England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/06/2016

Mrs Justice Theis DBE:

Introduction

1. This case involves the future care of two children, C and G both British citizens, who arrived at a London Airport in September 2015. They were then age 13 and 10. No adult was with them. Following initial enquiries the UK Border Agency ('UKBA') made a referral to the London Borough of Hillingdon ('the LA') who arranged for their placement with foster carers, where they remain
2. Subsequent enquiries revealed the children had arrived from Pakistan, via Bahrain on a Gulf Air flight. This was part of a plan done with the consent and approval of their mother, DS ('the mother'), who remained in Pakistan. She does not seek the return of the children to her care. Prior to 2010 the mother, a British citizen who was born here, lived with the children's father, PS ('the father'), in Holland, where the children were born in 2002 and 2005. The mother and father separated in 2010 and she and the children, with their two siblings, went to Pakistan. The children have not seen or had contact with their father since then. The father was ignorant of the children's arrival in the UK in September. When contacted by the LA in May 2016 he stated he did not wish to care for them, although the paternal grandfather wished to have some contact.
3. Faced with this very unusual factual background it is necessary to determine:

(1) whether this court has jurisdiction to determine the application for a care order issued by the LA on 15 December 2015; and, if so

(2) what orders would best secure the future welfare of these two young children.

4. For the reasons set out below, I consider this court has jurisdiction to determine this application under the provisions of Article 13 Council Regulation (EC) No 2201/2003 ('BllR') as, in the unusual circumstances of this case, neither child's habitual residence can be established. There is no issue that the threshold criteria under section 31 Children Act 1989 is met. The children have been abandoned here by their parents and, as a result, have suffered, and are likely to suffer, significant emotional harm and neglect. The order that best secures their future welfare needs is a care order, endorsing the plan for long term foster care with support being provided by the LA to enable them to maintain links with their birth family. This order accords with their wishes, and will provide them with the security and stability their welfare requires.

Relevant Background

5. It has not been easy for the LA to get a coherent reliable history to this family. They have had to piece together information from a number of different sources, and some gaps and questions remain.
6. According to the mother, she was born in Bradford to parents of Pakistani origin. She married the father, they lived in Holland and had four children, including C and G. Their siblings are E, 15 years, and X, 6 years, who, as far as is known, remain in Pakistan with their mother. The children were briefly known to social services in Holland in 2008, due to C's challenging behaviour. Support was given and the case was closed.
7. The parents separated in 2010 and the mother went to Pakistan with the children. The father has very recently been located in Holland and was spoken to on 19 May. He confirmed he had not seen the children since 2010, he did not put himself forward to care for them, or wish to have any contact with them. He has remarried and has a young child. The paternal grandfather was also spoken to in May, he wished to remain in contact with C and G. The paternal family allege that the mother took out a loan prior to her departure from Holland in 2010, which left them with the burden of the debt. In addition, they say the mother went to Pakistan for a holiday with the children and simply didn't return.
8. There is some uncorroborated evidence to suggest the mother divorced the father in 2010, remarried in Pakistan (which didn't work out) and then married again to AB, who she is still married to. She alleges he was physically abusive to C and G. She had two further children with him. In 2011 the British High Commission is Islamabad have a record of the mother contacting them once to report issues relating to domestic abuse. She did not follow that up with any further contact.
9. Attempts have been made to contact the maternal grandmother in the UK. She is known as BB or CC. When spoken to by the allocated social worker in November 2015 and visited in March 2016, she denied all knowledge of the mother. Yet the Passport Agency have information that the maternal grandmother attended the passport office regarding the mother, and had contact with the agency again in October 2015. More recent information has raised the issue as to whether the maternal grandmother is someone different. There are suggestions that the maternal grandfather and the mother's siblings are here, but no names or details have been forthcoming.
10. When the children arrived in the UK in September 2015 and the mother was contacted by the UKBA, she gave her telephone consent to them being with foster carers. The LA recorded this as consent to section 20 accommodation. She stated she wanted the children to be here and did not want them returned to her care. Apart from that initial contact via the UKBA it is not clear what further direct contact, if any, the LA had with the mother prior to issuing proceedings.
11. The allocated social worker had to travel to Pakistan in February 2016, for reasons unrelated to this case. Whilst there she sought to contact the mother and carry out an assessment. She discovered the address given by the mother did not exist, and the schools where the mother said the children attended had no record of them being there. The children have since said they were known at school under different names, as they would be discriminated against using their Hindu names. The social worker sought to contact the mother by telephone. Her call was answered by DD ('the uncle'), who is referred to as an uncle, although he is not a blood relation. He said the mother had moved out of the area, her husband was very controlling and violent which would make it difficult to contact her. The social worker did manage to speak to the mother, but she refused to meet, or give any information as to her whereabouts. She repeated her agreement to the children remaining in the UK.
12. It remains unclear precisely what contact the children have had with their mother since they have been here. C received a text from his mother at the end of January stating that she had had to leave the city, as their step father was not happy about the amount of contact she was having with them. He reports she has been taken to a village four hours away and did not have a phone number for her. They have not reported having had contact with her since, although they have had contact with the uncle, spoken to his wife, and their sister E who was staying with them at the time.
13. The Pakistani Embassy has not responded to any communications from the LA.
14. At the time of their arrival here in September 2015 different accounts were given by the mother and children. There was a concern the children may have been trafficked, that has since been discounted. The LA have concluded that the children were sent here for two reasons; first to access a better education and, second, to protect them from their step-father. The mother has said that she could not come with them, as her husband had retained her passport. The information from the Passport Agency indicates the mother's British Passport expired in 2014 and has not been renewed. The Passport Agency have confirmed the children's passports were renewed from abroad in July 2015.
15. The most up to date information about the mother is in a statement from her dated 11 May 2016 provided by the uncle. There are some concerning aspects about this statement; the mother's English is limited, yet the statement is in English with no reference to a translation, and the uncle states he has not been able to contact the mother, yet he has been able to provide this written statement from her. In any event, the statement gives no significant new information, it confirms her agreement to the children remaining with foster carers and the reasons why she took the steps she did to send them abroad: for the children's education, because she could not provide for them in Pakistan, and to protect them from her husband's behaviour.
16. The social worker managed to speak to the father on 19 May. He did not know the children were in the UK. He had remarried, was not able to care for them and did not wish to have further contact. The paternal grandfather was spoken to, he wished to re-establish contact with the children.
17. According to the children their mother, with the support of the uncle, arranged for them to renew their passports, to travel to the UK unaccompanied and be met by an agent. The mother said that her brother knew two males in the UK who were going to assist. When followed up by the UKBA one was uncontactable and the other denied all knowledge of the children. The mother also said to the UKBA the children were going on to their father in Holland, the children denied this. The children have described the mother's husband being verbally abusive towards them and the mother and requiring them (especially C) to work, rather than attend school.
18. C has filed two statements, which give some insight into his history and the reasons for their arrival in the UK. He sets out the contact he has had with the family who remain in Pakistan, he has not had contact with his mother since the end of January, but had recent contact with uncle, his wife and daughter and also C's sister who was visiting the uncle's home.
19. Both children started school here in early October. They are reported to have settled well in their foster placement and wish to remain there. In their discussions with the Guardian they have, understandably, said they missed their mother and expressed concern about her welfare. At a visit in late January C was clear that he wished to remain here. He acknowledged he had friends in Pakistan, but did not have a positive relationship with either of his stepfathers and described being emotionally unsettled in Pakistan. G is described by the foster carer in late January as being very tearful and missing his mother and was described as 'being confused' about his future, although thinks his 'home' is in England. He expressed a wish to remain with his older brother and to return to Pakistan in about five years when he would like to live with his mother, take care of her and support her financially.
20. Both children had limited English when they arrived, so to supplement the telephone interpretation service the LA put in place weekly visits by an interpreter to the foster home to help with communication between the children and the foster carers. These visits were stopped at the end of November.
21. The LA commenced these proceedings on 15 December 2015. HHJ Corbett made initial directions, and the matter was first listed before me on 13 April. I made directions to ensure further information was obtained about how the children managed to board the plane unaccompanied and further efforts were made to engage the mother and, if possible, secure her legal representation.
22. The airline carrier, Gulf Air, has provided details about the flight from Lahore to Bahrain, and the onward flight from there to London. Their letter confirms that as C was over 12 years, G would not be considered an unaccompanied minor as he was travelling with 'another technically adult passenger'. An extraordinary feature of this case is that even though these children had not flown since 2010, when they were 8 and 5 years old, they managed to change planes in Bahrain to enable them to complete the journey to London.
23. As set out above, the attempts to make further contact with the mother revealed limited new information and, through the uncle, she did not take up the offer of legal advice and representation. No one suggested any further steps should be taken to seek to engage either parent in these proceedings. I agree.
24. The case returned back to me on 26 May 2016. The LA and Guardian had filed detailed skeleton arguments on jurisdiction and welfare.
25. The LA final evidence and care plan dated 20 May 2016 detail the LA proposals for the future placement of the children with long term foster carers, and the support they propose to enable both children to remain in contact with the birth family.

Legal Framework

26. The issue of jurisdiction was raised at an early stage.
27. A child's habitual residence in a state is the internationally recognised threshold that gives authority to the courts of that state jurisdiction to determine issues in relation to him or her. Article 8 BIIR provides that the courts of an EU state shall have jurisdiction in matters of parental responsibility over a child habitually resident there at the time when the court is seised.
28. The relevant date when the court is seised is the date these proceedings were issued, namely 15 December 2015.
29. BllR provides exceptions to Article 8: Article 12 confers jurisdiction on a state which has other links with the child, but only where the parties have accepted its jurisdiction. Article 13 provides that, where a child's habitual residence cannot be established and where Article 12 does not apply, jurisdiction vests in the courts of the state in which the child is present. Article 14, provides a residual jurisdiction, that where no court of a member state has jurisdiction under the preceding articles, jurisdiction shall be determined by the laws of each state.
30. The existence or otherwise of habitual residence is a question of fact, as described by Baroness Hale in A v A (Children: Habitual Residence) [2013] UKSC 60 at para 54. There is a need for some degree of integration by the child in a social and family environment together with the non-exhaustive identification of considerations held to be relevant to it (see A v A (ibid) para 54 (iii) and (v)).
31. In Re B [2015] UKSC 4 Lord Wilson emphasised at para 30 it was not in the interests of children routinely to be left without a habitual residence. He recognised that in the absence of the habitual residence of a child anywhere, BllR provides a fall-back jurisdiction based on their presence. He observed that in the context of adult disputes about them, the presence of children in a particular state on a particular day is an unsatisfactory foundation of jurisdiction because, by moving them from one state to another, one of the adults can so easily invoke a favourable jurisdiction or pre-empt invocation of an unfavourable one. However, as Lord Sumption observed in his dissenting judgment, it has to be recognised that adults can do that anyway.
32. At paragraph 43 in Re B (ibid) Lord Wilson concluded that '…the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albiet conceivable,' that a child will be left in limbo with no habitual residence. He continues 'The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree if integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.' In paragraph 48 he continued 'The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.'
33. In considering this case, I need to remind myself that consideration of whether or not a child is habitually resident at the time the court is seised is a question of fact, as described by Baroness Hale in A v A. By definition, the existence or otherwise of a habitual residence is highly fact sensitive.

Discussion and Decision

Habitual Residence

34. In the helpful written and oral submissions from Mr Bannocks and Ms Gartland they unite on a number of matters:

(1) They rightly accept that jurisdiction under Article 12 is not available, as the father had not accepted this jurisdiction at the time the court was seised as he was then unaware of the existence of the proceedings.

(2) Neither of them submit the children have retained habitual residence in Pakistan.

(3) Whilst they submit the children have acquired habitual residence here, they accept that in the event this court cannot be so satisfied it has jurisdiction under Article 13 and, in default, Article 14. In their joint written submissions they state 'It is therefore respectfully submitted that in a case such as the present, where the facts are complex and unclear, the Court may find itself unable to determine that a child has a habitual residence…'.

35. They submit the following are relevant factors in considering whether or not the children are habitually resident in Pakistan.
36. The factors which might contribute to a conclusion the children had lost their habitual residence in Pakistan are:

(1) The arrival in the UK was planned by the mother and the children, in particular C

(2) The mother's position is that the children should remain in the UK during their minority and should not return to her care.

(3) The children's stated intention is that they should remain in the UK during their minority.

37. The factors which might contribute to a conclusion that they retained their habitual residence in Pakistan are:

(1) Their mother, siblings and half siblings remain in Pakistan.

(2) The uncertainty as to whether they have any relatives in the UK.

(3) They have never lived in or visited the UK before.

(4) They have lived in Pakistan since 2010.

(5) They lived with their mother and/or uncle prior to their arrival in the UK and they have retained contact with them by SKYPE.

(6) No plan had been put in place to accommodate or support the children after their arrival in the UK.

38. Having considered these factors they point, in my judgment, at the time this court was seised, towards the children having ceased to be habitually resident in Pakistan. Whilst it is right their immediate family remained in Pakistan, there were no plans for them to return there, no-one put themselves forward to care for them there and the intention of the children and their mother was for them to come here long term. They are British citizens and are entitled to be here. Whilst it is right they have retained some contact with their mother, that has only been in the context of them remaining here.
39. Turning to the question of whether they have habitual residence here, the court needs to consider the following factors when considering, amongst others, the degree of integration by the child in a social and family environment here. The factors that point towards the children being habitually resident here include:

(1) The factors set out in paragraph 36 above. They include the children's intention. C, in particular, has described the steps taken to implement the plan for him and G to come here.

(2) Both children started attending school here in early October.

(3) They have remained placed together with the same foster carers and have each settled well in that placement.

40. The factors that point towards them not having acquired habitual residence here include the following factors:

(1) The factors set out in paragraph 37 above.

(2) They required the regular attendance of an interpreter at the foster carers until late November 2015 to assist with their communication with the foster carers and required similar support at their schools.

(3) They were placed with foster carers pursuant to section 20, which could have been withdrawn at any time by the mother.

(4) The children's intention to come here needs to be considered in the context of the precarious nature of the plans that were made, including the lack of any arrangements being made for them following their arrival here.

(5) At the time these proceedings were issued the LA had been unable to properly communicate with the mother regarding her plans for the children, other than treating her reported discussions with the UKBA in September as amounting to consent to section 20 accommodation.

(6) At the time these proceedings were issued the LA had not been able to locate the father.

41. Whilst I have very much in mind the observations of Lord Wilson in Re B (ibid) that it is unusual for a child not to have a habitual residence, it was recognised that such a situation was not inconceivable. In my judgment at the time when this court was seised, on the exceptional facts of this case, these children had not acquired habitual residence here. Although by December 2015 they had been placed with foster carers for nearly three months and had been at school for two months, the LA were still making essential enquiries to establish the circumstances in which they had arrived here and what, if any, proposals were being made for them to return to Pakistan, or elsewhere. Their intention to come here needs to be considered in the context of the lack of any arrangements being made for them following their arrival. It was not until after December 2015 that the allocated social worker was able to speak to the mother about hers and the children's circumstances, or establish any contact with the father. The children had no identified relatives here and their placement could have been terminated in the event the mother withdrew her consent. Apart from being British Citizens, these children had no other real connection with the UK; they had not been here before, and had no link with any relatives who may be here. Those who these children were dependent on prior to their departure from Pakistan could not be said to be integrated in a social or family environment in the UK. Whilst the circumstances in which they left Pakistan were such that they lost their habitual residence there by the time this court was seised, they had not put down sufficient roots here by December 2015 to acquire habitual residence.
42. In my judgment they probably have acquired habitual residence here now. It is clear they have not only become more integrated in a social and family environment here, but additional information has come to light which establishes that there are no plans for them to return to Pakistan. There is in reality no home being offered for them there, or anywhere else. It has not been possible to make any direct contact with their mother since February 2016, other than via the uncle. The father has made it clear he is not in a position to care for them. Whilst their parent's intention and circumstances are not determinative to the question of habitual residence, they are a factor. The fact that those who have cared for children in the immediate past remain in the other jurisdiction may point to habitual residence not having been given up, due to the degree of social and family connections there. Here it is the opposite, whilst all their immediate family remain in Pakistan this factor, in the circumstances of this case, doesn't support habitual residence being retained in Pakistan.
43. In the light of the fact that neither child's habitual residence can be established at the time the court was seised in December 2015, this court has jurisdiction under Article 13.

Threshold and Welfare

44. I can take this aspect of the case relatively shortly, as there is no dispute between the LA and Guardian. The Guardian supports the threshold findings sought and the making of a care order with a plan for placement of both children to remain with their current carers as long term foster carers.
45. I am satisfied the LA have established, on the balance of probabilities, that each child has suffered and is likely to suffer significant emotional harm and neglect by being abandoned in the UK without having anyone available to care for them, with no accommodation, being without income and having no support arranged for their benefit. Their parents, who each have parental responsibility, have abdicated their responsibility to their children. The mother may have taken the steps she did for the best of intentions to protect the children from further harm from her husband and to enable them to have a better life but the actions she took, with no arrangements being in place following the children's arrival here, caused both of them significant emotional harm and neglect. On any view it was a highly risky course to take.
46. In considering what order the court should make each child's welfare is the courts paramount consideration. Each child's wishes are to remain here placed with their current foster carer. There are no plans for the children to move from their current foster carers, which will be their long term placement. Whilst such a placement will mean they are separated from their mother and siblings, no one puts themselves forward to care for them in the event of their return to Pakistan. The LA care plan has arrangements in place to support continuing contact with their birth family. This is clearly essential as in due course they seek to understand the history of their placement here. They have settled well in their current placement and their attendance at school has been good. The reality is for these two young children there are limited alternatives for their care. Their welfare needs require stability and security to enable them to develop and mature in an emotionally supportive and secure environment, which a care order would achieve. The care plan for a long term foster placement under a care order made in favour of the LA will ensure the welfare needs of these two young children are secured.