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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 >> V (Children), Re [2016] EWHC B7 (Fam) (03 March 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/B7.html Cite as: [2016] EWHC B7 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE-UPON-TYNE DISTRICT REGISTRY

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: V (CHILDREN)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		3rd March 2016

HIS HONOUR JUDGE SIMON WOOD:

1. Following the lengthy judgment that I gave at the conclusion of the fact-finding hearing on 15^th December, I continue to be concerned with the welfare of B, C and D, full siblings, twins aged 9, they will be 10 in May, and in D's case just gone 4, the children of M and F2, who are all Lithuanian nationals. Although I have not been asked to determine any issue resulting in an order in respect of him at this stage, this judgment also directly concerns A, the son of M and the late F1 because:

(1) no judgment has yet been given by agreement in respect of the making of a care order as long ago as 29^th September 2014, an order that was then not agreed but not formally opposed and is certainly no longer opposed; and

(2) A has played a critical role in the lives and welfare of the three subject children and is a significant individual in their lives, being a very important factor in the welfare decision that has to be made going forwards.

2. North Tyneside Council, after the fact-finding hearing, now presents a care plan whereby all three children remain in its care as long-term foster children: the twins in their present placement, their second, where they have lived since 14^th October 2015; D with A in their present placement where they have lived continuously since they were removed from the care of their mother on 3rd December 2014. The plan is supported by their mother. Whilst their father cannot agree the plan, recognising the findings that I made in December were an obstacle to his own wish to care for the children he has supported his parents, the children's paternal grandparents, PGM and PGF, in their wish to care for the children in their home city in Lithuania. Although that was the position at the outset of this hearing, neither now seek actively to oppose the plan, albeit cannot agree to it. I should mention for completeness that the father's plan that his parents care for the children was one which the professionals, and the mother in particular, opposed.
3. The children's guardian, Ms Lloyd-Parkinson, supports the local authority plan. There are some very detailed proposals as to contact, that is to say as between siblings, as between parents and children, and grandparents and children, which, in the event of orders sought being made, are now agreed. They are in the court's judgment highly comprehensive as befits an international case such as this but they are also highly appropriate. It is perhaps appropriate at this early stage in this judgment to pay tribute to the quite remarkable work of the key social worker, Paula Seivewright, whose work has in many respects gone way above and beyond that ordinarily expected of a practising social worker. I know that this is acknowledged by everyone in the case, in which I include all of the family members. It is perhaps the most eloquent tribute to her that the children's father, bewilderingly caught up in the English legal system following the disappearance of his children to the United Kingdom, can say that he feels that he has been heard, he has been understood and given the fairest possible hearing. Social workers never appear in the press for the good work that they do. That is a great shame. The work which has been carried out in this case, were it more widely known by the public, would, I am satisfied, vanquish the beliefs of those who believe all that they read about social workers in the media.
4. On the children becoming subject to care orders, there will inevitably have to be a transfer of social worker, something which I know may cause anxiety, will involve new relationships being developed and so on but I do express the hope that a decision can be made as soon as possible as to the identity of that person and that the family continue to be as fortunate as they have been with Ms Seivewright with her successor.
5. Listed as a final welfare hearing this week, it has been quite an eventful week. It began with the twins coming to visit me with A, whom I have met previously, on Monday morning in which they not only impressed as attractive, intelligent, articulate and polite children, a credit to their parents, whatever their experiences, but also very clear in their views that, first, they would like to live with their mother but, as articulated by B with insight that belied his years, did not think that they would be safe with her and, secondly, in those circumstances, they wished to remain with their present carers rather than return to Lithuania.
6. These are consistently held and reported views and they have not changed despite what was self-evidently a highly successful, enjoyable and happy reunification with their father and paternal grandmother, who alone had travelled from Lithuania for this hearing, her husband needing to tend to the family farm, in a contact which took place on Tuesday, the first direct contact between the children and their father and grandmother since their mother orchestrated her secret flight from Lithuania in January 2014. That contact has been immensely valuable. It is a regret, and I emphasise not a matter of criticism, that it has not been possible to take place before now but it has been informative in two key respects. First, it has not, despite its extremely happy nature resulted in any change of stance on the part of the children. Secondly, it has, in a way that perhaps no social work intervention could, however skilfully carried out, reassured the paternal family that the children are happy, settled, thriving and safe, being very well cared for indeed.
7. The consequence has been that whilst it has plainly necessitated a yet further look at the contact arrangements, happily accelerating rather than slowing the programme, it has left the children's father and paternal grandmother in the position that recognising the difficult decision facing the court, they do not feel able to maintain their objection to the local authority plan, albeit they cannot agree to it, and if it is approved they can return home with the reassurance that the children are very well, their needs are being very well met, and that their continued relationship with the children will be maintained.
8. I am not going to repeat the background at all. This has ultimately been a short hearing in which no oral evidence has been taken but instead I heard the parties' submissions. Anyone considering this judgment will need to have regard to the judgment of 15^th December in which the background is set out in full.
9. The evidence to which I have regard is extensive. It includes first of all that of Paula Seivewright, which includes a very comprehensive parenting assessment of the father and the paternal grandparents carried out through interpreters in Lithuania during a visit to that country for that purpose for which I am particularly indebted to the Lithuanian authorities for providing their ready cooperation for this purpose; a parenting assessment of the mother carried out in June 2015; and a sibling relationship assessment in September 2015. Secondly, there is the evidence of Dr Helen Young, consultant psychologist, who has twice assessed the children, carrying out an assessment most recently to establish the nature of the sibling relationship and the likely impact of the children being returned to Lithuania. Thirdly, I have had the benefit of the analysis of Ms Lloyd-Parkinson in her final report and I want to pay tribute to her but I cannot do it as well as C did in expressing her gratitude through counsel today for having had a guardian. Finally, although the detail is sketchy, to put it mildly, there has also been a Lithuanian assessment carried out very recently which has still not been translated but which all parties understand provides yet further evidence in support of the paternal grandparents, such as was found by Ms Seivewright when she carried out her assessment and so exactly as one might have expected.
10. In the circumstances, both the mother and A are clear and firm in their intention to remain living in the United Kingdom and see their futures in the short, medium and long term here, with A, in particular, seven months short of his 18^th birthday, making plans for his future education and employment here. The considered views of the local authority through Ms Seivewright and the guardian, shortly stated, are that:

(1) It would not be safe to return the children to the care of either their mother or father;

(2) Whilst the paternal grandparents have been positively assessed as carers for the three subject children, nevertheless it would not be in their best welfare interests for the children to be placed with them.

11. The evidence of Dr Young feeds directly into that second conclusion. In her very firm view, as reflected not just by her own assessment but by the observations of others as to the particular strength of this sibling group, all four that is, including A. To that end, I quote from her report:

"There is clear evidence that this sibling group have strong positive relationships with one another that have been maintained and possibly strengthened through their recent experience of adversity in a way that is not detrimental to their individual needs. When considering what siblings can provide for each other, both in the short and long term, this includes a shared sense of their past and of living together. Having a shared sense of the future enables continuity of identity. They can provide mutual support, a sense of belonging and close long-term attachments. Sibling relationships can compensate for poor attachment experiences with adult care givers, can protect against a negative environment and support the development of resilience and I think this is particularly pertinent for this sibling group. Indeed, they have the potential to be the longest lifetime relationships. Separating siblings can mean the loss of that lifelong relationship, support in adversity, a shared history and sense of kinship, continuity and rootedness, sources of knowledge about the family and resources for building identity.

It is clear that as the eldest of the sibling group, A has played an important role in his siblings' lives. He has held some degree of care-giving responsibility towards them. He took on a protective role after they moved to the United Kingdom and all of the younger siblings look up to him. A worries about whether his siblings will be looked after properly if they return to Lithuania and expressed how he would miss them and feel alone given his wish to remain in the United Kingdom. I think it is important to keep in mind the potential loss for A, both in terms of his own sense of family identity and of the emotional impact on him if his siblings move back to Lithuania. Despite his age and stage of development, he maintains a high level of commitment to contact with them that has been unwavering in the time that they have been living in foster care.

For B, in particular, his brother is very important to him and it seems he has been one of the few positive male role models in his life to date. He communicated he would feel very sad were he to be permanently separated from him. His sibling relationships more generally are central to his family identity and have I think arisen in the context where he has not been the focus of the care-giving adults. For C, A is important to her. She appears to be preoccupied with wanting a closer relationship with him, stating she feels he does not have enough time for her, although this will be related in part to their different ages and sexes. She also communicated that she would feel unhappy were she to be permanently separated from him. For D, A has been a key attachment figure in her life to date. Despite being able to relinquish his care-giving role appropriately since their reception into foster care, he remains a key positive relationship in her life".

12. Dr Young also commented on the positive relationship that each child has with their mother, who has always been their primary care giver and who, despite not living with them now, remains a key individual in contact. Whilst Dr Young does not go so far as to say that the children should not return to Lithuania and gives helpful advice as to how such a return could be managed, she clearly identifies significant losses for all three, as well as to their mother and A, of A, as I have already quoted, because of the high level of commitment that he has had to them despite his age and stage of development. The guardian in endorsing the local authority's view cites Dr Young's evidence for support of her view that long-term foster care offers, first, a safe environment in which they can fulfil their potential; secondly, from which they can maintain direct contact with their parents and paternal grandparents; thirdly, in which they can hopefully remain in a single, secure family unit until majority or independence; and fourthly, an environment in which, despite the negative features of being looked after, the reviews, the intrusion that brings and the restrictions more generally, the children have a good chance of having their very particular needs, arising from the abuse that they have suffered, looked after.
13. A very particular concern of the family is the children's Lithuanian heritage. Although they get to speak Lithuanian with their mother and the paternal family in contact, which they have enjoyed more recently via Skype, they do not do so otherwise. D's first language is in effect English. Just what they are missing was graphically illustrated in the contact on Tuesday, the food, the songs, the dances, and it is plainly a tall order to offer all of this in a family setting within an English family home on Tyneside. Nevertheless, in addition to the ongoing family contact at what is a significant level, the contact will enable their language to be put into regular practice as well as direct contact where cultural practices can be enjoyed. The local authority has agreed to facilitate Lithuanian language lessons which will hopefully help promote that very important aspect of their heritage.
14. Set against all of this, the paternal family's position is very straightforward and, despite the local authority and guardian not endorsing it, it is not in fact controversial because what the paternal family said was that they can offer first of all a family placement with concerned and caring grandparents and readily available and safe contact with the children's father. Secondly, the family placement, it goes without saying, is in the children's country of origin. These are Lithuanian children, precipitously removed and relocated in the United Kingdom with scant regard for their welfare and they should come home to their family, to their country and its customs and heritage. Thirdly, they can offer proper, appropriate and supportive educational and therapeutic services as is evident from information from the Lithuanian authorities. Fourthly, despite being separated from their mother and A and the upset that this may cause in the short term, contact can and will be facilitated. The point is made that A is almost 18, has his own life to lead and is likely to do so at some point in the foreseeable future. Thus, bringing all these points together, the paternal family says that with proper help, the transition can be managed and it will meet the children's needs.
15. I say straight away that these are very powerful points and each carries considerable force. At first blush, it could be thought indeed to be unanswerable. However, despite the strength of the points, even the children's grandmother is able to see that the decision for the court is not in fact an easy one and the reason for that is in fact a simple one.
16. Whatever else can be said about the removal to the United Kingdom in January 2014, and it is almost all bad as the judgment in December explains, it is now a fact of life and more than two years have passed. Had the court for whatever reason been considering this very shortly after the children had come to this country, the situation would have been wholly different but children are not inanimate objects but vital, developing, growing, human beings whose circumstances have indeed changed radically. They have developed. They have put down roots. They have made ties that are important to them and, despite all that is bad that has happened to them, have important relationships in the United Kingdom that, whilst they would not be wholly lost, would be much diminished were they to leave this country. It occurs to me that if it was simply the relationship with their mother, it could be said that putting the children first she might be well advised to revisit her decision to remain in the United Kingdom but it also involves A and, as is plain from the passage I have quoted, he has been a constant, a considerable force for stability, and although still not quite an adult the key individual member who has provided the glue that has held this sibling group together during the most challenging of times.
17. The paternal grandmother's anxiety that A will want to pursue his own interests is entirely natural and would in most cases be wholly justified. In A's case, however, this exceptional young man has provided an exception to the rule and I am confident that he will continue to play that role because it comes to him as absolute second nature. In seeing the children so happy and well cared for this week, the father and their grandmother were seeing in a significant way the outcome of the role that A has played in their welfare. A is committed not just to his siblings but to life in the United Kingdom. Like the twins, his language has come on in leaps and bounds. He is committed to his education. He is thriving at college and, as he told me, ambitious to go into the world of work here.
18. Thus, as it is clear from Dr Young's evidence, the separation of B, C and D, and it has to be recalled that D has lived with A continuously since they were separated from their mother, would be a very significant loss and there could be no expectation that he would revisit his understandable desire now to live in this country.
19. Care proceedings involve two principal questions. Are the threshold criteria for the making of a care order under section 1 of the Children Act satisfied? If so, what order should the court make? It is not in dispute that the threshold criteria are satisfied by reason of my findings made on 15^th December, findings that no-one seeks to challenge. What order should the court make? In considering that question I have to apply well-established legal principles. I have to bear in mind the rights of the mother, of the father, and indeed his parents, and the children under Article 8 of the European Convention on Human Rights to respect for family life.
20. The welfare of each of the children under section 1 of the Children Act is my paramount concern. That section also provides a checklist of factors to be taken into account in determining where their welfare lies and what order should be made. The wishes and feelings of the twins are quite clear and have been unwavering, as I say, despite the very happy reunion this week. D is too young really to have been able to express her wishes and feelings. All are agreed that the children's physical, emotional and educational needs are being very well met indeed in their present and intended long-term placement. Indeed, the paternal family have been hugely reassured in that firsthand this week and it is plain to the court that each child is thriving.
21. The particular characteristics to which I have had regard include of course their Lithuanian heritage but also the fact that they have suffered significant harm which Dr Young indicates is likely to produce issues, indeed may already have done so. That will require very particular help. Each of these could, I am sure, be met either here or in Lithuania. Indeed, in relation to their heritage, I accept that that is likely to be far better met in Lithuania than in this country. The harm that each has suffered I have just referred to. The risk of future harm is now very low indeed but I accept that it would have been had they gone to live with their grandparents as well. The capacity of their parents to meet their needs is challenged I am afraid by the findings the court made. I do not doubt that of the grandparents.
22. No one factor trumps others under the checklist but the key circumstance in that list must be that in subparagraph (c), that is to say the likely effect on the children of any change in their circumstances. It is the one on which this case ultimately turns and without labouring the point, I am satisfied it is decisive because everyone, and that now includes the father and the grandparents, can see what it would mean to these children. Thus, the at first blush surprising outcome that this court would condone and legitimise placement in foster care in the United Kingdom of children who were removed from the rest of their family in Lithuania and secreted to the United Kingdom is in fact the one that 26 months on best meets their welfare needs and that is the order I propose to make. I am satisfied that it is in Article 8 terms the proportionate order.
23. In making such an order and without reciting its terms, I am enormously encouraged by the extensive comprehensive contact regime with both parents and the grandparents including the provision for trips to and from Lithuania. Its breadth is perhaps beyond that one expects to see for children in foster care but there is of course no one size fits all and the circumstances of this case, if not unique, are very unusual indeed. I hope that there can be a smooth transfer, as I have said, of social worker. I accept it is an anxious moment and it is in this case going to be a very hard act to follow but its importance is self-evident. It is really vital for the success of this order that the family can all have confidence in the local authority that the good work that has been done thus far and it is proposed will be maintained will be maintained going forwards.
24. Reverting briefly to A, the local authority took the unusual step of seeking a preliminary determination of whether there should be a care order shortly before A's 17^th birthday, so as to afford him the protection and benefit of this, albeit on the express basis that were the outstanding disputed facts for determination not made out, it would be open to the mother to seek to discharge the care order. The mother did not at that time agree to the making of a care order but did not oppose it. I, by agreement with counsel, postponed giving reasons at that time until this stage and having now reached this stage it is in the circumstances not necessary to rehearse the arguments that were then advanced. The findings that the local authority sought were in fact all made out but, perhaps more importantly, A is in fact entirely in agreement with the continuation of the order and remaining in his current placement. So, in the circumstances, the order remains proportionate and appropriate and so I confirm it.
25. Because this case has a very significant European element it is right that this judgment and order, which I approve, be translated into Lithuanian and disclosed to the central authorities in England and Wales and in Lithuania and, further, that a certificate pursuant to Article 39 of Brussels IIR be issued so as to ensure that in the event any difficulties of enforcement or compliance arise, steps can be taken to enforce.
26. It really only remains to me to wish all of the family, especially the children, well. This has been a very long ordeal. It is has been a very long case. I am quite sure at its conclusion that the children will be safe. I hope that this order gives them the best chance they have of achieving what I am sure will be in each case their considerable potential in the United Kingdom, whilst at the same time maintaining the close links that they need to have with their Lithuanian family and heritage, which I am sure they will carry with pride for the rest of their lives. I wish you all well.
[Judgment ends]