High Court of Justice in Northern Ireland Family Division Decisions

Ref:

MCLC3698

Judgment: approved by the Court for handing down

Delivered: 06.06.2002

(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND FAMILY DIVISION ________ RECORD NO 2001/233

BETWEEN:

An

Applicant;

and Ce and So

Respondent.

________

McLAUGHLIN J

JUDGMENT

The Proceedings

The application before me is for a Residence Order under Article 8 of the Children (NI) Order 1995 and the subject of the proceedings is Ta., a boy born on 1 January 1996, now aged 6 years 5 months. As it is desirable to anonymise the judgment I have set out below details of the various persons involved in the different family structures for ease of reference.

An. – The aunt by marriage of Ta. who seeks the proposed Residence Order.

Ae. – the husband of the applicant who is the blood uncle of Ta.

Ce. – the natural mother of Ta.

So. – the natural father of Ta.

Dl. – a boy of 11 years who is the son of Ce. by an earlier marriage

and stepbrother of Ta.

La. – a girl of 12, who is the child of Ce. by the same previous

marriage and a stepsister of Ta.

Te. – a boy of 4 years who is the full brother of Ta. being the second

child of the marriage of Ce. and So.

Tr. – the aunt of Ta. and full sister of So. and Ae.

A parallel application for a Residence Order was made by So. but this application was abandoned at the outset of the hearing.

The Two Households

Ce. and So., parents of the subject child, were married approximately seven years ago and lived together in West Belfast until they separated in early 2001. So. came to Northern Ireland from Zimbabwe and is black. When giving evidence, in common with Ae. and Tr., he took the oath on the New Testament and I understand the background of his family is in the Anglican tradition but they also have a strong affinity with the traditional religion of their homeland.

Ce., his wife, was born in Northern Ireland and her mother and grandmother emanated from here. Unfortunately she knows nothing of the history of her father either in terms of his nationality or ethnic origin but she regards herself as black. Although abandoned by a father whom she never saw she stated in her written evidence that:

"This was a source of deep distress to me as not only did I feel part of me was missing but I am black, like my father, and the only black member of my family. I always felt different and confused. My white family had no sense of black culture and my black heritage was ignored."

The household of Ce. now consists of the 2 children by her first marriage, La. and Dl. and her fourth child Te. Ce. is of Roman Catholic background and each of the children living with her at present has been brought up in that faith.

An. and Ae. have no children and unfortunately their marriage broke down also resulting in their separation in late 2000. An. now lives in the house with Ta. She is white and of the Protestant faith. Her husband Ae. is black and from Zimbabwe. Their matrimonial home is in a mainly Protestant town in County Antrim.

It is plain to see that potent forces of race and religion pervade the application before me. In effect a white Protestant woman, living in a mainly Protestant town in County Antrim, seeks a Residence Order in respect of a black child who comes from a mainly Roman Catholic family living in West Belfast.

Events Leading to the Application

After Ta.'s birth Ce. began to suffer postnatal depression and was only able to look after him with assistance from her husband's family. It seems that during that difficult period his uncle Ae. and aunt An. stepped in and helped out by looking after Ta. on frequent occasions. Indeed at one time it appears that they took him on a holiday to Zimbabwe. On another occasion Ce. had to go into hospital for an operation and Ta. went to stay with An. and Ae. for a short period. Unfortunately after the birth of Te. on 23 March 1998, Ce. became very ill again with postnatal depression and panic attacks. She was much worse this time and the illness appears to have been protracted. She was simply unable to cope with the family and a decision was made that it would help her to cope if Ta. went to live with his Uncle Ae. and Aunt An. This had been preceded by a family discussion which involved the sister of So. and Ae., she is called Tr. and lived in England at that time. She is the oldest member of the family and by custom is regarded as the head of the family. It is clear that Ce. also deferred to her and continues to do so. Throughout this time Ce. had no help from her own Northern Ireland family and she was very dependant on help given by her husband's family. It is unclear what arrangements were intended although it is tolerably clear that it was not thought that Ta.'s move would be permanent although it seems to have been accepted that it might be for a substantial period. This appeared to be a satisfactory arrangement to all concerned because Ta. was still "within the family", was extremely fond of his uncle and aunt and this fondness was reciprocated fully. The exact date of his move is not known but it was not long after the birth of Te. and the evidence was to the effect that it was approximately 4 years prior to the hearing. He has therefore lived for the greater part of his life with his uncle and aunt. Given that he is now just 6 years 5 months, it is understandable that he has no memory of the time when he lived with his parents. During the last 4 years he has been treated by An. and Ae. as their child and he in turn considers them to be his father and mother and indeed he calls each of them Daddy and Mummy. It is acknowledged that there is a deep-rooted bond between the three of them and there is substantial evidence before me, which I shall deal with in due course, that Ta. wishes to remain living with his Aunt An., even though she has now separated from his Uncle Ae. In the 4 years Ta. has lived with An. he has thrived and he is by common agreement a friendly happy little boy, he is inquisitive, is doing well at school, although he could probably make more of his academic abilities, makes friends easily and in all respects is content.

During his period of residence with An. he has visited his Northern Ireland and African families frequently although it is clear from the evidence that An. does not get on well with many of her African in-laws. She did have a good relationship with So. until some period just prior to the present proceedings commenced. In evidence he indicated that the relationship cooled when he realised, as he alleged, that she was encouraging Ta. to call her "Mummy". Difficulties between An. and Tr. go back much further to the time of the visit to Zimbabwe. It appears at that time the two women had a disagreement over the alleged smacking of Ta. by An. The relationship did not break down but merely cooled because Tr. was pivotal in the later decision to allow Ta. to go to live with An. after the birth of Te.

As time passed and Ta. became older and settled into a pattern of living as an integral part of the household of An. and Ae. practical day-to-day problems in his upbringing arose. Ce. was too unwell to cope and had significant problems with Dl. her son. In the event So. and she were content to allow Ta. to be brought up by his uncle and aunt and I am satisfied that they took very little to do with his day-to-day welfare. This meant that An. and Ae. had to carry the burden of making decisions about matters affecting Ta. such as health and education. Since they did not have parental responsibility for Ta. it is self-evident that they would encounter such problems because they were left with full responsibility for him but inadequate authority to make decisions ordinarily made by parents. In spite of that they arranged for any necessary attendance at a GP, had him enrolled in a nursery school in their local community and attended to his other needs. It was alleged in the course of evidence that An. spoke in terms of adopting Ta., which she denied, but it is clear that some such discussion did take place even if it was at a very general and ill-informed level. I accept the general thrust of An's. evidence that her concern was to be in a position where she could make decisions about Ta's. welfare as he had lived with her at that stage for at least 2 years and there was no indication that the situation might change. I reject suggestions that An. was plotting or scheming to get Ta. away from Ce. and So. I think such allegations are misplaced and unworthy having regard to the selfless role which An. in particular has played in bringing up someone else's child. Given the way the case has developed I think there has been a degree of ex post facto rationalisation of matters which were discussed innocently so as to score points off the opposite side. Ultimately decisions had to be made about which primary school Ta. should attend. I am satisfied that his parents had very little input into this decision and that was their own choice. In particular I am satisfied that at no time did Ce. express any preference, let alone insist upon, Ta. going to a Roman Catholic school. I accept the evidence of An. that she tried to get Ta. enrolled in a non denominational primary school but was unable to find a place for him. She stated in evidence that the waiting list had been full for some considerable time since a lot of parents put the names of their children down for that school shortly after their birth. Her next choice was a local state school and a place was offered there to Ta. Not only was no objection made to this by Ce. or So., I am satisfied that it was entirely acceptable to them. He has remained at the same school since and he is well settled there and happy. I reject the suggestion that he is not attending a Roman Catholic school contrary to the wishes of his parents as being another example of making something an object of complaint where none existed before this application was made and which is now elevated to a point of principle in order to support opposition to the present application.

Having been faced with the responsibility of dealing with these very important matters, and it being followed some short months afterwards by the breakdown of her marriage in late 2000, I can understand why An. began to be increasingly concerned about her future with Ta. By that stage the bond between them was profound and it is clear that to be separated from him would have been all but unbearable for her. From the reverse point of view the departure of Ae. from the matrimonial home meant that the influence of the birth family of Ta. was diminished somewhat and this acted as a spur to their consideration of Ta.'s future. This was accelerated further when Ce. and So. separated early in 2001. Although the spouses of each of these marriages have kept an admirable degree of contact with each other, it is clear that So.'s family are unhappy that Ta. is now removed from his African family to a greater degree. I believe that An. realised this and began to think more intensively about protecting her own position. I am satisfied that these circumstances came together to bring about her application for a Residence Order which came before the Family Proceedings Court on 13 September 2001. At that time the learned Resident Magistrate made an order in favour of An. which was effective until 17 December 2001 when a full hearing was due to take place. Thereafter contact continued as arranged by the Social Services who acted as mediators and facilitators in this regard. Unfortunately a most serious incident occurred in early November 2001.

During the school mid term break Ta. paid a contact visit to his natural family. He was due to be returned home the next day but unfortunately this did not occur. The situation continued for 2 to 3 days and resulted in increasing anxiety, perhaps even desperation, on the part of An. Despite telephone contact with the natural father and some of his family, including Tr., the child was not returned to her care which was in breach of the Residence Order made in September. Things became so desperate that An. issued an application on 2 November 2001 to enforce the Residence Order. By a series of emergency sittings on that day the matter passed from the Family Proceedings Court to His Honour Judge Markey QC in the Family Care Centre at Belfast and ultimately to the Wardship and Adoption Office in the High Court. On that same day Mr Justice Higgins made an order in Chambers making Ta. a Ward of Court under the inherent jurisdiction and prohibiting him being removed from the jurisdiction without the permission of the court. It also ordered the delivery forthwith of Ta. by Ce. and/or So. to a social worker with the assistance of the Royal Ulster Constabulary if necessary, and thereafter that he be delivered to An. This order was obtained ex parte and because of the circumstances the duty social worker, a Mr Burns, went to try to recover Ta. Due to the resistance of the natural family the police were present in large numbers. Something in the nature of a standoff and a row ensued which took approximately 2 hours to sort out. Eventually Ta. left West Belfast with So. and the social worker and they travelled to the house of An. where he was handed over to her. Unfortunately members of So.'s family followed them to the house of An. and in turn members of her family arrived to assist her. It is clear that a very unsavoury scene unfolded during which Ta. was sheltered in the livingroom of An.'s house by Mr Burns whilst the events continued outside. In order to protect Ta. the curtains were drawn. It does not appear that an actual fight developed but certainly threats were made and strong language was used. It is alleged by Tr. that appalling racist language was used towards her and her family, that a hammer was produced by one of the members of An.'s family and the net result was that Ta. was extremely upset. I can well understand why emotions would have been at the point of exploding. A child had been taken away from its natural parents to be given over to someone else. They had no notice of the application. They had no opportunity to make their case or protest. They were confronted not just with the force of a court order but also a large body of police officers, alleged to be 16 in number, who arrived in large vehicles with "Crimestoppers" printed thereon all of which caused a great deal of attention, embarrassment and disturbance in the vicinity of the house.

A considerable amount of this evidence was disputed by An. It was admitted by her however that at the very least some member of her family used the word "savages" towards her in-laws. It also appears that a hammer has been retained by the local police although I heard no evidence from the police about that. Mr Burns, the social worker who accompanied Ta, was obviously more concerned about Ta's safety and well-being than what was said outside and he was unable to make out individual words used but he confirmed that a major row took place. I do not consider that it is possible at this stage to make any meaningful findings about which words were spoken but I think it highly probable that racially abusive language of a particularly objectionable nature was used by members of An's family in the course of this unseemly incident. There was no evidence that An. was in any way responsible for this language, nevertheless in light of that background it is hardly surprising that it was impossible for the parties to reach any form of agreement in the interests of Ta.

From that point onwards I have the advantage that the relevant events have been monitored by Social Services because at a review hearing on 5 November 2001 this court ordered that a social worker should be appointed by Homefirst Community Health and Social Services Trust and a Statement of Evidence file