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Family Law

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25 MAR 2009

CARE: Re B-M (Care Orders: Risk) [2009] EWCA Civ 205

(Court of Appeal; Laws, Wall and Lawrence Collins LJJ; 16 March 2009)

The Pakistani aunt by marriage of the children came to live in the children's home, with the rest of the large extended family. The aunt spoke no English and could not read or write; she was kept virtually under house arrest by the family. The aunt's eldest child died at the age of 2, having been admitted to hospital with over 50 injuries, including serious head injuries, signs of chronic sexual abuse and a bite mark. The aunt's husband, the children's uncle, was convicted of murder; the aunt was acquitted of neglect and cruelty. On her release, she returned to live with the family, having nowhere else to go in England. The local authority tried to monitor the health and wellbeing of both the aunt and her youngest child, but found it difficult to meet with the aunt alone; it later emerged that the family was monitoring the aunt's conversations with anyone from outside the family. Eventually the aunt and her child ran away from the family home. The aunt had a number of bruises and told the authorities about systematic abuse by the family, particularly by the children's mother; safe accommodation was provided for her. The family tried to track the aunt and child down, and also began a campaign to discredit the aunt: the family sent threatening letters to themselves, claiming that the aunt had sent them; sent letters to the local authority; and threatened the aunt's family in Pakistan. Most significantly the mother made various serious allegations against the aunt, including that the aunt was trying to lure the children away, had left chocolate covered paracetamol for the children, and, ultimately, that the aunt had entered the family home to commit arson and assault. In fact, in pursuit of the 'honour' campaign against the aunt, the mother had set fire to the family home herself, had cut herself, and had poured white spirits on the clothes of one of the children, ordering the child to lie about the incident. The children were removed when the mother was arrested; eventually all three of the children were placed with a non-Muslim, non-Pakistani, foster family. The authority accepted that this was culturally and religiously inappropriate, but argued that it was necessary for the children's physical safety and to ensure that they would not be tracked down by the family. The foster family had to move six times in response to fears that the family had identified the current home. In the care proceedings, findings were made against the mother, who had pleaded guilty to arson and was serving a prison term, and against the family, but not against the father, and the local authority undertook an assessment of the father as carer for the children. However, the father was then seen with other men apparently searching for the children near the foster family's home. The judge concluded that the father had been involved in the family's attempt to track down the foster family for 'honour' reasons, and eventually made final care orders, authorising the authority to refuse contact to the parents, on the basis of a care plan that the children remain with the foster family. The father sought permission to appeal, arguing that, although the threshold criteria had been met, the children should be living with him, or that they should live with foster carers who were an appropriate cultural and religious match, with contact to the father, or that the judge should have made interim care orders only with directions for further assessments of the father and children.

Permission to appeal was refused. The judge's conclusions were impregnable; he had been fully entitled to give priority in the welfare equation to the physical safety of the children. It was important to note that the family law system had enabled a disadvantaged, non-English speaking and in many ways worthy parent, the father, to challenge the decisions of a local authority in relation to his children, with the benefit ofexpert evidence and skilful specialist child lawyers. The tolerance manifested in the English child care jurisprudence had enabled a full range of criticisms to be advanced and carefully considered on the father's behalf. The court wished to emphasise that the word honour should not be distorted to describe what was, in reality, sordid criminal behaviour. Arson, domestic violence and potential revenge likely to result in abduction or death were criminal acts, unrelated to any concept of honour, and would be treated as such by the English court.

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