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N (Children: Welfare Decision), Re [2016] EWFC 44

Remitted final hearing of a local authority’s application for care and placement orders in respect of two girls of Hungarian parents where the Hungarian authorities maintained that the girls should be moved to foster carers in Hungary so that appropriate decisions could be made there about their long-term futures.

This hearing, before Peter Jackson J, concludes complex and long-running litigation about the future of two Hungarian girls.  The parents are Hungarian citizens from the Roma community.  The girls, J and E, had been in local authority foster care since E's birth in 2013.  J was aged 15 months when she was removed from the parents' care.  She is now 4½ and E is 3 years old.  The children had initially been accommodated pursuant to s.20, Children Act 1989 after they were found living in squalid conditions.  The local authority had issued care proceedings in 2014.  Thereafter, there was a period of what is described in this judgment as 'judicial incontinuity' where different judges appeared to try to steer the case in contradictory directions.  An application to transfer the proceedings to Hungary pursuant to Article 15 of Brussels IIR had initially been supported by the local authority and the Children's Guardian but they had withdrawn this support and were inviting the court to make care and placement orders by the time His Honour Judge Bellamy made the decision to invite the Hungarian Court to assume jurisdiction in J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45. 

The local authority and the Children's Guardian appealed but the appeal was refused by the Court of Appeal in N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112.  However, a subsequent appeal was allowed by the Supreme Court in Re N (Children) [2016] UKSC 15 and the matter was remitted to the High Court tier of the Family Court.

This was therefore the final hearing of the local authority's application for care and placement orders in respect of both girls.  The care plan was for them to be adopted by the foster carers with whom J had spent most of her life and E had spent all of hers.  The Hungarian authorities had maintained the position throughout the lengthy proceedings that only they could approve the adoption of Hungarian citizens, and, consequently, any order for adoption made in this country would not be recognised in Hungary.  Their position was that the girls should be moved to foster carers in Hungary so that appropriate decisions could be made there about their long-term futures.

The girls' parents were, by the time of this hearing, living back in Hungary.  They were in a relationship although they had spent periods of time apart since the girls were removed from their care and the father had served a term of imprisonment for assaulting the mother.  They had also gone on to have two more children together who were living with them in Hungary at the home of the paternal grandmother.  The parents' attendance at contact had been extremely poor and the quality of the contact was also regarded as poor.  The Children's Guardian described the contact that she observed as one of the worst that she had seen.  The parents' positions in relation to the futures of J and E had changed during the course of the proceedings.  They had initially sought the return of the children to their care, although by the time of this hearing the mother accepted that she could not care for them.  They had proposed numerous relatives on the maternal and paternal sides of the family as carers for the children, all of whom had been unsuccessfully assessed or who had withdrawn from the process.

The court heard evidence from a number of professional witnesses, including Dr Lionel Bailly whose expertise meant that he was particularly well-placed to comment on the likely effect on J and E of removal from their current carers and a placement in Hungary.  He gave clear evidence that this would most likely cause the girls significant trauma.  The children's social worker receives particular praise from the judge for her work on the case and her detailed knowledge of the family.

Having considered both the Children Act welfare checklist and the adoption checklist in considerable detail, as well as the range of possible orders to secure the children's futures, particularly the possibility of their remaining with their current carers under special guardianship orders, Peter Jackson J concludes that the only way in which the children's welfare needs could be met is by the making of the care and placement orders sought.  He expresses hope in his judgment that the Hungarian authorities would accede to any application for the proposed adoption orders to be recognised but notes that ultimately that will be a matter for them.

Summary by Sally Gore, barrister, Fenners Chambers
_______________________________

Neutral Citation Number: [2016] EWFC 44
Case No: SG14C00006

IN THE FAMILY COURT

Date: 23 September 2016


Before:

THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at the Royal Courts of Justice

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Between:

A LONDON BOROUGH
 Applicant
-and-


The Children (by their Guardian)
 All Respondents
  
Re N (Children: Welfare Decision) 
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Mark Twomey (instructed by HB Public Law) for the Local Authority
Malcolm MacDonald (instructed by Lawrence & Co) for the Mother
Dorian Day (instructed by Hecht Montgomery) for the Father
Martha Cover (instructed by Hanne & Co) for the Children

Hearing dates: 12, 14-15, 19-23 September 2016   Judgment date:  23 September 2016
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JUDGMENT
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 the anonymity of the children and their carers must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so may be a contempt of court.


Mr Justice Peter Jackson:
Summary
1. This is the court's decision about the future of 'Janetta' and 'Ella', sisters now aged 4½ and 3.  I start with a summary of the decision because it has to be interpreted to the girls' parents and translated to others.  I will then give more detailed reasons.

2. Janetta and Ella have lived in England all their lives and have been in the same English foster family since a few days after they were removed from their parents in May 2013. 

3. The parents are Hungarian citizens from the Roma community.  Ella has never lived with them and Janetta last did so when she was just 15 months old.  The local authority, a London borough, plans for them to be adopted by their foster carers.  The Children's Guardian, who is the social worker representing the girl in these proceedings, supports this, but the parents, who have returned to live in Hungary, are against it.

4. As a result of the Supreme Court judgment in this case last April, this decision is being taken by an English court applying English law.  This requires that their welfare throughout their lives is treated as paramount – more important than anything else.  The court is respectful of the rights of the parents and will reunite parents and children wherever possible, and also of the position of Hungarian law, but in the end the children's welfare must come first.

5. My main conclusions are as follows.

(1) I accept the strong and united evidence of the professional witnesses: Ms H (social worker), Dr Bailly (child psychiatrist) and Ms Lain (Children's Guardian), which is to the following effect. 

(2) In 2013, the children needed to be removed from their parents, who were not looking after them properly.  

(3) They now need a family that will meet their needs throughout their childhoods and make them feel that they belong.  
 
(4) The foster family is meeting the children's needs in every way.  The girls see their foster parents and siblings as their parents, their brothers and their sisters.

(5) It would, as Dr Bailly put it, be an emotional catastrophe for the children if they were moved.  They have put down roots.  If they were uprooted, they would need exceptionally good parenting from someone else to give them any chance of recovering.

(6) In fact, no other arrangement has any chance of doing this.

(7) The parents have natural feelings of affection for the children, but they could not meet even their most basic physical and emotional needs.  This would be true whether the parents were together or apart and whether or not they had family support. 

(8) No member of the wider family in Hungary is in a position to look after the children.  
 
(9) It would not be right for the children to be sent to Hungary to be placed in foster care, and the parents do not suggest it.  It would be likely to cause them harm, with lifelong consequences.

(10) The argument for the children to stay where they are for the rest of their childhoods is overwhelming. 

(11) Face-to-face contact with the parents has not been good for the children for a long time and it should not continue after a farewell visit.

(12) There are three legal ways in which the children could stay with the foster carers: a care order, a special guardianship order (SGO), or an adoption order.  Adoption can only be allowed if there is no other way of meeting a child's needs.  That is the position here.  The advantages of an adoption order for the children are far stronger than the disadvantages.  The children's welfare requires adoption.  I will therefore dispense with the requirement for parental consent and make a placement order allowing Janetta and Ella to be adopted in due course.

(13) The foster carers have brought the children up to know about their background, and that will continue.  The plan is for reports to be sent to the parents and for the parents to be able to write and receive replies.  The local authority will act as a post-box.  Once the children are adopted, the adopters will decide what is sent and received.  Until then, I direct that reports should be sent to the parents each March and September.  These can include photographs of the girls if the prospective adopters agree.  The parents can send messages to the children in April and October.  I hope that this arrangement will be regular, but even if the parents do not communicate I would expect the adopters to send them a report once a year as a minimum.

(14) These proceedings have taken far, far too long.  They were slow to start and have now been going on for two years nine months.  The delay has caused problems for the children and their carers, for the parents and the wider family, and for the professionals.  What has happened in this case is not typical of good practice in our family justice system.  Nowadays, decisions for such young children are normally taken within six months.  This case could have taken a little longer because of the international aspect, but it should certainly have been completed within a year.  The Children's Guardian rightly said that the children have been let down by the judicial system.  The Adoption and Children Act 2002 ('the ACA ') states at s.1(3) that the court must at all times bear in mind that, in general, any delay in coming to a decision is likely to prejudice the child's welfare.  This case is a sorry reminder of the importance of that general principle.

(15) At the same time, I wish to emphasise that the delay has not changed the outcome.  There is no earlier moment at which the children could have been safely returned to their parents or wider family, and no point at which it would have been in their interests to have gone into foster care in Hungary.

(16) I express this court's appreciation for the great assistance given by the Hungarian authorities through the Ministry of Human Resources, the Central Authority and the local Guardianship Office.  Although our legal systems are different, this has not prevented the professionals who have been working on the case for so long from doing so in a spirit of mutual understanding and respect, and always with the aim of finding the right solution for these children.


The earlier judgments
6. In November 2014, Judge Bellamy heard evidence, but did not decide the children's future.  Instead, he determined that the decision should be taken by the Hungarian courts: J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45.

7. The local authority and the Guardian appealed, but it was not until November 2015 that the appeal was dismissed: N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112.

8. There was then a further appeal to the Supreme Court.  In April 2016 it allowed the appeal and remitted the matter to this court to make a decision as soon as possible: N (Children), Re [2016] UKSC 15.


This hearing
9. The papers now run to 7 lever arch files.  During the course of the hearing I heard evidence from the following witnesses over the course of four days (the process being made slower by the need for interpretation):

Ms H, the children's social worker since July 2013
Dr Bailly, consultant child psychiatrist, instructed after the appeal proceedings
Dr Kovacs, specialist at the Baja Guardianship Office, involved since December 2015
The Mother
The Father
The Children's Guardian
I have also read an expert report on Hungarian law written in July 2016 by Dr Oliver Bohanek, attorney at the Budapest Bar.  

I have had the benefit of detailed written opening and closing submissions from counsel.

10. The case as a whole ran for eight days.  The mother attended the hearing, except for one day.  The father attended for three days during the second week.


The background in more detail
11. The facts of the case are not in dispute in any significant way.  The history up to the end of 2014 is summarised in Baroness Hale's judgment at paragraphs 6-16, with additions of my own in italics:

"6.    The parents are in their 20s. The father (28) is of Hungarian Roma descent, the mother (24) of mixed Hungarian and Roma descent. The father has two older children, a girl now aged seven (now eight) and a boy now aged five, half-siblings of the children with whom we are concerned. Those children were placed in foster care and adopted in Hungary with the approval of the Hungarian authorities. They now live in Italy. The father says that he lived with the children's mother until the older child was aged three. The mother then left him, taking the children. For some time he had contact and saw that the children were not being well cared for by their mother. She then put them in a home. Despite this, he moved to England in 2011 and saw nothing more of those children, nor did he play any part in the adoption process, which took place about six months after Janetta and Ella were removed. These parents met and began their relationship in 2010. In July 2011, when the mother was pregnant with the older of the two children in this case, whom I shall call Janetta, they travelled to this country. Janetta was born here in January 2012. The family had some contact with the local authority in April and May 2012, because of their accommodation problems, and both the local authority and the Hungarian embassy offered to support their return to Hungary, but in fact they stayed here.

7. Their second child, whom I shall call Ella, was born here in May 2013. The mother had had no ante-natal care. The baby was born in the room in which the family were living without any medical assistance. The London Ambulance Service arrived after the baby was born but before the placenta was delivered. They called the police, as the father was reported to be resisting the mother and baby receiving medical attention or being taken to hospital. The family were living in circumstances of extreme squalor, with no food, clothing or bedding seen for either child.

8.     Janetta was removed from her parents that same day. Ella was discharged from hospital into foster care when she was eight days old. They were initially placed separately but since 28 May 2013 they have both been living with the same foster carers. The foster carers have four other children: two teenage birth children of their own and two other unrelated adopted children of primary school age who do not have contact with their birth family. The local authority originally applied for an emergency protection order, but this was not pursued because the parents agreed to the children being accommodated by the local authority under section 20 of the Children Act 1989 while an assessment was carried out.  This arrangement was formally approved by the magistrates hearing the emergency protection order application.  The local authority originally arranged for the children to have contact with their parents three times a week; this was reduced to twice a week because the parents often failed to attend or left early – they attended about half the contact that was available; and in February 2014, it was reduced to once a week.

9.      Care proceedings were not issued until January 2014 and the first interim care order was made in February. Before beginning the proceedings, the local authority had commissioned assessments of the children's maternal grandmother and great-grandmother in Hungary from Children and Families Across Borders (CFAB). The maternal grandmother was unable to offer a home but the great-grandmother had suitable accommodation and was willing to offer the mother and children a home, provided that the father played no part in their lives. At that stage the father did not want his own mother to be assessed as a possible carer. The local authority had also been in touch with the Hungarian Central Authority ("HCA"), which had, in January 2014, suggested that the solution was for the Hungarian authorities to bring the children back to Hungary, as they were Hungarian citizens and their relatives could keep in contact with them there. Also, if they were to be adopted, "only the Hungarian authorities have the right to adopt Hungarian citizen minors". That has been the consistent position of the HCA throughout.

10.    At the first hearing in the High Court, the mother, then pregnant with the couple's third child, indicated her intention to return to Hungary to have the baby and also to apply for the transfer of the proceedings under article 15. This she duly did and gave birth to a baby boy in March 2014 (she later accepted that her return was in order to avoid care proceedings here in respect of him). I shall refer to this child as Z. At a hearing on 18 March 2014, Holman J declared that the girls were habitually resident here and that is not now in dispute. He adjourned the article 15 application so that there could be "some clearer understanding of what arrangements might exist for the transfer of the children themselves to live, whether long term or even during the course of the proceedings, under suitable arrangements in Hungary" ([2014] EWHC 999 (Fam), para 12).


11.    Accordingly, the allocated social worker visited Hungary in April 2014. She met the mother and the new baby, who were then living with the maternal great-grandmother. The great-grandmother was adamant that the father would not be allowed near her home, whereas the mother intended to reunite with the father as soon as they could find accommodation in Hungary. The social worker also met with representatives of the HCA and with social care professionals.

12.    The mother's application under article 15 came before Sir Peter Singer, sitting as a Deputy Judge of the High Court, on 9 May 2014. At that stage, both the local authority and the children's guardian were supporting a transfer to Hungary, but only once the requisite assessments had been completed there and a clear recommendation made about the appropriate placement for the girls. By a judgment delivered on 12 May 2014, Sir Peter Singer refused the transfer application, but provided that a further application could be considered after the "fact finding" hearing listed for 25 June 2014.

13.    The purpose of that hearing was to establish whether the facts were such as to meet the threshold for compulsory state intervention in family life, set out in section 31(2) of the Children Act 1989:

"A court may only make a care 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."

Only if that threshold is crossed can the court go on to consider whether making the order that the local authority seek will best promote the welfare of the child, which is the court's paramount consideration (1989 Act, section 1(1)).

14.    Neither parent attended the hearing on 25 June 2014, although both were legally represented. The father's whereabouts were unknown but the mother had been in touch with her solicitor by telephone. At that stage she accepted 11 of the findings sought by the local authority. Five of these related to the circumstances in which the family were living and the lack of medical attention when Ella was born. Two related to the risk of harm stemming from domestic abuse in the parents' relationship and the father's aggressive and volatile personality. Two related to the parents' inconsistent and unsatisfactory contact with, and effective abandonment of, the girls: by the time of the hearing, the mother had not seen them since February and the father had not seen them since March 2014.  In August 2014, the parents reappeared in England and contact resumed from time to time. The last finding was the parents' lack of insight into the local authority's concerns and failure to co-operate with attempts to assess them. Hogg J made findings accordingly, which all agreed were sufficient to satisfy the threshold in section 31(2).

15.    The hearing to decide what orders to make was planned for September 2014. In August, the social worker discovered that the mother, father and the new baby were all living with the paternal grandmother. The social worker's assessment of the paternal grandmother (over the telephone) was negative. There being no viable family placement in Hungary, the local authority's final care plan, supported by the Children's Guardian, was that the girls should be adopted. Their current foster parents were being given active consideration as their adopters (and have since been approved as such). Accordingly the local authority issued a further application for a placement order under section 21 of the Adoption and Children Act 2002. This authorises the authority to place a child for adoption without parental consent (it is a separate question whether parental consent to the actual adoption order should be dispensed with). Under section 21(2), a court may not make a placement order unless:

"(a)    the child is subject to a care order,

(b)      the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)      the child has no parent or guardian."

Thus, unless the child has no parent or guardian, the "threshold conditions" for state intervention must be met, but they can be met either by the prior making of a care order, or by making the requisite findings in the placement order proceedings, which may (but need not) be contemporaneous with the care proceedings.

16.    The hearing listed for September could not proceed because interpreters failed to attend. It was relisted for November 2014. The mother's position was that she wanted to look after the children in Hungary; failing that, she wanted them to live with the paternal grandmother in Hungary; failing that, she wanted them to live with the maternal great-grandmother in Hungary; and failing that, for them to be placed in a children's home in Hungary. The father wanted to look after them with the mother in the paternal grandmother's home; if the parents' cohabitation was not acceptable, the children should live with the mother in the maternal great-grandmother's home and he would stay in England; in his oral evidence he said that he would stay and work in England, but spend holidays living with the mother and children at the maternal great-grandmother's home. The HCA now took the view, apparently based on the CFAB and English social worker's assessments, that there was no suitable family member in Hungary; so the children should be placed with a foster parent there, so that they could keep the connection with their parents. The local competent authority would make a decree appointing a guardian and foster parent for them. Two professional colleagues would come to England to escort the children to their foster placement in Hungary. Only the Hungarian authorities had the right to adopt them."

12. Since the end of 2014, the following events have occurred. 

13. In February 2015, the father was arrested in England for a serious assault on the mother, who was 4 months pregnant.  She was seen the following day by the social workers to have two black eyes and difficulty in walking.  He was remanded in custody.  However, the mother withdrew her statement, and in June 2015 the criminal case was dismissed and the father was released. 

14. In March 2015, the mother returned to Hungary.  She did not see Janetta and Ella until July 2016, 16 months later, and from the time of the father's release from prison in July 2015 she stopped communicating with the social worker.  She made no enquiries about how the children were getting on.  She appears to have remained apart from the father until the beginning of 2016.  He remained in England and, after his release from prison, continued to see the girls intermittently. 

15. In July 2015, the mother gave birth in Hungary to a girl named R, her fourth child.  Z and R (now aged 2 and 1) are the girls' full siblings.  They and the mother have mostly lived in the home of the paternal grandmother since the parents reunited earlier this year, but they have also lived with the maternal family at times.  The father has spent most of his time in Hungary but has come backwards and forwards to England for contact.

16. In November 2015, the outcome of the Court of Appeal proceedings was known and plans for the transfer of the children to Hungary resumed.

17. As appears below, the court now has further significant sources of information.  The first is Dr Rita Kovacs, a specialist officer at the Baja Guardianship Office.  In December 2015, she was asked by the Ministry of Human Resources to investigate the possibilities for the care of the children by their parents, by their extended family or in foster care.  She undertook four interviews, to this effect: 

• In December 2015, the mother told her that she could not look after the children herself.  She said that the father was not living with her, that during their relationship he drank and beat her, and that he was unsuitable to care for the children.  She proposed her own aunt (who had accompanied her) as a potential carer. 

• Dr Kovacs then saw the mother and the aunt together with a view to arranging an assessment. 

• However, the mother returned a few days later to withdraw her agreement, saying that the aunt's lifestyle and living conditions were not suitable.  She repeated that she was not able to look after the children herself: "Unfortunately, I am not in a position to care for and bring up my daughters, because I live in my grandmother's house…  And I care for two children of minor age.  It would be simply too much of a burden to care for them financially and in terms of personal engagement."  Her only proposal was children should be placed in foster care in Hungary.

• The father was seen on his own in January 2016.  He did not offer himself as a carer: "My current conditions are unsuitable for caring for and bringing up my daughters."  Instead he suggested an uncle, but he did not provide any address or contact details, so that possibility could not be pursued.

18. In May 2016, the father filed a statement saying that he and the mother were still together.  The mother denied this, but later admitted that they had started up their relationship again in February 2016. 

19. In May 2016, after the Supreme Court decision, hearings took place in this court before Moylan J and myself, and this hearing was fixed.  Dr Lionel Bailly was asked to give a psychiatric opinion about the girls' needs.  Dr Bohanek was asked to give a legal opinion on Hungarian law.

20. In June 2016, with the full cooperation of the Hungarian Central Authority and the Baja Guardianship Office, Ms H, the children's social worker returned to Hungary to assess the parents, the paternal grandmother, the maternal great-grandmother and the paternal great uncle.  She reached the firm conclusion that the children could not live with their parents because of the continuing risk of violence from the father, because the mother is a vulnerable person who is controlled and intimidated by the father, because the parents do not recognise the girls' very great needs and their own difficulties, and because there is a very high risk of neglect.  The great-grandmother said that she would only offer help to the mother and could not care for the children on her own.  In later discussion, she was critical of the parents, said that she could not care for the children and that they should remain where they are in England.  During this visit, the paternal grandmother withdrew from the assessment process altogether and signed a statement to this effect. 

21. In August 2016, Dr Bailly reported.  I refer to his views below.

22. In the same month, the father provided a blood test that showed no evidence of recent excessive alcohol intake.  He had been expected to provide a hair sample, which would give longer term evidence, but by the time of the test, his hair was not long enough for that.  He gave evidence that he is now only drinking in moderation.

23. The parents filed further statements.  In August, the father proposed that he should be the main carer and was critical of the mother.  In September, the mother proposed that she should be the main carer for all four children and that she would separate from the father.  Alternatively, she suggested for the first time that her sister R could look after them.  That proposal has been assessed and rejected by the local authority on the basis of a telephone interview and information from the Hungarian authorities going back to 2013 that the sister has been unable to look after her own two children on her own and that the maternal grandmother has become their guardian.

24. Meanwhile, Z and R are living with the paternal grandmother.  Their circumstances are known to the Guardianship Office, but no intervention is planned.  However, the father was sufficiently concerned about the risk of intervention to return to Hungary the day before the hearing began.  As a result, he was unable to attend the first week of this hearing.  As the Hungarian authorities have not intervened, I assume that the parents and grandmother are looking after Z and R adequately.  It is however agreed that the home is too small for four children to live there.

25. The children are very settled in their current home.  Janetta has just started in reception class and Ella goes to nursery.  The children enjoy attending a Hungarian school once a fortnight.  The foster carers have made real efforts to make sure that the children experience as much Hungarian culture as possible.

26. Contact takes place under supervision with an interpreter for 90 minutes.  In the first half of 2016, the father attended contact on four occasions on his own and from July 2016 the parents have attended contact on five other occasions.  Unfortunately, the contact is of very poor quality.  The father spends a lot of the time playing physical games, such as throwing the girls in the air or encouraging them to climb on furniture and jump into his arms.  There is not much communication of other kinds, but at least he makes an effort.  In contrast, the mother, even though she had not seen the children for over a year, simply sits and watches, making very little effort to communicate with the children.  The foster carers report that the children are often reluctant to go to contact and that their behaviour is unsettled afterwards. 

27. The Hungarian Central Authority (represented by Dr Kornel Toth) has been kept informed of the progress of the proceedings at every stage.  Their position is the same as it has always been.  The Hungarian authorities do not support the return of the children to the parents or the wider family but maintain the position that only an adoption order made in Hungary can be recognised.   


English law
28. As Baroness Hale has explained (see paragraphs 13 and 15 of her judgment above), the state can only step in to protect children from significant harm.  In this case, the court has found this condition to have been comprehensively met as long ago as June 2014 and nothing has happened since to make me reconsider this.  On the contrary, the events of the past two years reinforce those findings. 

29. When assessing Janetta and Ella's welfare, the court must consider all realistic options for their future and must consider the checklist at s.1(4) of the ACA: 

"The court … must have regard to the following matters (among others) –

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court … considers relevant,

(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."

30. Further, by ACA s.1(6) the court must always consider the whole range of powers available to it under the ACA or the Children Act 1989. 

31. The court can only make a placement order if it dispenses with the consent of the parents on the basis that the welfare of the children requires it: s.52 ACA.  It must also respect the family life of the parents and the children under Article 8 of the European Convention on Human Rights and Fundamental Freedoms.  This duty is consistent with the legislation and a number of appeal court decisions emphasise that adoption against the wishes of parents can only be approved if it is found to be necessary for the welfare of the children after a fully balanced comparison of all the realistic options.  That principle has been fully explained by the President in his judgment in these proceedings at paragraphs 27-40, and I apply it.  I emphasise that the court is not engaged in a comparison between the relative abilities of the parents and the foster carers.  Children are not removed from their parents because others might be able to look after them better.  They are only removed because the parents cannot look after them properly.

32. The adoption of foreign children by British citizens is lawful where it is necessary and proportionate, and the checklist above ensures that appropriate weight is given to the children's international background.  It has been noted in earlier judgments in these proceedings and elsewhere that English law allows non-consensual adoption in circumstances where other legal systems, including the Hungarian system, do not.  That general state of affairs cannot of itself be a factor in my decision: instead, what is required is a careful assessment of all of the evidence about Janetta and Ella as individual children and the extent to which an adoption that is not recognised in Hungary would actually affect them. 

33. The effect of a placement order is to convert the foster placement into a prospective adoptive placement: s.18 ACA.  The foster carers will acquire parental responsibility which they will share with the local authority and the parents, with the local authority determining the extent to which these rights can be exercised by others: s.25.  Upon the making of an adoption order, the children cease to become a member of their family of origin, and instead become members of the adoptive family in all respects. 

34. Under s.27(4) ACA, the court must consider the question of contact before making a placement order.


Hungarian law
35. The effect of Dr Bohanek's helpful report is as follows:

36. An adoption order in this case would not automatically be recognised under Hungarian law.  Approval from the Hungarian authorities would need to be obtained for the order to be recognised there.  There are two possible ways in which this might occur.  The first, which is not of immediate effect, is achieved by the adopted person personally petitioning once she has become an adult: Act No. 13 of 1979 on International Private Law ('the IPL Act') at clauses 70/A(1) & (2).  The second arises under IPL Act clause 43 which provides that a non-Hungarian national may adopt a Hungarian national with the consent of the Hungarian guardianship authorities, which can only be given if the adoption complies with the conditions as prescribed by Hungarian law.  Those conditions are set out in Title XI of the Hungary and civil code, which at Section 4:124 requires that the parents have failed to keep in regular contact for a year or any contact for half a year. 

37. In relation to special guardianship, Dr Bohanek, having considered the IPL Act with particular reference to clauses 48 and 62, advises that this falls into a grey area and that it is very unclear as to whether such an order would be recognised in Hungary.

38. I therefore approach matters on the basis that the Hungarian authorities may not, for reasons arising from the applicable legislation, recognise either an English adoption or a special guardianship order.  This conclusion is consistent with the view expressed by the Hungarian authorities in relation to adoption. 


Evidence at the hearing
Ms H, social worker
39. Ms H is clearly a very able social worker who has given a huge amount of thought to what is best for Janetta and Ella.  She has a good understanding of their needs and of the abilities of the parents, the wider family and the foster parents.  She has visited Hungary twice, in April 2014 and in June 2016.  She has filed no fewer than 16 statements and a number of other reports, making a powerful body of written evidence.

40. Ms H has faced two particular difficulties that have been beyond her control.  The first of these is that the position of the parents and the wider family has been constantly changing.  The parents have at times been together and at times apart and they have made different suggestions for the children from one moment to the next.  Family members have offered themselves and then withdrawn.  It has been difficult for Ms H to know what the options have been at any given time.

41. The second difficulty for Ms H has been caused by this court.  This case was promptly transferred to High Court level in February 2014.  However, it was not allocated to one judge and instead during 2014 hearings took place in front of five judges of the Division and three deputy judges.  This was described by the President as wholly unacceptable (paragraph 172).  At this hearing, I have heard how difficult this "judicial incontinuity" (as Miss H put it) has been for the parties.  In particular, the local authority felt during 2014 that it was getting a strong steer in one direction from one judge and then an equally strong steer in the other direction from another.  This made it harder for it to make its earlier assessments and plans.  There was then an unreasonably long appeal period that lasted for 18 months, during which nothing could be done. 

42. However, the main and worst result of the delay is that the children have been kept waiting for a decision.  Even at their ages, they are aware that the future of their home is in doubt and they understand what the regular comings and goings of professionals means.  In the meantime, so that all possible outcomes should remain open, they have continued to have contact with their parents.  Giving evidence, Ms H said that in her view this contact has not been in the children's interests for at least two years in Janetta's case, longer in Ella's.  The Children's Guardian agrees.

43. At the same time, the extended proceedings have been exceptionally stressful for the parents, who have been juggling their responsibilities between two countries. 

44. All this is what happens when there are such lengthy delays in deciding the future of young children.

45. When the case came back to this court in May, Ms H agreed to return to Hungary to make a fresh assessment of the family situation there.  I accept her evidence that she went with all options open in her mind.  I now turn to her final evidence about the parents and the wider family.

46. During Ms H's final assessment of the parents, the mother gave one-word answers, while the father spoke freely.  Her conclusion, consistent with the views of Dr Kovacs and Dr Bailly, was that the parents have fixed ideas and cannot understand how difficult it would be for the children to move.  Managing that level of emotional need would require the most exceptional parenting.  Any parent would struggle, and it is impossible that a transfer to the care of these parents would work.  The girls have their own different needs and attachments.  There is an ever-present risk of violence from the father.  The parents are living hand-to-mouth.  Their relationship is unstable and any promise to separate could not be relied on.  Their plans for the children constantly change (see the summary provided by Mr Twomey for the local authority, showing how many different plans they have put forward).  They have housing difficulties.  The mother is passive and does not engage in even basic play at contact; she could not care for four children.  No effective therapy would be available.

47. The maternal and paternal families live about 20km apart.  The paternal family lives in a city, the maternal family in a large village.  English is not spoken, even in the larger community.  The maternal family is extremely hostile to the father.  Their perception is that he took her from them when she still was at school, that he has taken their money and that he is violent and abusive towards her, making her scared and unable to act normally.   The maternal family would offer such support as they could for the mother, but only if she separated from the father.

48. Ms H said this about the paternal family:

• The paternal grandmother (PGM) is in her late 40s.  She was first suggested as a carer by the father in late 2013, even though he expressed concern about her drinking.  Ms H assessed her in 2014 during extensive telephone conversations.  The assessment was negative, largely due to the PGM's lack of insight into her son's behaviour and the children's needs. 

A fresh assessment was carried out during Ms H's visit in June 2016.  Again it was negative, though the PGM engaged with the process to an extent.  She had just suffered the death of her partner and was understandably distressed by this.  Her home consists of two very small rooms with limited services, and is accepted by the parents as being too small for Janetta and Ella as well as Z and R.  The PGM is caring for the younger children at the same time as working full time, starting at 4am.  She has an amicable relationship with the mother but is frustrated that she does not do more to help in the home.  Ms H considers that the PGM still minimises the risk of violence and she is concerned at the maternal family's description of the PGM's drinking. 

At all events, during the course of Ms H's visit, the PGM said that she did not wish to be further considered and withdrew from the assessment process.

• A paternal cousin (G) was suggested in 2014, but he withdrew.  

• A great uncle (J) was suggested by the father in January 2016, but, as stated above, no details were given for him.

49. Ms H said this about the maternal family:

• The maternal great-grandmother (MGGM) was assessed in June 2016.  She is in her late 60s and is concerned about her health.  She and the mother have a fluctuating relationship.  The MGGM is critical of the mother's abilities and is not offering to care for the children.  Her home is larger and in better condition to the homes of the PGM and MGM.   When the mother has been living with her, the MGGM has looked after Z and R at various stages, but they have now all returned to the PGM.

• The maternal grandmother (MGM) is aged 52.  She was assessed by CFAB in 2014 and said she was not in a position to care for the children.  At that stage she had the care of her own teenage son and her older daughter R's older child J (now 3).  In 2016, the position has not changed, except that she is now the Guardian of J and R's younger child N, who was born in January 2016.  Her home is larger than that of the PGM but it does not have running water.  Ms H described her as being understandably preoccupied with her other grandchildren.

• The maternal aunt R is in her late 20s.  She was proposed as a carer after Ms H had returned from Hungary and was assessed shortly before this hearing.   R cooperated with this process, but Ms H does not consider her a viable option, given her acceptance that she cannot look after her own two children on her own. 

• The mother's aunt (Ms K, 50) briefly offered her support at the end of 2015, but almost immediately the mother withdrew her support for this, as described above.

50. Ms H acknowledged that Janetta's situation in 2012 and early 2013 did not cause social services to remove her from her parents any sooner than they did.  There were some positive observations of the first two or three contact occasions after removal.  There was no evidence of physical injury.  However, the family's physical circumstances at that point were desperate and contact soon began to deteriorate.  Also, Janetta's behaviour was regarded as very unusual by the foster carers.  She did not babble like a child of her age and showed no fear of strangers.   She would rub her head on the floor as a means of comforting.  She would grab food from other children.

51. Ms H described the foster carers' present position.  They are committed to the girls, whatever legal orders are made.  They wish to adopt in preference to being special guardians and they would be very concerned about the children remaining under care orders.  As to contact if there was an adoption, they are nervous on the girls' behalf about the parents' continuing involvement.  At the moment, contact is very difficult, with Janetta being very challenging about having to attend, and Ella getting upset in consequence.  Like all prospective adopters, they know they would have to consider the issue once the children are older, but at the moment they do not believe direct contact is in their best interests. 

52. Ms H described how Janetta had started to react badly to her visits.  Since July, she had made a series of weekly visits in order to rebuild trust.  Janetta will not call her father by the name used by adults ('Daddy [name]'), but insists on calling him "the man".  She became very angry when Ms H mentioned her father, and so she avoided the topic. 

53. Ms H described the parents' lives as being chaotic and without structure.  Their relationship is more one of control and intimidation than mutual and equal respect.  Nothing has changed during the time she has known them.  Their plans for the children have been inconsistent and last-minute.

54. In summary, Ms H considers that adoption is in the best interests of the children.  She does not consider that special guardianship provides the same security or the necessary permanency.   She does not support direct contact as the quality of contact has not changed over time and it is not purposeful for the children.  She hopes that indirect contact twice a year could take place.  However, the adoption should proceed even if indirect contact proved to be unreliable for practical reasons.  If, contrary to her views, direct contact was to continue, the level of support, supervision and assessment would be so high that it could only be provided under a care order.

Dr Lionel Bailly

55. Dr Bailly is a French-trained consultant child psychiatrist with a special interest in children who have experienced trauma.  He has regularly worked with refugee children who have in some cases been reunited with parents after a forced separation.  He is particularly well-qualified to speak about the psychological condition and needs of children in Janetta and Ella's unusual circumstances. 

56. Dr Bailly considers that the attachment between Janetta and her parents is likely to have been disorganised before she was removed.   This cannot now be verified, but there is a network of elements suggesting neglect.  Her behaviour was not normal.  Her attachment was disrupted at a critical stage, but she has now recovered to the point where her attachment to her foster carer is almost secure.  For Ella, the foster carers have always been her psychological parents.  Both children use the English language as their mother tongue.  They and their carers have a common emotional language.  The effect of removal on the children would be "an emotional catastrophe of traumatic proportions", even more so for Ella than Janetta, although she might have somewhat greater powers of recovery.  It is not possible to know how the children might react, but they would undoubtedly suffer grief and, as with any bereavement, might become stuck in that process and experience depression.  They would experience a total loss of their familiar relationships and environment, affecting their ability to trust adults.  The losses would be aggravated by the different cultural expectations and language.  There are layers of difficulty in proposals for a move.  In the first place, it would be against the children's wishes.  Every child reacts differently.  Some rebel and fight, others submit and may become depressed.  Given their different ages and stages, these children might react very differently from each other.  Where such changes are forced upon children, they have to adjust, but the outcomes are not predictable.

57. Dr Bailly said that the level of care that the parents could offer is far below what would be required in such a situation.  The mother's behaviour at contact in July, the first time she had seen the children in over a year, was so striking that it suggests that she might have psychological difficulties of her own.  Dr Bailly had never seen a parent react like that: this frozen behaviour would be bound to make a child question what the parent thought of them.  In the father's case, he was trying very hard but his strategy was not best for the children and there was no meaningful exchange between them.  The notes of the next contact occasion were almost a carbon copy of the contact that Dr Bailly observed.

58. Even if the children were moved to competent carers, it is not clear that the move would succeed – it would need to be a good fit for the children, and the impact of each child's reaction upon the other would be another unknown quantity.  As a precondition for considering a move, there would need to be a very clear plan that the children could be told about.  A move to a "bridging" foster placement in Hungary would be particularly bad solution, involving the prospect of a series of broken attachments.

59. If the children had to move from the foster parents, Dr Bailly would not recommend any future contact, describing it as almost cruel to expose them to the family that they had lost.

60. Dr Bailly described his visit to the children in the foster home.  The children showed signs of being scared of him because they associated him with uncertainty about them remaining there. 

61. Both girls know that they have a Hungarian birth family, and they will work through this later in their childhood.  They may want to reconnect, and indirect contact once or twice a year would give them that opportunity.  Direct contact could only be recommended if the children were very clear about the stability of the placement, otherwise it would be detrimental.

62. Dr Bailly favours the solution that gives the most security and stability to the children.  Anything that allowed the children to question the permanence of the placement would be a source of anxiety and should be avoided.  He agreed that in principle children should if possible be with their birth parents, but that cannot trump everything else.  Adoption would be more suitable than special guardianship unless it was found to be in the children's best interests for the parents to remain involved.  Dr Bailly sees far more problems for the children and the stability of their placement with direct contact as opposed to indirect contact.

Dr Rita Kovacs

63. Dr Kovacs gave evidence by telephone through an interpreter.  She has worked as a specialist officer in the Baja Guardianship Office since 2013.  Among her responsibilities are cases of domestic violence and the protection and supervision of minors.  She is not a social worker.  The Office has the power to remove children from their family, temporarily or permanently.  Dr Kovacs facilitated Ms H's recent visit to Hungary and accompanied her on her visit to the PGM's home.  She expressed herself to be in complete agreement with Ms H's assessment of the parents and described her views as absolutely realistic.  She did not consider the mother's sister R to be a suitable carer for the children because R had said this herself. 

64. Dr Kovacs described her meetings with the family members in December 2015 and January 2016.  She confirmed that in the end the mother's only proposal at that time was for the children to be placed in foster care in Hungary and that the father was not proposing himself as a carer either. 

65. Dr Kovacs said that if the children were sent to Hungary, her Office would set in motion the process for finding a foster family, which would take about a month.  The request would be for an English-speaking family, but this could not be guaranteed in advance.  It could not be said whether the family placement would be temporary or permanent.  In February 2016, following the Court of Appeal decision, the Office had appointed foster carers as guardians for the children, but they were no longer available.  The process would be repeated if the children were to come to Hungary.

66. As to Z and R, services were not being officially provided to those children.  The child welfare officer visits once a week to see if any services are needed.  There is no information suggesting that those children are at risk. 


The mother

67. There was a significant change in the mother's position during the course of the hearing.  Having heard the evidence above, she signed a further statement.  In this she says that with a heavy heart she has come to the conclusion that the best placement for the children is with the foster carers in England.  There would be a significant risk that the children would not overcome the grief of the loss of relationship with the foster carers.  She would agree to a SGO but would not consent to adoption. 

68. Giving evidence, the mother expressed herself clearly, and explained her reasons.  "This case has been dragging on for 3 ½ years.  The kids don't recognise us any more as parents.  They have accepted the foster parents as parents.  I don't want to cause them harm.  I don't want them to go through the pain of being torn apart from their current nice circumstances.  I am the mother of the children, and of course I want them back with me in Hungary, but looking at the situation from the girl's perspective, I don't want to cause them heartache, harm and trauma by separation from their current parents.  I would love to have them back, but I don't want to break their hearts and ruin them emotionally.  My position comes from the evidence I heard last week, but I've also had the feeling for some time that moving them from the foster carers would cause them distress.  I would like to keep in contact, if possible every other month and if not, at least four times a year."  She would not agree to adoption, because she does not want to sever the relationship with the children forever.  She would like them to keep up the Hungarian culture, speak Hungarian and keep to Hungarian traditions, which would happen if some kind of contact was allowed.

69. During her evidence, the mother stated that she is about 12 weeks pregnant with her fifth child, but that she and the father intend to terminate this pregnancy.  They would like to have more children, but later on.  Asked about whether she and the father would remain together, she described this as a secret the future holds.  They have had their ups and downs but are now together.

70. The mother explained that her situation in Hungary was very confused.  She couldn't provide anything stable and is not sure where she would live.  She would like to go to her mother, but her sister and her children are living there.  The sister could go to the MGGM, but does not want to.  It is not clear how things will pan out.

71. Up to this point, the mother's evidence was clear and heartfelt.  Mr Day, representing the father, then reminded her that the father continued to ask for the children to return to his care in Hungary.  The mother then said that she would support this.  Asked why, she said that the children know him better and would get used to it, even though the PGM has never met the children and speaks no English.  She said does not want to separate from the father, but perhaps she and the younger children can go to her mother's while he and the older children lived at his mother's.

72. She had separated from the father after his violence towards her and was "a bit wary" of him when she saw Dr Kovacs in December 2015.  She was not wary of him now because she had told him that she would leave him if anything like that happened again.  The father had seen her latest statement before she gave evidence and asked her to withdraw it.  He told her that she should fight to the end for the children to be returned to Hungary.

73. The mother's evidence was illuminating.  She showed courage in speaking out in front of the father about the harm the girls would suffer if they were removed, and in accepting that she could not look after them herself.  However, she was understandably unable to bring herself to oppose him.  She has reached the point where she unselfishly puts her own interests last, but she has not been able to put the interests of the girls first.  While she is in a relationship with the father, his interests will always come first.


The father

74. The father gave evidence in a subdued and somewhat emotional manner.  There is no doubt that he feels strongly about the local authority's plans for Janetta and Ella.  By the time the hearing began, he was proposing that they should move to Hungary to be cared for by him, and that in due course, perhaps next spring, he would buy a home large enough to share with the mother and all four children.  In the meantime, he would stay at his mother's home for about three months after the children's arrival to settle them.  After that, he would find work and his mother would look after them until the new home was found.  In a change to his earlier position, he does not suggest that the children should return to Hungary to be placed in foster care.  If they cannot be placed with him, they should remain where they are.

75. The father said that he felt a bond with his children.  It is difficult to know what their reaction to a move would be, but after a few months they would get used to their real parents.

76. The father expressed regret at his violence towards the mother, saying that it had been caused by alcohol and stress.

77. Asked about the plan for adoption, he said "I would not like that at all.  They are my children, I am able to change, I love them and will do anything for them.  I don't want to remain separated.  I know what Dr Bailly says, but I don't agree.  If the children cannot come to Hungary, I support them staying with the foster carers.  I can see that they are developing well and that they love them.  I would not do anything to upset the placement and I would absolutely like to continue to see them."

78. The father said that there should not be a sudden move, but that the children should leave the foster carers gradually so that they were not caused trauma.  It was not clear from his evidence how this might be accomplished, though he said he would do whatever was asked of him. 

79. The father told me that he had come to England in 2011 to start a new life.  He mentioned the way in which members of the Roma community are treated in Hungary.  He also said that he may have a seventh child in Hungary.  A young woman became pregnant by him 12 years ago and went back to her parents.  He does not know whether the child was born or not.


The Children's Guardian

80. Ms Kareen Lain has been the Children's Guardian since the proceedings began.  She has filed three reports, two in 2014 and a final report earlier this month.  Like Ms H, she knows the case extremely well.  She described how close the children are to each other and how caring Janetta is toward Ella.

81. Ms Lain saw the parents and children together at contact twice before filing each report.  She described the current contact as "appalling".  She was extremely concerned by the lack of boundaries, by the way in which the father encouraged risky behaviour, and by the mother's complete non-engagement.  The contact she recently witnessed was amongst the worst she had ever viewed.  It was not even clear that the children could be kept safe by the parents in a contact centre.  On the mother's part, there was no attunement or warmth towards the children, even though they know she is their mother.

82. Ms Lain noted that the mother's position had changed since she interviewed her two weeks earlier.  The inconsistencies in the mother's evidence showed her vulnerability to the father.  She did not think the mother would oppose the father in anything that he wanted.

83. Ms Lain regretted the course that the proceedings had taken.  She emphasised that the parents had come here in 2011 to settle.  After the children were removed in 2013, there should have been a decisive six to eight week assessment of the parents' abilities, but they did not engage in the assessments.  Then, after proceedings began in 2014, the case went wrong at every stage.  There had been continuity when it was before the Circuit Judge, but it got worse when it was transferred to the High Court.  The parties were relying on judges to provide a steer, but there was no continuity and different judges gave opposite steers.  The judicial system has in her view failed these children by not taking responsibility for them.  On three occasions, the family has been prepared for the girls to be "going back": March 2014, November 2014 and November 2015.  As a result, Janetta has been wondering what is going to happen to her next. 

84. Ms Lain struggles to see any benefit from future contact.  The children do not want it.  The quality is so poor that it is damaging.  The way in which contact has been going must be seen alongside the parents' lack of understanding about the shortcomings in their parenting and their enmeshed relationship.

85. Asked about the advantages of special guardianship, Ms Lain emphasised that the girls are part of an entire family, including two children adopted at different times who do not have contact with their parents.  It is important that the girls are not different to their siblings.  Even the possibility of future litigation under an SGO would have an impact on the girls' emotional well-being.  If there was ongoing contact, there would have to be a care order. 

86. Ms Lain considered that the foster family was particularly well-suited to meet the girls' needs.  There is a richness in the foster home.  There are other adopted children.  Further, these are not callow adopters, but experienced foster parents with children of their own.  They have the capacity to love children regardless, and they have a strong support network, including through their local church.  They have been trained to sustain a child's sense of identity and have worked hard to nourish the children's Hungarian links.  There is no fear that they would eliminate the children's past.  The children will need life story work, and their interest in the birth family may increase as they approach adolescence, when they will need support.  In this regard, Ms Lain noted that for the children to continue to meet the parents might be a double-edged sword, because they would not get a positive view of them if they were not enjoying contact.  She did not consider that stopping contact would be a loss to the children at this stage.  The relevance was to the children's identity in later life.

87. Ms Lain expressed the view that there has never been a point when the children might have been reunited with their parents or wider family.  It has been an unsatisfactory journey to the right destination, not a journey that might have led to a different conclusion.  She expressed her own regret that she had not stood out against the idea of the children being sent to Hungary at an even earlier stage in the proceedings. 


Welfare analysis
88. I now consider the factors in the welfare checklist relating to the making of placement orders and to consideration of the range of the court's powers.

The child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding)
89. There is no doubt that if the children could express their wishes, they would say that they want to remain with the family where they are now living.  They, and particularly Janetta, show their feelings quite clearly in the way that they avoid events that make them feel uneasy about their place within the home.  Although they are small children, their feelings deserve as much consideration as anyone else's.  If they were moved, they would be unwilling, and this would certainly create challenges for any future carer.

The child's particular needs
90. Like any other children, Janetta and Ella are entitled to a family of their own.  In Janetta's case, she has already experienced neglect and disruption, and she would need particularly skilful parenting if she was to move.

Any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering
91. The children have suffered and are at risk of suffering the types of harm identified by the court in June 2014.  In my judgement, nothing has changed since then.  There is no reason to have any confidence that the parents would be able to look after the children better now than they did in 2013, and in the meantime time has not stood still for the children.  They have their own points of view and different needs, and I accept Dr Bailly's evidence that removal from their present home would be deeply emotionally harmful for them.

The child's age, sex, background and any of the child's characteristics which the court … considers relevant
92. These children have a rich and varied identity.  Hungarian and Roma by birth, but British by life experience.  As emphasised by the President (paragraph 104 onwards) and by Baroness Hale (paragraph 61) the court must give the most careful consideration to the children's national, cultural, linguistic, ethnic and religious background.  In this case, the children's Hungarian and Roma heritage are of great importance and will be part of their mental make-up throughout their lives.  However, that heritage is not at the centre of their lived experience.  These children have never been to Hungary and it was not their parents' intention that they should grow up there.  Culturally and linguistically, these children's characteristics are British and they are growing in a very different emotional atmosphere to the one they would have experienced if their parents had not left their home country.  Consequently, Janetta and Ella's Hungarian Roma background is of long-term importance for their future lives, but it is of less significance for their immediate needs because there is no way in which that life could be created for them without destroying everything that they know and love.  In considering this important aspect of the matter, I therefore have full regard to the children's Hungarian background, but also to the lifetime that they have spent in this country.

The relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –
The likelihood of any such relationship continuing and the value to the child of its doing so.
93. I do not doubt the parents' feelings for the children, but these are different to the children's feelings for the parents.  Given the complete confusion in the parents' lives and plans, the likelihood of them remaining a couple and being able to look after the children throughout their childhoods is open to doubt, and there must be a strong possibility that the children would be looked after by one or other of them or by  neither.  As to the wider family, none of them has ever met either child and there is no existing relationship. 

94. In contrast, the relationship with the foster family is a living reality for the children.  If they are adopted, they will gain full membership of a functioning family of their own where strong attachments already exist.  These are relationships that will in all probability grow throughout their lives (given their ages and the success of the placement, the likelihood of breakdown is very low indeed).

The ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs.
The wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
95. I accept that the parents would like to look after the children, but the mother, at least, knows that she cannot do so.  The father is no more capable than she is of providing the children with a secure environment.  His determination to have the children back in Hungary springs from his own feelings.  It does not take any account of the difficulties he would face or the harm that would be caused.  The parents' future is extremely uncertain in every way, their plans for the children have changed from one unrealistic proposal to the next and neither of them understands their past shortcomings as parents in a way that might mean that they would not repeat them.  They already face daunting responsibilities towards Z and R and they may have other children in future.  They simply do not have the emotional and practical resources to take on the care of these two needy children.

96. There is no other relative in a position to meet the children's needs.

97. In reaching these conclusions about the parents' capacity, I do not forget the challenges that they have faced throughout their lives as a result of their own backgrounds.  Personal vulnerability, discrimination, shortage of money and lack of accommodation are misfortunes that make it harder to bring up children adequately, but the majority of people facing those challenges still manage to do it.  The difficulty here arises from the parents' own characteristics and the nature of their relationship.

98. I regret that the making of a placement order does not have the support of the children's parents.  That is a disadvantage to the children, because they will know that there was a disagreement about what was best.  However, at least in the mother's case, that disagreement is not as sharp as it seemed at first.  The change in her evidence and her withdrawal from the children during contact show that she has gone some way towards recognising where their future lies.

The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person
99. Every adoption involves some loss, but the size of the loss depends upon the nature of the child's background and relationships.  Given these children's experiences, I find that the likely effect on them of becoming adopted persons will be highly positive.  In comparison, the effect on the children throughout their lives of ceasing to be members of their original family is likely to be more limited and, as they grow older, they are likely to come to terms with it.  They will understand the reasons why it was not possible for them to grow up in their original family.

100. As well as the loss of relationship with their parents, the children would formally lose their legal relationship with Z and R, and any other future children of the parents.  However, that sibling relationship is not one that is known to the children, who identify with other children instead.

101. If the children are adopted, they will gain British citizenship (British Nationality Act 1981 s.1(5)) and retain their Hungarian citizenship.  In practical terms, there are no burdens arising from Hungarian citizenship that are likely to have any real impact on them.  On the contrary, to be dual citizens reflects their heritage.

102. It is a disadvantage to the children that their legal status in this country and in Hungary would be different, unless a British adoption was to be recognised by the Hungarian authorities.  As Baroness Hale notes (paragraph 61) the court has to consider the disadvantages of a "limping" adoption order which might make it difficult for them ever to visit Hungary.  This, she says might tell in favour of finding other ways of giving the children the security and stability they need.  In fact, the expert evidence is that the most obvious "other way" – an SGO – might well also face problems of recognition.  Be that as it may, the disadvantages arising from the different legal positions are not likely to be of such practical effect in this particular case that they speak strongly against the making of adoption orders.  There will be other cases where it is of the first importance that the children can come and go in their country of origin, but this is not such a case.  I naturally hope that if an adoption takes place, the Hungarian authorities will consider whether it can be recognised, taking account of the children's welfare, but that is of course entirely a matter for them.


The whole range of the court's powers
103. The first option (and the option of choice wherever possible) would be safe reunification, but this is not a realistic option for the reasons given. 

104. The next option is care by relatives, but this is not a realistic option either. 

105. The third option is for the children to grow up in foster care.  If this took place in England, they would remain under a care order, requiring them to have social work supervision until the end of their childhoods.  Their carers would not acquire parental responsibility for them and the children would stand out as different in the family home.  This is an option that is not realistic in my opinion as it completely fails to meet the children's needs for a feeling of stability and belonging.  Long-term foster care can hardly ever be appropriate for such young children and the only situation in which it could begin to be considered in this case is if it was going to be in the children's interests to have ongoing direct contact, because a care order would be the only way in which this could be effectively managed.

106. As to direct contact, the court has the power to direct it if the children remain under a care order or an SGO, but in my view the local authority's ability to support special guardians is not to be expected to extend to the management and supervision of contact for the next 15 years.  It is theoretically possible for the court to order contact to take place after adoption, but this is very rarely done.  If the adopters agree to contact, an order is not necessary.  If they do not, it is not likely to be appropriate.  For the reasons given by the social worker and the Guardian, continuing contact is not in the children's interests and is likely to be more and more disturbing to them; in fact, it is likely to break down.  The parents unfortunately do not have the insight and capacity to support the children through face-to-face contact, and contact would instead create feelings of resentment and insecurity with no balancing benefits.

107. This brings me to a more detailed consideration of the relative merits of an SGO and adoption in this case.  These have been extensively analysed by the social worker and the Children's Guardian.  Like them, I find that the balance falls decisively in favour of adoption as the only way of meeting the children's needs.

108. Adoption and special guardianship are very different concepts under English law. In Re AJ (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 55 the Court of Appeal approved this table showing the main differences.

 

SPECIAL GUARDIANSHIP

ADOPTION

1. STATUS OF CARER

Special Guardian:
If related to child retains existing relative status

Parent for all purposes:
If related to child existing relative status changes

2. STATUS OF CHILD

A child living with relatives/carers who remains the child of birth parent

The child of the adoptive parent as if born as a child of the marriage and not the child
of any other person
therefore adoption includes a vesting of 'parenthood'
Sec 39(1)&(2)AA 1976/Sec 67 ACA 2002

3. DURATION OF ORDER

Ceases automatically on reaching 18 if not revoked by court earlier
?whether also ceases on death

The legal relationship created is therefore time limited and not lifelong
Sec 91(13)CA 1989

Permanent



The legal relationship is lifelong
Sec 39(1) AA 1976/Sec 67 ACA 2002

4. EFFECT ON BIRTH PARENT PR

PR retained by birth parent
SG can impose limitations in use (see 6 below)
Sec 14C(1)&(2) CA 1989

Birth Parent PR extinguished

Sec 39(2) AA 1976/Sec 46 ACA 2002

5. CARER'S PR

PR vests in special guardian/s
Sec 14C(1)&(2) CA 1989
Subject to limitations (see 6 below)

PR vested in adopter/s
S 39(1) AA 1976/49 ACA 2002/S 2 CA 1989
No limitations (but see joint operation* below)

6. LIMITATION/RESTRICTION OF PR 
(a) removal from jurisdiction


(a) up to three months without leave, thereafter only with written consent of all PR holders or leave of court unless court gave general leave on making SG order
Sec 14C(3)(b)&14C(4)/14B(2)(b) CA 1989


(a) No restriction

(b) change of name

(b) can not change surname without written consent of all PR holders or order of the court 
Sec 14C(3)(a)/14B(2)(a)

(b) No restriction

name change may take place at time of making adoption order or thereafter

(c) consent to adoption 

(c) consent required from birth parents and special guardians or court must dispense with consent of birth parents and special guardians
Sec 19,20,52 & 144 ACA 2002/14C(2)(b)CA 1989

(c) consent required from adopters only or court must dispense with consent of adopters only 

(d) medical treatment 

(d) may be difficulties where each special guardian agrees but birth parents do not in the following circumstances:

Sterilisation of a child
This is the example given in the government guidance to SGO in "Every Child Matters" in
Relation to effect of section 14C(2)(a) – no authority is cited
Ritual Circumcision
See Re J [2000] 1 FLR 571
Suggests that like sterilisation the consent of all PR holders would be required for this procedure

(d) no restrictions where each adoptive parent agrees (subject to age/Gillick competence of child) on giving consent for medical treatment


*However where adoptive parents themselves disagree in these scenarios a court order may be required (see below)






(d) medical treatment contd

Immunisation
See Re C [2003] 2FLR 1095
This added contested immunisations to the small group of important decisions where the consent of both parents was required

Life prolonging/Life shortening
If the above scenarios require consent of all with PR surely it must then extend to issues of whether treatment should be given or withheld in terminal cases

Sec 14C(1)(b) with (2)(a)
Ss1 does not effect the operation of any enactment or rule of law which requires the consent of more than one person with PR in a matter effecting the child

If consent of all PR holders is required for these type of decisions does this then impose a duty upon SG to consult with birth parents in advance and to bring the matter back to court for determination if birth parents indicate an objection?









*Sec 2(7) CA 1989
Where more than one person has PR for a child each may act alone and without the other but nothing in this part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child

(e) voluntary accommodation 




(e) If SG objects LA cannot accommodate child unless court order
If all SGs consent but birth parents object would appear that LA cannot accommodate child unless court order if birth parent willing and able to provide accommodation or arrange for accommodation to be provided

(e) where adoptive parents agree they can accommodate voluntarily


(e) voluntary accommodation contd





(f) removal from voluntary 
accommodation














 

 

 

(g) consent to marriage under 18

This is not the case if there is in force a residence order and the residence order holder consents nor if there is a care and control order pursuant to wardship or inherent jurisdiction and the person in whose favour the order is made consents.

(f) Any person may remove from voluntary accommodation at any time

This is not the case if residence order holder of carer under wardship/inherent jurisdiction agrees to the voluntary accommodation

How is the 'exclusive' nature of the SG's PR intended to operate in these circumstances?
It appears that the statute requires the consent of all PR holders therefore if SGs consent to accommodation but parents do not the parents can simply remove the child.

Sec 20 (7)(8) &(9) CA 1989

(g) if all SG agree no restriction
the Marriage Act 1949 has been amended to enable SGs to give valid consent where SGO in force (unless also care order in force)
sec 3(1), (1A)(a)&(b)








(f) adoptive parents can remove from voluntary accommodation














 

 

(g) if all agree no restriction

7. DEATH OF CHILD

Special guardian must notify parents with PR
Sec 14C(5) CA 1989

Special guardians may not be able to arrange for burial/cremation in circumstances where parents wish to undertake such a task if the SGO ends on death
See by way of analogy
R-v-Gwynedd CC ex p B [1991] 2FLR

No requirements for notification


The rights and duties of legal parents do not end on death therefore would be no such conflict

8. REVOCATION OF ORDER

Specific statutory provision for birth parents to apply for discharge of SGO with leave of the court, leave not to be granted unless there has been a significant change of circumstances

Specific statutory provision for court to discharge of its own motion even where no application in any 'family proceedings'
Sec 14D CA 1989

No statutory provision for revocation

in wholly exceptional circumstances court may set aside adoption order, normally limited to where has been a fundamental breach of natural justice. See for example Re K Adoption & Wardship [1997] 2FLR 221

9. FUTURE APPLICATIONS BY PARENTS


(a) Residence

(b) Contact

(c) Prohibited Steps

(d) Specific Issue




(a) Leave required

(b) no automatic restriction 

(c) no automatic restriction

(d) no automatic restriction 
Sec 10(4, (7A)&(9) CA 1989
A parent is entitled to apply for any section 8 order except residence where is SGO




leave required 

leave required

leave required

leave required
Sec 10(2)(b), (4), (9)

10. RESPONDENTS TO FUTURE LEGAL
PROCEEDINGS RE CHILD

Birth parents would be respondents in addition to the SGs to any applications in relation to the child for Section 8 orders, EPOs, Care /Supervision Orders, Secure accommodation etc

Only Adopters would be automatic respondents

11. MAINTENANCE

Does not operate to extinguish any duty on birth parents to maintain the child

Operates to extinguish any duty on birth parents to maintain the child
Sec 12(3)(b) AA1976/Sec 46(2)(d)ACA 2002

12. INTESTACY

Child placed under SGO will not benefit from the rules relating to intestacy if the SGs die intestate

Adopted Child will have rights of intestate succession

  

109. It can be seen that there are important differences relating to the status of the carers, the parents and the children, the length of the arrangement and the availability of legal remedies to the parents.  Each of these differences speaks in favour of adoption in the present case.  It is not in the children's interests for them to have anything short of full membership of a family that they can call their own.  An SGO would not, with respect to Mr Macdonald's submission, "reflect the reality of the children's experience as members of two families".  That is not the children's experience, and nor is it in their interests to be members of two families.  It is not in their interests for the adults they know as their parents to have to negotiate with anybody else.  It is not in their interests for the legal arrangement to come to an end when they are 18 – they need a family for life.  Even if the parents had difficulty in making an effective contact application from Hungary, it is the psychological uncertainty that matters as much as the outcome.

110. I therefore conclude that the advantages of adoption greatly outweigh the disadvantages.  It meets the children's needs in a way that special guardianship cannot.  Although it is the strongest order that the court can make, it is the only one that meets the needs of Janetta and Ella throughout their lifetimes.  Their welfare demands it, and the consent of the parents to a placement order must be dispensed with.  The interference with the parents' rights is necessary and proportionate.

111. I will direct that when the adoption application is issued, it should be listed before me.

112. The mother has applied for a declaration and damages for alleged breaches by the local authority of her rights and the rights of the children arising from the period of voluntary accommodation during 2013.  The father makes no such application.  In this respect, it should be noted that in May 2013 the court endorsed the parties' agreement at a time when all were legally represented.  I make no further comment in relation to that claim.  There were times during the hearing when questioning appeared to focus on this period, even though it was not of direct relevance to the outcome, and as I will be the judge determining that application, I have avoided making reference to that issue. 

113. I thank the professionals working here and in Hungary for their efforts on behalf of these children.  I thank the parents for their attendance and the interpreters for their assistance.  Finally, I thank counsel and solicitors and invite them to draw up the necessary order. 

114. These proceedings are now concluded.
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