England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SWINDON DISTRICT REGISTRY

		26/04/2013

The Honourable Mr Justice Baker

1. These care proceedings concern a Ghanaian child known hereafter as B. They were transferred to the family division because they involve an unusual set of circumstances. The principal cause for concern in this case is that B's identity has been concealed by an elaborate deception by the people who, until last week, he believed to be his parents.

BACKGROUND

2. Later in this judgment I shall set out the evidence of the first and second respondents on matters that are in dispute. At this stage I confine myself to a summary of the background to matters that are clearly established. The male first respondent, hereafter referred to as F, and the female second respondent, hereafter referred to as C, say they have been in a relationship for about ten years. Until 2011 they lived in Ghana. Their case is that C gave birth to a child in 2006. Until recently they asserted that B, the subject of these proceedings, was that child. A medical report has been produced from a hospital in Kumasi in Ghana stating that a child bearing that name was born in that hospital in 19^th February 2006. That date also appears on a birth certificate produced by F and C in these proceedings which purports to show that B's birth was registered by C in Ghana on 14^th October 2010.
3. According to the UK Border Agency records, F first entered the United Kingdom as a visitor on 24^th July 2006. In 2008 he joined the British Army and as a result was exempt from immigration control. Thereafter, he has lived principally in the UK save for periods when he has been posted overseas, including Afghanistan, and for a number of holidays in Ghana. On one of those holidays in January 2009 F and C say they were married. Documents have been produced which purport to show that the marriage took place on 17^th January 2009 although a stamp on F's passport suggests that he returned to the United Kingdom on 10^th January of that year. In 2011 F went back to Ghana to attend his mother's funeral. Afterwards he brought C and B back to this country. The documents produced to the immigration authorities in respect of B consist of a Ghanaian passport issued on 14^th February 2011 and a UK entry visa which was valid from 19^th August 2011. Both documents stated that B's date of birth was 19^th February 2006, making him then aged five years and seven months. The immigration officers, however, had concerns that he appeared to be older than his given age. UK Border Agency records produced for these proceedings show that F asserted in the course of interviews with immigration officers that B was then five years old and he had been in the womb of his mother for twelve months and had always been big for his age ever since. The immigration officers permitted B and C to enter the country but drew their concerns to the attention of Social Services and B was temporarily placed in the care of Hillingdon London Borough Council. In the event, however, no further action was taken either by the Border Agency or that local authority and B was subsequently returned to the care of F and C.
4. Thereafter, the family moved to Wiltshire and at the end of October 2011 B was enrolled in a primary school. Once again his date of birth was given as 19^th February 2006. The head teacher, however, raised immediate concerns that his height and general presentation suggested that he was older than his stated age. The school nurse recommended that he be referred through his GP to a paediatrician. When examined by his GP on 5^th December 2011, that doctor noted that aspects of his appearance were consistent with his age being some years older than five so he directed that B be seen by a paediatrician. Thereafter, however F and C failed to keep a number of appointments with that specialist.
5. On 1^st May 2011 F was naturalised as a British citizen having qualified for preferential treatment by reason of his status as a serving soldier. B was eventually examined by a consultant paediatrician, Dr Bilson, on 28^th May 2012. She concluded that B's physical development and neurodevelopmental skills were more in keeping with a boy over the age of ten years. Following this examination, the matter was referred again to the local authority who obtained a police protection order on 31^st May and started care proceedings on that date. B was removed under the police protection order from the care of F and C and spent the night in a Travel Lodge Hotel. The care proceedings were immediately transferred to the county court.
6. At the first hearing on the following day, 1^st June, Her Honour Judge Marshall refused the local authority's application for an interim care order on the basis that the authority had failed to establish that B's welfare required the immediate removal of B from the care of "his parents." Accordingly, B was returned to the care of F and C. The learned judge gave various directions including a direction for DNA testing to establish his paternity. She further directed that the family's passports should be held by the army welfare department until further order.
7. DNA testing was subsequently carried out by Cellmark who reported on 1^st July 2012 that neither F nor C was B's parent. The test suggested that there was some biological relationship between F and B, most likely to be a full sibling relationship, but there was no evidence of any relationship between B and C. At the next hearing on 18^th July, Judge Marshall made a residence order providing that B should reside with F and C until further order, but coupled that with an interim supervision order in favour of the local authority. She gave further directions including for a paediatric report to establish B's age. Following the results of the DNA test, C filed a statement on 7^th August 2012 in which she accepted that she was not B's mother. She stated that she had given birth to a child also named B on 19^th February 2006 but that this child had died some months later. It is C's case that following the death of that child, she was encouraged by F's mother to take over the care of F's younger brother who was, she alleged, a few months older than her own deceased child. All members of the family were led to believe that F's brother had died and that the child she was looking after was indeed her own child. Thereafter, according to C, she looked after F's mother's child as her own. A naming ceremony took place according to C at which that child was given the name B. According to C, F was not informed about these events and was unaware that their baby had died. This account was corroborated by a statement from F in which he stated that he was unaware that B was not his child until the DNA testing had been carried out. He added, however, that even if it were confirmed that B was his brother as opposed to his son, then he would still like to care for him.
8. At a further directions hearing on 31^st August, Judge Marshall amended the direction for expert evidence so as to permit the parties to instruct a dental expert and a paediatric endocrinologist to advise as to B's likely age. The learned judge also requested that the Home Office provide information concerning the immigration status of F, C and B. A report was produced by an expert forensic odontologist, Dr Goulden, on 15^th October 2012 in which he stated the opinion that B's age was approximately 15 to 16 years. At a further directions hearing on 5^th November, Judge Marshall transferred the case to the Principal Registry to be listed before a Judge of the Family Division. Thus the matter came before me for the first time on 16^th November 2012. At that point the local authority indicated that it wished to apply again for an interim care order. As I was unable to hear that application myself, I arranged for it to be listed at short notice before His Honour Judge Marston in Bristol and I gave ancillary directions for that hearing.
9. At that hearing on 4^th December, Judge Marston refused the application for an interim care order and made further extensive directions in the proceedings including requiring the representatives of F and C to obtain information concerning the background of the family in Ghana. On 3^rd January 2013, a report was provided by Professor Peter Hindmarsh, a professor of paediatric endocrinology at Great Ormond Street Hospital in London, who concluded on the balance of probabilities that B's age was approximately 14 years.
10. Pursuant to a further direction of the court, the parties then obtained an opinion from counsel specialising in immigration law to advise on the immigration status of F, C and B in the light of documents produced by the UK Border Agency under the earlier direction. In her report dated 25^th February 2013, Ms Catherine Cronin, counsel, advised that the deception perpetrated to bring about B's admission to this country tainted any immigration applications made by or on behalf of C and B. The deception rendered B's entry into this country illegal and as such he was liable to be removed from the country. Furthermore, the deception provided the UK Border Agency with grounds for refusing not only the application for further leave to remain but also curtailing any leave which had already been obtained as a result of the deception. In addition, Ms Cronin pointed out that criminal offences may have been committed. If the evidence shows that F had been complicit in the deception, then it was possible, advised Ms Cronin, that his British citizenship granted on 1^st May 2012 might be in jeopardy Recent amendments to the British Nationality Act 1981 allow the Secretary of State to deprive a nationalised British citizen of his acquired citizenship if satisfied that "deprivation is conducive to the public good."
11. On the other hand, Ms Cronin advised that immigration courts recognise that children should not be punished for the actions of their parents or their carers and that their welfare and best interests, whilst not determinative of an immigration application, are regarded as important and primary considerations. In this respect, Ms Cronin drew attention to a number of authorities and in particular the decision in Nimako-Boateng [2012] UK UT 00216 in which the upper tribunal stated inter alia:

"The problem facing immigration judges is that, although

they must attach weight to the best interests of the child,

in many cases they will often not be able to assess what

those best interests are without the assistance of a decision

of the family court. The family court has, amongst other

things, procedural advantages in investigating what

the child's best interests are independent of the interests

of the parent as well as the necessary expertise in

evaluating them. An informed decision of the family

judge on the merits and, in some case at least, the

material underlying that position is likely to be of value

to the immigration judge."

12. Further to that advice from Ms Cronin, the parties, with the court's permission, obtained a report from an expert in Ghanaian law, Professor Kofi Koufuor, who advised that the practice of not registering births in Ghana was still very common although registration of deaths was now much more a matter of routine.
13. As this hearing approached, a particular concern was identified by the local authority and the guardian about how B was to be informed of the truth as to his paternity and age. This process was delayed unfortunately by reason of the ill-health of the guardian who was in due course advised to stand down and has been replaced by another guardian. Eventually a meeting was arranged to take place on 17^th April at which the social worker and the guardian were due to speak to B. According to F and C, however, they were unaware that this meeting was to take place. Prior to the meeting F warned the social worker that B would not believe her if she told him about the DNA test and would only believe it if he told B himself. When the social worker and the guardian spoke to B and told him that F and C were not his parents, but that it was more likely that F was his brother, B indeed replied, "I don't believe you," and maintained that position throughout the interview.
14. Meanwhile, one other important factor is that C has become pregnant and is due to give birth in June 2013.

THE ISSUES

15. In its threshold document the local authority indicated that it would seek a number of findings, including in particular the following; (1) that B is not the biological child of either of the respondents; (2) that F and C actively misled professionals as to B's age; (3) that F and C misled the UK Border Agency as to B's age and identity; (4) that B himself has been deliberately deceived by F and C as to his identity and age; (5) that F and C deliberately avoided taking him to assessments in order to continue to mislead the professionals; (6) that F and C have colluded between themselves and involved the child in an elaborate deception with the consequences that he is withdrawn, uncommunicative and has suffered emotional harm in their care; and (7) that by this deception they have exposed B to a series of medical examinations and interventions which would not have been required but for their decision to mislead the authorities. In those circumstances, the local authority submitted in its threshold document that B had suffered significant emotional harm as a result of those matters. In addition, the local authority invited the court to make a declaration as to B's age.
16. The local authority has, as stated above, applied on two occasions for interim care orders and at one stage was proposing a similar order in this case as a long term solution. However, the local authority has subsequently revised its view because of the overall care being provided by F and C has, as all agree, been of a high standard. This is summarised by the social worker, Miss Hunt, in her latest statement in these terms;

"B is currently receiving appropriate education

provision and is socialising with peers well. He

has formed and maintained friendships and has

been more open in talking to professionals and

social workers. There is no further evidence to

suggest that B is suffering emotional harm at the

hands of his care givers and he is presenting as

calmer and more happy in the home environment

achieving well at school with no behavioural

concerns identified."

In those circumstances the local authority decided shortly before the hearing this week to abandon its case for any order under section 31. Save for seeking the declarations in respect of B's age, it indicated that it no longer wished the court to make any orders in respect of B and would seek permission to withdraw its applications, preferring instead to deal with the problems outstanding so far as B was concerned by treating him as a child in need and making provision for him under their general obligations under section 17 of the Children Act.

17. B's guardian, however, opposed this course and invited the court to hear evidence to decide what findings, if any, should be made and then, if satisfied that the threshold criteria were satisfied, decide whether any order should be made and, if so, what that order should be. After further discussion at a pre-hearing review earlier this week it was agreed between the parties that the court should hear evidence before deciding what course to take. The hearing therefore proceeded with evidence from, in turn, the social worker, Miss Hunt, F, C and the guardian. At the conclusion of that evidence the local authority's position changed again so that it ultimately accepted that there should be a supervision order as proposed by the guardian. However, there remains a small difference between the local authority and the guardian as to the length of that supervision order.
18. In view of the narrowing of the issues, it is unnecessary for this court to consider all of the matters canvassed in evidence, either on paper or orally, but there remains some important residual issues before me which I shall consider in the following order: (1) how old is B; (2) to what extent have F and C been deceptive as to his age and paternity; (3) has B suffered any significant harm as a result of this deception or, more generally, as a result of the care provided by F and C; and (4) what is the likelihood of B suffering significant harm in the future as a result of the deception perpetrated by F and C and/or their general care of him?

THE LAW

19. The law to be applied in care proceedings is well known and need not be cited at any length in this judgment. The provisions governing the making of a care order are set out in section 31 of the Children Act and in particular the threshold criteria in section 31(2). If the court finds that the threshold set out in that subsection is crossed the court then must determine what order to make and in reaching that decision the court will apply section 1 of the Children Act making the child's welfare its paramount consideration. In determining any issues of fact, the burden of proof lies with the local authority and the standard of proof is the balance of probabilities. The court remembers and applies the rule that the findings of fact must be based on evidence and, in particular, in this case, I remind myself of the observation of Munby LJ (as he then was) in Re A (A child: 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."

20. Furthermore, when considering care proceedings the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. An important part of the evidence in this as in every case is of course the evidence provided by the child's carers. The court must form a clear assessment of their credibility and reliability. When considering that evidence, and particular where it appears that lies have been told, the court must bear in mind that it is common for witnesses to tell lies and the court must be careful to remember that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that she or he has lied about everything.

HOW OLD IS B?

21. On behalf of the local authority, Miss Fottrell submits, and I accept, that this court has the jurisdiction to make a declaration as to the age of a child, see E v London Borough of X [2005] EWHC 2811 and Lambeth London Borough Council v TK [2009] 1 FCR 285. Other decisions have established that an assessment of age may be based on the evidence of social workers without requiring any medical examination, see, for example, Regina (on the application of B) v Merton London Borough Council [2005] 3 FCR 609 and A v Croydon Borough Council & Others [2009] 3 FCR 607. In the event, in this case I have had a plethora of evidence concerning B's age from C, F, the social worker, Miss Hunt, and, although they have not been called to give oral evidence, a number of medical experts.
22. C's evidence about B's age was confusing and, in my view, wholly implausible. She asserts that B is in fact the son of her deceased's mother-in-law who gave birth to him following the death of her own son in 2006. C gave inconsistent accounts as to when B was born, saying at some points in her evidence that he had been born on the same day as her own son, 19^th February 2006, and at other points a few months earlier. She seemed unable to appreciate this inconsistency in her evidence. In cross-examination C said that she and F's mother had lived in the same house at the time when each of them was pregnant. F's mother had had her baby several months before C gave birth to hers. F's mother had had her baby in hospital and then brought him back to live in the house. Despite that evidence, it remained C's position that she did not challenge the account which she said had been given by F's mother that B's birthday was 19^th February 2006. That is the date given in a document produced to the court which was purported to be B's birth certificate. In that document, C is described as B's mother and named as the informant for the purpose of registering his birth. That registration is said to have taken place, according to the document, on 14^th October 2010. C's evidence is that she was accompanied by F's mother to the registry office on that date and that F's mother had provided all the information. The court papers also include a copy of a document that purported to be C's own birth certificate which appears to show that C's own birth was registered on that same day, 14^th October 2010. C's evidence was that when attending the registry for the purpose of registering B's birth, she decided to register her own at the same time. As I have stated, C was reluctant to go behind the information that she said F's mother had provided as to B's date of birth. C said that F's mother had given her son to her after the death of C's own baby to ensure that F stayed with her. She denied, when challenged in cross-examination, that F's mother had only given B to her when she, F's mother, became ill some years later. In his evidence, F himself substantially endorsed the account given by C as to B's age.
23. In addition to the evidence of the first and second respondent, I have, as stated above, a plethora of evidence from medical experts. I have already referred to the examination by Dr Bilson on 28^th May in which she examined B and observed evidence of facial acne, and some early hair growing on B's upper lip, and concluded that his development was consistent with mid-puberty. She considered the possibility that B might be suffering from some underlying medical condition which might cause premature puberty but found little evidence to support that possibility. Overall, Dr Bilson concluded that B's physical development and neurodevelopmental skills were more in keeping with a boy over the age of 10.
24. Secondly, I have the evidence of the consultant forensic odontologist, Dr Goulden, and in his report, having examined B's teeth, and noting their appearance and development, he concluded that B's age was approximately 15 to 16 years.
25. Thirdly, I have the report of Professor Peter Hindmarsh, the professor of paediatric endocrinology at Great Ormond Street Hospital. He advised that it is extremely difficult to assess the chronological age of any individual from a measure of physical and pubertal development. With that caveat, however, he provided an assessment of B's age based on a clinical examination which encompassed recording of his height, an assessment of pubertal status using a system known as the Tanner scoring system, plus an assessment of skeletal maturation using bone age. Having conducted all of those assessments, Professor Hindmarsh concluded that on a balance of probabilities B's age was approximately 14 years. Professor Hindmarsh was requested to consider whether he and Dr Goulden should consult to see if they could narrow the issues between them as to B's age. He advised, however, that he thought that such a course was unnecessary because there was a consensus between them which placed B's chronological age at "somewhere between 14 and 15 years."
26. Finally, an age assessment was carried out by the social worker Miss Hunt in conjunction with another social worker, a colleague of hers, who is experienced in this type of assessment. They interviewed B on 8^th October 2012. At that point they observed that B was around five feet tall and of slim build. He appeared to have his adult teeth. He had some spots on his face which the social workers thought might be acne. Throughout his visit he made eye contact with the professionals in the way in which they described as "steely" indicating that he was unmoveable in what he was saying. They considered his behaviour to be indicative of someone much older than the six years he claimed to be and noted some similarities in his behaviour with that demonstrated by F. When asked what he did before coming to England he replied on several occasions, "I can't remember," and was reluctant to engage further in the conversation. His voice appeared to be relatively deep as if it was in the process of breaking. The social workers concluded that B knew that he was not six years of age as his behaviour indicated that he was a much more mature young person. They thought that B was able to manage his emotions to an extent which a younger child would not be able to manage. On the basis of their social work assessment alone, Miss Hunt and her colleague reached the conclusion that B was aged around 13 year. After receiving the dental assessment from Dr Goulden some days later they revised their opinion and concluded that he was more likely to be 15 years of age.
27. C's evidence on the issue of B's age was at all times wholly implausible and at some points manifestly untruthful. Likewise, I was totally unconvinced by F's evidence in support of C's case. I believed very little of what they said to me on this point. Accepting as I do the DNA evidence that shows B to be F's brother, I accept C's evidence that he is the son of her mother-in-law but I do not accept that her mother-in-law was pregnant with B at the same time as C herself was pregnant with her own child, let alone the frankly incredible evidence that the two boys were born on the same day. If, as I find more likely than not, B is the son of F's mother, he was, on the basis of the medical and social work assessment, at least five years old when C's child was born. In other words, when C's child was born (assuming C gave birth to a child in February 2006) B was a small child running around the house and not a babe in arms.
28. Taking all the evidence into account, on the balance of probabilities I conclude that B is now 14 years old. There has been much discussion in the course of the submissions as to the date of birth which I shall describe it to be. Having considered various options I have concluded that he shall be treated as having been born on today's date, 26^th April 1999.

THE DECEPTION

29. C and F both insist that F knew nothing about the deception until after the DNA test results were produced. There was no evidence that F had been away from Ghana for long periods of time in the years preceding their arrival in this country in 2011, including the time in 2006 when he said that C's child died and F's mother gave B to C to look after. The case put forward by C and F together in effect is that F did not realise what had happened, notwithstanding the fact that, as I have found, B was five years old in 2006.
30. A further aspect of the account given by F and C concerns B's true paternity. The DNA evidence suggests that B is definitely F's sibling and probably his full sibling. In his oral evidence, F said without hesitation that his own father had died in 2002. That would be consistent with my finding as to B's age if they share the same father. In support of their combined case that B was not born in 2005, however, C and F have contended at different points in their evidence that B's father is another man with whom F's mother is said to have had a relationship and who subsequently migrated to Libya. Pressed on this point by Mr Moradifer on behalf of the guardian, F insisted that he remembered his brother being born in 2005 but added that a lot of things had gone through his mind since he discovered the truth about B's paternity that his mother did have secrets and that it was possible that she had kept B hidden for several years.
31. I found the evidence given by both C and F on all aspects of B's age, identity and background to be wholly implausible and I find that they have concocted a story together. I do not accept that F is innocent of any active involvement in a deception perpetrated by C. I find that he knew exactly what was happening and was closely involved in its planning and execution. I find that B is F's brother – on a balance of probabilities based on the DNA evidence, his full brother – and that F and C together brought him into this country knowing that he was F's brother and pretending that he was their son. Beyond those bare findings, it is difficult to reach any other conclusion with any degree of confidence.
32. Given the unreliable testimony of both C and F, and my reservations concerning the documents produced in an effort to corroborate aspects of their account, I am unable to make any further findings. I am unable to say for how long C and F have looked after B, when B's mother died, whether or not she asked them to look after B, how B came to be in their care, whether F and C had a child of their own or even whether C and F are lawfully married, since the documents produced with the aim of proving their marriage clearly show that they went through a traditional marriage ceremony in Ghana on 17^th January 2010, a date on which F's passport shows him to have returned to this country. F's attempt to explain this discrepancy, on the grounds that the date on the marriage certificate and the supporting affidavit given by witnesses who allegedly witnessed the ceremony was the date of registration of the marriage as opposed to the date of the marriage itself, was particularly unconvincing.
33. The local authority submit that the documents suggest a discernible plan to manufacture evidence to fabricate B's entry into the UK, pointing to the marriage certificate, the registration of B's birth, and the obtaining of B's passport and then his entry visa as evidence of a plan formed during the period when, according to C, F's mother was in declining health. To make findings along those lines would, in my judgment, be speculative, and speculation is, as stated above, to be avoided in this case. There is a particular reason for avoiding speculation in this case. This judgment will form the basis of a narrative concerning B's past life which will shape and colour his future life. It must be definitive and it must be the truth. For the last few years B has lived a lie and that lie has, I am satisfied, caused him significant emotional harm. It is imperative that his future life is based on the truth.
34. The source of that truth is threefold. First, there is this judgment, confined, for reasons just stated, to those findings which can properly be made on the evidence and not speculation. The second source is his family, F, C and other members of the family in Ghana. They owe it to B to tell him the truth about his background. The third source, and in some ways the most important, is B's own memory. As he is, as I have found, 14 years old, he must have some memories of his life in Ghana before being brought to this country in 2011. Those memories have, however, been blurred and obscured by the lies told about his background by F and C. They may indeed have been distorted by false memories implanted by his carers. B needs help to draw on his own memories, including his memory of his real mother and father, to construct the true narrative about his past.

PAST AND FUTURE HARM

35. I find that the deception perpetrated by F and C has caused B very significant emotional harm. I accept that their physical care of B has been good. I also accept that they may have acted with good motives if it is the case that B's mother died and they agreed to take on B's care but, because of their extreme deceitfulness, I cannot make any finding to that effect. Other more sinister explanations for their behaviour are equally tenable. Once again, however, I avoid speculation. I am, however, very clear that by pretending that B was someone he is not, by pretending that he is much younger than he really is, they have caused B significant emotional and psychological harm. On the balance of probabilities I think it more likely than not that to some extent they have involved B actively in that deceit but I cannot make any detailed findings about the extent of his involvement. More may become clear about that in due course. To deny a child his true identity is likely to cause very considerable emotional and psychological damage, particularly when, as here, it is probable that he has a memory as to his true identity. The extent of the psychological damage is unclear because, as yet, there has been no psychological assessment, but I think it is almost inevitable that B will require at least counselling and possibly psychotherapy to help him deal with the difficulties he now faces.
36. It is important to stress in this context that the harm does not end with this judgment. I accept the unanimous recommendation of the professionals that it is in B's interests to remain in the care of F and C under a residence order. To uproot him from the home where he has received a generally good standard of physical care and where he is settled and where he is settled at school would not be in his best interests but that course brings with it certain acute and persisting difficulties. Unless and until F and C start telling the truth about his background, the true narrative of his past life, which starts with this judgment, will continue to be distorted by the lies they have told. That will merely add to B's emotional and psychological harm and may in due course promote a crisis.
37. There is a further factor that complicates this picture. The false account that F and C have given concerning B now jeopardises the immigration status of all three individuals as explained by Ms Cronin in her advice to this court cited above. That jeopardy is likely to influence the course that F and C now take. Their position is, frankly, very difficult and as a result B faces the possibility that he will now be deported. I accept Ms Cronin's advice that there may be ways in which the situation can be salvaged for B but there is no guarantee that that will happen. For all these reasons there is a strong likelihood, in my view, that B will continue to suffer emotional and psychological harm for the foreseeable future.

CONCLUSION AND ORDER

38. In those circumstances, it seems to me imperative that the local authority should remain involved with this family for the time being. At the outset the local authority proposed that there should now be no order but, rather, that B should continue to be supported under a child in need plan under section 17. As the hearing progressed, and the extent of the deception and its impact on B became more apparent, it became clear that this was an inadequate response and the local authority sensibly amended its plan to fall in line with that advocated on behalf of the guardian, namely that there should be a supervision order. F and C also now accept that a supervision order should be made. The only issue is the length of that supervision order. The guardian argued for twelve months, the local authority for six.
39. As stated above, in deciding what order to make I apply section 1 of the Children Act, the paramountcy principle in section 1(1) and the welfare checklist in section 1(3), together with the principle that the court should only make an order when satisfied that to do so is better than making no order at all. In this case, I am satisfied that an order is required. I bear in mind the principle that the court should favour the least interventionist order consistent with meeting B's needs. Although B has suffered emotional and psychological harm as a result of the deceptions perpetrated by F and C, it is important to stress that their physical care of him has been good, so it would be contrary to his interests for him to be removed from their care. Accordingly, there is no question in this case over a care order being made and I will renew the residence order in favour of F and C.
40. In this case the magnetic factors in the welfare checklist seem to me to be B's background, his emotional needs, the harm he has suffered and the harm he is likely to suffer in the future. As set out above, I consider it likely that the emotional and psychological harm will continue for some time to come. In those circumstances I conclude that a supervision order for twelve months is the least interventionist order that meets B's current needs and that is the order that I propose to make.
41. The local authority indicated that it will shortly compile a care plan setting out the package of assistance that it proposes to provide for B under the supervision order. I agree with the guardian that this should encompass inter alia life story work, a process whereby B, F and C can be referred for counselling and/or therapy as required, and provisions setting out strategies that the local authority is able to provide to B to address the difficulties that may arise concerning his immigration status.
42. Finally, there are a number of ancillary provisions that I shall include in this order. I shall accept undertakings from F that he will first apply for a new birth certificate for B from the Ghanaian High Commission within 28 days; secondly, that within three months he shall apply for a new passport for B from the Ghanaian High Commission; thirdly, that he will apply within six months for a new visa and, fourth, that he will obtain as soon as practicable legal advice concerning B's immigration status.
43. Secondly, there are outstanding undertakings in existence restricting F and C's movements. I shall discharge those undertakings forthwith. Equally, I discharge the undertaking on the army welfare service concerning holding the passports. I give leave to the guardian to release B's passport for the purpose of pursuing any application to be made by F in respect of B's immigration status. I give leave to the parties to disclose this judgment and my order declaring B's age to the Ghanaian High Commission. Finally, I give leave to F and C to disclose this judgment and Ms Cronin's advice obtained in these proceedings to the immigration authorities and any immigration lawyers instructed in respect of the various immigration applications that are shortly to be made.