FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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LONDON BOROUGH OF E |
Applicant |
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- and - |
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J and L |
Respondents |
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Mr N O'Brian (instructed by McMillen Hamilton McCarthy) for the First Respondent mother (through her guardian ad litem the Official Solicitor)
Ms K Sapnara (instructed by Levenes) for the Second Respondent mother
Mr K Speller of Nash & Dowell for the Third Respondent child (through her guardian)
Hearing dates: 5 to 9 July 2004
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Crown Copyright ©
The Hon. Mr Justice Charles:
Brief introduction.
The representation of the mother.
The essential issue.
The position at the time of the marriage and up until August 2003.
"She [the mother] also spoke about the baby acting inappropriately at times, bumping his head against the floor, and she spoke about being baptised in acid in Slovakia in the past. She mentioned that 'they' did something inside of her and then her stomach grew bigger and the baby came out……. There was no clear sign of formal thought disorder, and though some of the abovementioned thoughts could be delusional I had no way of confirming that. She seemed quite guarded and her friend confirmed to me later that [the mother] manages to control her symptoms but when she is alone she tends to unravel. She was fully orientated to time, place and person but had no insight and did not feel she was ill in any way or needed any help."
That doctor ended his report in a letter dated 26 June 2003 with the following statement:
"I hope that my suspicions regarding this patient are not grounded and that she will not require any psychiatric treatment in the future."
The threshold criteria.
"1. The mother suffers from mental illness, as described by Doctors Boast and Lucas, which, when in relapse, prevents her meeting the physical and emotional needs of A. At the commencement of protective measures it was likely that A would suffer significant harm as a consequence of his mother's recurrent ill-health. Since the commencement of the proceedings the mother has, during periods of poor health required in-patient treatment under section 2 Mental Health Act 1983 and she has been unable to meet A's needs during some contacts.
2 On 21 August 2003 the mother left A for a period of at least 30 minutes alone in her flat. A was heard to be crying and police were called and found him alone. A was placed at risk of significant physical harm and emotional distress/harm as a consequence of being left on his own."
i) In August 2003 an assessment was made by the Mental Health team and the conclusion was reached by them that the mother was not mentally ill.ii) After that there was an assessment by the Edmonton Family Centre which did not conclude that the mother was mentally ill although it did recommend that both she and the child would benefit from some therapeutic work.
iii) Further and importantly there were reports from Dr Boast, a consultant forensic psychiatrist who was instructed by solicitors representing the mother for the purposes of these proceedings dated 27 October 2003, 26 November 2003 and 2 February 2004 in which he did not conclude that the mother was mentally ill. His last report under the heading Opinion contained the following:
"In my last report I raised the possibility of [the mother] suffering with a psychotic mental illness. Having interviewed [the maternal grandmother] I think that the presentation to St Charles' Hospital is consistent with a stress induced psychosis, but not a more severe and enduring mental illness such as schizophrenia[I comment that the presentation to St Charles' Hospital was the presentation I have described earlier which took place on 20 June 2003].The history given by her mother is consistent with [the mother] continuing to find her situation stressful since the child was taken into care but not a more severe form of mental illness. I note the concern in the report, however, regarding [the mother's] health. It may be that associated with ongoing stress her mental health has deteriorated. I think that it is appropriate for her to be assessed again by the locality mental health team and I will be willing to see her again if thought useful.In summary the information I now have available indicates that [the mother] responds to stress by mental worry and that she can decompensate into psychosis, but that she is from a stable background, that she has been mentally healthy in the past and she has the support of her family in Slovakia.Regarding the possibility of [the mother] being mentally ill in Slovakia my current opinion suggests that while [the mother] has a vulnerability to stress, if she were in a stable social situation her mental condition should improve and the risk of a further psychotic relapse be significantly lowered. I formed the view that [the maternal grandmother] was a sensible woman who did not discount the possibility of her daughter continuing to have mental health problems and if necessary she would seek help from the Slovak health service (which is similarly structured to that in the United Kingdom, with good access to primary care and secondary specialist psychiatric care).[The maternal grandmother] told me that she is currently being assessed with regarding the possibility of her daughter coming back to Slovakia. My assessment is consistent with this option being the preferred one in respect of [the mother's] mental health and stability. In respect of the idea of residential assessment I think a difficulty could be that [the mother] would find this stressful and under perform and even become more ill."
"The history is suggestive of a paranoid psychosis, schizophreniform in character, with increasing social withdrawal, paranoia, denial and rationalisation of disturbed behaviour such as when she left her child unattended in the flat or took her child from the care centre.
It is because of concern over her underlying mental state, that I supported the action for the appointment of the Official Solicitor to act on her behalf in the childcare proceedings."
"As explained in the summary, my diagnosis would be of a paranoid psychosis, schizophreniform in character (F20.OICD10), with at times thought disorder, paranoid delusions, and denial with poor insight. At first, her state was assessed as a reactive psychosis to the stress linked around her admission, later it was reconsidered as a more long lasting disorder, accounting for her overall poor insight, and this would explain why professionals and friends at times found it difficult to maintain an in depth communication with her.
She requires anti psychotic medication……… the validity of her remaining in the United Kingdom requires evaluation linked also to her best long term interests in terms of family social and medical supportive care………
I think that she has and will continue to have an underlying paranoid psychotic disorder which colours her judgements (eg her marriage, the concern over her past care of her child and recent impulsive removal of her child from the day care centre).
She remains with a vulnerability to further acute breakdowns, if she finds herself under excess stress, without sufficient social and professional support around her.
In this contrast, consideration will be needed as to the best place of domicile for her in her long term interest, for both her psychiatric care and for effective family/social support, as well as consideration of the interests of her child.
Effective family/social support together with continued anti psychotic medication and professional psychiatric monitoring of her progress will reduce the vulnerability of a further acute relapse."
Disposal.
i) I am not sitting in the Administrative Court nor am I reviewing a decision of a public authority,ii) I am not concerned to (or indeed entitled to) implement or have regard to immigration policy or the policy on imprisonment, extradition or prosecution relating to the father's circumstances, but
iii) I have to have regard to the underlying background realities relating to the position of the relevant adults and child.
The father's immigration/extradition position.
"As to the extradition position, we understand from colleagues in the Judicial Co-operation Unit of the Home Office that [the father] is sought by French authority on charges relating to terrorist activity.
The brief chronology is that pursuant to a French request [the father] was provisionally arrested on 16 May 2001. Following receipt and consideration of the French extradition request the Secretary of State on 27 June 2001 issued an authority to proceed (ATP) against [the father].
The effect of an ATP is to place an extradition request before the courts in the first instance for a committal hearing. [The father] was committed on 12 April 2002 by a Bow Street District Judge sitting at HMP Belmarsh. He was committed on two charges, which were recited as follows:
- That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued namely that forged passports would be used which course of conduct would necessarily involve the commission of using a false instrument.
- That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued, namely for co-conspirators to have passports or forged passports in their possession in circumstances giving rise to a reasonable suspicion that they would be for a purpose connected with the commission, preparation or instigation of acts of terrorism.
[The father] appealed against (applied for habeus corpus of) the committal judgment on 26 April 2002. On 21 October 2002, he withdrew his habeus corpus application, thus bringing to an end the judicial stages of the extradition proceedings.
Under the Extradition Act 1989, it falls to the Secretary of State to take a decision as to surrender. As part of that process, a fugitive has a statutory opportunity to make written representation as to why he should not be surrendered. [The father's] solicitors have made substantial such representations against his surrender to France. Those raise a number of complex issues requiring detailed consideration and, in all likelihood, a number of enquiries.
We are unable to give a reliable forecast of when the Secretary of State will be in a position to reach his decision in the matter. We hope it may assist the Family Division, however, to say that French authorities attach considerable importance to the case The Secretary of State plays a quasi judicial role in matters of extradition and shares the concern to see that the case is brought to a conclusion as quickly as is consistent with dealing fairly and properly with all the representations which have been placed before him."
"…..the application for [the father's] bail will now be dealt with in the Bow Street Magistrates' Court. I confirm that the statement that I prepared for the hearing before the judge in chambers will not be put forward in those, or any other future proceedings. I wish to reassure Your Lordship there was no intention to mislead the court. I apologise for the inclusion of any inaccuracies and offer my assurance that, if any further statement is to be submitted, it will be clarified with Your Lordship in advance."
No such new statement has been sent to me.
"Father and mother do file and serve by 2 p.m. on 21 May 2004 a statement of their cases in respect of any Human Rights or fairness issues they wish to raise in these proceedings. The parents' statements shall indicate their position as to whether A can and/or should go to Slovakia."
"If the father is seeking to invite the court to determine judicial review proceedings at the same time as or before the determination of these family proceedings he is to make this application for permission with all appropriate supporting documents as set down by CPR Part 54 by 18 May 2004. The father has permission to inform the Administrative Court listing that that application for permission should be allocated to Mr Justice Charles immediately upon receipt."
"Of more importance however is the effect that [the father's] continued detention and the uncertainty of its duration has had, and will continue to have, on these proceedings. As the court will be aware the court has no way of knowing when the Secretary of State is likely to make a decision with regard to his extradition. All legal procedures prior to that decision have been gone through and all that is awaited is a decision from the Secretary of State himself. Thus far, that has not been forthcoming.
In addition, it is within the power of the Secretary of State, should he so wish, to end [the father's] detention at any point either by releasing him on bail or by refusing the application to extradition and/or by discontinuing the certificate of internment issued under the authority of SIAC. (The certificate currently authorises [the father's] detention on the basis that he is suspected of terrorist activities (on what evidence one does not know) but clearly it is a matter for SIAC and the Secretary of State to rescind/discontinue that certificate if they so wish). The problem for [the father] and for those representing him is that these are all unknowns and without the direct involvement within these proceedings of the Secretary of State and SIAC they will remain unknowns. It is therefore impossible to predict when and if [the father] might be released. It is contended on his behalf that his current detention has the appearance of extreme unfairness, if only on the basis that mature democracies really should not be detaining individuals without charge within the jurisdiction or a fair trial.
Given the political vagaries of the situation, it is contended that [the father] might find himself released at any point without explanation. Other similarly detained persons have, to [the father's] knowledge, either, at the very least, had the benefit of receiving a Home Secretary's decision on extradition and then go through the subsequent procedure of being released, either without charge or on bail. He remains one of, if not the longest serving, detainee under the current provisions. He is, furthermore, detained on the possibility of being charged with offences, sentences for which, were he to be extradited, charged, tried and found guilty, would be highly unlikely to give custodial sentences equal to or longer than the amount of time he has already spent in prison.
In all the circumstances, the second respondent father's position is that he does not see how the court can arrive at a fair determination of the outcome which would be in A's best interest without full and proper investigation as to the likely duration of his current detention. He therefore considers that either of the outcomes described above would be so prejudicial to his ability to put forward a plan to either care for A or, in the absence of being able to care for A, to maintain a proper relationship with his son but they would be inherently unfair and would breach both his and A's convention rights."
a) The father is currently held in prison under the warrant relating to the request for his extradition.
b) His arrest pursuant to this warrant took place on 16 May 2001 when notice of discontinuance of the domestic charges was given.
c) The challenge to the arrest and detention pursuant to such warrant related to the request for extradition failed and the father was therefore committed to await the decision of the Secretary of State concerning the request for his extradition to France.
d) In respect of that decision a process of representation and enquiry is under way and the father has not replied to relevant correspondence concerning that process and has not been pressing for a decision.
e) It is not possible to forecast with any accuracy when a decision on extradition will be made by the Secretary of State, albeit that the Secretary of State is expressing a wish to deal with the matter.
f) If the Secretary of State decides to extradite the father it is very likely that he would challenge such decision by judicial review and those proceedings might well not stop at first instance.
g) If the Secretary of State decides not to extradite the father (or the father's challenge by way of judicial review to a decision to extradite him succeeds). The certificate that was issued in respect of him under section 21 ATCSA 2001 might be reactivated and on that basis the father might be kept in prison.
h) Challenges to his continued imprisonment based on that certificate would probably be made and could well take some time, and
i) if and when the father is released in this country his immigration status (and thus his claim for asylum) would have to be considered, but I was told that a pragmatic point as to that is that at present no deportations to Algeria are being made.
The mother's immigration position.
The mother's position.
i) When I went back to Slovakia I felt persecuted on the grounds of my religious beliefs. However, I have now decided that I do not want to be a Muslimii) I do not believe that I have mental health problems
iii) I believe that I am able to care for my son properly ------------- I would like us to return to Slovakia to live with my family there. We could stay with my mother -------------
iv) I do not want any of my husband's extended family or friends to care for A
v) I do not trust either the 2nd Respondent [the father] or his extended family and friends. I do not feel that either I, or my son, are safe with them.
The father's position
i) The second respondent [the father] wishes A to be brought up if possible by his mother with he, as A's father, playing an active and involved role. He is currently, however extremely concerned about the First Respondent's [the mother's] mental health and would only wish A to be returned to her care should the court be fully satisfied that she is (a) mentally well and is likely to remain so and (b) that she takes no step to remove A from the jurisdiction of this court. As such a step would undoubtedly have a highly prejudicial effect on any possibility of the second Respondent being able to continue any meaningful relationship with his son.ii) In the event that A's mother is not able to resume his care in such a manner, the second Respondent's position is that he would wish his extended friends and family to be explored as possible alternative carers……………. The second Respondent understands that Ms EH is prepared to put herself forward as a carer for A both in the short and long term. The second Respondent's position is that he would wish, if possible, A to be placed with Ms EH on an interim basis whilst these court proceedings are continuing. He is aware of the first Respondent's opposition to this but believes that the placement could, nevertheless, be successful and beneficial to A. The second Respondent points out that A has known Ms EH from birth and is familiar with her and her family. He also points out that she is from his culture and would, therefore, be able to ensure that A's cultural and religious needs will be fully met. The second Respondent is aware that the first Respondent no longer wishes to practice Islam and regards this a matter of personal choice as far as the first Respondent is concerned. He does, however, consider that his son should be allowed to take full advantage of his religious and cultural background and that he should not be prevented from living in an Islamic environment during the course of these proceedings. The second Respondent wishes to make it clear that he puts forward this view not out of any desire to contradict the first Respondent's viewpoint nor indeed from any religious sentiments he may himself feel but simply because he wishes to ensure that A is able to take full advantage of the support and help which is available from within his own community.
iii) The second Respondent wishes the court to be aware that, notwithstanding his current concerns about the first Respondent's mental health, he hopes that she regains full health and can remain stable on a permanent basis in order to enable her to care properly for A. In the absence of such a situation and given his very difficult circumstances, he wishes to put forward friends and family members as alternative short and long term carers for A and until such time as he is able to secure his release from prison.
iv) In brief, therefore, the second Respondent's position is that his main concern is for the safety of his son, A. He would wish A to be placed with friends or family while the matter is being resolved and in the event that A's mother is not able to safely resume his care he would wish such a placement to continue as necessary until he is able to resume care of A himself.
The father's other proposals.
"Upon the parents agreeing that the maternal grandmother and Ms EH are the only alternative carers being put forward."
this was a surprising application. Further it was apparent from the correspondence exhibited to the statement in support of the application that issues arose as to why an earlier response to a letter dated 23 April 2004 from the local authority informing the uncle's solicitor that they had been informed that the uncle no longer put himself forward as a carer needed investigation. It was also unclear whether the uncle was seeking to advance a different position to that advanced by the father. The indications were, and indeed the understanding of the uncle's counsel at that stage was, that the uncle was not seeking to advance a different case to that of the father. Counsel very properly recognised that that was a strong factor against joining the uncle as a party to these proceedings. On the first day of the hearing I adjourned the uncle's application and requested him to put in an additional statement and the local authority to provide a chronology relating to their contact with the uncle and the possibility of him being assessed as a carer. These documents were provided and the uncle did not seek to renew his application to be joined as a party.
"I support Ms EH's application to have A placed in her permanent care. If the court is not minded to place A in her care, then I would ask that they consider me as a permanent carer. I am also willing to put myself forward as a joint carer with Ms EH sharing the care of A. I would argue that A should be brought up as Muslim boy in this country. To send him to Slovakia with his maternal grandmother would in effect mean A being permanently separated from his father, uncle and paternal family.
This paragraph mirrors the father's position as by then clarified that he was putting Ms EH forward as a permanent carer."
"[The uncle] is an asylum seeker. His application for asylum was refused and he lodged an appeal. His appeal was dismissed by an Immigration Adjudicator and he has made an application for permission to appeal to the Immigration Appeal Tribunal. A decision has not yet, to our knowledge, been made on that application."
"I attended an Immigration hearing a few months ago and explained my situation to the Adjudicator in relation to A. I was told by the Adjudicator that this was a relevant fact in my application. I believed that if A was placed in my care then I could strongly argue that I should be granted indefinite leave on Human Rights grounds and Article 8 the right to family life. I do believe this would greatly strengthen my Application for asylum."
"I understand that your client had initially said that he wanted to be assessed as a carer for A. However two meetings have been set up between your client and the social worker, neither of which your client has attended. The social worker has also heard from a family friend [Ms EH] that your client does not now wish to be considered as a carer. I would be grateful if you would clarify your client's position."
Ms EH
"I know that I am not a blood relative of A but he means a lot to me.
I know that I can offer him a suitable home with love, care and attention that he needs. He has been through so much distress in his life, if he stayed with me I could offer him the stability that he needs. He would also grow up knowing both of his parents, family and friends, all of whom have been a part of his life.
It would upset me greatly if A was to leave this country. He would not only be missed but he would also lose all contact of all the people who love him greatly (i.e. his mother, father, uncle and me).
I do understand this is a very delicate situation and not an easy case. I therefore call upon your good nature when deciding upon the matter."
The maternal grandmother.
Slovakian law.
a) A is a Slovakian national by operation of Slovakian law, because his mother is Slovakian.
b) The Slovakian courts would have jurisdiction over A's care (custody) and contact if he is habitually resident in Slovakia.
c) A decision of this court as to care (custody) and contact can be recognised in Slovakia and therefore the maternal grandmother (and as I understand it the father or the mother) could seek the recognition of such an order in Slovakia. But this could be a slow process because, for example, all relevant adults would have to be served with the relevant applications and, as I understand it, could object. But the maternal grandmother could seek provisional measures in Slovakia which would give her equivalent rights and protection to those that would flow from a recognition of the English order.
d) A recognised foreign decision would have the same effect as a Slovakian decision on care (custody) and contact and would provide the same protection. The result of this is that if a residence order in favour of the maternal grandmother was so recognised A could, effectively live with his grandmother in Slovakia who would be considered his legal representative with parental rights and responsibilities.
e) An alternative route would be to seek an order from the Slovakian courts who can if the interests of a child so requires place the child in the care of a person other than his parents. In doing so the court determines the scope of such person's rights and responsibilities in respect of the child. Such a person is then protected by the law to the same extent as a holder of parental rights and responsibilities against any other person. However, in view of the fact that under Slovakian law both parents have by operation of law joint custody of their child the placement of a child with a third person in lieu of the mother or the father does not prejudice either of their rights unless they are specifically regulated by the court. As I understand it that regulation would flow from recognition of a foreign order or from an order made by the Slovakian court.
f) It is a criminal offence to take a child away from a person in whose care the child has been placed by a court decision. If a child is unlawfully removed from the territory of Slovakia free legal assistance is provided in respect of countries which are parties to the Hague Convention to secure the return of the child.
g) Following a move of A to Slovakia in the care of his maternal grandmother upon the motion of either parent or upon the court's own motion the Slovakian court could decide on access and contact rights (and as I understand it A's care and control). The decision could prohibit or limit contact rights or provide for a change of residence.
h) A decision relating to a child in Slovakia is one for the discretion of the court and the only rule applicable is the child's best interests.
It follows that there is a considerable overlap of approach between the courts in this country and Slovakia.
Conclusions.
a) reasonable supervised contact at the discretion (both as to time and place) of the maternal grandmother to the mother, and
b) so long as the father remains imprisoned in this country for supervised contact between him and A on two occasions each year (and such additional occasions as the maternal grandmother may agree) and following his release from prison in this country for reasonable supervised, or other, contact at the discretion (both as to time and place) of the maternal grandmother.
Delay / postponement
Miscellaneous
Approach
Contact
The most important competing factors
(1) The points advanced by the father as to A being brought up as a Muslim boy, in a Muslim household and community and speaking a common language with his father (Arabic) and English. In addition on such a placement A would remain subject to the jurisdiction of this court (unless, for example, Ms EH had been given permission to remove him to another country where she wished to live with her husband) and would promote the father's wish to take an active part in his son's life if and when he is released from prison and allowed to stay in this country, and
(2) the significant harm that A has suffered to his development and the best way of dealing with that.
Permission to the maternal grandmother to remove A from this country to live with her in Slovakia
Further assessment / information
Nature of the order in favour of the maternal grandmother
A right or ability of the father to refuse consent to A being placed abroad
The father's alternatives
Orders
Miscellaneous