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Family Law

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22 OCT 2014

Re D [2014] EWHC 3388 (Fam)

Re D [2014] EWHC 3388 (Fam)
(Family Division, Mostyn J, 18 September 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 47]

Public Law Children – Application for care and placement orders – 2-year-old child from Czech Republic lived with foster carers for majority of life – Whether adoption was in the child’s best interests – Whether he should be placed in the Czech Republic

Following the Court of Appeal decision overturning Mostyn’s previous decision that the courts in the Czech Republic would be better placed to hear the case subject to an Art 15, BIIR transfer request, Mostyn J was left to determine the future plan for the now 2-year-old child.

The local authority care plan was for care and placement orders to be made with a view to the child being placed for adoption. The parents sought the child’s return to their care in the Czech Republic. That plan was supported by the social services in the Czech Republic. There was also the option of the child remaining with the current foster carers under a special guardianship order or for the child to be placed in foster care in the Czech Republic.

The judge found that the proposal for care proceedings to be dismissed carried too many risks and was not in the child’s best interests. A special guardianship order in favour of the current foster carers was the most appropriate option. It would ensure the status quo where the child had formed vital relationships with his carers and would provide the necessary degree of permanence without irrevocably severing parental ties. Direct contact with the mother could continue to ensure the child’s Czech Roman heritage was not lost.

Mostyn J highlighted the fact that only 3 of the 28 European Union countries sanctioned non-consensual adoption. If proceedings had taken place in the Czech Republic adoption would not have been an adoption and that factor had played a prominent part in the judgment.

Neutral Citation Number: [2014] EWHC 3388 (Fam)
Case No: OG12C01703

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
The Strand
London

Date: Thursday, 18th September 2014

Before :

THE HONOURABLE MR. JUSTICE MOSTYN

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In the matter of: D (A Child)

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Mrs. R. Rowley (instructed by Nottingham City Council for the Applicant
Mr. W. Metaxa (instructed by (Bhatia Best Solicitors)) for the Respondent Mother Mr. S. Veitch (instructed by Tallants, Mansfield) for the Guardian/Child

Hearing dates: 15 – 18 September 2014

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JUDGMENT

MR. JUSTICE MOSTYN
:

[1] I am concerned with the future of ED, born on 27 June 2012, and who is therefore aged two and a quarter. If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance.

[2] This challenging dilemma with which I am faced is reflected by the choices I am presented with which are as follows. First, the case of the Local Authority supported by the children’s guardian is that I should make a care order and a placement for adoption order. This is what the care plan says. The care plan, as written, does not contemplate placement with the current foster parents where ED has been living for about two years, for almost all of his life. The relevant part of the care plan is found in section D at page 26 at paragraphs 4.1 and 4.2 which read in part as follows: “It is proposed that ED is placed for adoption in the UK. Every attempt would be made for the placement to reflect and promote ED’s Czech Roma heritage. ED is currently placed in a foster home that meets his needs. As soon as a placement order is made a search would start for an adoptive home. This would be time limited in terms of an exact cultural match. The Local Authority has placed a time limit of three months in order to prevent delay. If no exact match has been found within that time then the search would be widened to include families who are not an exact cultural match but would be willing actively to promote his Czech Roma heritage in every possible way. If, after a further three months, no family has been identified ED would remain with his current carers.”

[3] It can therefore be seen that, according to the care plan, for ED to remain with his current carers would be only the default position if no suitable other adopters could be found. If other suitable adopters could be found it is realistic to assume that they would not be in a position to promote his Czech Roma ethnicity. Indeed a document that I have seen demonstrates that in the whole of England and Wales on the adoption register there is one single Czech couple offering to stand as adopters. Some mention has been made during the case of the possibility of adoption by an English family, I think, who have previously adopted a Roma boy but scarcely any details of that were given to me and I believe that this again was confined to one single couple.

[4] At the other extreme it is the parents’ proposal that the care proceedings be dismissed and ED be returned to them to live with them in the Czech Republic in the town of Novy Jiĉin with ED’s full sister, LD, (born 13 September 2013). This plan is supported by the Social Services department in Novy Jiĉin and by the family’s psychotherapist there Leona Hozova. The social worker from Novy Jiĉin, Pavla Polakova, and the psychotherapist, Leona Hozova, are confident that with formal supervision any risks to ED, and for that matter to baby LD, can be averted.

[5] In between these two poles are two further choices which I outline as follows. First, in the report of the guardian it is stated that the current foster parents, who are aged 55 and 59, would, notwithstanding their previous significations, be very happy to take on the permanent care of ED. Unsettlingly, at least from my perspective, these foster parents have been described as elderly. It was thought that they had decided to retire from fostering, they having seen many children successfully through to adulthood, some of whom they have adopted and in respect of some of whom they have stood as special guardians. However, in the guardian’s report at E52, paragraph 4 it says this:

“The placement is very stable and can be ongoing. The carers wish to continue to care for ED and are willing to offer him permanent care if he is to remain separate from his parents and is able to stay in the UK. This is a change from last year when I saw ED with them but clearly they have become very attached to him.”

[6] Special guardianship of course endows the guardian with super-parental responsibility but does not formally extinguish the parental responsibility of the parents which lies fallow in a sort of symbolic state. It does allow an application to be made by the parents for contact, as indeed does an adoption order, although an order for contact post-adoption is a rare creature indeed. The foster parents here are well aware of what special guardianship entails. The advantage of a special guardianship order in favour of the foster parents is the continuity of the placement in circumstances where, as I have just said, for almost all of his life ED has been with them and he loves them and they love him and where it is an accepted tenet of psychology that within the first two years of a child’s life most of his or her vital attachments are formed. And so there is a great advantage in the perpetuation of the status quo. There is also the fact that under a special guardianship order the parental link and the connection to ED’s ethnicity would not be broken. The mother has had contact in the current placement and I see no reason, if this choice were adopted, why that should not continue and indeed if it were to continue that contact could expand to involve baby LD also, so that ED can be aware of and, to a limited extent, forge a relationship with his full sibling. It is noteworthy, in my judgment, that a comparable arrangement was made and approved by the guardian and formalised and approved by me in relation to ED’s half-siblings, B and K.

[7] The second intermediate choice is that ED is placed in foster care in the Czech Republic. This has only lately come to the fore. In a letter dated 23 October 2013 which is at section F, page 35, the Office for International Legal Protection of Children in Brno in the Czech Republic, which is the central authority for the Czech Republic, stated at paragraph 3(b) as follows: “The immediate care arrangements would depend on the court decision. The preferable way would be to place ED to foster care but according to a low number of the foster here in the Czech Republic it is expectable that ED would be placed to the institutional care. The contact arrangements of the minor with his parents would depend on the consideration of the court.”

[8] Further, the independent social worker, Eva Gregory, got the idea, which seems to have gained some traction, that a placement with foster parents in the Czech Republic is achievable only with parental consent. In her report at section E, page 48, at paragraph 5.8 she said this:

“It is difficult to see how ED can be placed in a setting away from his parents in the Czech Republic unless this is done with parental consent and knowing the particular circumstances it is unlikely that such a step will be achieved with the parental agreement. The mother mentions that she would be willing for ED to be fostered in the Czech Republic but in practice it is difficult to achieve and maintain this. ED clearly needs a placement where his security is promoted and where he feels he can belong on a permanent basis. In view of the parents’ wish that ED live with them as part of a family any other substitute will not meet their wishes and aspirations.”

[9] It is now plain that both of these assertions, namely the assertion by the central authority, and the belief of Eva Gregory are wrong. I have been told, and this has not been challenged, by the two Czech witnesses, the social worker, Pavla Polakova and the psychotherapist, Leona Hozova, that there are, in the Czech Republic, plenty of foster parents available who are Slavic couples with the experience of bringing up Roma children. Further, it has been stated to me that a placement in with foster parents is not subject to any kind parental consent or veto. That has been confirmed to me by a Czech judge, Magistrate Kanova, a magistrate who sits in Novy Jiĉin, as a correct statement of Czech law, she having sat in on the evidence given by video link from Brno which I will elaborate on later. I will also deal later with the necessary legal mechanics if I go down this route.

[10] The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

[11] The later developments in the story are recounted in my second judgment dated 18 December 2013 which is at section A, page 150. I recounted how, by Christmas 2012, so that is very shortly after my first judgment, the mother had rekindled her relationship with the father, if it had ever ended; became pregnant by him again; and as a result baby LD was born, as I have said, on 13 September 2013. Since Christmas 2012 mainly and since the birth of baby LD fully the mother and father have lived together in Novy Jiĉin. When pregnant with baby LD the mother was in England from time to time for contact and no doubt in order to meet with her solicitors. It emerged in the present hearing that in about April 2013, whilst the mother was in England, the father cheated on her, as she put it in her oral evidence. It subsequently emerged from the father when he gave evidence by video link that he had been consorting with a 19 year old prostitute. To say that this cast doubt on his assertions of reformation, repentance and rehabilitation would be an understatement. His own explanation for this conduct was merely, “She was away and I am a man.”

[12] The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.

[13] It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.

[14] In my defence I would say this:

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal's perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

[15] The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

[16] In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

[17] I now turn to remit of this hearing as prescribed for me by Lord Justice Ryder. In paragraph 30 of his judgment he said this:

“The court that determines the welfare of ED will have to hear evidence about the relative differences between the parents’ care of ED and their care of their new baby and, for example, whether the support available to them since they returned to the Czech Republic has been decisive in that any change that there has been because of the availability of that support might be a key issue in any decision about the realistic welfare options for ED.”

In paragraph 31 he said this:

“The welfare hearing will involve consideration of the positions of both mother and father which have changed over time and the factual baseline already determined against which (in the absence of further evidence) the new circumstances fall to be considered.”

I have to look, therefore, pursuant to the direction I have been given, very carefully to see if, with professional support, there have been changes or a movement to change within the parents, and in particular in the father, which, with support, might allow for the possibility of orders that preserve the parental link and leave alive the possibility of rehabilitation. In addition I am told and directed that I must bear in mind, when conducting the best interests exercise, the benchmark of exceptionality to which I have already referred. I have to be satisfied before making care and placement orders that nothing else will do. Not that there is something else equally good, but that nothing else will do.

[18] I now turn to the evidence that came before me during this four day hearing. The first witness was Janet Kavanagh, senior social worker employed by the Local Authority. She had made a number of statements, four statements, which I have read carefully and she gave oral evidence. In her oral evidence she pointed out, correctly in my judgment, that within the professional involvement with the family, particularly with the father, by the professionals in the Czech Republic there had been little, if any, recognition of past conduct as found by me or a willingness to address it. She felt that the investigations and assessments made by her Czech counterparts were superficial and very much based on the here and now. In fact she told me that if it were not for the concerns of Nottingham City Council it is hard to see, in her judgment, how her counterparts in the Czech Republic would have held any concerns at all concerning the upbringing of baby LD in Novy Jiĉin. She accepted that she had no concerns in respect of the mother’s parenting. It was within the dynamic of her relationship with the father, who is 20 years older than mother, that her concerns arose. She accepted that there was no evidence of domestic violence or other dysfunction and that by all standard measurements baby LD was thriving.

[19] The mother then gave oral evidence. I agree with the observation made by Mrs Moss who gave evidence on behalf of the guardian that she presented in a flat and almost depressed way. She had the hallmarks of a damaged person which is hardly surprising given the circumstances of the formation of her relationship with the father and the consequences of it, being the loss or near loss of almost all her vital relationships, namely with her mother, her half-siblings, B and K, and her son, ED. She spoke of her commitment to work with the Czech social worker and the psychotherapist. She accepted the shameful circumstances of the formation of her relationship with the father. She revealed without prompting during her evidence in chief his infidelity - but she did not reveal that it was with a prostitute - and said that if that if that recurred she would leave him, just as she would if he harmed her or baby LD. She acknowledged, but only up to a point, my findings of domestic violence meted out to her mother although she did not accept the scale or the frequency of the violence as found by me. For example she rejected my findings in paragraphs 15 and 16 of my fact finding judgment about the abduction of Daniella to the woods and the shearing of her hair.

[20] The next witness was the independent social worker, Eva Gregory. She was a highly intelligent and articulate witness but was hampered by her limited contact with the mother and her total absence of contact with the father. She produced three reports which I read carefully. Her principal theme in her evidence was that there should have been more collaborative communication between the two sets of Social Services. In her judgment far more could have been revealed by direct communication and I would say parenthetically that this was reinforced by Mr Hradilek, the chef de mission of the Czech Embassy, who has attended this hearing throughout, in his remarks to me at the conclusion of the hearing. Eva Gregory concluded that there was no evidence that whilst this couple had been living in the Czech Republic and since the birth of baby LD things had gone wrong, although in this regard she overlooked the father’s liaison with the 19 year old prostitute. She was sure that some things had changed and that some had improved and she believed that if ED was returned to the Czech Republic the Czech authorities would be there to take action to protect him. She returned to the witness box after Leona Hozova had given evidence and she accepted under cross-examination that the father had a long way to go in recognising and addressing his past.

[21] The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

“From a position of a psychotherapist working with the family, I can respond within my competence as follows: Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children. At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child. As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother. In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions. Recommendation: I recommend ED to be returned to his parents. If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents. I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care. This opinion has been given on request of the High Court in London, England.”

[22] In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.

[23] Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined: “For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.” She accepted that the relationship between the mother and father was not a partnership of equals. She said that she was working on getting them, but principally him, to confront his past conduct and she estimated that it would take at least six to twelve months to get somewhere completely different.

[24] Pavla Polakova made a short statement to be found at section C, page 189. It is so short that again I can quote it in full:

“1. I can only comment to the period of time since the father returned back to the Czech Republic, more precisely from the time when the Authority for Social and Legal Child Protection of Municipal Authority Novy Jiĉin started dealing with David’s minor children: i.e. since the authority was informed about the case by the Office for International Legal Protection of Children in Brno, which was in January 2013. Subsequently the mother of minors Ms M returned back to the Czech Republic, where she gave birth to minor LD on 13.09.2013. According to the fact finding, which was found since then by the Authority for Social and Legal Protection, the father of the minors Mr Stefan D is living in a proper way of life, is properly looking after his family i.e. the mother of minors Ms M and their daughter LD (ED’s sister). The Authority for Social and Legal Child Protection does not have any objections to his care. The father is looking after the daughter together with her mother, at the times when the mother of minors is in England to take care of matter of minor ED, he looks after the daughter on his own. By questioning the police, the Authority for Social and Legal Protection verified that there is no criminal conviction against the father of the minors, we do not have any official knowledge about the father leading dishonest life. In relation to minor daughter LD, also potentially in relation to son ED as well, the Authority for Social and Legal Child Protection does not find the father’s upbringing of the children as dangerous.

2. Answering this question is more in competence of the professional worker – psychologist. From our position as the Authority for Social and Legal Child Protection who is in long term contact with the mother of minors ED and LD, we can state, that the mother of minors appear to be a loving and caring mother in relation to minor LD, who is able to react to the needs of her children. Therefore we assume that she is capable to recognise any danger and if necessary to protect both minors LD and ED.

3. Bearing in mind our up to date experience we are of the opinion that ED, as well as his sister LD, would not be facing danger of serious harm if ED was returned to his parents. With regard to concerns of the English part, the Authority for Social and Legal Child Protection will use legal means to eliminate possible risks – giving supervision regarding upbringing of minors ED and LD and giving obligation to the parents to make use of the help of professional bodies – family psychotherapy and cooperation of the Authority for Social and Legal Child Protection.

4. Based on the above we are of the opinion that the minor should be returned back to his parents, where his needs would be best fulfilled. In case that the English court would come to opposite conclusion, we are of the opinion, that he should be placed in the Czech Republic, where a suitable foster family would be found in order to keep contact between ED, parents and sister LD.”

[25] In paragraph 1 set out above it is said in the penultimate sentence that there is no criminal conviction against the father. During the case that was established to be a false translation and should have read that there is no criminal proceeding against the father.

[26] Pavla Polakova confirmed that she had not directly discussed my judgment with the mother and the father which, given the nature and scope of my findings, was a surprising revelation. She confirmed, however, that she had read the judgment and that she took the risks identified by me therein seriously. She did not underestimate them. She had stated that she had received 100% co-operation from the parents in her dealings with them. She confirmed that LD was regularly monitored and in her judgment was safe. She did say significantly, although she did not expand as to the extent of the admission, that the father had admitted some domestic violence against his wife, Daniella D. She concluded by saying that she had taken all the risks into account and was taking them seriously.

[27] The father then gave evidence on the video link. To that point he had not engaged at all in the proceedings and indeed until he appeared on the video link nobody had anything other than a faint hope that he would give evidence at all. However, he did give evidence and exposed himself to cross-examination. He had not filed a statement although I was given a copy of a letter which he had sent to me, but which had never arrived, via Pavla Polakova, but that letter scarcely contains any kind of material evidence.

[28] In his oral evidence whilst he accepted his criminal convictions and indeed his seduction of the mother whilst plying her with drugs he emphatically rejected my findings of domestic violence. He stated that they were just not true and were based on false evidence. In a revealing moment he disclosed that he had not even seen my judgment and so his rejection of my finding was based on what other people had told him what they are. He did admit consorting with this prostitute and he made the statement to which I have referred in justification for that, “I am here on my own and I am a man.” However, notwithstanding that dubious conduct he asserted he was a changed man and that he was starting afresh. He told me that if ED could not be returned to him but was placed with foster parents in the Czech Republic he would be mad with happiness.

[29] Mrs Moss then gave evidence on behalf of the guardian, Mr Cork, who is unavailable. There have been three guardian’s reports, all of which are in section E, all of which I have read carefully. Mrs Moss was a very impressive witness indeed. She was articulate and highly intelligent. She portrayed the mother accurately in my view in these terms:

“She is a damaged young woman. She seems to take everything at face value. I do question her ability to act independently. It is really quite sad when she has lost so much. Her mother, her half-siblings and her relationship with ED has been cut short. She is now left with only the father and baby LD.”

She went on to say about the father that there is no basis for saying that he has changed where he has not accepted his responsibility for the domestic violence as found. Also he has scarcely accepted responsibility for abusing his stepdaughter. He has not acknowledged how many boundaries he has breached.

[30] She then turned to the therapeutic process being conducted by Leona Hozova. She said that she was really quite concerned by the way that was being done and it seemed to normalise the relationship between the mother and the father and also to normalise the domestic abuse which had happened. Further, it was clear to her at least that Leona Hozova had not been given full information. She stated: “If it is about reducing risk and addressing issues this is the wrong way to go about it.” She was asked about the issue of ED’s ethnicity and identity and she said in evidence, which I am not sure completely chimes with current thinking, that she did not think that identity was fixed, that things can happen to change it and there is a fluidity about it. However, I did agree with her when she said that if it were to be suggested that identity was as important as safety then she would not agree. She said in relation to ED that he is very securely attached to his current foster parents but she asserted that for children of that age they can easily transfer their attachments to another carer. Again I am not sure that that conforms with current thinking or indeed classic psychological thinking, if my memory of the pronouncements of Freud is anything to go by. She stated that a special guardianship order certainly had benefits but there would be with that arrangement a constant risk of the placement being undermined.

[31] I have been given, for the purposes of this case, a reading list and I confirm that I have read every document on it carefully.

[32] These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.

[33] I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated: “It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

[34] In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3).

Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

[35] The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.

[36] Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

[37] The merits and advantages of a special guardianship order in this case are these:

(1) There will be a continuance of the status quo in circumstances where ED has formed his singularly most vital relationships with the foster parents.

(2) It will provide, in my judgment, the necessary degree of permanence but without irrevocably breaking the parental link.

(3) Direct contact can continue with the mother and LD can be introduced to such contact so that ED’s Czech Roma heritage is not lost.

(4) There is a better prospect under a special guardianship order in my judgment of, and it may be some years in the future, a link being formed between ED and his siblings B and K, where a comparable arrangement is in place. In circumstances where the foster parents have signified that they would be content to receive a special guardianship order I simply cannot conclude that a care order coupled with a placement order would satisfy the test, “Nothing else will do.”

[38] If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

[39] Article 56 of Brussels II provides as follows:

“1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.

2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.

3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.

4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.”

[40] Article 56 was considered by the Court of Appeal in the decision of VB v Doncaster Metropolitan Borough Council [2012] EWCA Civ 978 where at paragraph 5 Sir Stephen Sedley stated:

“Our present concern is with paragraphs (1) and (2) only. These give no member state an entitlement to call for the placement of a child within its jurisdiction. Nor therefore do they eliminate or constrict the domestic court’s ordinary obligation to make its own judgment of where the child’s best interests lie. The sole purpose and effect of Article 56(1) and (2) are to require a court which is considering placing a child in institutional or foster care in another member state to consult any authority responsible for child placements in that member state and not to decide on any such placement without that authority’s consent. In short, it is to ensure that children at risk are not sent into a transnational void.”

[41] In this case the procedural steps that need to be taken under Article 56 vis-à-vis the Czech Republic have been set out in a letter from their central authority, the Office for International Legal Protection of Children, dated 15 September 2014. Under the heading, “Foster Care” it says this:

“A prospective foster carer suitable for the particular child has to be at first registered in records of the competent authorities of the Czech Republic and has to fulfil all conditions set up by law for fostering. The prospective foster parent has to be matched with the child successfully. A current social report should be provided regarding to this person as well. However, once such foster carer is found in the register of the authorities of the Czech Republic and is found suitable for the particular child the Office will inform the British court about this situation. Then the British court, if satisfied, will announce to the Office that it is going to issue the order in respect of the foster care. Consequently the office will provide its consent that is necessary for the proceedings under Article 56 of the Regulation. Finally, the British court will order the foster care in its decision in respect of the particular foster carer. The British court has to announce in its order to what particular foster carer the child is placed to the foster care and provide all details. Then the foster carer can pick up the child and travel with him on the basis of the order and will travel with the child to the Czech Republic where the child will later on be habitually resident.”

[42] If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.

[43] In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.

[44] I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

LATER (14 October 2014)

[45] On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the Council Regulation (EC) No 2201 /2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 hereby states its position regarding the case of the child mentioned above. According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care. As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland. Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter "ECHR") in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that "the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective 'necessity' for such an interference with the parents' right under Article 8 of the Convention to enjoy a family life with the child" (T v FINLAND, § 173)

Furthermore, the ECHR declared that

"although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective 'respect' for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited" (KUTZNER v. GERMANY. § 61). Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met. Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation. In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable. This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

[46] Although I did not refer to Article 8 of the ECHR, or to the cited cases of the Strasbourg court, or to the United Nations Convention on the Rights of the Child I confirm, as must be plain from a fair reading of my judgment, that the principles incorporated within those texts were very much at the forefront of my mind and were influential in forming the conclusions which I reached.

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