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Luton Borough Council v Nzunzu N and Rachelle N [2006] EWHC 1189

A Local Authority's request for leave to discontinue their application for a care order and an application by the father for residence.

High Court: Sumner J (24 May 2006)

Summary
A Local Authority's request for leave to discontinue their application for a care order and an application by the father for residence.

Background
The child, Rachelle, at the heart of this case came from the Democratic Republic of Congo. The first Respondent, Mr N, claimed to be her father and asserted he had married her mother, who had since died. Care proceedings were brought in 2004 following allegations made by Rachelle to her schoolteachers, which included being hit with an electric wire. Rachelle went into foster care where she remained at the time of the hearing. Mr N made an application for residence. An issue arose as to the age of Rachelle and whether Mr N was indeed her father. Mr N was directed to submit to a DNA test failing which the court would be entitled to draw the inference that he was not Rachelle's father. Mr N refused to accede to a paternity test and viewed it as disrespectful to him. Investigations were made in the Congo and Rachelle's mother, who had not died, was found and claimed that Rachelle was born in 1988 and Mr N was her maternal uncle not father. She also raised doubts as to whether Rachelle was her correct name.

In response to the allegations Mr N accepted that he had hit Rachelle on 3 occasions but denied the use of an electric wire. However the medical report concluded that the majority of Rachelle's injuries had been inflicted by a weapon such as an electric cable. An independent assessment of Mr N revealed that he viewed his behaviour as culturally acceptable. Rachelle gave evidence that she wanted to stay with her foster family and did not want to see Mr N again. Mr N's reaction to this evidence was that Rachelle had been brainwashed.

Judgment
HHJ Sumner preferred the medical evidence of a consultant paediatrician to that of the Mr N's and made a declaration that Rachelle was 17 years old. Therefore the Local Authority was given leave to withdraw their application for a care order.

Since Rachelle was approaching 18, under section 9(7) of the Children Act 1989, the court could not grant a residence order unless the circumstances were exceptional. Sumner J found that the facts of this case were not exceptional to justify a residence order. Rachelle's views carried very strong weight and were decisive. However the court observed that regardless of her views other welfare considerations would have dictated the same decision. Mr N's conduct towards her physically and emotionally and his absence of consideration for her was overwhelming. His Lordship found Mr N to be wholly indifferent to her wishes and thus his application was doomed to failure.

Read the full text of the judgment here