Steps Orders to ensure that these provisions also apply in respect of the children not being removed from Portugal for a period of more than three months by their Special Guardians without the consent of every person with parental responsibility, and similarly no person shall cause the children to be known by a different surname without the consent of every person with parental responsibility.  Those Prohibited Steps Orders shall last until the children reach 18 years of age since I am satisfied that this case is exceptional for reasons that I will expand upon below when I consider other section 8 orders.

 

As part of ensuring that my orders from today are clear and enforceable in Portugal, and again in line with the advice of Mr Sampson at C230, I find that it is also necessary to make a Prohibited Steps Order under to prevent any person from removing the children from the care of their Special Guardians or from the jurisdiction of Portugal without the express written consent of the Special Guardians or a court order.  This order shall also last until the children are 18 years old, again for reasons that I will expand upon below.

 

As I have earlier said, I will also make a Child Arrangements Order setting out that A and B will live with their aunt and uncle and that they will live with them in Portugal, therefore confirming that they continue to have permission for the children to reside outside of the jurisdiction of England and Wales and determining where they will live and with whom.  Normally a Child Arrangements Order or any order which is made under section 8 of the Children Act 1989 would only last until a child reaches the age of 16 years old (section 9(6) Children Act 1989).  However, the Court may under that section make an order which last beyond the age of 16 if satisfied that the circumstances of the case are exceptional. There are exceptional circumstances in this case which require that the Child Arrangements Order should continue until A and B are 18 years of age because this will match the period of the Special Guardianship Orders and provide the necessary legal framework to give them stability and permanency in Portugal by recognition of the Child Arrangements Orders setting out where they will live and with whom since this aspect of the Special Guardianship Orders is not something that has an equivalent in Portuguese law. 

 

Finally, I must consider the exercise of parental responsibility as this issue has been raised in light of the response from the Special Guardians at C323-333.  They state that they do not wish to share details about the children’s health, education and development with the parents.  Ordinarily this is information which a parent with parental responsibility would be entitled to have.  However, to be required to provide this on top of providing day to day care for A and B and managing direct contact is clearly a pressure which the Special Guardians feel they cannot manage.  The social worker and Guardian acknowledge this, but the Guardian also pointed out that the parents will not lose parental responsibility and having information about the children will help with making contact more meaningful for the children.  Ms Pugh for the mother also points out that the information will be helpful to enable the mother to understand decisions taken about whether there should be any changes to contact.  In fact, as I heard in submissions on this point today, information is being provided to the parents by the aunt and uncle and that this can be dealt with under a recital to the order.  I am satisfied that this is the appropriate way to resolve this issue.

 

I will also issue a certificate of enforceability under Article 41 of BIIR and Annex III in respect of all of the Orders that I have made today.  I will also issue the certificate of enforceability under article 39. The standard forms will be provided to the authorities in Portugal as soon as possible.

 

Conclusions

 

I have given a very full judgment in this case to try to ensure that the authorities in Portugal understand the orders that I have made and why.  I also wanted to put on record how well the Special Guardians are coping with caring for the children in what have been very challenging circumstances.  They deserve much praise for this and for continuing to care for the children even when, in their words, they gave up their “tranquillity, peace, emotional stability and privacy in order to give a new opportunity in life to two little children who had a very hard beginning in life.  We accepted this enormous challenge and to this day we strive for this story to have a better end that its beginning.  We spend hours without sleep when the children are sick.  We spend hours in appointments with professionals in order to try and understand the children’s behavioural difficulties and help them have a good development.  We spend sleepless nights thinking about what to do to overcome the day-to-day difficulties” (C331).  In addition, the parents have also very bravely accepted that the children need to remain with their aunt and uncle permanently.  This is a very difficult decision for any parent to take and is one that I acknowledge shows they are putting the needs of A and B first.  They also deserve praise for this child-focussed approach. 

 

21 ^st March 2019