: D (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 18 September 2014 |
| Neutral Citation | [2014] EWHC 3388 (Fam) |
| Docket Number | Case No: OG12C01703 |
| Court | Family Division |
| Date | 18 September 2014 |
[2014] EWHC 3388 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
The Strand
acLondon
The Honourable Mr. Justice Mostyn
Case No: OG12C01703
Mrs. R. Rowley (instructed by Nottingham City Council for the Applicant
Mr. W. Metaxa (instructed by (Bhatia Best Solicitors)) for the Respondent Mother
Mr. S. Veitch (instructed by Tallants, Mansfield) for the Guardian/Child
Hearing dates: 15 – 18 September 2014
I am concerned with the future of ED, born on 27 June 2012, and who is therefore aged two and a quarter. If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance.
This challenging dilemma with which I am faced is reflected by the choices I am presented with which are as follows. First, the case of the Local Authority supported by the children's guardian is that I should make a care order and a placement for adoption order. This is what the care plan says. The care plan, as written, does not contemplate placement with the current foster parents where ED has been living for about two years, for almost all of his life. The relevant part of the care plan is found in section D at page 26 at paragraphs 4.1 and 4.2 which read in part as follows:
"It is proposed that ED is placed for adoption in the UK. Every attempt would be made for the placement to reflect and promote ED's Czech Roma heritage. ED is currently placed in a foster home that meets his needs. As soon as a placement order is made a search would start for an adoptive home. This would be time limited in terms of an exact cultural match. The Local Authority has placed a time limit of three months in order to prevent delay. If no exact match has been found within that time then the search would be widened to include families who are not an exact cultural match but would be willing actively to promote his Czech Roma heritage in every possible way. If, after a further three months, no family has been identified ED would remain with his current carers."
It can therefore be seen that, according to the care plan, for ED to remain with his current carers would be only the default position if no suitable other adopters could be found. If other suitable adopters could be found it is realistic to assume that they would not be in a position to promote his Czech Roma ethnicity. Indeed a document that I have seen demonstrates that in the whole of England and Wales on the adoption register there is one single Czech couple offering to stand as adopters. Some mention has been made during the case of the possibility of adoption by an English family, I think, who have previously adopted a Roma boy but scarcely any details of that were given to me and I believe that this again was confined to one single couple.
At the other extreme it is the parents' proposal that the care proceedings be dismissed and ED be returned to them to live with them in the Czech Republic in the town of Novy Jicin with ED's full sister, LD, (born 13 September 2013). This plan is supported by the Social Services department in Novy Jicin and by the family's psychotherapist there Leona Hozova. The social worker from Novy Jicin, Pavla Polakova, and the psychotherapist, Leona Hozova, are confident that with formal supervision any risks to ED, and for that matter to baby LD, can be averted.
In between these two poles are two further choices which I outline as follows. First, in the report of the guardian it is stated that the current foster parents, who are aged 55 and 59, would, notwithstanding their previous significations, be very happy to take on the permanent care of ED. Unsettlingly, at least from my perspective, these foster parents have been described as elderly. It was thought that they had decided to retire from fostering, they having seen many children successfully through to adulthood, some of whom they have adopted and in respect of some of whom they have stood as special guardians. However, in the guardian's report at E52, paragraph 4 it says this:
"The placement is very stable and can be ongoing. The carers wish to continue to care for ED and are willing to offer him permanent care if he is to remain separate from his parents and is able to stay in the UK. This is a change from last year when I saw ED with them but clearly they have become very attached to him."
Special guardianship of course endows the guardian with super-parental responsibility but does not formally extinguish the parental responsibility of the parents which lies fallow in a sort of symbolic state. It does allow an application to be made by the parents for contact, as indeed does an adoption order, although an order for contact post-adoption is a rare creature indeed. The foster parents here are well aware of what special guardianship entails. The advantage of a special guardianship order in favour of the foster parents is the continuity of the placement in circumstances where, as I have just said, for almost all of his life ED has been with them and he loves them and they love him and where it is an accepted tenet of psychology that within the first two years of a child's life most of his or her vital attachments are formed. And so there is a great advantage in the perpetuation of the status quo. There is also the fact that under a special guardianship order the parental link and the connection to ED's ethnicity would not be broken. The mother has had contact in the current placement and I see no reason, if this choice were adopted, why that should not continue and indeed if it were to continue that contact could expand to involve baby LD also, so that ED can be aware of and, to a limited extent, forge a relationship with his full sibling. It is noteworthy, in my judgment, that a comparable arrangement was made and approved by the guardian and formalised and approved by me in relation to ED's half-siblings, B and K.
The second intermediate choice is that ED is placed in foster care in the Czech Republic. This has only lately come to the fore. In a letter dated 23 October 2013 which is at section F, page 35, the Office for International Legal Protection of Children in Brno in the Czech Republic, which is the central authority for the Czech Republic, stated at paragraph 3(b) as follows:
"The immediate care arrangements would depend on the court decision. The preferable way would be to place ED to foster care but according to a low number of the foster here in the Czech Republic it is expectable that ED would be placed to the institutional care. The contact arrangements of the minor with his parents would depend on the consideration of the court."
Further, the independent social worker, Eva Gregory, got the idea, which seems to have gained some traction, that a placement with foster parents in the Czech Republic is achievable only with parental consent. In her report at section E, page 48, at paragraph 5.8 she said this:
"It is difficult to see how ED can be placed in a setting away from his parents in the Czech Republic unless this is done with parental consent and knowing the particular circumstances it is unlikely that such a step will be achieved with the parental agreement. The mother mentions that she would be willing for ED to be fostered in the Czech Republic but in practice it is difficult to achieve and maintain this. ED clearly needs a placement where his security is promoted and where he feels he can belong on a permanent basis. In view of the parents' wish that ED live with them as part of a family any other substitute will not meet their wishes and aspirations."
It is now plain that both of these assertions, namely the assertion by the central authority, and the belief of Eva Gregory are wrong. I have been told, and this has not been challenged, by the two Czech witnesses, the social worker, Pavla Polakova and the psychotherapist, Leona Hozova, that there are, in the Czech Republic, plenty of foster parents available who are Slavic couples with the experience of bringing up Roma children. Further, it has been stated to me that a placement in with foster parents is not subject to any kind parental consent or veto. That has been confirmed to me by a Czech judge, Magistrate Kanova, a magistrate who sits in Novy Jicin, as a correct statement of Czech law, she having sat in on the evidence given by video link from Brno which I will elaborate on later. I will also deal later with the necessary legal mechanics if I go down this route.
The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the...
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