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Luton Borough Council v N & N (Acting by her Children's Guardian) [2006] EWHC 1189 (Fam)

This judgment details 3 hearings in which the judge had to determine the correct age of a girl in the respect of whom care proceedings had been brought. This was important in order to consider the Local Authority's request for leave to discontinue their application for a care order. In addition, he had to consider an application by the father for residence. The Local Authority was given leave to withdraw their application, the father's application was dismissed.

The girl, originally from the Democratic Republic of Congo, was the subject of care proceedings in 2004 and subsequently moved into foster care. The father was cautioned for hitting his daughter and although he accepted his actions were wrong and unacceptable, he thought his behaviour was culturally acceptable. At the third hearing the judge accepted a medical report which concluded that the girl was in fact 17 not 13, and, as a result of investigations undertaken by the Head of Urban and Social Affairs and the refusal by the father to have a DNA test, the paternity of the girl was in doubt. Further, under s9(7) of the Children Act, a residence order could not be made unless there were exceptional circumstances; the facts in this case were not exceptional.

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Neutral Citation Number: [2006] EWHC 1189 (Fam)

Case No: LU04C03441

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24/05/2006

Before :

THE HON. MR JUSTICE SUMNER

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Between :

LUTON BOROUGH COUNCIL Applicant

- and -

Nzunzu N 1st Respondent

-and-

Rachelle N (Acting by her Children's Guardian) 2nd Respondent

Miss Bailey for the Applicant local authority

Miss Graves (instructed by Pictons) for the 1st Respondent

Mr Braithwaite (instructed by Machins) for the 2nd Respondent

Hearing dates: 28 July 2005, 27 October 2005, 12 January 2006

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 24 May 2006. It consists of 8 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner :

Introduction

1. I am concerned for Rachelle N. She is either 13 or 17 years old. Care proceedings were brought in respect of her on 3 November 2004. She was born in the Democratic Republic of Congo and remained there until November 1997.

2. The first Respondent is Mr Nzunzu N. He claims to be Rachelle's father. He came to this country in January 1995. He sought asylum on arrival. Rachelle came here in November 1997 having previously lived with her mother and her maternal family. Both she and Mr N had been granted exceptional leave to remain in the UK. This expired on 23 September 2005.

3. Mr N claimed to have married Rachelle's mother in a traditional ceremony. There was no marriage certificate. He originally said that she had died. He produced a death certificate dated 26 April 1994 in the name of Mrs Charlotte Batuna. He had previously told the Home Office that Rachelle's mother had died on 26 June 1997.

4. Rachelle remained in the care of Mr N until May 2004. At that time her teachers reported to the local authority, the Luton Borough Council, the marks that they had seen on her. Mr N made certain admissions and was cautioned by the police. Care proceedings were begun. Rachelle went into foster care. She has remained there and does not wish to return to Mr N's care.

Hearings and the issues

5. The matter came before me on 28 July 2005. The issue was whether I should give the local authority leave to discontinue their application for a care order. On that occasion I adjourned the application and directed that Mr N was to submit to DNA testing to establish his paternity or otherwise. I continued –

"In the event that the first Respondent fails to submit to such testing, the court will be entitled to draw the inference that he is not the father of the 2nd Respondent (Rachelle)."

6. The matter was to be listed for a final hearing on 12 January 2006 for one day. I gave further directions on 27 October 2005.

7. Miss Bailey appeared on behalf of the local authority, Miss Graves on behalf of Mr N, and Mr Braithwaite on behalf of the Guardian. In the event I was asked to decide firstly whether Rachelle was 13 years of age as Mr N claimed or whether she was 17 years of age. This was the case on behalf of the local authority and the Guardian based on the report of Dr Colin Michie of September 2005. He is a Paediatric Consultant and a senior lecturer in paediatrics. He concluded that her date of birth was not 1992 but 1988.

8. Secondly I was asked to rule on Mr N's application for residence. In order to determine those matters I heard from Rachelle. I also heard from Mr N.

9. There had by this time been 2 letters from Mrs Penelombe, Head of Urban and Social Affairs in the Congo. She had made investigations there. She says that she met Rachelle's mother who said that Mr N is not her father but her maternal uncle. She has another daughter Rachelle so it would seem unlikely that Rachelle, the subject of these proceedings, is called by her correct name.

Rachelle's position

10. The appalling position in which Rachelle is placed at the present time has left Mr N wholly unmoved. For the first time she learns that there is evidence that she is not 13 years of age but 17. The person whom she treated as her father may well not be her father and her name may not be that she was originally given by her family.

11. The most that Mr N has been able to say about the plight in which his conduct has placed Rachelle is this. To have his word challenged about her age or for him to have to undergo DNA testing is disrespectful to him. He is wholly indifferent to her wishes not to live with him because he regards it as his responsibility and the court should not listen to what a child wants.

12. Mr Braithwaite for the Guardian said at the conclusion of the hearing that Mr N's approach was so unremittingly selfish that it beggared belief. He should be ashamed of himself. I find it difficult to disagree with those sentiments, especially when he had heard Rachelle describing with affection living with her foster mother and her daughter.

13. She wanted to stay there as she had been settled and loved and was very much part of the family. She added that she did not want to return to Mr N or to see him and that her views were not likely to change in the future. She wanted me to listen to her.

14. In the event having read the report of Dr Michie which the father did not wish to contest by way of cross-examination, I pronounced that I was satisfied that Rachelle was 17 years of age. That meant the local authority had to apply for the care order in respect of her to be discharged.

15. They were however helpfully prepared for that application to be adjourned last July so that the Guardian could seek to obtain more details about Rachelle's background in the Democratic Republic of Congo which would otherwise not have been possible. Furthermore the local authority and the Guardian had considered the support that Rachelle would need in the event that I made such a finding about her age. A valuable series of agreements were made and recorded in writing covering the support that she will need.

The history

16. Against that background I come to the history of recent events. It is right that they should be recorded for the benefit of all members of Rachelle's family and for Rachelle herself.

17. The first major event to record is an incident on 25 May 2004. That is when Rachelle made allegations to a teacher at school in relation to Mr N.

18. Rachelle said that her father (as she then believed Mr N to be) had hit her several times on 22 May with an electric wire. This was because he thought she was spreading rumours about him. It was not the first time she had been hit by him.

19. The details of Rachelle's allegations are to be found in a core assessment of August 2004. Rachelle said that Mr N had hit her 3 times. The first time he hit her was for banging doors. He hit her across the face with his hands causing her nose to bleed. His former partner Solange was there. She tried to stop him hitting Rachelle.

20. The second time was when Mr N accused her of stopping him getting girlfriends. They were in Luton at the time that he hit her.

21. The third time was when Mr N used an electric wire. As he hit her he told her he was going to kill her and did not care if he was taken to prison. She ran out and sought help. Mr N followed her and took her home. He hit her again. She said she had blood on her trousers and was scared that she could have been seriously hurt.

22. She said that when she first arrived here living with her father was fine. The relationship deteriorated when she was about 7 or 8. Mr N stopped showing any interest in her or her homework. She had felt like a prisoner because she spent most of the time in the living room. Mr N would spend most of his time in his room listening to the radio and paying no attention to her.

23. On 21 June 2004 when seen at an Initial Child Protection Conference, Mr N denied using an electric wire but did not deny hitting Rachelle, saying that he used his hands. He had done so because Rachelle lied to him.

24. After the allegations were made Rachelle went to foster carers where she has remained. She met Mr N on 29 July at a LAC review. Mr N spoke to her, upsetting her. She said that Mr N had said that even if he killed her nobody would care.

25. At a further meeting on 28 September, Mr N was not present. Rachelle said on that occasion that she did not want to have contact with him or to return to his home. In October Mr N stated that he wanted Rachelle to return home because he was her father and he should look after her. Despite this he has not shown any interest in having contact with her nor asked about her welfare.

26. Without warning on 22 October 2004 Mr N telephoned Rachelle's school saying that he was coming to pick her up and take her home. This upset Rachelle.

27. Mr N filed a statement on 28 January 2005. He said he had met Rachelle's mother Ms Charlotte Batuna in about 1988. They underwent a traditional marriage ceremony in the Congo. He separated when Rachelle was about a year old. Because of political difficulties he came to the UK on 20 January 1995.

28. He made contact with Charlotte's sister Christine. She informed him that Charlotte had died, he asked Christine to send Rachelle over here and she arrived in 1997.

29. He accepted that he had lived at 5 different addresses. Rachelle has been to 5 different schools. He had had a daughter Bertini by his partner Solange who was born in July 2002.

30. He accepted that he had hit Rachelle on 3 occasions and that on one occasions it had caused her nose to bleed. He repeated that he had not hit her with an electric wire. He had been cautioned by the police based on his admissions.

31. An independent assessment of Mr N in March 2005 said that he accepted his actions were wrong and unacceptable. However culturally his behaviour was acceptable. It was of concern that he described Rachelle as mad if she did not listen to him. He believed it was alright to leave her alone in the flat. He did not accept it was unsafe. Rachelle said that she felt scared.

32. It was difficult to make recommendations because of Mr N's strongly held beliefs in his culture. Until Rachelle felt safe with supervised contact, it was equally difficult to suggest a way forward.

33. In May 2005 Ms Penelombe sent a letter giving results of her efforts to trace Rachelle's family. She met Ms Batuna who said that Rachelle was her daughter. Mr N was not her father but her paternal uncle. He had wanted 2 members of the family to come to England but they took Rachelle.

34. A more recent report from Mrs Penelombe followed another meeting with Ms Batuna. This resulted in ascertaining that Rachelle was born on 20 September 1988. She is Ms Batuna's third child.

35. She was living with a Mr Mahemba in Palang by whom she had had 2 daughters. She was prepared to undergo a DNA test to show that she was Rachelle's mother. She provided photographs.

36. She had seen a birth certificate saying that Rachelle had been born in 1992. She said it was a fake because it got the wrong village for the address. Furthermore Charlotte said that Rachelle was born in Kinshasa, and not in Lubumbashi. Further details in relation to Charlotte were set out.

37. Of particular note is that she had had twins Roly and Rachelle born 23 March 1992. This was the date given by Mr N as her birthday and is on her birth certificate. If correct it means that Rachelle is not her correct name and that she was not born on that date.

38. I have seen a letter from Rachelle's school of 18 November 2005. They set out good reasons why they were concerned that Rachelle should be found to be older that she presently believes herself to be. I am satisfied that, important though these grounds are, there is a greater importance to Rachelle in discovering the truth about some of her background. It is, as I have said, an appalling reflection on Mr N that she is now in doubt about her age, her name, and who her mother and father are.

Rachelle's age

39. In a report of October 2005 Dr Michie a consultant paediatrician examined Rachelle with a view to determining her age. Measurements of her height, weight, skin fold thickness, body mass index, skin signs seen in young adults and dental examination were consistent with a chronological age of 17. This was based on a number of objective, quantified forensic measurements, carefully collected and documented and compared with appropriate population data sets.

40. He concluded that Rachelle's age was consistent with a date of birth in 1988 and not 1992. "This is supported by further powerful proof in the form of measurements recorded in her medical and social services records".

41. The Guardian in her report of 6 January 2001 considered Rachelle's position in the light of the 18 different injuries which Rachelle had suffered and the psychological harm. She concluded that Rachelle would be at risk of emotional and physical harm if she were returned to Mr N's care. He still felt that his behaviour was justified because of what she did and cultural practices.

42. She recorded that on an occasion in February 2005 he had again spoken aggressively to Rachelle. She sought a finding that Rachelle's date of birth should be determined as 23 March 1989. If she was 16 she sought a care order.

Medical report on Rachelle

43. Dr Pauline Hay, a consultant community paediatrician examined Rachelle on 25 May. In relation to the allegations of whipping she found 4 roughly parallel sets of bruises on her upper arm. "I am unable to think of any way in which these bruises could have been caused accidentally and I believe them to have been inflicted as a result of at least 4 very hard blows with a thin object such as a cane or an electric cable". Some 30 marks were found. Dr Hay's conclusion was as follows –

"I believe the majority of these injuries had been inflicted by a weapon such as a cane or an electric cable though a few may have been inflicted by hitting her with a fist. As far as I can see these injuries represent at least 18 separate blows. Rachelle's version of how these events occurred is entirely compatible with a clinical findings. I am unable to think of any way in which these injuries can be accounted for by accidental means and I am therefore forced to the conclusion that they were inflicted by a third party."

Hearing 12 January 2006 and my conclusions

44. It was agreed that I should first determine Rachelle's age because so much centred on that. If she was 17 years of age a care order could not be made but there was Mr N's claim that she should live with him. That had complications depending on whether Mr N was her father or not. However he could make an application for a residence order s.10(5)(b) of the Children Act 1989 as she had lived with him for a period of at least 3 years.

45. The medical evidence whilst not accepted in relation to Rachelle's age was not disputed. There had been an opportunity for Dr Michie to be called but this had not been taken up.

46. I found the report of Dr Michie, though not contested, wholly convincing. I announced that having heard Mr N say that her date of birth was 1992, I preferred the medical evidence to his. I therefore resolved that Rachelle was 17 years of age. I made a declaration to this effect.

47. Rachelle gave evidence. She had come to court with her foster mother Miss Hector and Miss Hector's daughter.

48. Rachelle stated that she wanted to stay where she was, she was settled and she was loved there as very much part of the family. She was pleased that she could stay there until she was 21. She said she did not want to return to live with Mr N nor to see him. Her view was not likely to change in the future. She did not know when her birthday was, she had always taken the 23 March, but if she had a choice, she wanted the 23 November as it was a new start for her. She thought that having the help from a therapist was a good idea.

49. She had written me a moving 2 page letter. It set out something of her background but in particular emphasised the enormous shock of learning that brought up to be 13 years of age she was in fact 17. She could not believe it.

50. She now realised what a loss it was not to have a mother and how much she would have loved to have such a relationship. She set out how upset she had been and ended –

"The only good thing that I can see that is good in my life is Lorraine and her family (her foster mother). The have been so supportive of me that it is the only thing that kept me going and stopped me from breaking down."

51. She had given her evidence with Mr N out of court. He heard what she said. She chose to remain in court to hear his evidence. She heard him say that she was his daughter, his responsibility and that she should be with him. Only he could look after her.

52. In relation to her change of views these arose because she had been brainwashed. She was too young to express a view.

53. She was born on 23 March 1992. He did not accept that she was older. He said the doctor was guessing. She was living a wild life and should be in his care.

54. When asked why he would not provide a DNA sample and warned as had been done in the previous order that the court could draw inferences, he was content to say that this was disrespectful to him. I endeavoured to point out what he was doing to Rachelle given the present state of the contradictory evidence.

55. He was blind to any view other than his own dignity and pride. He did not care that her wishes were not to live with him. It led to Mr Braithwaite's description to which I have referred at the early part of this judgment. After Mr N's conduct and given his present attitude, there can be no question of Rachelle living with him against her wishes and ending the happiness she has found.

56. There was an application by him for a residence order. It is strongly against her wishes. She is in any case, as I have found, now 17 years of age. Under s.9(7) of the Children Act I cannot make such an order for a child or young person over 16 unless the circumstances are exceptional.

57. I find that unusual though the facts are, they are not exceptional within s.9(7). If they were exceptional I would for further reasons dismiss Mr N's application.

58. Rachelle is approaching 18 years of age. Her views carry the very strongest weight given the history. In this case they are decisive. Even if they were not other welfare considerations would dictate the same decision. His conduct towards her physically and emotionally and his absence of consideration for her as amply demonstrated would be overwhelming and again decisive. His application is doomed to failure. I dismiss it.

59. Counsel were in agreement with the course I proposed in July 2005. I made the declaration of age which should have led to an immediate acceptance of the local authority's application to withdraw their application for a care order because of her age. I adjourned this. I confess that this was for the express purpose of enabling the Guardian to go back to Miss Penelelombe to find out more information about Rachelle. These factors are of such importance for her future emotional and psychological development that it justified in my view postponing what may well be an inevitable order. It was so that Rachelle may be further helped.

60. Now I have the additional information, I give the local authority leave to withdraw their application. I dismiss Mr N's application for a residence order. I approve the draft order I have been sent.