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Gloucester County Council v JD & Others [2019] EWHC 1101 (Fam)

Judgment of Williams J in care proceedings relating to two children where a Child Arrangements (“live with”) Order was made in favour of the father and his partner who live in Portugal.

This case concerned two children, aged 3 and 2 at the date of the hearing. The children have the same mother. The second respondent, who lives in Portugal with his partner, is the biological father of the younger child ("B") and named on the older child's ("P") Portuguese birth certificate.

The application had a long history. Findings had been made that the mother had caused various injuries to B and that emotional harm had been caused to P. Subsequently, further findings were made that very serious injuries had been inflicted on B when he was a baby. Mother was found to be a possible perpetrator of those injuries. The father was exonerated of any responsibility for the injuries caused.

Following on from those findings, directions were made for mother to undertake a psychological assessment and father and his partner to be subject to social work assessment to determine whether they could care for both children. Mother did not attend the appointment with the psychologist and thus no assessment was available.

The social work assessment of the father was detailed and had involved the social worker assessing the father and his partner over a 7-day period in Portugal. Liaison had also taken place with a Portuguese social worker. The conclusion of the report was wholly positive.

In light of the social work assessment, the LA's approach to the future of the case was to place the children with their father and his partner in Portugal. Care and supervision orders were no longer sought, save for an interim care order to facilitate the transition to Portugal. At the hearing, the LA requested that a 'live with' order be made in favour of the father and his partner and that a prohibited steps and 'time with' order be made in relation to the mother, limiting her ability to exercise parental responsibility and limiting all contact to supervised contact.

The father and mother supported the plan. The Guardian supported the placement although expressed concerns over whether it should be on an interim basis in the first instance. She also recommended that a mechanism be put in place which would enable social work visits by the Portuguese social worker for the first few months. 

The Court was satisfied on the evidence that it was in P and B's welfare that they should live with the father and his partner under the proposed arrangements. The Judge confirmed that the 'live with' orders, which conferred Parental Responsibility, would have effect in Portugal pursuant to Article 16(3) of the 1996 Hague Convention. The Judge also accepted the LA's invitation to issue an Annex II certificate pursuant to Article 39 of BIIR. The Judge directed that the LA would fund the application for registration.

The Court further accepted that the mother's ability to exercise her PR should be curtailed and that any contact should be supervised. Williams J recorded that he was hopeful that the Portuguese authorities would make good on their offer of supervision whilst the children remained very young.

The LA submitted that a family assistance order should not be made in this case as there was no such legal creature in Portugal. The Judge did not feel compelled to address the issue of the transferability of obligations upon local authorities from one member state to another. He was satisfied, based on the ongoing cooperation between the LA and the Portuguese social worker, that a request that the Portuguese social services monitor and support the placement for not less than 2 months was likely to be acted upon.

Williams J concluded this judgment by commending the dedication and commitment of the local authority and, in particular, the social worker in this case.  

Summary by Oliver Woolley, barrister, 1GC Family Law  

You can read the full judgment of Gloucester County Council v JD & Others [2019] EWHC 1101 (Fam) on BAILII