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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> O, (A Child), Re (application for a final care order-return to Nigeria) No 2 [2017] EWHC 1021 (Fam) (17 February 2017)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/1021.html
Cite as: [2017] EWHC 1021 (Fam)
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FAMILY DIVISION
LEICESTER DISTRICT REGISTRY
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF Re O (A CHILD) (no.2 )
B e f o r e :
(sitting as a High Court Judge pursuant to s9 of the Senior Courts Act 1981)
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| Re: O (A Child) |
____________________
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Counsel for the Mother: Miss Kabweru-Namulemu
Solicitor for the Father: Mrs Thomas
The Maternal Grandfather appeared In Person
Counsel for the Child: Miss Matthews-Stroud
Hearing dates: 13th, 14th and 17th February 2017
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- A lot has happened since my earlier judgement given in the late summer of 2016. Both parents have filed witness statements telling the court about the work done by Mr O, the Nigerian lawyer employed by the mother to mediate in the dispute in the family referred to in my earlier judgment. The mother ("M") tells me her parents confirmed to him directly that they would not deny the father ("F") contact with A if she were to live with them. F has confirmed the same to the court and said that various family members were also involved in the mediation process. In his written evidence he says that he does not hold strong views about what should happen to A. He just wants the best for her, whether it is to live with her uncle in the United States or with the maternal grandparents in Nigeria. Today, he is supportive of her return to Nigeria.
- The court has received the assessment of the maternal grandparents ("MGPS") undertaken by Michael Nwoye, social worker in Nigeria. Mr Nwoye tells the court that they are both very capable of caring for A and he recommends that she is placed with them. His report is generally very positive. It says that there are one or two potential issues that A may have to face when she returns home that the grandparents will have to take a more realistic view about. He mentioned in particular there will probably be a bit of a cultural shock in going back to Nigeria given she has been in this country for, I think I calculated, nearly four years now. School will be different and she is going to be having contact with her parents in a different way from that which she has had recently.
- The Local Authority has obtained immigration advice about what would happen if a final care order was made and A remained in the UK. The court is advised that it is likely she would be granted indefinite leave to remain until she reached her majority if such an order were made.
- There is a detailed statement from the social worker about the direct work she has done with A since my earlier judgment. Some of that work was done in conjunction with the Children's Guardian. The social worker discussed with A her family in Nigeria, the memories she had of them and the relationships she had with them and what life there would be like for her if she were to return. She explored with her some of her fears and resistance to returning home and worked through what those issues were and how they might be overcome. She spent some time looking at her relationship with her father, explaining to her the details of his new family and how contact with him might progress if she were to live in Nigeria. She was also helped to explore some of the issues concerning her mother's mental health, which I am pleased to hear has improved considerably and some of the difficulties that A had to deal with as a young child as a result. A was also able to read a letter from her grandparents enclosing a lot of photographs of their home and explaining to her what life would be like if she were to live with them.
- The social worker undertook a careful piece of work. Her statement is thoughtful and I agree with her assessment that the mother, as I indicated in my earlier judgment, is not best placed to care for A at this time because she is not able to empathise with A and understand her experiences. I also agree with her assessment that it is likely that A has put up barriers about her father because of what she has been told about him and because she worries what her mother will think if she says that she wants to have a more developed relationship with her father because she knows that is likely to upset her mother. The relationship between A and her father will need some repair. It is not going to be sorted out overnight and the social worker recommends therapeutic work is undertaken with A.
- When the social worker filed her statement in December, her thinking was that A might stay in the UK until July and possibly go to Nigeria for a holiday at Easter time. When we had the hearing in December everybody, including the Guardian and the parents, were supportive of the Local Authority's proposal to the court that A should indeed return to Nigeria to be cared for by her grandparents. A herself had come to thinking that was indeed what she wanted. It was agreed therefore that the Local Authority would obtain legal advice about what orders would need to be made in England and in Nigeria to secure this arrangement and to prepare an updated care plan. A passport would need to be obtained for A and a final hearing for 13th and 14th February 2017 was fixed.
- In the social worker's most recent statement, she tells the court that A is excited about going back to Nigeria to live with her grandparents, getting to know her father and her little brother and she is no longer concerned about seeing out the rest of this academic year at her current school. Her parents support her return as soon as possible and at the hearing in January, the possibility of a return in February or March of this year was canvassed. The Guardian also supported the move without further delay.
- The court has been assisted by legal advice from Akintunde Williams, who is a dual qualified Nigerian and England and Wales solicitor. The salient parts of his advice are that the Nigerian family court in Lagos will need to consider this case afresh and it will be guided by what is in the best interests of the child. A Special Guardianship Order, if made by this court, is not binding on the court in Nigeria. Indeed, a Special Guardianship Order is not recognised in Nigerian law. However, the court order made in England will be given "grave consideration" by the Nigerian family court and the advice suggests what it would be helpful for the order I make to include. It is suggested it should contain preambles setting out the way in which the court has come to its decision and inviting the Nigerian court to mirror the court order that is made in the UK being as it is in the best interests of the child. It should also provide for the disclosure of documents in this case to the court in Lagos.
- The advice recommends that the maternal grandparents seek a Sole Guardianship Order, Residence and Contact Orders in the court in Lagos to recognise that they will be the primary carers of A and that they will be in charge of supervising and arranging contact between her and her parents. Such an order would give them parental responsibility. To make such an order, the court in Lagos will need to be satisfied that they are fit and appropriate persons to be guardians of the chid and they may have to undergo further assessment. The application may take between three and twelve months to be concluded.
- This court is governed by English law and so A's welfare is my paramount consideration. I have had regard to the welfare checklist set out in s.1(3) of the Children Act of 1989. I am mindful of the rights of the parents and A to a fair trial and to family life and to make sure that any order I make is proportionate in all the circumstances of this case.
- In my earlier judgement I left open the possibility of the placement of A with her father. There were two issues that needed to be investigated further. One was whether he was misusing alcohol as alleged by the mother and the other was whether there was an on-going feud or dispute between him and the maternal family which would cause difficulty for A if she were to live in Nigeria. I am pleased to say that, having read what I have neither of those matters continue to be of concern to the court. I am satisfied that the alcohol testing of F is not suggestive of excessive use of alcohol during the last 6 months. I am also satisfied that the family has resolved its differences to such a degree that A is unlikely to be exposed to any risk of harm as a result of the previously reported conflict that existed between them.
- There are other issues which in my judgment make it right for this court to make an order in favour of A living with her maternal grandparents not her father when considering what is in A's best interests. First, there are still issues in the relationship between the mother and the father which are not fully resolved. The dynamics of that relationship are complex and will need to be resolved in Nigeria where it is the mother's intention to institute divorce proceedings. Secondly, the relationship between A and her father is not well established. She herself says that she does not feel that she really knows him. She has not had the opportunity to get to know him to any great extent during these proceedings. She has been told things about him which were untrue and caused her difficulty and upset and there is work to be done to improve and foster their relationship. I am not persuaded that it would be best for A to live with her father at this time.
- In contrast, her relationship with her grandparents is well established. They have cared for her in the past and they are able to resume the care of her now. It is not for this court to say that F is incapable or unfit to look after A although that may be a matter for the Nigerian court to consider, but I hope he will not challenge the application for an order which the grandparents are going to make. He has indicated to this court that he supports A's placement with them.
- I have had the opportunity of considering the contact arrangements for the parents when A returns to Nigeria. I was pleased to read in the grandfather's statement his approach to contact. It struck me as very sensible and child-focused and I am also pleased to note that he and the parents have signed the written agreement prepared by the Local Authority. The order that has been prepared for the court sets out the contact arrangements and I respectfully invite the court in Lagos to mirror those arrangements in any order it makes.
- A lot has happened since the hearing on Monday of this week. The Local Authority has arranged for A's grandfather to receive independent legal advice from specialist family solicitors which I am very grateful for. He has filed a statement which is positive and pleasing to read. He understands the need for and is willing to make an application, along with his wife, to the court in Lagos for Sole Guardianship, Residence and Contact orders. I am satisfied from what I have read of him and his wife that they will be able to care well for A and they will be able to manage the contact satisfactorily. I am pleased that everybody has signed up to the written agreement. Fortunately, yesterday's trip to the High Commission of Nigeria in London was a success and an emergency travel document has been obtained for A so that she can travel with her grandfather on Sunday, accompanied by her mother who has to travel with her for the temporary document to be valid. All the arrangements have been put in hand for that to happen, which is also very pleasing.
- I am being invited to make a Special Guardianship Order in favour of the maternal grandparents. I have read all the information that has been supplied about them and I am, as I say, reassured by the statement that the grandfather has filed in court today. He and his wife do understand that A will need time to make the transition from living in the UK to Nigeria. It is doubtless going to be a bit of a cultural shock for her. School will also be different. I am pleased that she will be a day child at the school at which a place has been secured for her, at least initially. She may want to board in due course, but at this stage I think she will appreciate being at home with her grandparents. There are a lot of positives that the grandparents have to offer her, a lot of love and family support. They, in turn, are supported by other family members. A's wishes and feelings are now also in tune with what the court is being invited to order. I am satisfied that the grandparents will offer her emotional warmth and empathy and that she will adjust to what was a familiar home environment.
- I am satisfied, considering all the matters I have to take into account, that it is in the best interests of A for this court to make a special guardianship order in favour of the maternal grandparents and, accordingly, I will approve the order that has been drafted for me today.
- It only remains for me to offer my best wishes to the grandparents and of course to A and her parents for the future. This case has not been easy for any of us, but I am very hopeful that the right decision has been arrived at and my best wishes along, I am sure, with all the people involved in this case go with A and her family for the future.
- I would like to take this opportunity to thank all the advocates whether they are present today or not, for the way in which they have dealt with this case. I would like to commend the social worker and the Local Authority for the work done since the judgment was given in September and particularly for the efforts that have been made this week to allow A to travel with her grandfather. This will have required a lot of time, effort and flexibility in managing busy caseloads. Their efforts are to be commended.
- Finally, to grandfather and his wife, I would like to thank you very much for putting yourselves forward to care for A. I am sure you will make her very happy and will care for her well.
HER HONOUR JUDGE GEORGE: