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HA (A Child) (Care Proceedings: Final Order) [2015] EWHC 4172 (Fam)

Judgment in long-running care proceedings where a final order was made at the pre-trial review.

This is the final judgment in long-running care proceedings concerning a Lithuanian boy ('H') born 12th December 2006.

The brief facts are as follows. H and his mother ('the Mother') lived in Lithuania in 2013 before coming to the UK. The identity of H's biological father is unknown. The Mother's case was that, when she was pregnant with H, she married another man ('Mr A') with whom she lived for a number of years and who was registered as H's father. Despite allegations raised by the Mother that Mr A was violent to her during their relationship no findings in respect of that matter were made. After arriving in this country in March 2013, the Mother and H lived in accommodation in Bristol with a number of other Lithuanian adults. Although H was given a place at school, his attendance was erratic and school staff had growing concerns about the Mother's behaviour. On a number of occasions, the Mother was observed to be drunk when in charge of H. In November 2013 H was received into voluntary accommodation of the LA under section 20 of the Children Act.  He has not lived with his mother since that date. On 4th December 2013, the local authority started care proceedings. 

In March 2014 Mr Justice Baker made an order under Article 15 requesting the Lithuanian court to assume jurisdiction (reported as Re HA [2014] EWHC 1022 Fam).  Subsequently the Lithuanian court accepted jurisdiction but thereafter "closed the case". In November 2014, no further or substantive action having been taken by the Lithuanian authorities, the LA filed a further application for a care order. In May 2015 Mr Justice Baker concluded that the courts of England and Wales had jurisdiction in respect of the second care application and that jurisdiction should be exercised rather than a transfer to Lithuania (reported as Re HA (No.2) [2015] EWHC 1210 Fam). Directions were given, including (i) Mr A to inform the LA whether he was H's biological father and whether he was putting himself forward to care for H, (ii)  directions to facilitate the assessment of H's maternal aunt in Lithuania as a possible carer for him, (iii) filing of care plans and further evidence, and (iv) the listing of a pre-trial review.

On 7th September 2015 Mr Justice Baker presided at the pre-trial review. Significant developments had taken place by the time of the pre-trial review, including the breakdown of H's foster placement and subsequent placement in a new foster home. H had settled well, developed a good relationship with his carers and was better behaved at school. H was also having the benefit of monthly respite care with other foster carers with whom he had formed a good relationship.  His main foster carers were willing to offer him a long-term home. 

H had also had contact with his mother. The Mother's engagement throughout the proceedings was 'unpredictable and unreliable, not only in keeping in contact with H but also in keeping in contact with the professionals in this case, including her own solicitors.' (para 9)  In addition, Mr A had confirmed in writing that he is not H's biological father and did not wish to pursue placement of H with him. The Lithuanian authorities indicated that the maternal aunt "is not able to be assessed."  The LA had asked for clarification, without success, and the Mother had said that her sister had her own problems and had been in trouble with the authorities in Lithuania.

The LA, supported by the Guardian, invited the court to make a final order at the pre-trial review. The Mother, who did not attend despite repeated warnings that final orders could be made at the hearing, did not actively oppose the court making a final order today. Mr Justice Baker had set out in his last order that he could and would, if appropriate, make a final order.

In choosing to make a final care order Mr Justice Baker considered the delay in making decision about H's future and concluded that 'there is no reason for further delay.' (para 13)

His Lordship found that the threshold criteria were proved. Consideration was given to Article 8; section 1 of the Children Act and the relevant case law, in particular the decision of the Court of Appeal in Re B-S [2013] EWCA Civ 1146 and the associated authorities.

Consideration was given to the possible options for H:

(1) returning H to the care of his mother; (paras 21-22)

(2) finding an alternative placement for him in Lithuania; (paras 23-25) and

(3) long-term foster placement in this country. (para 26-27)

H expressed a clear wish to remain in his current placement (paras 18-20). The LA were of the view H remaining in his current placement was the best option for him. So too did the Guardian, thus:

"On balance, I consider that the proposed care plan for the foster placement in England provides the greatest prospect of safe, consistent care where his physical, emotional and educational needs will be met.  I consider that this plan is the most beneficial for H considering his needs now as a child but also as he grows up and reaches his majority." (para 30)

Mr Justice Baker adopted the 'careful and comprehensive analysis' of the LA social worker and Guardian, concluding that the best option for H is to remain in long-term foster care under a care order in this country with his current carers, with regular contact with his mother.

The LA application for a care order was granted and H's care plan approved. The LA was asked to ensure the following:

(1) that H receives therapy for the emotional harm he has suffered; and

(2) secondly, that, as he is living in this country away from the Lithuanian culture, careful thought needs to be provided as to how his cultural needs can be met.

Summary by Emily Ward, Barrister, Broadway House Chambers
_________________________

IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: BS14C01135
Neutral Citation Number: [2015] EWHC 4172 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF HA (A CHILD) (CARE PROCEEDINGS: FINAL ORDER)

Royal Courts of Justice
Strand
London WC2A 2LL

Monday, 7th September 2015


Before:

MR JUSTICE BAKER

- - - - - -

Between :

BRISTOL CITY COUNCIL
 Applicant
- and - 
AA (1)
HA (by his children's guardian) (2)
 Respondents
- - - - - -

Transcribed by Cater Walsh Reporting Limited
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- - - - - -

MR STUART FULLER appeared on behalf of the APPLICANT LOCAL AUTHORITY
MR WILLIAM SEAGRIM appeared on behalf of the FIRST RESPONDENT MOTHER
MISS SIOBHAN BOYLE (Solicitor) appeared on behalf of the SECOND RESPONDENT CHILD, by his CHILDREN'S GUARDIAN
- - - - - -

JUDGMENT
MR JUSTICE BAKER:

1. This is the final judgment in long-running care proceedings concerning a Lithuanian boy (hereafter referred to as "H") born 12th December 2006 and therefore now aged eight and a half. 

2. I previously delivered two judgments in these proceedings on issues concerning jurisdiction - in particular the issue of whether or not to transfer the proceedings to Lithuania under Article 15 of Brussels II Revised - the first, in March 2014, reported as Re HA [2014] EWHC 1022 Fam, and the second on 8th May 2015, reported as Re HA (No.2) [2015] EWHC 1210 Fam.

3. The background to the case is set out in those judgments and need not be recited in any detail here.  In short, H and his mother lived in Lithuania in 2013 before coming to this country.  The identity of H's biological father is unknown.  His mother's case is that, when she was pregnant with H, she married another man (hereafter referred to as "Mr A"), with whom she lived for a number of years and who was registered as H's father.  The mother has said in the course of these proceedings that Mr A was violent to her during their relationship.  That allegation has not been proved and I make no findings in respect of that matter.

4. After arriving in this country in March 2013, the mother and H lived in accommodation in Bristol with a number of other Lithuanian adults.  The local authority suspects (although again this has not been proved) that they were the victims of people trafficking.  Although H was given a place at school, his attendance was erratic and school staff had growing concerns about the mother's behaviour.  On a number of occasions, she was observed to be drunk when in charge of H.

5. In November 2013, following a further such incident, H was received into voluntary accommodation of the local authority under section 20 of the Children Act.  He has not lived with his mother since that date.

6. On 4th December 2013, the local authority started care proceedings.  There then followed a tortuous process in which the issue of jurisdiction was considered, as described in the two earlier judgments cited above.  It is unnecessary to recite the history of those proceedings further, save to say that:

(i) in March 2014, I made an order under Article 15 requesting the Lithuanian court to assume jurisdiction;

(ii) subsequently the Lithuanian court did indeed accept jurisdiction but thereafter "closed the case";

(iii) no further or substantive action having been taken by the Lithuanian authorities, the local authority in this country filed a further application for a care order in November 2014 in respect of H who had remained in foster care in this country;

(iv) for reasons spelled out in the judgment delivered in May 2015, I concluded that this court had jurisdiction in respect of the second care application and,  furthermore, that this court should exercise that jurisdiction rather than transfer the proceedings to Lithuania.

7. I then gave further directions for the future conduct of these proceedings including:

(i) directing Mr A to inform the local authority whether he was H's biological father and whether he was putting himself forward to care for H;

(ii) directions to facilitate the assessment of H's maternal aunt in Lithuania as a possible carer for him;

(iii) directions for the filing of care plans and further evidence; and

(iv) listed the matter for a pre-trial review before me today, 7th September 2015.

8. Since that hearing the following significant developments have occurred.  First, following the breakdown of H's previous foster placement, as described in paragraph 33 of the May 2015 judgment, H has been placed in another foster home where he has settled well.  Having been excluded from school earlier for misbehaviour, there has been no repeat of that type of conduct.  In his new placement, he has established good relationships with his carers and with an older child in the home.  The social worker describes it as a warm, loving environment with very clear boundaries.  H is also having the benefit of monthly respite care with other foster carers with whom he has formed a good relationship.  His main foster carers are now willing to offer him a long-term home.  Because of the location of the new placement, H has now moved school.  Although he has made considerable progress educationally, he is still behind his peers in a number of respects.

9. Secondly, H has had contact with his mother on a number of occasions.  Prior to May, the mother's attendance at contact had been very sporadic.  Subsequently, her attendance had improved somewhat, although she continues to miss some visits including the most recent planned visit.  Throughout these proceedings, the mother has been unpredictable and unreliable, not only in keeping in contact with H but also in keeping in contact with the professionals in this case, including her own solicitors.  She has not attended court today despite knowing that final orders could be made at this hearing and despite repeated warnings and advice from her solicitors and social worker.

10. Thirdly, Mr A has written stating that he is not the biological father of H and, on reflection, has decided that he does not wish to pursue an application to have him placed in his care.

11. Fourthly, the Lithuanian authorities were asked to carry out an assessment of H's maternal aunt.  Subsequently, however, they indicated that "she is not able to be assessed."  The local authority has asked for (but not yet received any) clarification of what is meant by this.  The mother has said, however, that her sister has her own problems and has been in trouble with the authorities in that country, although that is apparently not accepted by the aunt herself.  The social worker has himself tried to contact the aunt, without success. 

12. The local authority, supported by the child's guardian, invite the court to make a final order today at this PTR hearing.  The mother has not attended, as I have said.  Mr Seagram, who has represented her throughout with great professionalism, is without recent instructions but does not actively oppose the court making a final order today, as I indicated I could and would, if appropriate, in the last court order.

13. In my judgment, these proceedings have gone on for long enough already.  Delay in making decisions about children's future is always inimical be to their welfare and, in my judgment, there is no reason for further delay in this case.

14. The first question is whether the local authority has proved the threshold criteria for making a care order.  Section 31(2) of the Children Act provides that:

"A court may only make a care order or supervision order if it is satisfied -

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to - 

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control."

15. In this case, I am satisfied that the mother's lifestyle and erratic conduct has led to H experiencing significant physical and emotional neglect in her care, both before they arrived in this country and afterwards when she lived in inadequate accommodation associating with criminal groups and drinking to excess.  Since H was received into care, the mother's attendance at contact has been, as I have said, erratic, showing an inability to give priority to the needs of her son.  I find that, at all material times, from the time when H first came into the care of local authority under the voluntary arrangement and at all points during these proceedings including when the second proceedings were started, the mother's behaviour exposed H to a likelihood of significant emotional harm and neglect.  The threshold criteria under section 31(2) are plainly satisfied.

16. I therefore turn to consider what order should be made.  Here I have regard to Article 8 of the European Convention on Human Rights, of the child's right to respect for family life; to section 1 of the Children Act and in particular to the principle in subsection (1) that the child's welfare is the paramount consideration, and to the list of relevant factors in the welfare checklist in subsection (3).  I also have regard to the relevant case law, in particular the decision of the Court of Appeal in Re B-S [2013] EWCA Civ 1146 and the associated authorities.

17. Children should wherever possible be brought up within their natural family, and professionals and the court must carefully scrutinise all realistic options before making a final decision as to the future care of any child entrusted to its responsibility.  In this case, the social worker and the guardian have carried out a commendable and comprehensive analysis of the various options.  The possible options are: (1) returning H to the care of his mother; (2) finding an alternative placement for him in Lithuania; and (3) long-term foster placement in this country.  No party has proposed adoption as being a solution in this case. 

18. It is right that I should start with H's own wishes and feelings.  These are set out in a note sent to me, via the guardian, in which he tells me: "I want to live here simple", meaning with his current foster carers.  He continues:

"I want to live here for ages but I don't know how long, but it might be forever unless somebody else wanted me.  Not my mum, she can't have me, only at contact, because my mum is not going to look after me properly.  I know the reason she can't look after me is not because she doesn't love me, I know how much she loves me."

19. Later in the note, H says:

"Bad news to live in Lithuania, loads of mean people, bullies, grown-ups where I lived."

20. At this point, according to the note, H showed the guardian some scars on his knees which he remembered the bullies causing.

21. In respect of option 1, return to mother, the social worker's analysis is that that option contains some advantages and disadvantages.  On the one hand, it would enable H to grow up within his own family and, furthermore, within his own culture, with his first language, which would, the social worker accepts, give him a stronger sense of identity and belonging.  He would grow up as part of his wider family.  Furthermore, the social worker has noted a clear bond between the mother and H. 

22. On the other hand, the social worker identifies a number of strong arguments against a return of H to his mother's care.  She has not demonstrated any significant change in her inability to prioritise H's needs over her own.  The social worker observes that it is likely that H, if returned to her care, would once again be at risk of neglect and physical harm and could be exposed to domestic violence, as apparently in the past, and also to his mother's own alcohol abuse.  He would, suggests the social worker, grow up possibly angry, insecure and unable to form healthy relationships with other children and adults.  His health and physical development would suffer.  He would not be able to achieve his potential educationally.  He may grow up with unresolved emotional problems affecting his long-term ability to form and sustain healthy relationships.

23. So far as option 2 is concerned, return to Lithuania, the initial assessment carried out on the maternal grandmother at an earlier stage in these proceedings (the grandmother with whom H had formed a good relationship when they lived in Lithuania), has fallen away because, as explained in the March 2014 judgment, the grandmother ultimately withdrew her offer to care for H.

24. The proposed assessment of the maternal aunt anticipated earlier this year has not taken place, as set out earlier in this judgment.  On balance, I am satisfied that, in the light of the responses of the Lithuanian authorities and the mother's own comments about there being concerns concerning the aunt (although these are apparently not accepted by the aunt herself), that a placement with her is simply not a feasible option at this stage. 

25. Thus, the only option in Lithuania would be care outside the family.  It may be that a foster placement could be found in Lithuania, but the response of the Lithuanian authorities themselves hitherto has suggested that a residential home would be the likely option were H to be returned to Lithuania and not placed within his natural family.  That would, of course, enable him to grow up within his own culture and possibly with contact with members of his extended family.  It would, however, mean another move for him from the home where he is now settled.  Furthermore, without in any way wishing to criticise the arrangements that other countries make for the care of children outside the family, for my part I would consider it a far better option for this little boy to be placed within a foster family rather than within institutional care in a residential home.

26. As for option 3, remaining in foster care here with his current carers, this has many advantages, although some disadvantages.  The advantages are that he would grow up where he is, where he is currently settled, building on the family and social relationships he has established, giving him a sense of continuity, belonging and normality.  Furthermore, as the local authority propose, therapeutic work which he requires around his emotional needs can start, enabling him to address and resolve these issues as quickly as possible.  Thirdly, the educational and social progress that he has made in the care of the local authority would be maintained, giving him every chance of fulfilling his potential as he grows up.  This stability would remove the ongoing uncertainty and unpredictability in his life which he has suffered from hitherto.  Under a foster arrangement, the legal link with his birth family would not be broken and he would retain the opportunity of having contact with his natural family, in particular his mother, thereby ensuring that he retains a sense of his own culture and identity. This important relationship with his mother would not be lost, and, if the mother sustains her participation in contact, that relationship may yet be able to flourish.

27. But the detriments which have to be acknowledged are that he would be placed outside his natural family and particularly would not be with his mother.  Thus, it is to be expected that he would experience a sense of loss.  Furthermore, he would have limited contact, indeed very limited contact, with his wider family in Lithuania.  So he is likely to grow up separate from them which runs the risk of a sense of isolation.  He would, as the local authority accepts, become increasingly Anglicised and might lose his Lithuanian identity and ability to speak his birth language.  There is, of course, always the possibility of a breakdown in a foster placement, leaving him vulnerable to further disruption.

28. Weighing up these options, the local authority conclude that the best option would be a care order in this country, with H remaining in his current foster placement.  The mother has indicated that, if an order is made, she will remain in this country and have contact with him.  The local authority's proposal under its care plan is that contact should take place 10 to 12 times a year.

29. The guardian in her report sets out revealing comments made by H's former head teacher at the school which he went to in July.  His assessment of H provides cause for a significant degree of optimism, in the view of the guardian.  The head teacher says of H that, as a child who has the experiences that he has had in the care of his mother and subsequently as a child in care, he is surprisingly good at making attachments and can at times collaborate with other children, playing, listening and communicating.  He does have the capacity to feel and show some level of empathy.  At times, he understands the consequences of his actions and shows appropriate responses.  The head teacher concludes:

"He has managed incredibly well.  He is affectionate to others.  He has a sense of humour.  He is personable and engaging which makes him endearing to adults."

30. The guardian whilst identifying some benefits of a return to Lithuania, concludes that they do not outweigh the drawbacks.  There is no guarantee if he were returned to Lithuania that he would have any substantial contact with his family.  Furthermore, a return would, as is clear from his own note to me, be contrary to his own wishes.  What type of care would be available for him outside his family in Lithuania and how it would be arranged is unclear.  Thus, the guardian concludes:

"On balance, I consider that the proposed care plan for the foster placement in England provides the greatest prospect of safe, consistent care where his physical, emotional and educational needs will be met.  I consider that this plan is the most beneficial for H considering his needs now as a child but also as he grows up and reaches his majority."

Conclusion
31. I accept and adopt the careful and comprehensive analysis of the local authority social worker and guardian as summarised above. In my judgment, the best option here is for H to remain in long-term foster care under a care order in this country with his current carers, with regular contact with his mother, assuming she takes up that commitment, which is manifestly in her son's best interests.  Although the full details of his past life are unclear, there is sufficient information available to conclude that he has suffered years of upheaval, uncertainty and neglect and occasionally abuse.  There is no doubt that this background lies behind and explains his own misbehaviour (as demonstrated since he was placed in care) and demonstrates a real need for therapy which is a feature of the local authority's plan, and, in my view, an urgent requirement.  Although it is still early days, the placement with his current excellent carers seems to be going well.  I accept the analysis that it will provide him with a warm and stable environment and also, very importantly, with very clear boundaries.

32. For these reasons, I conclude that in this case it is necessary to make an order that means that H will leave separately from his natural family.  I hope the local authority will do its utmost to ensure that contact with his mother takes place, and I earnestly hope that the mother will realise that the commitment to contact is a high priority for her and her son.

33. The local authority must also ensure two other things: first, that he receives the therapy for the emotional harm he has suffered; and secondly, that, as he is living in this country away from the Lithuanian culture, careful thought needs to be provided as to how his cultural needs can be met.

34. I therefore make a care order on the basis of the local authority care plan. 

35. I order a transcript of this judgment, to be paid for by the local authority.