Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

15 AUG 2016

A and Anor v C and Anor [2016] EWFC 4

A and Anor v C and Anor [2016] EWFC 4
(Family Court, Theis J, 11 July 2016)

Private law children – Surrogacy – Parental order – Applications in respect of 13 and 12-year-old children

Parental orders were granted in respect of three children aged 13 and 12.


The children, one aged 13 and twins aged 12, were born as a result of surrogacy arrangements entered into in the USA. The applicants were unaware of the necessity of applying for parental orders and only made applications in March 2016.

Apart from the time limit requirement, all of the criteria under s 54 of the HFEA 2008 were met.

Applying the principles established in Re X [2014] EWHC 3135 (Fam), Theis J was satisfied that no-one would suffer any prejudice if the application was allowed to proceed. However, if the application was refused the applicants and their children were likely to suffer prejudice in being denied the opportunity to secure their legal relationship in this jurisdiction in a way that met the lifelong welfare needs of the children.

The court had to be mindful of the public policy reasons for adhering to the 6-month time limit and the need to not discourage applicants from making prompt applications for parental orders. However, those considerations had to be weight against the welfare of the children. In this instance the balance fell in favour of making the parental orders.

Case No: BH14C00456
Neutral Citation Number: [2016] EWFC 4

IN THE FAMILY COURT

Royal Courts of Justice
Strand
Londo
WC2A 2LL

Date: 22/01/2016


Before :


THE HONOURABLE MR JUSTICE BAKER


- - - - - - - - - - - - - - - - - - - - -


IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF N AND P (CHILDREN) (CARE AND PLACEMENT ORDERS)


Between :


BOURNEMOUTH BOROUGH COUNCIL
Applicant

- and -

ZL (1) (by her litigation friend, the Official Solicitor)
PL (2)
N (3)
P (4)
(N and P by their children’s guardian)
Respondents

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Adam Langrish (instructed by Bournemouth Borough Council, Legal Services) for the Applicant
Mark Hensleigh (solicitor of Preston Redman) for the First Respondent mother
Helen Khan (instructed by Aldridge & Brownlee) for the Second Respondent father
Damian Summerscales (instructed by Redferns) for the Third and Fourth Respondents

Hearing dates: 26th October 2015

- - - - - - - - - - - - - - - - - - - - -


Judgment

The Honourable Mr Justice Baker 
:

Introduction

[1] On 26th October 2015, I made care and placement orders in respect of two children, sister and brother, hereafter referred to as N and P, I indicated that I would give my reasons for making the orders at a later date. This judgment sets out those reasons.

Background

[2] The background of this family is sad and disturbing. The parents were married in Slovakia in 2012. The mother, who is 32 years old, is Hungarian and of Roma origin. She was raised on the street in Slovakia as part of a homeless family. She is illiterate and has no knowledge of the English language. An assessment carried in the course of these proceedings has established that she has learning difficulties with an IQ of 50, and she has been classified as a protected party under Rule 2.3 of the Family Procedure Rules 2010 and represented by the Official Solicitor as litigation friend. The mother has said on occasions that she has four other children by another man living in Slovakia, although at other times she has denied that this is so. The father, who is 36 years old, is Slovakian but also speaks Hungarian. He is literate with some understanding of English, although a psychological assessment in the course of the proceedings has established that he too has a low IQ of around 63. He has two children by a previous relationship living in Slovakia.

[3] It is alleged that the parents were the victims of people trafficking. The mother’s account is that on arrival at Dover they escaped from the traffickers and travelled across England, staying at various locations, but ending up in Bournemouth. On 18th May 2013, the mother gave birth to a girl, N. Social services became involved with the family shortly afterwards in July 2013, following a referral from a housing officer after neighbours complained that the adults were arguing and the baby crying. Further reports were received that the father had been violent towards the mother, although subsequently the mother denied or minimised these incidents. There were also concerns at the adults’ difficulties in managing money (they were exclusively dependent on welfare benefits and child support). Although N appeared clean and appropriately dressed, conditions at the family home were cluttered and untidy. There were no safety measures in place to protect the children.

[4] In Autumn 2013, the mother became pregnant again. Throughout this pregnancy, she only attended an antenatal appointment on one occasion, and then only because the family support worker assisting the family collected her and drove her to the hospital. On 24th May 2014, the mother gave birth to a son, P.

[5] When social workers visited the family home in early July 2014, they noticed a significant deterioration in home conditions. In addition, the mother presented as very depressed and unstable. The social worker and translator heard loud arguments between the parents when outside the property. The social worker was sufficiently concerned to arrange a further visit later that day accompanied by the police. On arrival outside the property, they heard the couple still arguing inside. A neighbour reported that they were “fighting day and night”. Despite these concerns, the police concluded that the children were not at risk of immediate harm. The next day, however, after a further allegation of domestic violence, the children were removed under a police protection order.

[6] On 7th July 2014, the local authority applied for an emergency protection order and two days later filed an application for a care order. The children were made the subject of interim care orders and placed in foster care. Initially, the parents attended contact with the children, although the social workers were concerned that during contact they continued to argue and, in the mother’s case, have emotional outbursts, with no understanding of the impact of their behaviour on the children. The social workers remained concerned about the mother’s mental health problems. A parenting assessment commissioned in the course of the proceedings concluded that neither parent was able consistently to prioritise or meet the children’s physical or emotional needs.

[7] Following the completion of this assessment, in early 2015, the parents were evicted from their accommodation and subsequently returned to Slovakia and have had no further contact since that date. Their present whereabouts are unknown although it is understood that the mother has given birth to another child.

[8] In the course of the assessment, the parents had identified the father’s mother and the mother’s sister as potential alternative carers for children. Enquiries of the maternal aunt, who lives in Scotland, revealed that she was unable to care for the children. On 19th January 2015, HH Judge Bond made a further case management order directing the local authority to write to the Slovakian Embassy to inform them of the proceedings and invite a representative to the following hearing and further directed the local authority to liaise with the Embassy to ensure that any independent social worker instructed to undertake an assessment of the grandmother in Slovakia received appropriate clearance. In a series of emails, the local authority was informed that the Slovakian authorities would not support an English independent social worker undertaking the assessment and instead offered the services of the relevant local authority in Slovakia to prepare a report. At the next hearing on 11th February, which so far as I am aware was not attended by a representative of the Slovakian Embassy, the court gave directions facilitating the assessment of the grandmother by the Slovakian authorities. The assessment was duly arranged by the Central Office of Labour Social Affairs and Family and carried by social workers in the branch of that office local to the area where the grandmother lives.

[9] In March 2015, the Central Office indicated that the paternal grandmother was willing to care for the children, but the final assessment by those authorities revealed that there had been serious concerns about the grandmother’s care of her own children, including allegations of neglect, and the unexplained death of a baby some years earlier. The condition of the grandmother’s home was also described as unsuitable. The assessment concluded that the grandmother was an irresponsible person who had neglected her obligations to care for her own children and recommended that neither N nor P should be placed in her care.

[10] Meanwhile, the children remained in foster care where they thrived, although initially P displayed signs of global developmental delay. The local authority filed final evidence and a care plan analysing the options for the future care of the children, and recommended that they be placed for adoption. On 12th June, the local authority filed applications for placement orders under ss.21 – 22 of the Adoption and Children Act 2002. At a case management hearing following the filing of this evidence, the court listed the matter for a further hearing 14 days later on 29th June 2015, “for an IRH/early final hearing”, recording that “final orders may well be made on 29th June 2015 irrespective of whether the parties attend court or have provided their representative with up to date instructions”. The court further invited a representative of the Slovakian authorities, if possible the author of the recent reports on the grandmother, to share the contents of the final evidence and recommendations of the local authority with the mother, father and paternal grandmother. The court further gave leave for the local authority to serve on the Slovakian Central Office “and, if appropriate, the Slovakian Embassy”, a translated copy of the order and the local authority’s final evidence.

[11] On 25th June 2015, the local authority received a letter by email from Maria Marcinova, the Head of Department of the Central Office in Bratislava, reporting that a social worker in the local branch had presented the documents supplied by the local authority to the parents and grandmother who indicated that they did not agree with the adoption of the children and wanted to participate in the court hearing. The grandmother indicated that she wished the children to be placed in her care. She stated that she was already looking after the children’s older siblings who had been placed in her care by the Slovak courts. The Head of Department Ms Marcinova, added this observation:

“In view of the documents which have been presented to us on the issue of care for minor children of the family, we fully respect the opinions of competent British authorities. However, we believe that in this case, sibling relationships among all the siblings as well as the relatives of minor children should be supported, developed and maintained. Given the above reason, we propose to consider, as an alternative option to the adoption of the minor children in the UK, their placement in a facility for enforcement of court decision in the Slovak Republic where all these children would have the opportunity to be in mutual contact and develop their family relationships.”

[12] In the light of this development, Judge Bond transferred the case to me, listed the matter for a hearing on 6th July, and again invited a representative of the Slovakian Embassy to attend. In the event, no representative of the Embassy was able to attend the hearing. The parents were not present, although they were represented by counsel, in the case of the mother instructed by the Official Solicitor as litigation friend, who indicated on the basis of their last-known instructions that their clients opposed the local authority’s care plans. I directed that the final hearing of the local authority’s applications be adjourned to a date to be fixed at the end of July on a date on which a representative of the Embassy could attend. I gave further directions with a view to obtaining evidence from the Slovakian authorities as to the type of alternative care arrangements that could be put in place if the children were returned to that country.

[13] 
Meanwhile the children’s foster placement in this country had come to an end because the carers were no longer able to look after them. On 7th July, with the court’s approval, the children moved to a new foster placement with carers who had previously been assessed and approved as adopters and who would, if the court subsequently concluded that the children should be adopted in this country, be able and willing to apply for an adoption order.

[14] In the event, the representative of the Slovakian Embassy was unable to attend the next hearing at the end of the July and the case was therefore adjourned to 10th September. On that occasion, although the Head of Consular Section at the Slovakian Embassy had indicated that he would attend the hearing as “a disinterested party”, he was in the event unable to attend on health grounds but informed the local authority that he had no objections to the hearing proceeding in his absence. At the hearing on 10th September, neither parent was present and, although both were represented by counsel, they were unable to advance arguments for the children’s future beyond the mother’s last known instructions which were to seek the return of the children to her care. A further report from Ms Marcinova of the Central Office dated 16th July was available setting out proposals for the care of the children should they be sent to Slovakia. There was some uncertainty as to the details of this proposal and I therefore directed that further clarification be sought from the Slovakian authorities. Although there had been some communication by email, the Slovakian authorities understandably and rightly indicated that any communication should thereafter be in accordance with the provisions of Council Regulation (EC) 2201/2003 (“Brussels II Revised”). I therefore made an order adjourning the hearing to 26th October 2015, inviting the representative of the Slovakian Embassy to attend that hearing, and making directions for further questions to be posed to the Slovakian Central Office with a view to the answers being available by early October so that the local authority and guardian could then carry out a further analysis of the options for the children’s future in preparation for the hearing.

[15] By a letter dated 1st October, Ms Marcinova of the Central Office gave detailed answers to the questions posed by the local authority. I am very grateful to her for her prompt and comprehensive response which has provided complete clarity as to the measures that would be taken were the children to be sent to Slovakia. Having received this helpful information, the court is now in a position to make final decisions in this case.

The Law

[16] The jurisdictional rules governing care proceedings are set out in Articles 8 to 15 of Brussels II Revised. For the purposes of this case, it is necessary to refer only to Articles 8 and 15. Article 8 provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. The test for determining whether a child was habitually resident in a place is whether there was some degree of integration by him or her in a social and family environment there: Mercredi v Chaffe [2011] 1 FLR 1293, Re A [2013] UKSC 60, Re KL [2013] UKSC 75. Article 15, which establishes a process by way of exception for the transfer of a case or part thereof, by the courts of the Member State having jurisdiction to a court of another Member State, with which the child has a particular connection, if they consider that the other court would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child.

[17] When considering an application for a care order under Part IV of the Children Act 1989, a court must adopt a two stage process. First the local authority which brings the application must prove that the so-called threshold conditions for making an order under s. 31(2) are satisfied, namely:

“(a) that the child concerned is suffering, or is likely to suffer significant harm and (b) that the harm, or likelihood of harm, is attributable to (1) the care given to the child, or likelihood to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (2) the child’s being beyond parental control.”

Secondly, if satisfied that these threshold conditions are satisfied, the court must then decide what order, if any, should be made.

[18] In approaching this latter question, the court must apply s. 1 of the Children Act. The child’s welfare is the court’s paramount consideration. The court must have regard to the principal in section 1(2) that delay in making a decision is normally inimical to the child’s welfare. The factors usually relevant to welfare decisions are listed in the so called checklist in s. 1(3), namely:

(a) the ascertainable wishes and feelings of the child concerned and (considered in the light of his/her age and understanding);

(b) his/her physical, emotional and educational needs;

(c) the likely effect on him/her of any change in his/her circumstances;

(d) his/her age, sex, background and any characteristics of his/her which the court considers relevant;

(e) any harm which he/she has suffered or is at risk of suffering;

(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his/her needs;

(g) the range of powers available to the court under this Act in the proceedings in question.

[19] On an application for a placement order under the Adoption and Children Act 2002, the court’s paramount consideration to the court is the child’s welfare throughout his/her life: s. 1(2). The court must again bear in mind at all times that in general any delay in coming to the decision is likely to prejudice the child’s welfare: s. 1(3). S. 1(4) of the 2002 Act also provides a check list of the factors to which the court must have regard. The terms of this checklist is similar to that set out in s. 1(3) of the Children Act, with some important differences. The factors are:

(a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding);

(b) the child’s particular needs;

(c) the likely effect on the child (throughout his/her life) of having ceased to be a member of the original family and becoming an adopted person;

(d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant;

(e) any harm which the child has suffered or is at risk of suffering;

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant including (i) the likelihood of such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, and (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

S.1(5) provides that, in placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background. S.1(6) provides that the court must always consider the whole range of powers available to it in the child’s case (whether under this Act or under the Children Act 1989) and must not make any order under this Act unless it considers that making the order will be better for the child than not doing so.

[20] S.21(3) provides that the court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent’s or guardian’s consent should be dispensed with. S.52(1) provides that the court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption unless satisfied that (a) the parent or guardian cannot be found or lacks the capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or (b) the welfare of the child requires the consent to be dispensed with. In carrying out this analysis, the court must have regard to the provisions of ECHR and in particular Article 8, the right to respect the family and private life. This reinforces the principle, which underpins our society, that wherever possible children should be brought up within their natural families. This principle has been recognised for many years and found its most celebrated expression in the speech of Lord Templeman in Re KD [1988] 1 AC806 at page 812:

“The best person to bring up a child is the natural parent. It matters not whether the child is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities can not improve on nature.”

[21] In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33. Lord Neuberger, at paragraph 77, said:

“It seems to me to be inherent in section 1(1) [of the Children Act] that a care order should be a last resort, because the interests of the child will self evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in section 1(3) (g) that the court must consider all options, which carries with it the clear indication that the most extreme option should only be adopted if others would not be in her interests.”

At paragraph 104, he endorsed:

“the principle that adoption of the child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are “paramount”…the court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents or at least one of them.”

At paragraph 198, Baroness Hale of Richmond, having reviewed the case law of the European Court of Human Rights, concluded:

“It is quite clear that the test for severing the relationship between parent and children is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short where nothing else will do.”

[22] In a series of subsequent cases, in particular Re B-S (Children) [2013] EWCA Civ 1146, the Court of Appeal has spelt out the practical consequences of this principle, stressing that it is incumbent on (a) the local authority that applies for care and placement orders, (b) the children’s guardian entrusted with representing the children in the proceedings, and (c) the court to carry out a robust and rigorous analysis of the advantages and the disadvantages of all realistic options for the child and, in the case of the court, set out that analysis and its ultimate decisions in a reasoned judgment. The decision in Re BS was greeted with alarm in some circles where it was perceived as shifting the balance between placements inside and away from the natural family. The President of the Family Division, Sir James Munby, who had delivered the leading judgment in Re B-S, has, however, confirmed in the later case of Re R [2014] EWCA Civ 1625 (at paragraph 44) that “Re B-S was not intended to change and has not changed the law.” The President continued (at paragraph 45):

“The fact that the law in this country permits adoption in circumstances where it would not be permitted in any European country is neither here nor there…the Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply. Parliamentary democracy, indeed the very rule of law itself, demands no less.”

[23] The principal point which the Court of Appeal was making in Re B-S was to require professionals and the court to carry out a more thorough and methodical analysis of the realistic options of the child’s future. Given the fundamental importance of the decision to place a child permanently for adoption, it is manifestly right that all those involved – professionals and the court – carry out such an analysis before the court makes any momentous decision that will change the child’s life forever. There must be proper evidence. There must be a proper reasoned judgment. As the President has stressed (at paragraph 49 in Re B-S) the importance of making the right decision takes precedence over everything else. Thus, whilst striving to conclude proceedings as expeditiously as possible and, wherever achievable, within the 26-week time limit laid down by the revised Public Law Outline, it may be appropriate to exceed that limit if necessary to acquire the information needed to make the ultimate decision.

[24] 
These issues have been given a sharper focus in cases involving children whose origins lie in other countries (notably the countries of Eastern Europe) but who become subject to public law proceedings here. In a series of decisions, in particular Re E (A Child) (Care Proceedings: European Dimension) - Practice Note [2014] EWHC 6 (Fam) and more recently Re CB (A Child) [2015] EWCA Civ 888, the President has identified a number of important principles and procedural steps to be followed in such cases, focussing in particular on the obligations under Article 36 and 37 on the Vienna Convention on Consular Relations of 24th April 1963 to ensure free access and communication between nationals of foreign states and their consular offices, and notification to such official of any care proceedings in respect of a child who is a national of their country, and the provisions of Article 15 of Brussels II Revised which, as already mentioned, sets out a process for the transfer of a case, or specific part thereof, to a court of another EU member state.

[25] The practical implications of these provisions were summarised by the President at paragraph 84 of his judgment in Re CB:

“The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that: (i) local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation; (ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 … (iii) if there is no transfer in accordance with Article 15, the court, if the local authority’s plan is for adoption, must rigorously apply the principle that adoption is ‘the last resort’ and only permissible ‘if nothing else will do’ and in doing so must make sure that its process is appropriately rigorous … (iv) in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the ‘welfare checklist’ in s.1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background and which, in the context of the other factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.”

[26] With these principles in mind, I turn to consider the issues in this case – first, jurisdiction and the involvement of the Slovakian authorities: secondly, the threshold criteria and thirdly the welfare decision.

Jurisdiction

[27] Plainly, the children were habitually resident in this jurisdiction at the start of these proceedings. Although their parents arrived in this country as victims of people trafficking, they subsequently escaped and thereafter lived here for over 15 months. At all times up to the making of the emergency protection order on 7th July 2014, the children lived with the parents, albeit in P’s case for only six weeks between his birth on 24th May 2014 and the date of the EPO. In the circumstances, there was plainly some degree of integration by the children in a social and family environment here sufficient to establish habitual residence. Accordingly, this court has jurisdiction to make orders under s.31 of the Children Act 1989.

[28] As the summary of the background set out above demonstrates, the Slovakian authorities were only informed of these proceedings in January 2015, some 6 months after the local authority filed its application. Furthermore, so far as I can see, no party has at any stage raised the question of whether the case or any part thereof should be transferred to a court in Slovakia.

[29] Latterly, the Slovakian Embassy has been informed about, and invited to attend, every hearing before me. In the event, for various reasons, no official from the embassy has attended a hearing. Although no party has asked for the case to be transferred under Article 15, I have considered whether the court should of its own motion (as permitted by Article 15 and required by the decision in Re CB, supra) make a request to the Slovakian Court to consider the transfer of the case or part of it. Both children are Slovak nationals and thus have a particular connection with that country: Article 15 (3) (c). However, given the fact that the proceedings have reached a very late stage, and have been in existence for many months prior to the transfer to me, I have concluded that the Slovakian court would not be in a better place to determine the issues that now arise, nor would a transfer be in the children’s best interests.

Threshold criteria

[30] Turning to the question of the threshold criteria for making an order under s.31, I have considered the evidence filed by the local authority, the statement filed by the father earlier in the proceedings before his return to Slovakia in which he substantially denies the local authority’s allegations and the various statements by the parents in the course of the parenting assessment as to the circumstances in which the children came into care. I find that the parents were victims of trafficking and brought to this country in 2012; that thereafter they lived in a home which was unhygienic and unsafe and in which the general living conditions were poor; that they were unable to prioritise their lives so as to ensure that the children’s needs were met; that they failed to follow advice from professionals and as a result missed a number of medical appointments for the children; that there were a number of acts of domestic violence perpetrated by the father upon the mother, together with incessant arguments between the parents all in the presence of the children. On that basis, it is manifestly clear that at the date on which the children were removed from the care of their parents, there were suffering and likely to suffer significant harm as a result of the care given to them by the parents not being what it would be reasonable to expect a parent to give. The threshold conditions under section 1(2) are plainly satisfied in this case.What order should the court make?

[31] I turn finally to the question of what order should now be made for the long-term care of the children. The options are (1) returning the children to the care of the parents; (2) sending the children to Slovakia for decisions as their long-term care to be taken by agencies in that country; (3) making care orders with the result that the children remain in this country, either (a) in long-term foster care or (b) in an adoptive placement.

[32] Although it is assumed that the parents, on the basis of their last-known instructions, would wish the children to be returned to the care forthwith, that is simply not a realistic option. Their whereabouts are unknown, although it is believed that they are back in Slovakia. Their lifestyle and many problems make them wholly unsuited to care for the children.

[33] The recent letter from Ms Marcinova has clarified the plans of the Slovakian Authorities for the care of the children, if they are sent to that country. Ms Marcinova stated that “the facility for enforcement of court decisions is a children’s home” which “temporarily replaces a child’s natural family environment or a substitute family environment.” She explained that children’s homes provided care by means of two types of organisational arrangements, namely autonomous groups or professional families. An autonomous group, in which care is provided to a pre-determined number of children, is set up in a separate family house or in a separate section of the children’s home. Professional families are also organisational units of children’s homes. A professional parent is an employee of a children’s home; he or she takes care of 1 to 3 children in a family house or flat provided by the children’s home, or in a property owned by the professional parent. The professional parent has all the powers and responsibilities normally vested in birth parent, although no legal relationship is created between the professional parent and the child. Ms Marcinova stressed that the care provided by a professional family is not the same as substitute family care, but it did provide an opportunity for the provision of individual care to a child placed in institutional care by decision of a court.

[34] Ms Marcinova confirmed that the placement of a child institutional care, whether it be in an autonomous group or in a professional family, was regarded as a temporary solution, the aim being to return the child to its original family as soon as possible provided the family was able to resume care. In the alternative, if this was not possible, the child would be placed in a substitute family – foster care or adoption.

[35] Upon arriving at the children’s home, a child may first be placed in an autonomous group where they can meet and interact with the professional parent identified as a potential carer. An assessment process is carried out, which may include psychological assessment and counselling. Once the child has been placed with the professional family, there are regular checks and assessments, and the children’s home and other agencies co-operate with the biological family in drawing up a joint plan of social work with the aim of facilitating the child’s return to the natural family

[36] Ms Marcinova stated that a secure placement at the children’s home at Renetske Hamre is available for N and P. They could be placed together with a professional parent, in a flat with above-average modern furnishings and equipment, situated in the centre of the town with good access to all relevant facilities. The professional parent identified is Slovak. Ms Marcinova advised that she does not speak English but would be able to communicate with the aid of a dictionary. If necessary, the children could be helped by an interpreter during the adjustment phase. After placement, the authorities would cooperate in providing support to and mobilising the biological family with the aim of securing substitute care for the children within the family. A decision to place the children within the family would be a matter for a court.

[37] The alternative to returning the children to Slovakia is that they should remain in this country and be looked after outside the family, either in long-term care or permanently in an adoptive placement. The local authority’s care plan, supported by the guardian, is that they should remain in their current placement with the current carers who are approved as adopters and able and willing to adopt them. The children have settled very well into this placement, and the social worker Ms Martin has noticed a significant difference in their development, speech and behaviour, in particular P about whom there had been concerns that he was developmentally delayed. This placement was carefully considered for the children to ensure that, as much as possible, their cultural and identity needs could be met. The female carer has spent considerable time travelling and working in Eastern Europe, including Slovakia and Hungary. The couple are said to enjoy Eastern European music, art and cooking. The female carer’s brother speaks fluent Hungarian and is willing to teach the language to the children. The carers are said to have a good understanding of the importance of cultural diversity, including the Roma aspect of the children’s heritage, and are keen to incorporate this into their lives. Contact with the birth family would be confined to letterbox contact. If the court approves this option, the local authority invites the court to make a placement order.

[38] In her analysis of the options, the local authority social worker Ms Martin reports that the local authority identifies the need for permanence as a high priority for these children, given their ages and background, in order to ensure that they are able to form secure, positive attachments to their primary carers and feel safe in their home environment. The authority is concerned that the proposal put forward by the Slovakian authorities does not offer permanence but, rather, a further short-term placement, to be followed after a further period of assessment by a further move, either to members of the birth family or to substitute long-term carers. A move to Slovakia would be likely to cause the children further significant emotional harm as a result of further moves following on from the moves they have already experienced, and the severing of the strong positive attachment to their current carers. Furthermore, the local authority is concerned that the significant language difficulties would be likely to cause significant emotional distress to the children. The placement would offer the children the opportunity to grow up in the culture of their heritage, whilst also having contact with their birth family. This would support them in acquiring and maintaining an understanding of their own identity, although the family’s history of engagement with professional agencies is not positive. Overall, however, the local authority does not consider that placement in Slovakia would meet the children’s needs.

[39] The local authority accepts that the current placement is not comparable to the children growing up within their culture, but considers that it offers them permanence, stability, security, emotional warmth and affection in an environment that will support and encourage them to understand and embrace their heritage. The authority therefore recommends that the court makes a care order on the basis of the cape plans for adoption, and further makes placement orders in respect of both children.

[40] The guardian accepts and adopts the social worker’s analysis. He points out that assessment of the paternal grandmother by the Slovakian authorities at an earlier stage has already determined that she could not meet the children’s needs. There are no determined timescales within the Slovakian proposal. What is certain is that it would involve a further move for the children at some point in the future were they to be sent to Slovakia now. In the guardian’s view, this would seriously delay their most pressing and fundamental needs to sustain positive attachments and achieve permanence, particularly in the light of the length of time which these proceedings have already taken. The guardian, who has visited the children, is impressed with the progress they have made with the current carers. They exhibit secure attachment behaviours, and have benefited from the careful attention that has been given to the promotion of daily routines and activities which has helped them recover from the experience of neglect when in the care of their parents. The children have chiefly experienced British culture and the English language and have at present no meaningful appreciation of their Slovakian culture. The guardian shares the social worker’s view, however, that the current carers are well-equipped to meet the needs of the children to acquire and maintain an understanding of their heritage.

[41] The guardian considers that that any potential change of care or placement, foreign or domestic, would be likely to have a negative and lasting consequence on their emotional wellbeing, but the severity of disrupting the children’s existing attachments would be compounded as a consequence of a potentially rapid transfer to a foreign culture and unfamiliar adults.

Discussion and conclusion


[42] In analysing the options, the welfare of the children is my paramount consideration and I must assess the relative merits of the options by reference to the statutory welfare checklist.

[43] The advantage of moving the children to Slovakia would be that it would provide an opportunity of either being placed with members of their birth family or having greater contact with the family. It would also provide them with the best opportunity of growing up with an understanding and experience of their culture of origin. Cultural needs are important, but in my judgment in this case they are manifestly outweighed by the children’s emotional needs for stability and security. At present, their needs – physical and emotional – are being met very successfully by their current carers with whom they have formed a close attachment. Given the disruption they endured in the first months of their lives, when they were neglected and ill-treated by their parents, their future security and stability are vital. A move to Slovakia would cause a sudden interruption to their lives, however sensitive and skilful the professional parent to whose care they were entrusted. Such a move would inevitably cause great distress and, I am satisfied, a high degree of emotional harm to two children who have already suffered significantly in this regard.

[44] In short, in terms of the statutory welfare checklist, I conclude that in this case the physical and emotional needs of the children, the capacity of their current carers to meet those needs, the adverse consequences of a change in their circumstances, and the very strong probability of harm they would suffer if moved to Slovakia, all outweigh their needs for maintaining a relationship with their birth family and the opportunity to grow up within their culture of origin. In any event, I am satisfied that their need to acquire and maintain an understanding of their culture will to a very substantial extent be met by their current carers, who have been selected carefully for this very purpose.

[45] The disadvantages of a placement in Slovakia in this case are in fact so great that I do not regard it as a realistic option. To my mind, the only realistic option is that they remain in their current placement. The realistic options are therefore long-term foster care or adoption. Having regard to the factors already identified and all relevant matters in the statutory welfare checklists, in particular their need for stability and security, the balance plainly comes down in favour of adoption. I take account of the likely effect on the children (throughout their lives) of ceasing to be members of their birth family. In my judgment, any disadvantages are outweighed by the emotional security they will acquire as adopted persons.

[46] I therefore accept the clear recommendation of the local authority and guardian. I repeat my expression of gratitude to the Slovakian authorities, and in particular Ms Marcinova, for their careful and thorough response. Given the particular needs and circumstances of these children, and the length of time since they were removed from their family, I do not consider that placing them in temporary care of a professional parent in Slovakia, with the prospect of a further move in due course, to be a realistic option. Although long-term foster care in this country would in theory enable the children to maintain relations with their birth family, the reality is that these children have been abandoned by their parents and such links as exist with the birth family are extremely tenuous. The children are currently in an excellent placement where they have thrived and are being well cared for. Their carers have links with eastern Europe, in particular Slovakia and Hungary and are well qualified to maintain and nurture the children’s sense of identity.

[47] It is manifestly clear that this is a case where only an adoption order will fully meet the needs of these children. I therefore approve the local authority care plan and make a care order in respect of both children. I conclude that the children’s welfare requires them to be placed for adoption, and for that reason dispense with the parents consent to such a placement and make a placement order in respect of both children.
Family Law Reports

Family Law Reports

"The unrivalled and authoritative source of judicially approved case reports, covering all areas...

More Info from £166.00
Available in Family Law Online
Family Law Online

Family Law Online

Get a FREE trial today! The fastest way to access the latest law reports, case law, commentary,...

Available in Family Law Online
Subscribe to our newsletters