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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Leicester City Council v The Mother & Anor [2024] EWHC 923 (Fam) (12 April 2024) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2024/923.html Cite as: [2024] EWHC 923 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| LEICESTER CITY COUNCIL | Applicant | |
| and | ||
| THE MOTHER (M) | First Respondent | |
| and | ||
| A (a Child, through his Children's Guardian) | Second Respondent |
____________________
Ms Emily Thurlby (instructed by Dodds Solicitors) for the First Respondent
Ms Jane Bacon (instructed by Straw and Pearce Solicitors) for the Second Respondent
Hearing dates: 3 April 2024
____________________
Crown Copyright ©
Mrs Justice Lieven DBE :
Chronology of referral to Child and Families Across Borders
"We thank you for your email and hereby confirm reception of the documents you sent us.
We understand that the English authorities are considering to place a child with its maternal aunt in Switzerland according to Article 33 of the Hague Child Protection Convention. In order for us to process the request, we would like to draw your attention to the following:
Our role as the central authority under the Hague Child Protection Convention is the coordination and support of the central authorities of each canton. The competent cantonal authority will then, in collaboration with the local child and adult protection authority, assess the possibility of placing the child with its maternal aunt and will decide on the matter accordingly. We therefore require the full address of Aunt in order to forward your request to the competent cantonal central authority.
Due to the fact that your request will be assessed by the local child and adult protection authority and several authorities will have to be involved (such as the immigration authorities), Article 33 requests take a considerable amount of time. The processing time of such a request depends on multiple factors and cannot be predicted by our authority.
Regarding the invitation to the Advocate's meeting as well as the hearing on 27 February, 2024, our central authority does generally not participate at hearings since we are not a party in those procedures and we have to observe the separation of powers as well as the principle of territoriality.
Finally, we would like to draw your attention to the fact, that most documents will have to be translated in the official language of the place the aunt is living."
"I refer to the email from the Federal Office of Justice FOJ, Private Law Division dated 22 March 2024, which in its role as the central authority under the Hague Child Protection Convention has informed you that it will not be attending the hearing. The necessary clarifications are currently still underway.
Since the central authority is responsible for the matter noted in the margin, the Embassy does generally not participate at hearings since we are not a party in those procedures."
"Due to the fact that the maternal aunt resides in Switzerland, we would like to draw your attention to the fact that the maternal Aunt cannot be assessed by the CFAB or another agency. The assessment can only be requested through a formal request under article 33 and 34 of the Hague Child Protection Convention. The competent cantonal central authority will then get in contact with the local Swiss authorities who will then proceed to assess the situation accordingly.
The assessment of the aunt by the CFAB or another foreign agency is considered an unlawful activity on behalf of a foreign state and is punishable by Swiss law (article 271 of the Swiss Criminal Code).
We understand that the assessment of the maternal aunt is an urgent matter and can assure you that the competent local authorities are assessing the situation to the best of their ability."
"We can confirm that we have forwarded the request to competent cantonal central authority who are currently processing the request. Unfortunately, we cannot confirm the timescales as we are not able to predict on behalf of the local authorities how long the assessment will take.
Regarding the invitation to the advocate's meeting and hearing, our central authority does not participate at hearings since we are not a party in those procedures and we have to observe the separation of powers as well as the principle of territoriality."
"We have had assessments completed, by our partner agency, on behalf of CFAB and Local Authorities in the past.
I do apologise about this and the delay that this has caused; I will be feeding back this email to CFAB's Service Manager so that we are aware of this.
Because of this update, we will remove this case from our list of cases pending allocation."
"I have discussed this update with CFAB's Service Manager – I do just want to take the time to clarify that CFAB does not complete the assessment ourselves but that we refer it to our partner agency to arrange/complete."
Legal Framework
Children and Families Act 2014
"(a) any impact which giving permission would be likely to have on the welfare of the children concerned, including in the case of permission as mentioned in subsection (3) any impact which any examination or other assessment would be likely to have on the welfare of the child who would be examined or otherwise assessed,
(b) the issues to which the expert evidence would relate,
(c) the questions which the court would require the expert to answer,
(d) what other expert evidence is available (whether obtained before or after the start of the proceedings),
(e) whether evidence could be given by another person on the matters on which the expert would give evidence,
(f) the impact which giving permission would be likely to have on the timetable for, and duration and conduct of, the proceedings,
(g) the cost of the expert evidence, and
(h) any matters prescribed by Family Procedure Rules."
Family Procedure Rules 2010 ("FPR")
Authorities
"5. Care orders are made in accordance with section 31 of the Children Act 1989. Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act.
6. The court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with: section 21(3). The court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with: section 52(1). In deciding whether or not to make a placement order the paramount consideration of the court must be the child's welfare "throughout his life": section 1(2). The court must have regard to the 'welfare checklist' in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or an adoption order is made: section 21(4).
…
29. It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority's thinking.
…
Adoption – essentials
33. Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order. (Proper evidence and an adequately reasoned judgement.)
…
44. We emphasise the words "global, holistic evaluation". This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
45. McFarlane LJ added this important observation (para 53) which we respectfully endorse:
"a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which renders it 'draconian' cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the 'draconian' nature of permanent separation of parent and child and they frequently do so in the context of reference to 'proportionality'. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child's welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case."
"8. I should observe that, to my mind, even the prescient architects of the Children Act 1989 could not have envisaged the considerable cultural changes that were to take place in the United Kingdom in the 23 years that followed the implementation of that Act. British society is now multicultural. Assessing parents and family members may, quite frequently does, involve considering individuals based anywhere in the world. I do not believe that the obligation to explore the family option for a child is weakened in any way by geography, although it can provide real challenges to already overstretched resources. The viability of these options must, from the outset, be evaluated rigorously and reviewed regularly. The need for such assessments must be addressed at the very beginning of proceedings. Late identification of potential family carers abroad may bring two fundamental principles of the Children Act into conflict, namely the desirability, if possible, of a child being brought up in its extended family (where parents are for some reason unable to care for the child themselves) and the need to avoid delay in planning for a child's future. Neither principle should be regarded as having greater weight. The recent reforms to the family justice system have sought to emphasise why it was that the avoidance of delay was given statutory force by the Children Act and the real and lasting harm delay causes to children, particularly in public law care proceedings. There will, in my judgement, be occasions when the obstacles to assessment of family members abroad create such delays that to pursue the option will be inconsistent with the child's own timescales. These are taxing and exacting decisions but they require to be confronted with integrity and without sentimentality."
''Nothing else will do
68. Since the phrase "nothing else will do" was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment:
"We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do."
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase "nothing else will do" is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase "nothing else will do" is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).
69. Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase "nothing else will do" can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and "nothing else will do".
Natural family presumption/right
70. With respect to them, it is clear to me that both the Children's Guardian and the ISW fell into serious error by misunderstanding the need to evaluate the question of A's future welfare by affording due weight to all of the relevant factors and without applying any automatic "presumption" or "right" for a child to be brought up by a member of her natural family. The extracts from the reports of both of these witnesses indicate that they determined their recommendation for A on just that basis. Mrs Fairbairn repeatedly described the child as having a "right" to be brought up by the natural family where there is a viable placement available. The Guardian advised that adoption is not in A's best interests because the grandparents can provide her with a home. Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option "a runner" but should not automatically make it "a winner" in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that "if a family placement is a 'runner', then it has to be regarded as a 'winner'".
71. The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child) [2015] EWCA Civ 1284 this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases at paragraphs 89 to 94 of the judgment of McFarlane LJ as follows:
'89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).
As is well established, the existence of "family life" rights under Article 8 is a question of fact. It must be beyond question, as a matter of fact, that the relationship that now exists between Mr and Mrs X and A is sufficient to establish family life rights that justify respect under Article 8 in relation to all three of them. It does not, however, follow as night follows day, that the paternal grandparents have any Article 8 family life rights with respect to A at all. They have never met her. She does not know of their existence. They have no relationship whatsoever. Their son, A's father, has never had parental responsibility for A. The same is likely to be the case with respect to family life rights of A with respect to her grandparents. It may well be, however, that A has some "private life" rights with respect to her natural family. [Para 79]."
The position of the parties
- He is already 7 months old and has only known a life in care.
- If the assessment is to take place he will remain in the care of a foster carer unless and until there is a positive assessment of his Aunt.
- Preliminary introductions to the Aunt will be difficult due to the geography and her known availability to visit the UK.
- There is the potential for A to move foster placement the longer he remains in care.
- Although he is being well cared for, he will not have the chance to form attachments to a primary carer who will care for him throughout his childhood and beyond.
- There is no clear and confirmed timescale for the assessment to be completed.
- There is no certainty that the full assessment will be positive nor
- That the Swiss authority's will ultimately agree to him being placed with his Aunt.
- The Guardian notes that the Aunt indicated to the LA that she can only visit the UK for one week subject to having the necessary travel documentation.
- There is the potential for a level of ongoing contact with the extended family if not placed in the Aunt's care which would need to be explored as part of the long-term planning.
- There is no presumption or right for a child to be brought up by his natural family. Arrangements will be determined by paramount consideration to his welfare (s.1 CA and ss.1ACA) throughout his life (Re W (A Child) [2016] EWCA Civ 793 (para 71)).
- There is the potential for the full assessment to be positive.
- This may enable A to be placed with an extended family member (the court would have to consider any competing options such as adoption).
- The existence of a viable home with the Aunt may make it a runner, but will not make it a winner in the absence of full consideration of any other factor relevant to his welfare (Re W (A Child) [2016] EWCA Civ 793 (para 70)).
- The placement would be a cultural match as his Aunt shares the same heritage as his mother.
- There is the potential for an ongoing relationship with members of his extended family and even his mother (indirect/direct).
Conclusions