England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice

		Royal Courts of Justice
		20th June 2014

MRS. JUSTICE THEIS:

Introduction

1. This matter concerns three children, X, now 16 years of age; Y, now 15 years of age, and Z, now 14 years of age.
2. These care proceedings were issued in January 2014 due to the high level of concern regarding the care these three children were being given by their maternal grandmother, with whom they had lived from a young age. Y and Z have been placed with foster carers since January pursuant to interim care orders. X remained living with his grandmother but more recently moved to stay with his father. The family originate from the Czech Republic, although the grandmother and children have lived here since 2009.
3. The background to his matter is set out in an earlier judgment given on 11 March 2014 ([2014] EWHC 1221 (Fam)) when this court made an order under Article 15 Council Regulation (EC) No 2201/2003 (Brussels II Revised) that 'The District Court [in X town] in the Czech Republic is requested to assume jurisdiction in accordance with Article 15 (1)(b) and (5) to decide upon the future of the children…'. As will shortly become clear that request was not accepted by that court, and the matter is listed before me today for final determination.
4. The parties to the application are the Local Authority, Kent County Council, who instigated the care proceedings; the maternal grandmother, A, and the children, through their children's guardian, Miss Johnson. The mother, B, who still lives in the Czech Republic, is aware of the proceedings but has not attended or participated in the proceedings, and has not been represented. The father of Y and Z, C had not been located until very recently when an address was given for him via the Central Authority. Although the Local Authority has written there has been no response and I am satisfied there is no other way of communicating with him. The whereabouts of X's father, D, has recently become known and the Local Authority has been in contact with him.
5. At this hearing only the Local Authority and Children's Guardian are present. A has not participated in these proceedings since the 11^th March 2014. She has remained in contact with the Local Authority through the considerable efforts of the allocated social worker, Ms Hannabuss. She has been kept updated about these proceedings but has refused all assistance offered to attend court and access legal advice. More recently she has been more co-operative with the Local Authority. The court and the Local Authority (as recorded in previous orders and statements) have gone to enormous lengths to try and engage A within these proceedings. I am entirely satisfied that she has been kept fully aware of the proceedings and is aware of the orders that are being sought today.
6. I wish to record at the start of this judgment the court's enormous appreciation to a number of people who have been involved in this difficult case.
7. First, the legal representatives, Miss Phillips and Mr. Donaghey. The court has benefited from continuity of representation. Each advocate has provided extremely helpful oral and written submissions, which demonstrate not only their considerable expertise in this area but also their creativity in trying to find solutions.
8. Second, the lead solicitor in this case for the Local Authority, Miss McCann. She has shown great tenacity in her efforts to ensure court orders were complied with, that the Article 15 request proceeded smoothly to avoid further delay for Y and Z and has been pro-active in keeping the court updated. Miss McCann has developed an enviable expertise in dealing with cases that involve Brussels II Revised.
9. Third, the social work intervention in this case has been of the highest standard. The social worker Ms Hannabuss and Mrs Marriott, the service manager, have each provided what can only be described as excellent support for this family. They were allocated at the beginning; having consistency in the social work team has been invaluable. That consistency, together with their expertise, has enabled them to build up and maintain effective working relationships with all the relevant parties, not only the children but also A even though relations have, at times, been very difficult.
10. Fourth, the court has had the benefit of an experienced Children's Guardian,
    Miss Johnson. Her reports were models of their kind, particularly her perceptive analysis of the options the court had to consider.
11. Finally, Ms Tothova has been able to provide consistent interpreter support in this case. Even though A has not attended since 11^th March, Ms Tothova has provided additional assistance to the Local Authority by facilitating them being put in contact with the relevant Social Services Department in the Czech Republic together with assisting in translating documents.

Background

12. There have been previous proceedings, applications and orders relating to these children in the Czech Republic. Pursuant to orders made within those proceedings the children have been in the care of A since they were very young. In October/November 2009 the children came over to this country with A and her husband. Concerns in relation to the care being given to the children soon came to the attention of the relevant authorities. All of the children had very poor school attendance. They were late; were regularly truanting; and were displaying behaviours which hampered their educational progress. The children came to the attention of Social Services in early 2013. The particular concerns were that Y and Z appeared to be involved in behaviour that was exposing them to the risk of sexual harm. They would frequently go missing, often travelling to a local town, associating with older men, drinking alcohol, and were suspected of using illicit drugs. They were not being promptly reported as missing, and there were concerns about A's engagement with the local authority and with the school authorities. In addition, X had become involved in criminal behaviour; in September 2013 he received a six-month referral order for a burglary.
13. All of these concerns culminated in an initial Child Protection conference being convened by the local authority on 3^rd September when all three children were placed on Child Protection Plans under the category of neglect. There were ongoing concerns reported by the school regarding Y and Z continuing to go missing and they were said to be befriending people who were putting them at risk of harm. A declined a request for Y and Z to be accommodated by the local authority in late December.
14. In early January 2014 both Y and Z attended school with large bruises to their cheeks. They gave inconsistent accounts of how they came to have these injuries, neither of them was able to provide a credible explanation as to what had occurred. On 14^th January Z presented with a large bruise on the right side of her face, reporting she had walked into a lamppost, but Y and another young person said her boyfriend had caused the injury. On 15^th January Y presented with a bruise on her left cheek and said she had been involved in a fight outside school the previous day. Both Y and Z were placed in police protection on 15^th January.
15. The local authority issued an application for an Emergency Protection Order, this was granted on 17^th January. It was extended on 24^th January and I made an interim care order on 31^st January lasting until 28^th March which has since been renewed. Since they have been placed in foster care both Y and Z made further disclosures giving further details of the risky behaviour and situations they had been in. Y disclosed that a male in a local town had attempted to sell her and another girl for sexual intercourse; she had been involved in criminal activity; was spending her time with young people who abused illicit drugs, cannabis, heroin and crack cocaine. She also disclosed that they spent time with older men who gave them money, drinks and cheap cigarettes in return for kisses. Z disclosed that she has been raped and beaten by her boyfriend.
16. It was quite clear when the matter first came before me that A was unable to protect the children from the risk of significant harm, in particular, the risk of sexual exploitation. She had failed to protect X from being exposed to criminal behaviour, and in relation to all the children she was unable or unwilling to prioritise their educational needs. They all had an appalling school attendance record.
17. It is important to recognise that during this period of time A was dealing with the deteriorating health of her husband, who had a terminal condition, and sadly died on 18^th January this year. That left her in a very isolated and vulnerable position; her accommodation and her financial support were through benefits and assistance that were in her husband's name.
18. When the matter came before me on 31^st January A's plans were to return back to the Czech Republic to make the necessary arrangements for her husband's funeral and then come back here. That is what happened. As she set out in the statement provided to the court on 11 March, she would not have come back here were it not for her concern in relation to the children and her wish to be able to care for them. It is right that both girls have indicated to their social worker and their guardian, that they wish to return to A's care, either here or returning with her to the Czech Republic.
19. As a result of the situation that was presented to me on 31^st January it was clearly important that the children's position with their placement with the foster carers was secured; that A was able to go back to the Czech Republic and make the necessary arrangements she had to make; and the matter to be listed before me to consider the application for transfer under Article 15 on 11 March.

Article 15 Request

20. Prior to the hearing on 11 March the court had the benefit of some extra information. Firstly, and importantly, information from the Czech Republic through the Central Authority in an email, providing certain documentary evidence about the historical proceedings in the Czech Republic and setting out and summarising the position in relation to the children's mother. She remains in the Czech Republic; she has the care of her youngest child but does not have the care of her older child, J, who appears to be in some form of State care – possibly placed with foster carers. They set out in general terms what the arrangements would be if the children were returned to the Czech Republic and the support that would be provided, including the involvement of the local courts and the local authority to be able to support the care of the children. They rightly say the decision whether to transfer these proceedings and make that request to the Czech Republic is a matter for this court. In addition, there is an email that sets out which court would be the competent court in the Czech Republic pursuant to Article 15. It is the District Court which is in fact the court that has dealt with the previous proceedings concerning this family, and is also the area where A plans to return back to.
21. I also had the statement from A. It sets out what her plans are, namely to return to live in the Czech Republic as soon as possible. She has very limited support here and is in an impossible situation. She had no accommodation and no access to financial support.
22. I determined on 11 March that there should be a request under Article 15 for the reasons set out in that judgment.
23. Following that decision there were unfortunately a number of delays.
24. A sealed copy of my order was not available for three weeks, until 27 March.
25. Miss McCann has prepared a detailed chronology of her communications with the Central Authority here and the Judicial Office for International Family Justice for England and Wales; the latter organisation provided liaison with the network Judge in the Czech Republic. It is not necessary for the purposes of this judgment to set out the detail. However what that chronology reveals is there appears to have been some confusion and misunderstanding as to precisely what was required to be done to implement the Article 15 request.
26. Whilst it is right to record that the Central Authority in the Czech Republic on 10^th March stated that their office, namely, the Central Authority in the Czech Republic, is able to facilitate the communication, they stated "However, the official request should arise from the U.K. directly to the competent Czech Court." At that time that was not understood by anybody here to mean it actually required me to write directly to the relevant Judge in the Czech Republic. It was not until 8^th May that an e-mail address, contact details and identification of the relevant judge and court in the Czech Republic was known. I am very grateful to both the Central Authority here and in the Czech Republic for their assistance in seeking to progress the Article 15 request. The matter was listed before me on 16 May and I wrote that day to the judge in the Czech Republic making the formal request under Article 15, enclosing orders and other relevant documents. That was e-mailed directly to the Judge that day with a hard copy sent by post, as requested. The response from JUDr. Marie Hlavata was dated 22 May, so less than a week after the request had been made. I am extremely grateful to her for it being considered so promptly. The request was refused, as she considered this court was in a better place to determine welfare issues, because the family have been here since 2009.
27. In terms of lessons learnt from what happened in this case there are, in my judgment, two matters that need to be considered by the court when being asked to make an Article 15 request.
28. First, if there is going to be an Article 15 request made by any party, or one is likely to be considered by the court, the court should have all relevant information as to the necessary procedures in the jurisdiction which it is proposed to transfer to. In this case there has been a delay of nearly two months caused by the uncertainty as to what was required.
29. The second matter is any orders made under Article 15 should be drawn up and sealed as a matter of urgency, to avoid the delay of nearly three weeks that occurred in this case.
30. If there had been more clarity about the procedure it would have avoided the delays, which can be detrimental to the child's welfare. Ironically the delays in this case have probably benefited X as he has been able to re-establish contact with his father and become more settled, however they have been to the detriment of Y and Z who clearly struggled with the delay in decisions being made about their future care.

Threshold and Welfare determination

31. Reverting back to this case, the first matter the court has to consider is whether the threshold criteria are satisfied. I am entirely satisfied the threshold criteria have been satisfied in that the children were beyond the control of A. All of these children at the time the proceedings were instigated were at risk of significant harm. X had been in trouble with the police. He was not living at home and was not attending school. Y and Z were at risk of sexual exploitation in particular and their school attendance was negligible. I have no doubt that they were not only at risk of physical harm but also emotional harm as a result of them being beyond the control of A.
32. The court having considered that the threshold criteria are satisfied, needs to consider what, if any, orders it should make. In doing so the welfare of each child is the court's paramount consideration bearing in mind the matters set out in s.1(3) of the Children Act 1989. There is a need for the court to carefully balance the placement options for each child, analysing the advantages and disadvantages.
33. The Local Authority seeks no order regarding X, which is supported by his guardian. The social worker was able to visit X on 17^th June, the details are set out in Ms Hannabass's sixth statement. The guardian was able to speak to him on that occasion too. He has been living with his father D for a period of time and appears to have settled down there. He is not in any current trouble with the police and is clearly enjoying being part of the family unit. He wants to remain there and hopes to attend college to train as a plumber. His wishes are very clear, to remain in this jurisdiction living with his father. He plans to remain in contact with his sisters and A by way of Skype contact. I agree with what the Local Authority proposes. It is quite clear that his welfare needs are met by him remaining where he is, with the support that will be available to him through this Local Authority making the necessary referral to the relevant Local Authority where he is living.
34. Turning to Y and Z, they are now fifteen and fourteen respectively. They were initially placed in January of this year in separate foster placements, but more recently Z has joined Y in her placement. Z's wishes and feelings have been consistent throughout, that she wishes to return back to the Czech Republic with A. Y's wishes have not been as strongly held as Z's and there has been some recent moderation in her views, but she accepts A's wish is to return to the Czech Republic and she wishes to be in A's care, and so wishes to return back to the Czech Republic with her sister and A.
35. Both Y and Z are extremely vulnerable and the delay in dealing with these proceedings has been detrimental to their welfare. Since April there have been increasing incidences of them absconding from the foster carer's home. The Local Authority had to put creative plans in place to manage the realities of the situation and also provide protection for these two vulnerable children. Those arrangements have in fact been successful in protecting these young girls. This is attributable to the excellent social work team, in particular Ms Hannabuss. Through her hard work in establishing effective working relationships the risks have been manageable on the ground.
36. The Local Authority plan for these two girls is they will fly with A to the Czech Republic this evening. Plane tickets have been booked and passports secured, all with the assistance of the Local Authority. This is what A has wanted for some time; it is also in accordance with the wishes of Y and Z. The Local Authority has established a line of communication with the relevant authorities in the Czech Republic so they are aware of the situation. This plan will mean Y and Z are physically removed from the environment where they have been at risk of harm.
37. The children are subject to interim care orders until midnight tonight. In the light of that the court has to consider under Schedule 2, paragraph 19 Children Act 1989 the arrangements that the Local Authority have made to assist the children to live outside the jurisdiction; that can only be done with the approval of the court. In accordance with that paragraph I am quite satisfied

(i) It is in Y's and Z's best interests to live outside of England and Wales in the Czech Republic with A.

(ii) Suitable arrangements have been, and will be, made for their reception and welfare in the Czech Republic. The Local Authority has put before the court details of the liaison they have had with the social worker in the Czech Republic. I have been updated today as to what the accommodation arrangements will be; it looks likely that they will be staying with the mother in the short term, but the social worker there is aware of the position and will give such advice and assistance as the situation requires.

(iii) That Y and Z consent to living in the Czech Republic, which I am quite satisfied they do.

(iv) As far as the court is able to tell every person with parental responsibility consents to the child living in that country. The Local Authority do, it is their plan. A's consistent wish has been to return to the Czech Republic. The children's mother has indicated that she supports the children remaining with her mother and the latest information is that she is willing for the children and her mother to live with her whilst they seek accommodation in the Czech Republic, which clearly indicates her consent to their return. It has not been possible to contact the father. It is not even clear whether he has parental responsibility, but I can give approval on the basis that he cannot be found in accordance with paragraph 19(5)(a) of Schedule 2.

38. In relation to the wider welfare aspects of this case, the court clearly has to balance the competing considerations as to what the options are. Those are very helpfully set out in paragraphs 67 to 86 in the fifth statement from Ms Hannabuss. I endorse the analysis, as well as that in the guardian's report at pages 9 to 10. I cannot improve on what the guardian puts in her report at page 8:

"From my own enquiries and analysis of the situation, I do not see how
a plan for Y and Z to remain in the U.K. would be viable. This is because [A] is clearly wanting to return to the Czech Republic, and they wish to be with her. Further, it is now evident that they are again placing themselves in situations of risk despite being in the care of the Local Authority and I would not consider that a plan of them remaining in the care of the Local Authority foster carer's would offer them a great level of protection than is currently the case, meaning they would continue to be the subject of the risks identified. I am of the view that the most appropriate plan is for them to return to the Czech Republic with [A] in order that they can be appropriately supported by Children's Services. This option will give [A] the best chance of providing them with an appropriate level of care, something which I do not believe she is going to be able to do effectively if she remains in this country for the reasons that I have already given."

39 I agree with that analysis. That is the reality of the situation. Any of the options for them to remain living in this jurisdiction will, in my judgment, be detrimental to their welfare, against their wishes and I can see no alternative in terms of their welfare needs other than endorsing the plans that have been proposed by the Local Authority and for them to return back to the Czech Republic this evening in the company of their grandmother, A.

_____________