England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice

		Courtroom No. 34 1st Mezzanine, Queen's Building The Royal Courts of Justice Strand London WC2A 2LL
		14th July 2016

MRS JUSTICE THEIS:

1. I am giving this short extempore judgment, as even though there is agreement as to the orders that are sought.
2. This is an application for a care order in relation to a young child called SK, who was determined through an age assessment to have been born in early 2004, so he is now 12 years of age. He is an Afghan national who came to the attention of the Local Authority when he was discovered at Heathrow Airport as an unaccompanied asylum-seeking child in November 2015. The Local Authority made arrangements for his care and he has been with his current foster placement since 8 January 2016. Care proceedings were issued on 28 April 2016.
3. The circumstances of his parents according to SK (which is the only information the court has) are that his father was killed as a result of an incident prior to him leaving Afghanistan. Although there is no corroborative evidence of that, the Local Authority and the Guardian have proceeded on the basis of this account. As a result of what occurred to his father and possibly his brother, his mother, according to SK, made arrangements for him to leave Afghanistan to be able to come to this jurisdiction, which resulted in him arriving, as I have said, at Heathrow in November 2015.
4. There is some uncertainty as to precisely how he arrived at Heathrow Airport, and what methods of transport that he had between Afghanistan and the United Kingdom. He has given some limited information in relation to people who may have assisted, but the Local Authority have been unable to pursue any of those names or details given to assist in getting any further information. It appears that it was as a result of the mother paying an agent arranged by her to assist SK leaving Afghanistan that he was able to arrive here.
5. The Local Authority have written to the Home Office and the South East Asylum Department on 27 May 2016, pursuant to the direction of this court inviting them to respond either as to whether they wish to take any steps within these proceedings, or make any representations. They have not responded to that invitation either to apply to intervene in these proceedings, or to make any representations.
6. SK has an outstanding asylum application. He has been granted limited leave to remain in the United Kingdom from 19 May 2016 to 18 November 2018. His asylum claim has been refused, but he has been advised by his immigration solicitors that he has grounds to appeal that decision and I understand that that immigration process will continue its course.
7. One of the issues that I need to determine before I can consider the threshold criteria and, if met, what orders this court should make, is whether any further steps should be taken to discover the whereabouts of the mother. On the information that has been provided to the court, the only method by which that could be done would be through the enquiries made by the Red Cross. However, it is clear from the information that I have seen that even embarking on that course could place the mother in grave danger of physical harm.
8. In relation to these proceedings the mother under Rule 12.3 of the Family Procedure Rules 2010 would be an automatic party. The court has power to dispense with service of the proceedings on her. The Court of Appeal has recently considered the test in M v F [2011] EWCA Civ 273 as to the test that should be adopted when the court is being asked to do that. The test is that a very high degree of exceptionality is required.
9. It is submitted, and I agree, by both the Local Authority and the Guardian that that high degree of exceptionality is present in this case. The advice given by the Foreign and Commonwealth Office and the developments in relation to the difficulties in Afghanistan indicate that the mother as a lone parent would be put in, or likely to be put in, grave danger if the Red Cross started to make any enquiries about her whereabouts.
10. In addition, as I understand it, the Red Cross will only make such enquiries if a competent child is able to give that consent, and agrees to those enquiries being made, no doubt being made aware of what the benefits and/or risks of such enquiries are to his mother.
11. As is very clear from the extremely helpful and perceptive reports by Ms Lessman, the Children's Guardian, and by Ms Stalker, who is the allocated social worker, this is an issue that understandably causes SK enormous distress and anxiety. He oscillates between wanting to be able to find out about his mother and for her to have notice of the proceedings, to reverting back to not agreeing to that because of the risk that it would place her in.
12. He has made it very clear that he misses his mother and his family. However, the current position is that he certainly has not expressed a clear wish for the Red Cross to trace her because of the inherent risks in such a course for her. In those circumstances, I consider that there are the very high degree of exceptionality on the facts of this case where this court should dispense with service on her, but, as the Guardian says, to keep her as a party to the proceedings.
13. The court needs to determine the issue of habitual residence. The issue is whether SK was habitually resident in this jurisdiction at the time when proceedings were issued on 28 April 2016.
14. There are a number of cases in the Supreme Court that set out the position in relation to habitual residence. In A v A  (Children: Habitual Residence) [2013] UKSC 60 where Baroness Hale stated at paragraph 54 in relation to habitual residence:

'Drawing the threads together, therefore:

(i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

(ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. BIIR must also be interpreted consistently with those Conventions.

(iii) The test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

(iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

(v) In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from Shah should be abandoned when deciding the habitual residence of a child.

(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

(vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

(viii) As the Advocate General pointed out in para AG45 and the court confirmed in para [43] of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time'.

15. What is said in this case is that SK had habitual residence here by the time the court was seized on 28 April 2016 due to the following features.
16. According to SK his arrival in the United Kingdom was planned and paid for by the mother in advance. His accepted understanding and state of mind was that he would remain living in this jurisdiction. He had been placed here and sent here in the genuine belief that he will have a better and safer life here. The whereabouts of his mother are unknown and it would be impossible to return SK to her care in Afghanistan at this time.
17. He has expressed a strong preference to remain living here and it is clear that he is at risk of further harm should he return to live with his mother in Afghanistan. He is able to speak some English and continues to receive extra tuition. The up-to-date information through Ms Lessman's report is that he is progressing extremely well at school, embracing and absorbing the help that he is being given there and has integrated well.
18. It has not been possible for him to have any family environmental integration with his mother and/or family in Afghanistan at the time when this court was seized of the matter on 28 April. He has clearly established a good relationship with his carers and their extended family members and reports that he is able to talk to his foster carers, and enjoys the company of the older looked-after child in the placement, who is also from Afghanistan. Therefore, he has a family environment in the foster care placement and has developed friendship groups within the local area through, in particular, his attendance at school and the friendships and integration that he has been able to have there.
19. Therefore, even taking into account the fact that his mother and wider family remain in Afghanistan, he had no other connections here, that he has not lived here before November 2015 and there were no proper plans put in place at the time of his arrival here, I am satisfied that the way he has integrated into family life here by 28 April 2016 he was habitually resident here in accordance with the principles set out in A v A.
20. Turning to the question of threshold criteria, it is submitted that as a result of the position of SK there is nobody who is available in this jurisdiction to be able to exercise parental responsibility in relation to him and, as a result, unless an order is made, he is likely to suffer significant emotional harm as there is no one to be able to make arrangements for his care, his welfare, and his emotional and psychological development.
21. I am satisfied that in relation to these proceedings the threshold criteria are satisfied. Without someone able to actively exercise parental responsibility on his behalf he is likely to suffer significant emotional harm, particularly due to his vulnerable age.
22. Having determined that the court has jurisdiction to be able to make a care order as a result of the threshold criteria having been satisfied, the court then needs to turn to consider issues of welfare. SK's welfare is the court's paramount consideration, bearing in mind the matters set out in the welfare checklist in s 1(3) Children Act 1989. Although he misses his mother and family, his wishes are to remain in this jurisdiction, to be cared and continue to be cared for by Mr and Mrs S, who he has been placed with since January 2016, a placement where he has settled in, thrived and is well supported.
23. Any change in those circumstances would be detrimental to his welfare. His parents, either through the death of his father or as a result of the inability to be able to contact his mother, are not in a position to be able to care for him. If the court did not make an order securing his welfare and enabling the Local Authority to exercise parental responsibility, it is very likely that he would suffer significant harm because there would be nobody to be able to make the necessary decisions for him.
24. For those summarised reasons and taking into account the matters set out in the social worker's statements and in the reports from Ms Lessman, I am satisfied that a final care order is the only order that meets the welfare needs of this young child, bearing in mind the circumstances in which he arrived in this jurisdiction, and to enable the Local Authority to be able to exercise parental responsibility.
25. I am told that Ms Stalker will remain his allocated social worker; that continuity I know will be of enormous assistance to him in relation to any decisions that he has to make. I approve the care plan save for an amendment to paragraph 5.2 to highlight the need, in relation to continuing visits by him and at any looked-after children's review, to give him the necessary support to enable him to consider whether any steps should be taken to locate or make contact with his mother.
26. I should make it clear that the decision I have reached is entirely focussed on welfare. The outcome of SK's immigrations application is entirely a matter for those with responsibility for that application.