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(Court of Appeal, Arden, Ryder and Macur LJJ, 4 Oct 2013)
The child was born in Kenya but she and her mother relocated to the UK when she was 6-years old. In the UK the mother was involved in prostitution and drug taking. The mother and child lived with the mother's new partner who had been subject to allegations of rape.
When the child visited her father in Kenya she was found to be suffering from vaginal discharge and a medical examination found her hymen had broken. He was aware of the allegation of rape against the mother's partner but sent the child back unaccompanied on the understanding that the partner had moved out. However, the partner returned to the home and cared for the child during evenings while the mother was working.
The local authority initiated care proceedings and the child remained with foster carers for over a year. The father applied for a residence order for the child to return to Kenya with him. The care proceedings focused on the circumstances whereby the father permitted the child to return to the mother knowing she had been sexually assaulted and of the allegation against the mother's partner.
The judge found that in allowing the child to return to the care of the mother in those circumstances, particularly in which he failed to travel to the UK for over a year after learning the mother's partner had moved back in and even after care proceedings had been instigated, his care of the child had fallen well below that expected of a parent. The father's application for residence was refused. The father appealed.
The appeal was dismissed. There had been sufficient evidence before the judge to come to the conclusions he did about the father and to grant a care order. The father should not have permitted the child to return in the circumstances known to him and he should have taken steps to secure her placement with her in Kenya or even travelled back to the UK with her.
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