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West Sussex County Council v Alma [2016] EWHC 2009 (Fam)

Judgment in care proceedings concerning a child of 19 months who, it appears, has been trafficked. Application to dispense with parental consent in circumstances where the parents could not be found.

In this case the court was concerned with a child aged about 19 months.  The 'preponderance of the evidence' suggested that she had been trafficked.  She did not have a name or birth certificate; her age was approximated by way of medical opinion.  The local authority applied for a care order and placement order which required dispensing with parental consent.  As a result, the court considered and clarified the meaning of 'cannot be found' in ACA s 52 (1) a.  If the birth parents cannot be found by taking all reasonable steps within a reasonable timescale, the court may dispense with their consent. If one reasonable step is omitted, one cannot say the parents cannot be found.  In this case the local authority had made exhaustive attempts without success.

Hayden J gave the judgment in open court with the press present and stressed  that any appeal notice should be filed within 21 days, thus giving the birth parents one final opportunity to come forward.

Summary by Martina van der Leij, barrister, Field Court Chambers

Neutral Citation Number: [2016] EWHC 2009 (Fam)
Case No: SD16C00299


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/07/2016

Before :

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Between :

West Sussex County Council
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Jade Alma
(by way of her Children's Gaurdian)
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Mr Downs (instructed by West Sussex County Council Legal Services) for the Applicant
Ms Rehna Azim
(instructed by Wannop Solicitors) for the Respondent

Hearing dates: 28th July 2016
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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.


This judgment was delivered in Open Court.   The judge has given leave for this version of the judgment to be published.

Mr Justice Hayden :
1. This Judgment concerns a child known as Jade. The preponderant evidence indicates that she has been the subject of child trafficking. 

2. On the 14th March 2016 the Local Authority, West Sussex County Council received a referral from a charitable organisation concerning a woman, who I will refer to as "S", who had contacted them via a telephone helpline.  S reported that she was caring for a little girl and that the child's mother had died. S said that the little girl had chicken pox but had not been seen by a GP.  She also asserted that she required financial assistance. The response to this was to trigger a series of investigations that were precipitated by a strategy meeting on 16th March 2016.

3. There is an account concerning Jade's parentage given by S which led to another male being identified who it was thought initially might be Jade's father. As the investigation progressed it emerged that there was no biological connection – I thus reduce what was an extensive investigation by the Local Authority in conjunction with the Police to establish solid evidence.

4. Ultimately, there was really very little information about this little girl; nothing that could identify her parentage, her age, or indeed her nationality. The Local Authority, under the guidance of Mr Downs of Counsel, has made very extensive efforts to see what information could be found about Jade.  Six weeks ago a public campaign was approved and then launched which set out the background history of the case.  The objective was to reach the widest possible audience.  The campaign identified the child as Jade.  In addition the initial inquiry had produced material which led the Local Authority to conclude that she might have the surname Alma or Nakabugo.  This information was included in the public campaign.  At that stage the best guess as to her age was that she was 19 months old.  A photograph was also disclosed into the public domain as well as a short summary of Jade's character and personality. 

5. Jade is said to be an affectionate, sociable, bright and happy toddler who enjoys music and likes to dance and sing.  She is inquisitive, active and enjoys the outdoors, loving to explore her environment and has a love of climbing.  Detective Sergeant Alexis Witekof Sussex Police stated, at the time of the appeal:

"At this point we really need to find out who this little girl's parents are.  She may have connections to Crawley and West Sussex as well as Tooting or South London more generally.  We ask that anyone who may know anything about her to speak to us."

6. Mr Downs has informed me that this campaign was picked up the BBC and ITV as well as the Daily Mail and local press in hard copy and also as online content. It elicited only one response and as it transpired that particular line of enquiry had already been investigated by the Police.

7. The Local Authority brought proceedings on 21st March 2016 and at a hearing on 13th June 2016, the Local Authority explained the reason for their application to disclose information about the case into the public domain was because HHJ Jakens had requested that the Local Authority make an application for a Placement order. The Judge was keen to move the case on – concerned as she was about the child's timescales and balancing the importance of the inquiry as against the practicalities of achieving any result in identifying Jade's origins.  In my view this was entirely the correct approach and one which I have followed.  

8. The placement application was approved in principle by the Local Authority's Agency Decision Maker but it requires the Court to be satisfied that the parents 'cannot be found' pursuant to Adoption and Children Act 2002 section 52 (1) (a) and, if so, to waive the requirement contained in the Family Procedure Rules 2010 Rule 5.1 (4) for a birth certificate. That latter application was granted by the Court on 13th June 2016.

9. Though these provisions under the 2002 Act have now been in place for some time they do not appear to have generated any case law.  Accordingly, Mr Downs has extended his research to similar provisions in the 1976 Act and its predecessor the 1958 Act.

10. On the point of principle, the Court of Appeal in Re F (R) (an infant) [1970] 1 QB 385 considered the Adoption Act 1958, section 5,which stated, "the court may dispense with any consent required … if it is satisfied that the person whose consent in to be dispensed with- … (b) cannot be found" 

11. The subsection was considered by Lord Justice Salmon at 389 C-D where he said that the words "cannot be found" must mean, "cannot be found by taking all reasonable steps."

12. The provision was further considered by the Court of Session (Inner House) in Re S (Adoption) [1999] 2 FLR 374 where Lord Prosser commented on the obvious desirability of the same construction being adopted north and south of the border (the relevant provisions being to all intents and purposes identical).The passage of the Judgment of Salmon LJ (above) was there approved and Lord Prosser agreed with the proposition that it meant that "all reasonable steps must be taken" but then went on to add the important caveat, "if even only one reasonable step is omitted, one cannot say that the person cannot be found" [at 379]." 
13. Thus were I to conclude here that only one reasonable step had been omitted, it would therefore render the statutory requirement unmet and accordingly the Court would be unable to say 'that the person cannot be found'.

14. As I have indicated, this Local Authority has, to my mind, taken every conceivable measure to achieve the identification of the parents. Not only has it taken 'reasonable steps' it has gone well beyond that and explored creative and well considered options. Enquiries were made of Coroners, Registrars of Births, Deaths, Marriages and Civil Partnerships, the Office of the Registrar General for England and Wales has been consulted; the various social services departments where there were thought to be possible connections; hospitals and, of course, the Police.

15. The two individuals who I have referred to above are being investigated by the Police but their credibility is already shredded, to the extent that it is unlikely that any concrete information will be forthcoming. In any event, one of them has presented with a serious illness and this has interrupted the progress of the investigation.  Of course to the phrase 'reasonable steps' must be added within a 'reasonable time scale'.  Here as in all proceedings, where the welfare of a child is paramount, timescales are evaluated by reference to the child's needs.

16. It is illuminating to note, as Mr Downs told me, that the Office of the Registrar General of England and Wales informed the Local Authority (helpfully) that a search with such little information as was available to them was effectively meaningless.

17. I agree with the Children's Guardian, Ms Alison Bush, who has described the efforts to identify Jade's parents as having been 'exhaustive'.  She points out it will be a crucial aspect of Jade's own life story in the future to know that the efforts to identify her parents have been as comprehensive as they have been.

18. She is satisfied, as am I, that the Police, the IRO and the Court have all worked in partnership to ensure a comprehensive enquiry.  She makes a sensible observation that in years to come there may be some crumb of comfort for Jade when her attention is directed to the press articles which have been generated by the search for her parents and which set out the extent of the efforts that have been made to discover her true origins.

19. Having concluded that all realistic avenues have been pursued for Jade and that no alternative placement other than an adoptive family will meet her needs, the Guardian recommends a Care Order, endorsement of the care plan, facilitating these identified objectives and the granting of a Placement Order.  I agree.

20. I have been told, finally, by Mr Downs that a prospective adoptive placement has already been identified with adopters who are considered to be suitable, though they have not, as yet, been approved. The care plan also records that arrangements for identifying prospective adopters are far advanced.

21. Mr Downs draws my attention to the Judgment of Lord Justice McFarlane in Re H [2015] EWCA Civ 583: "the judge in every case, where a final care and placement for adoption order is made, should spell out to the parties that they are to file any Notice of Appeal within 21 days."  In circumstances such as this that advice seems particularly apposite despite, indeed precisely because, of the fact that the birth parents have not been identified.  Strict procedural compliance is essential.  Further, I should add that I have delivered this short extempore judgment in Open Court with the Press present. I have done this in order to grasp a further opportunity to identify the parents and to signal the nature of the very important orders I am making in respect of this child.

22. I am wholly satisfied that Jade's best interests now lie in a smooth and structured move to a loving permanent placement.  There is no reasonable prospect of identifying her two parents.

23. I should add finally, that it has not been easy to identify Jade's actual age but on the advice of the treating paediatrician, looking across the full spectrum of Jade's social and physical development and having regard to the diverse pieces of information, discovered in the enquiries, it seems likely that she was born in September 2014.  As the date 22nd September has been mentioned on a number of occasions by S (above) it may well be that is her true date of birth and so it shall now be recorded.