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(Family Division, Holman J, 19 March 2014)
Care proceedings - Large sibling group - Separate representation for two groups of siblings
Five siblings were joined to proceedings in relation to the two younger siblings in which the issue of sibling contact would be decided.
Care proceedings had taken place in relation to seven siblings, now aged between 13 and 2 years. The Nigerian parents were serving prison sentences following their convictions of ill-treatment of the children. The children had no contact with their parents. The five eldest children were in long-term foster placements and placement orders were made in relation to the two younger children with a view to adoption. Expert evidence recommended ongoing direct contact between the siblings.
A prospective adoptive family had been identified for one of the children and the local authority sought to place the two younger children with those adopters. The local authority applied for leave to change the surname of the youngest two children and for permission to terminate all contact with their siblings. The main issue for determination was whether the applications should be heard without input from the five eldest children separately.
The judge was astonished that the case had proceeded to a final hearing without consideration being given to the need for the older children to be separately represented from the local authority and the younger children. It was obviously and essentially in the children's best interests for them to be made parties to the proceedings. Pursuant to FPR 16.4 a children's guardian would be instructed to represent the five eldest children.
Neutral Citation Number:  EWHC 962 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Wednesday, 19th March 2014
MR JUSTICE HOLMAN
(Sitting throughout in public)
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B E T W E E N :
LONDON BOROUGH OF HARINGEY
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Transcribed by BEVERLEY F. NUNNERY & CO.
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
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MISS S. MORGAN QC (instructed by the Legal Services Department of the London Borough of Haringey) appeared on behalf of the applicants.
MISS J. ATKINSON (instructed by SAM Solicitors) appeared on behalf of the Respondent/Mother
THE RESPONDENT/FATHER did not appear and was not represented.
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J U D G M E N T
 I have heard these applications throughout, and now give this judgment, in public. The applications concern a sibling group of seven children. As I understand it, all seven children are the natural children of the same mother and same father, and their parents are married to each other. The parents are Nigerian, but appear to have lived in England for an appreciable period of time. The children range altogether between the ages of 13 down to 2. For the purposes of this judgment they may be said to fall into two groups. In saying that, however, I wish to stress at once that they remain very much an overall group of seven sibling brothers and sisters.
 Events have, however, had the effect that different decisions have been made in relation to the eldest five on the one hand, and the youngest two on the other hand. The age range of the eldest five is from 13 to nearly 7. The youngest two are now aged about 3 and three-quarters and just 2.
 Several years ago there were care proceedings in relation to the five eldest children. The result has been that those five children are all in the care of the London Borough of Haringey, but adoption has not been contemplated for any of them. They are currently all placed in long term foster homes. I understand that the five children are variously placed between three different homes.
 Events took a different course in relation to the two youngest children. In May 2012, after a contested hearing lasting some four days, Charles J. made placement orders in relation to those two children. In other words, he approved, intended, and by his order enabled, that those two children could be placed with prospective adopters with a view to adoption by them. As I understand it, the two youngest children have never so far actually lived together, but it was and is intended that they should come together in a single adoptive placement with a view to being adopted by the person or family concerned.
 During the course of the hearing before him (which related not only to the two youngest children but to all seven children - see the heading to his judgment and resulting order) Charles J gave careful consideration to whether or not there should be longer term direct contact between the five eldest children on the one hand and the two youngest children on the other hand, even after placement and ultimate adoption. As I understand it, an expert who had given advice in the case very strongly recommended that there should be ongoing long-term direct contact between all seven children in the overall best interests of them all. At paragraph 158 of his judgment Charles J said:
"Neither the local authority, nor the guardian, sought an order for sibling contact and both invited me to make a placement order with a recital, proposed by the guardian, indicating that the local authority accepted the evidence and considerations of Dr A. and the guardian that high priority be given to direct post-placement contact between all the siblings."
 Pausing there, it can be seen, therefore, that in the view of the guardian, then representing all seven children, there needed to be "high priority" to long-term direct contact. At paragraph 159 of his judgment Charles J continued:
"To my mind, if prospective adopters are told that high priority is being given to inter-sibling contact, and thus far it seems to me if the process is to be transparent and true to its word, the children will not be placed with them unless they are prepared to offer it, it is difficult to see why an order that provides for this would put them off."
 At paragraph 164 he continued:
"So, I will make an interim contact order that, unless and until the court orders otherwise both before and after placement, the local authority and any persons with whom they are placed under the placement orders are to allow [the two youngest children] together to have reasonable direct contact with all of their full siblings."
 In order to give effect to that, the formal order of Charles J dated 8th May 2012 (I understand that he formally handed down his judgment a week or so later) provides that:
"... until further order of the court ... the applicant and any persons with whom [the youngest two children] are placed shall allow [the youngest two children] to together have reasonable direct contact with their siblings..." The five eldest children are then named.
 Since then, time has, of course, gone by. I understand that there is indeed regular, though not necessarily frequent, direct face-to-face contact involving all seven children together. It appears that all the children enjoy and gain support and benefit from that contact. The local authority have now identified a prospective adoptive family. They have indeed already placed the elder of the two youngest children with that family. They wish and propose also to place the youngest child with that family, so uniting the two youngest children in a single home for the first time.
 However, before doing so, the local authority issued an application on 16th January 2014. By that application they sought three orders. The first application was for permission to disclose certain documents from the previous care proceedings to the prospective adopters. That of itself was not particularly controversial and has already been dealt with.
 Secondly, they seek leave to change the surname of the youngest two children to a new surname. Pausing there, I understand that the intention and desire is to be able to change the surname by which those two children are known to the surname of the proposed adopters in advance of adoption taking place. Of itself, that may not be a particularly significant step if there can be sufficient confidence that those children will indeed be adopted by the family concerned. Adoption, once it takes place, almost invariably involves a formal change of the surname of the child or children concerned to the surname of the adoptive parent or parents. It would, however, be highly undesirable and potentially extraordinarily confusing and disruptive to those two children if their surname was changed in advance of adoption to that of the proposed adopters and then, for some reason, that adoption never took place, and they moved on to yet another family.
 Although not expressly referred to in section 2 of the formal application, the local authority have made absolutely plain by their statements in support of it and by the skeleton argument prepared for today's hearing by Miss Sarah Morgan QC on their behalf, that they desire also to change the forenames of both those children. I understand that the essential reasoning and justification that lies behind that is that the parents of the children promoted a considerable campaign on the internet and in other places with regard to this case so that the names of their children have apparently gained some notoriety. The local authority (and maybe also the prospective adopters) are fearful that unless the two youngest children are given completely new identities with completely new names, they will be tracked down and the placement potentially destabilised. That, of course, is a very serious and worrying aspect of this case. On the other hand, whilst change of surname is virtually automatic upon adoption, change of forenames is relatively unusual. It is certainly the case that sometimes adopters seek to add a name or two to a child's name or names given to the child by his or her parents at birth. Sometimes in the case of children who are still only babies at the time of adoption, the adopters may seek, very understandably, to substitute altogether a name of their own choosing. But to change now the forenames by which a child, now almost four, has been known and has known herself throughout her whole life obviously raises considerable issues with regard to her sense of identity and self-esteem. She is old enough to appreciate that some rather radical change is being made in relation to her identity, but nowhere near old enough to understand the reasons why that is proposed. It seems to me, therefore, that in relation both these children (and especially the older of the two) the application to change their names, and particularly their forenames, is one of considerable delicacy and difficulty which will require very careful consideration by the court.
 The third application made by the application notice of 16th January 2014 is an application for permission to terminate altogether all direct contact between the five oldest children on the one hand and the two youngest children on the other hand. The local authority do stress that they would maintain forms of "letter box contact" which could be extremely carefully vetted and monitored. The local authority say, however, that if there is any direct contact at all between the two youngest children on the one hand and all or any of the five eldest children on the other hand, the identity and whereabouts of the two youngest children would be liable to become revealed and known to one or more of the five eldest children who might in turn, in some way, reveal it to the parents or generally. Therefore, it is ultimately out of the same motivation to guard against any threat to the stability of the proposed adoptive placement that the local authority seek that third limb of their application. It should, however, be appreciated that that may have profound effects not only for the two youngest children but also for all or some of the five eldest children.
 At paragraph 44 of her second statement in support of this application, dated 10th February 2014, the current social worker, Miss Siobhan McKee, said as follows:
"The grief caused to the eldest five siblings at losing direct contact with their two younger siblings until they are at least 18 years of age will be painful. The job of the caring adults in their lives (their foster carers, social worker, therapists) is to help them cope with their pain and loss by conducting an ongoing narrative about their journey into care and providing them with a safe therapeutic space to talk about their feelings and emotions."
 A certain amount of social workers' jargon has crept into that paragraph, but what so very clearly stands out is that, in the assessment of the social worker herself, the impact upon the five eldest children of the proposed termination of direct contact will involve no lesser emotions than "grief" and "pain and loss" such that they will need help and support from a range of professionals and their foster carers to help them cope with it.
 These applications were listed for final hearing today with a time estimate of one day which was intended expressly to include "time for reading and preparation of a judgment". I pass over the fact that that estimate was patently far too short. Miss Morgan suggested that at least 100 pages of documents needed to be read, which would itself involve somewhere around three hours, or half a day of reading, and her skeleton argument makes reference to a number of authorities. However, over and above that, this is patently an application of very considerable difficulty with a number of obviously conflicting considerations which requires and deserves much more profound judicial consideration than can be given in the space of a single day.
 Quite apart from the inadequacy of the time estimate, there is, in my view, a glaring reason why this application simply cannot yet be considered. That is that until today it does not seem to have occurred to anyone that this is an application upon which a guardian needs to be appointed, not only for the two youngest children, but also separately for the eldest children.
 Family Procedure Rule 16.3 provides as follows:
"16.3. (1) Unless it is satisfied that it is not necessary to do so to safeguard the interests of the child, the court must appoint a children's guardian for a child who is -
(a) the subject of ...
(ii) to which Part 14 applies."
 When one turns back to Part 14 of the rules one clearly sees that an application for "the variation or revocation of a contact order under section 27 of the 2002 Act" and also "an order giving permission to change a child's surname ... under section 28(3) of the 2002 Act" are applications to which Part 14 applies. Therefore rule 16.3(1) is quite mandatory, namely that the court must appoint a children's guardian "unless it is satisfied that it is not necessary to do so to safeguard the interests of the child". It therefore follows, of course, that it was mandatory for a guardian to be appointed, unless after due consideration the court formed the view (which would require to be reasoned) that it was satisfied that it was not necessary to do so. So far as I can ascertain, no court has yet given any consideration at all to that point. I have done so today. Far from being satisfied that it is not necessary to do so, it could not be more clear to me that it is essential that these two youngest children should be separately represented by a guardian on both these applications.
 I have already indicated the profound nature of the applications. The local authority, of course, have their own view. The local authority, no doubt with the best of intentions, are anxious to facilitate and drive through as soon as practicable the adoption of these children which has for a long time been intended and contemplated. However, they need to pause for thought and to recall that at the time of the making of the placement orders the expert, Dr. A., the children's own guardian, and also the judge himself all clearly and strongly considered that high priority must be given to long-term direct contact between all seven siblings. Indeed, so far as the judge himself was concerned, he was not prepared even to leave that dependent upon a "recital", as proposed by the guardian, and in the passages at paragraphs 159 and 164 that I have already quoted, he himself was insistent that there should be a formal order to that effect. So although the local authority, perhaps very understandably, seek to drive through these adoptions without any provision for contact, there is clearly room for a strong alternative view. Realistically that can only be fully explored and advocated in this case by an independent guardian acting for the two youngest children. The parents themselves are also resistant to the proposed application, but as each is in prison and has no contact at all with any of their children, they are clearly very disadvantaged in mounting an informed and child-focused resistance to the application.
 Family Procedure Rule 16.3(4) provides that:
"When appointing a children's guardian the court will consider the appointment of anyone who has previously acted as a children's guardian of the same child."
 As I understand it, at the time of the previous proceedings before Charles J in 2012 a single CAFCASS guardian, namely Miss Catherine Devereux-Evans, acted as children's guardian for all seven children. Patently there is now obvious potential for conflict between the best interests of the five eldest children on the one hand, and of the two youngest children on the other hand. I accordingly propose to appoint Miss Catherine Devereux-Evans as children's guardian once again for the two youngest children, if she is available and has the capacity in her workload to deal with this case. If she is no longer available or is already overloaded, then necessarily the local CAFCASS office will have to identify and allocate an alternative guardian for the two youngest children.
 I turn next to the position of the five eldest children. It is patent that this application, in particular in relation to contact, directly engages and impacts upon both the rights and the welfare of all of them. They are currently regularly seeing their youngest two siblings. There is patently, therefore, a "family life" between all seven of them, and the rights of the five eldest children under Article 8 of the European Convention on Human Rights are patently engaged by this case (as also are the rights under Article 8 of the two youngest children). Not only are their rights under that Convention engaged, but their own individual welfare is clearly directly affected. I refer again to what the social worker herself said in paragraph 44 of her second statement. So what this local authority, who have the care of all these children (in the case of the youngest under the placement order), propose is a course which will cause grief, pain and loss to five out of the seven children for whom they are responsible.
 I am frankly astonished that this application reached the stage of being listed for final hearing today (and my impression is that the local authority arrived confidently expecting that it would be finally resolved today) without consideration being given to the patent need for the five eldest children to be separately represented, not only separately from the local authority but separately also from the two youngest children, for there may well be conflict between the best interests, viewed in the round, of the five on the one hand and of the two on the other hand. Family Procedure Rule 16.2 provides that "The court may make a child a party to proceedings if it considers it is in the best interest of the child to do so." It is absolutely obvious to me that it is in the best interests of these five eldest children, and indeed quite essential to the protection of their interests, that they should now be made parties to these proceedings and the present application.
 Family Procedure Rule 16.4 goes on to provide that the court must appoint a children's guardian for a child who is the subject of proceedings if the court has made the child a party in accordance with rule 16.2. These five eldest children are the subject of these proceedings because contact is a two-way process. By seeking to terminate all contact between the two youngest children and the five eldest children, the local authority are no less seeking to terminate all contact between the five eldest children and the two youngest children. So, patently, those five eldest children need to be represented by a guardian and it must be a completely separate guardian from that who represents the two youngest children.
 In view of the complexity of this case and indeed the legal issues which may arise upon it, I propose, pursuant to rule 16.4, to order the CAFCASS High Court team to allocate a children's guardian from that team to represent the five eldest children in these proceedings. I have indeed today already personally communicated with CAFCASS Legal, and subsequently received a communication from the CAFCASS High Court team, which gives me considerable confidence that the CAFCASS High Court team will indeed allocate a children's guardian for those children. However, since the CAFCASS High Court team has had no notice of this, apart from a telephone call from me today, I will give them liberty to apply to vary that part of the proposed order.
 I am deeply conscious of the worrying delay in this case. I am well aware that it is now almost two years since Charles J made the placement orders in relation to the two youngest children. I do not seek avoidably to prolong for a moment longer than is necessary the resolution of this application, nor, if appropriate, the ultimate adoption of the two youngest children. A number of issues will clearly now arise as to the scope of, and necessary timetable for, the inquiries that these two guardians will have to make. As far as the guardian for the five eldest children is concerned, he or she will be approaching the case from an absolute standing start. As I have already mentioned, those children currently live in no less than three different foster homes. So the whole process of both guardians seeing the children concerned, having appropriate conversations with them (in particular in relation to the elder of the eldest five children), and probably observing contact between all seven children so as to be able to assess its quality and value to the children, will all inevitably take time.
 I intend, therefore, to fix a further hearing specifically for directions only in just over three weeks' time on Friday 11th April 2014. I mention that I would have preferred to have given to the guardians a few days longer and to fix the hearing in the following week, roughly a month from today. However, that week happens to be the last three days of the legal term before the Easter break and is already over-full with work. So, by these words, I apologise to the guardians for the burden I place them under by having to prepare themselves for a directions hearing in only about three weeks from their hearing about this order. I stress that I do not anticipate or expect either guardian necessarily to have seen any of the children, nor to have prepared any kind of assessment or report for that hearing on Friday 11th April 2014. The whole purpose and point of the hearing is so that both guardians can attend, together, of course, with the other parties and their representatives, and the court can work out collectively and collaboratively a realistic timetable for the scope of the work that is now required, and of course then identify a date for final hearing and a date by which the guardians will have to have reported.
 As I have already mentioned, both parents are currently in prison serving sentences after convictions of ill-treatment of all or some of their children. As I have also mentioned already, neither parent is entitled to any contact with their children. But of course they preserve their rights as parents. As I understand it, production orders were made in good time for the prisons where they are respectively detained to bring both parents to court for this hearing here today. Neither has attended in person. I have been informed (albeit as a result of telephone calls) that each parent has resolutely refused to allow themselves to be brought here today. In the case of the father, that has had the effect that he is neither present nor represented. In the case of the mother, she is represented today by a firm of solicitors, Sam Solicitors, and in turn counsel, Miss Jessica Atkinson, instructed by the solicitors.
 It is only very recently indeed that Sam Solicitors have come on the record as acting on behalf of the mother, but at all events they are now firmly on the record and their contact details are now well-known both to the court and to the London Borough of Haringey. I confidently assume, therefore, that solicitors and counsel will be present again on behalf of the mother and fully instructed by their client at the next directions hearing. Of course, each parent has their own right as parents personally to be present at a significant hearing in relation to their children. But it would be regrettable if there was a repetition of the events of today, when the respective prisons have made full and very expensive arrangements to bring them each here, and they have then declined to come. I will accordingly provide that "If either parent wishes personally to attend the said hearing on 11th April 2014 he or she may apply in good time before the hearing for a production order." I stress to them by the terms of that order and by these words that the onus is upon them. If either of them wishes to come they are very welcome to do so, but they must make the arrangements, including obtaining from the court a production order. If either of them does not themselves seek a production order, then of course they will not be produced. But my order will make very plain that if either parent does not apply for a production order and does not attend and/or is not represented at the hearing, it will nevertheless proceed in the absence of that parent.
 The last body to which I should now make reference is the Nigerian High Commission in London. As I have said, the parents of these children are Nigerian. I will at the moment readily assume that all seven children have, or are entitled to, Nigerian citizenship. I have been told that the five eldest children have also now been granted British citizenship, so those five children have the advantage of being dual citizens of both the United Kingdom and Nigeria. However, the two youngest children have not been granted British citizenship (perhaps because it has not been applied for) and my present understanding and assumption is that they are citizens of Nigeria and of Nigeria alone. It appears that for some time the Nigeria High Commission here in London has been actively involved in consideration of this whole Nigerian family. Indeed, a representative or representatives of the Consular section of the Nigerian High Commission have paid a number of visits to each of the father and mother in their respective prisons.
 By a letter dated 7th March 2014 Mr F. N. Enya, Senior Counsel (Consular, Education and Welfare) at the Nigerian High Commission and on behalf of the High Commissioner, wrote as follows "... I am directed to inform that the Mission is requesting to be represented by the undersigned [viz. Mr Enya] at the adoption case proceedings scheduled for 19th March 2014..." Pursuant to that letter and as anticipated by it, Mr Enya has indeed attended throughout this hearing. I am in any event sitting throughout in public, but even if I was not, I would have made Mr Enya very welcome indeed as soon as I was informed that he was present and as to his capacity. Mr Enya has told me that this case has been debated on the floor of the Nigerian National Assembly, which I understand to be the equivalent in Nigeria of what we call Parliament. He has told me that there have been diplomatic exchanges between the Nigerian High Commission and the Foreign and Commonwealth Office here in London. As I understand it, the thrust of the exchanges, and the position generally of the Nigerian High Commission, is that if these children cannot live with either of their parents (which has effectively already been completely ruled out by the court), then the State of Nigeria would seek the movement or return of all, or at any rate some, of the children from the United Kingdom to Nigeria so as to live there under arrangements made there by the Nigerian state. I understood from Mr Enya this morning that it may be that they could live with relations there, or it may be that other arrangements could be made for their care. At all events, it is the view of the Nigerian authorities that these Nigerian children should live in Nigeria rather than in England and Wales, if they cannot live with their parents wherever their parents freely choose to live.
 It was a privilege to hear from Mr Enya this morning who, if I may say so, addressed the court with the utmost courtesy and clarity. I have endeavoured to explain to him that as all these children are currently habitually resident in England and Wales, and as they are all the subject of orders made by the High Court in public law proceedings, even the Foreign and Commonwealth Office and Her Majesty's Secretary of State for Foreign Affairs himself only has limited power over them. Of course, the five eldest children, being British, could not under any circumstances be removed or deported by the Foreign Secretary, nor indeed by the Home Secretary, from England and Wales. It may be theoretically possible that the two youngest children could be removed by the Secretary of State for the Home Department, but it would be extremely unlikely, on the facts and in the circumstances of this case, that she would seek to do so. But neither of those great officers of state nor their departments can effectively bring about the movement of all or any of these children from England and Wales to Nigeria. The only way in which that could even conceivably be brought about would be as a result of orders made by this court. There is no formal application of any kind made to this court, and I do not seek or intend to give any encouragement whatsoever to any such application being made. Nevertheless, out of respect for the Nigerian High Commission generally and Mr Enya and his attendance here today, I will provide in my order that "if the Nigerian High Commission wish to make any formal application in relation to any of the said children they may issue any application in prescribed form and on payment of any prescribed fee as they may be advised." Mr Enya does need to appreciate that there is not the slightest prospect of any of these children being moved from England to Nigeria on the basis of any informal application, whether made by him or anyone else.
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