England and Wales High Court (Family Division) Decisions

IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number [2014] EWHC 2496 (Fam)

Case No. DG13C00062

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

The Combined Court Centre

Oxford Row

Leeds

26th February 2014

Before HER HONOUR JUDGE HILLIER (Sitting as a Judge of the High Court level) ____________________ KIRKLEES METROPOLITAN DISTRICT COUNCIL -v- A Hungarian mother ____________________ Transcribed from a digital audio recording by J L Harpham Ltd Official Court Reporters and Transcribers 55 Queen Street Sheffield S1 2DX ____________________ APPEARANCES For the Applicant: MR PARRISH For the Respondent: MRS CAIN For the Children's Guardian: MRS CONERON ____________________ JUDGMENT
 
KIRKLEES METROPOLITAN DISTRICT COUNCIL -v- A HUNGARIAN MOTHER

26th February 2014

JUDGMENT

JUDGE HILLIER:

1. I am concerned with a boy who was born in the UK in July 2013. An application for a care order was made on 3rd September 2013 and the matter has been case managed by me more or less throughout. HHJ Lynch dealt with the matter on one occasion when an incident occurred at the mother and baby unit where mother was being assessed and an urgent hearing was required. Bodey J heard the issue as to jurisdiction.
2. The local authority applicant is Kirklees and they have been represented throughout by Mr. Parrish. The mother has been represented throughout and is today represented by a very experienced childcare solicitor, Mrs. Cain. The baby is represented by Mrs. Coneron, who takes her instructions from the children's guardian, Susan Orlinski.
3. In relation to the evidence in the case, I have not heard any oral evidence today. I have had the benefit the written evidence including thorough assessments made by Tasmin Sheehan, the social worker who has responsibility for the case.
4. The mother has returned to Hungary, which is where she was born and has lived for most of her life. Little is known about the father of the baby. We know his name and we know a little bit about him, but despite the best endeavours of the local authority it has not been possible to identify who he is and where he is. He is believed to be serving a prison sentence of about eight years in respect of physical and sexual abuse of the baby's mother. I will return to his position in due course.
5. I am dealing today with the application for a final care order. An application for a placement order has been made in relation to the boy. It has not been possible to serve his mother with papers in relation to that application and I have adjourned it to be heard in just over a month's time and given directions in relation to the method of service on the mother.
6. I have not heard oral evidence, but I have had the benefit of an extensive bundle of written documentation and evidence. In the documentation is contained what is effectively an agreed threshold criteria and the statements of Elton Newell and Miss Malangu, the initial social workers and the assessments of Tasmin Sheehan, the most recent statement from Miss Sheehan being dated 27th January. I have also had the benefit of considering reports from the children's guardian, Miss Orlinski, a social work report that was made by Children and Families Across Borders (CFAB) which attempted to assess a family friend in Hungary, and an extensive report by Dr. Alice Duncan, who provided a psychiatric examination and report in relation to the mother.
7. This is a very sad case. On the first day that the matter came before me it was apparent that mother, who entered the United Kingdom on 18th January 2013 when she was just two months pregnant, is a woman who has been sexually and physically abused throughout her life. The history of her life as we understand it to be is tragic. When I first dealt with the case it was not clear that she was an adult but it was established that she is.
8. The mother has been sex trafficked to Germany; she has been sex trafficked to the United Kingdom; she has been exploited as a prostitute in Hungary, Germany and the UK. The effect that it has had on her together with earlier sexual abuse in the family home from her natural father and her uncle has been, as one would imagine, absolutely devastating. It is a sorry tale that in 2014 we should have such cases before us.
9. The mother told Dr. Duncan in interview that she was Hungarian and that her family are settled Romanian gypsies. Her father died in 2010. He suffered from epilepsy and had a significant alcohol problem. Her mother is alive. She is half-gypsy, the father being full gypsy, and her mother is believed to be about forty-eight or forty-nine years old and living in Hungary. In terms of their gypsy heritage, they are 'settled gypsies', mother stating that her family have been living in the same place for some time.
10. The mother was removed from the family home into care at about the age of twelve as a result of sexual abuse by her father and possibly in relation to sexual abuse of her by others. It appears that she was also the victim of physical abuse. Mother continued to have regular contact with both her mother and her father until he died. She is now believed to be in Hungary living with her mother.
11. Mother described her background in Hungary as coming from a sub-culture where women have very few, if any, rights. She said to Dr. Duncan that in relation to Britain women have a lot of say and are in control, saying: "I prefer the British way and I want to stay here with my son." She said that the household in Hungary involved her mother, siblings, and a disabled maternal uncle who had tried to sexually abuse a local seven-year-old girl. When asked about any pleasant memories of her time in Hungary she was unable to recall anything for some time.
12. Mother said that she had attended school in Hungary. She had left school when she was taken by a man to Germany to work as a prostitute. She had started some study in social care work before that occurred. How different her life could have been if that was something she had been able to pursue. She had been bullied at school, partly because of her clothes, and some of the bullying was physical bullying.
13. Perhaps unsurprisingly, mother had been referred twice aged 14 and 16 for treatment in relation to mental health difficulties in Hungary. It is absolutely clear that she has been abused and exploited by many adults and that the counselling she has received has been too little and too late.
14. Mother's physical health was good. She was chameleon-like in her appearance, changing her hair and clothing in a striking way each time I saw her.
15. She said she had told her own mother of the sexual abuse that she suffered as a child. Her mother had argued with her father about it, but the result was that the father had beaten them both. She told Dr. Duncan that her father used to beat them both with a belt, but it wasn't 'very bad', continuing: "There's nothing wrong with a little smack. Here in England it's abuse, but there there is nothing wrong with it."
16. She entered the UK on 18th January 2013, pregnant with her first child. It is now believed she was moved to a brothel on Bradford Road with twelve others who were being exploited by a single man and she worked daily there as a prostitute, being later moved to a house in Batley along with that man and his cousin. In the house in Batley she would see six to eight clients a day, earning up to £150 or £160 a day, which was taken by her pimp save for the princely sum of £2.50 per day, which was given to her to purchase cigarettes. She worked as a prostitute until the day her baby was born and, as soon as he was born, she was taken back to work as a prostitute and the pimp's relative looked after the baby while she worked with her clients.
17. In early August of last year the pimp assaulted the mother while she was holding the baby. The assaults continued, which meant that on 26th August mother tried to escape from him, running away from the home in Batley with only the baby in her arms. The pimp followed her and she eventually hid in a bush with the baby and was found by a couple who were out walking. She was immediately referred to Social Services and was placed in bed and breakfast accommodation in Huddersfield and the pimp was arrested. I do not know what the current stage of the criminal proceedings, if there are any, in relation to him is. I do hope that mother's return to Hungary will not have ended the prosecution which was likely to have occurred.
18. On 27th August the mother was feeling unwell and the baby was presenting as unwell, crying and struggling to eat. Mother and child were taken to the Accident and Emergency Department in Huddersfield and later to a hospital in Calderdale. This was the first occasion when hospital professionals were able to observe the mother with the baby and immediate concerns were raised about her ability to provide him with appropriate care. It was observed that she did not seem to take any attention of him when he was on the hospital ward and she was leaving him there to meet various men in the hospital car park. The police interviewed her and it was established that she could move to a specialist placement in Wales which deals with trafficked young women and those who have been exploited for prostitution.
19. On the way to Wales the mother said she felt ill and the social worker took mother and baby to a hospital in Stoke on Trent. Staff at Stoke on Trent raised concerns immediately about the mother's attachment to the baby as well as her actual ability to provide basic care for him. As a result of that the local authority applied for an emergency protection order which was granted on the afternoon of 30th August. The same day a mother and baby residential unit outside the area was identified and mother and baby were placed in that residential unit.
20. The proposed assessment was to take place in that residential unit and the matter came before me on 3rd September and Her Honour Judge Lynch on 6th September. It was immediately apparent that there was really no attachment between the baby and the mother and that the mother's difficulties meant that she was having an extraordinarily difficult time in relating to her baby and trying to care for him. She did not know what to do when the baby cried. She lost her temper. She was unable to decide whether to try to console him or to carry on with making a feed. She became frustrated and caused a bruise to his face. That did not end the assessment, as the residential unit felt it could continue to assist her to try to bond with the baby with heightened security because of the injury that mother had inflicted.
21. Almost immediately afterwards there were further difficulties and by 2nd October 2013 it was clear that mother could not engage in the work as to how to help her deal with her past traumatic experiences and she really could not manage her frustration and anger. The decision was made in consultation with the guardian and also with the court to bring the placement to an end. The mother did not actively resist this and she cooperated with the baby being placed in foster care. She moved to supported living.
22. Contact was arranged three times a week for an hour and a half. The contact was always good and one of the things that shines through in the history is that, despite her difficulties, this mother clearly tried very hard to love her baby and tried very hard to relate to him. Unfortunately, she was unable to do so and she recognised that while she was at the residential unit and chose at the end of last year to go back to Hungary without him.
23. Dr. Alice Duncan undertook a psychiatric assessment of the mother. It is a very, very thorough assessment. It explains the postnatal mental disorders that mother was suffering from, her depression and anxiety; and that she has an attachment disorder herself. Dr Duncan concluded that mother has symptoms consistent with trauma related personality disorder arising in the context of chronic, persistent abuse and consequent post-traumatic stress disorder. Dr. Duncan's opinion was that, sadly, the mother's prognosis in the short to medium term is poor, simply because of the severity and depth of her difficulties. Mother would need to engage in collaborative multi-agency intervention and therapy.
24. . As for longer term prognosis, Dr. Duncan opined, "Her longer term prognosis would depend on her ability to achieve psychosocial stability in adulthood and the ability to engage in treatment to deal with her experiences, which may include periods of being on medication." Dr. Duncan thought that the difficulties would continue to impact on the mother's ability to provide consistent, good enough parenting for the baby for the foreseeable future and it was very unlikely that sufficient progress could be made within the baby's timescales.
25. The risk of returning the baby to his mother was assessed by Dr. Duncan to be a high risk and Dr. Duncan felt that it was a risk unmanageable by professionals. That opinion was shared by the social worker's assessment and the guardian's assessment of the case.
26. The mother clearly needed a large amount of therapeutic work and the local authority were willing to work with her to provide that, but of course she has chosen to go back to Hungary and it has therefore not been possible to engage her in any work. The local authority have been willing to provide a great deal of support to the mother and have gone to extraordinary lengths to work with her, to try to keep her with her baby and enable her to bond with her baby. This is not a case where the care plan is affected in any way by the unwillingness of the local authority to provide services. The care plan reflects their inability to propose any other way forward for this baby.
27. The local authority have considered alternative family carers, mother putting forward first of all her own mother, although it was obvious from the outset that the history would probably mean that grandmother was unable to care for a child. Indeed, grandmother seems to have recognised that, because on 27th September 2013 she stated that she did not wish to put herself forward as a carer. She put forward a family friend as a possible carer and initial inquiries highlighted some positive aspects.
28. Throughout the proceedings the local authority has kept the Hungarian Embassy and the Consulate in London apprised of the proceedings. They have not sought to attend or make any representations.
29. On 13th November Bodey J found that the child was habitually resident in the UK and that this court had jurisdiction to deal with the care proceedings, giving the Hungarian Embassy the opportunity to make representations if they wished. The letter informing them of that matter was sent to them on 15th November and no response was received.
30. CFAB attempted a kinship carer assessment of the family friend in Hungary which delayed the final hearing that should have commenced on 17th February. They were unable really to progress beyond the initial stages of an assessment. They visited on two occasions. The first visit was striking in that the assessor found the family friend's children apperently 'home alone'. It may of course have been that the parents were there and chose not to speak to the social worker, but on the second visit there was just no-one there at all. The photographs show a property without windows and circumstances which in any country would not be suitable for any child. Any further assessment would have been almost certainly doomed to failure.
31. What of the child's father? Mother initially gave the name of one man as the child's father, but later changed to another. Attempts have been made through the Hungarian Embassy and ICACU to try to locate the second man. In February the Hungarian Embassy confirmed that despite enquiries that they do not have any information to enable him to be identified or contacted. I know very little about him, but on what is known it seems unlikely that he could not provide safe care for this baby now or for the foreseeable future.
32. The significant amount that I know about the mother means that I find that she cannot now or for the foreseeable future care for this baby. The social worker has made contact with a friend of the mother's and it has been confirmed that she is living back at home with her mother. One can foresee that mother's future will be unstable and uncertain. She has not made any contact with her solicitors.
33. The care plan is for one of adoption. The child was placed before the agency decision-maker on 29th January as suitable to be placed for adoption and the plan was ratified. The guardian also supports the making of a placement order in this case.
34. The Section 31(2) Children Act 1989 threshold is agreed and I am satisfied on the written evidence that the child was likely to suffer significant physical and emotional harm attributable to his mother's care at the time of commencement of proceedings. The evidence is boosted by what happened at the residential assessment centre when the mother assaulted the child and was unable to relate to or bond with him. That information was obtained after the relevant date, but it supports the findings that I make.
35. Once satisfied that threshold is met, I have to look at the range of orders that are available. I have been reminded myself of the recent case of Re B-S and by a flurry of cases in the Court of Appeal last year that a care plan for adoption, especially where it is non-consensual adoption, really has to be a last resort for a child. It should only be considered when nothing else will do, or in other words where there is simply no alternative.
36. I have reminded myself that I have a range of options available to me and that just because threshold is satisfied it does not mean that I have to make a care order. I could make no order, and there is a range of other private law orders and public law orders that I could consider. Unfortunately, there is no-one to consider them for. It is clear to me that the grandmother and the family friend are absolutely unsuitable as carers for this baby. Mother, as I said, has been thoroughly assessed and she has by her actions accepted that she cannot provide for his needs now or in the future. Dr. Duncan's report shows that mother's needs are so significant that she is unlikely to be able to provide adequate care for a child for years to come. Mother would first need to have a significant amount of therapy, would need to be free of exploitation and free to live life as an adult before she was able to care for a child.
37. I have not fallen into the trap of linear thinking, which McFarlane LJ said we should avoid in the case of Re G last year. I have not approached this case on the basis that mother cannot look after him; father cannot look after him; grandparents cannot look after him; family friends cannot look after him; therefore it must be adoption. I have thought about alternatives for this baby and in reality the only alternative would be long term foster care. Long term foster care may be right for some children but it means that the child would always have a corporate parent. Although he is very attached to his foster carers at the moment he would have to move in any event. He has shown some difficulties in terms of settling and in terms of bonding and it is clear from the guardian's report that what he needs is a permanent home now that will remain undisrupted for the foreseeable future. Therefore, in terms of his needs it is clear to me that long term foster care would not be an option that could safely be promoted for this seven month old boy.
38. I have carefully considered the care plan which provided for ongoing contact with his mother until placement. Of course that contact will not take place and there will not be any possibility of life story work with her because she has left him. Luckily of course there is some information about her because of the information that we have in the court file and that work can be done for him.
39. Parliament has said that every Judge should consider the welfare checklist in relation to a child and I do so. In respect of this particular child, he was born in England, but he is of course of Hungarian nationality and his heritage is of Romany gypsy. He is his mother's first child and I am told that he is a beautiful little boy who thrives on attention, although he needs a carer who can ensure that his needs are met on a consistent basis with a stable home and secure housing. He has no physical needs other than there was a minor concern about his eyesight which has now resolved. He does not have any educational needs at his age in a formal sense, but what we know about child development is that at his age it is essential that he has education from his carer and that education comes in the form of love and care, support and stimulation as he grows to encourage him to learn about the world around him, which is why he desperately requires a permanent home as soon as possible. It is likely that there will be a change in his life from his foster carers when he is moved to an adoptive placement, but I know that the local authority would manage that in a way that would be sensitive to his needs and I am sure that his foster carers, who are attached to him, would assist with that.
40. I have been weighed my assessment of the ability of his mother, father and others to care for him and there are no significant adults who would be able to care for him. I have considered the situation in relation to whether there might be someone else in Hungary, or that the Hungarian authorities would wish to provide care for him. They have been given every opportunity to intervene in these proceedings and to make a request under Brussels II Revised Art 15 for the proceedings to be transferred to Hungary but no application has been made.
41. The decision made by Bodey J as to this child's habitual residence and the jurisdiction of the court is unchallenged. I have jurisdiction to make a care order and I do so, because I am satisfied that in this case his welfare needs require me to do so and there is no other order that could be made.
42. I was the Judge that first heard this and I saw a young, exploited woman who was being offered a chance to care for her baby by the local authority and was being given a lot of support to bond with him. It is very sad that that did not work out, but I would want the baby to know that everything possible for him to be cared for within his family was tried by the local authority and by the court and by his guardian, and it is only because his welfare needs require it that I make a care order with a plan of adoption.