J and S (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWFC 4 |
| Date | 23 May 2014 |
| Court | Family Court |
| Docket Number | Case numbers omitted |
[2014] EWFC 4
IN THE FAMILY COURT
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
Ms Marie-Claire Sparrow (instructed by Pritchard Joyce & Hinds, both acting pro bono) for the parents
Mr Roger Hall (of Kent County Council) for Kent County Council
Ms Cherry Harding (instructed by Kingsfords LLP) for the prospective adopters
Mr Jeremy Hall (instructed by Davis Simmonds and Donaghey) for the children
Hearing dates: 7 and 15 May 2014
Sir James Munby, President of the Family Division:
I have before me applications by a father and a mother for leave pursuant to section 47(5) of the Adoption and Children Act 2002 to oppose the making of adoption orders in relation to two of their children, J and S, boys born respectively in 2010 and 2012. The parents are Roma from the Slovak Republic. They also apply for the transfer of the proceedings to the Slovak Republic in accordance with Article 15 of the Regulation commonly known as Brussels II revised (BIIR). Those applications are made on their behalf by Ms Marie-Claire Sparrow, acting pro bono. There are communications from the Central Authority of the Slovak Republic, The Center for the International Legal Protection of Children and Youth, dated 10 April 2014, 25 April 2014 and 15 May 2014, recognising the jurisdiction of this court but seeking in accordance with Article 56 of BIIR the placement of the children in what is described as foster care in a named children's home in the Slovak Republic.
All of this is resisted by the local authority, Kent County Council, represented by Mr Roger Hall, by the prospective adopters, represented by Ms Cherry Harding, and by the children's guardian, represented by Mr Jeremy Hall.
The background
This is a very sad case. The background is set out in a judgment given by Theis J on 3 May 2013: Kent County Council v IS and Others [2013] EWHC 2308 (Fam), [2014] 1 FLR 787. In that judgment Theis J explained why, in relation to the two children with whom I am now concerned, she had decided to make care and placement orders. That judgment, which is available freely to all on the BAILII website, requires neither summary nor quotation, save in relation to two matters.
The first goes to a point understandably relied on by those who resist the parents' application: Theis J's findings in relation to the parents' non-acceptance of other peoples concerns and their inability to change. Theis J's judgment requires to be read as a whole, and the passages I select need to be read in context, but for present purposes what is important are her findings (para 58) that:
"The parents have made it clear they do not accept the concerns about their parenting in the past and, in effect, can see no basis to change how they parented the children in the past. Without any insight there is no prospect for any change"
and that:
"if the children returned to the care of their parents there would be no change in the parenting or care they received prior to being placed with foster carers. The parents can see no basis to change as, in their view, all the evidence has been made up. They will, in my judgment, not accept any social work intervention or support that questions their parenting."
The other goes to matters equally understandably relied on by Ms Sparrow: Theis J's views about what would be an appropriate adoptive placement. In considering whether the case for placement orders was made out, Theis J recorded (para 58) that "The parents rightly emphasise the Roma origins of the children and their Catholic faith." In considering the children's welfare, she drew attention (para 63) to the fact that:
"Both children are of Roma Slovakian origin and any placement will need to be sensitive to their needs and identity … Both children are of Roma Slovakian origin and their parents are practising Catholics."
She added:
"There can be no doubt the parents wish to care for J and S and each strongly object to the plans to place the children for adoption, in particular because of the impact such an order would have on their Roma identity. But the children's welfare needs for long-term security and stability outweigh this consideration."
Subsequent events
Both parents sought permission to appeal against the orders Theis J had made in relation to J and S. Their applications were heard by Ryder LJ on 23 July 2013. He refused the applications as being "totally without merit".
Both the mother (Application no 75642/13) and the father (Application no 77050/13) applied to the European Court of Human Rights at Strasbourg. Both requested the European Court of Human Rights to make interim measures under Rule 39. The mother's application under Rule 39 was refused by letter dated 4 December 2013. The father's application under Rule 39 was refused by letter dated 10 December 2013 and again, following a request for reconsideration, by letter dated 11 December 2013.
In February 2014 the prospective adopters applied to the Canterbury County Court for adoption orders in relation to J and S. The parents were given notice of the directions hearing fixed for 11 April 2014. It came on before His Honour Judge Murdoch QC. In the meantime, the father had made a further request to the European Court of Human Rights for reconsideration of his application under Rule 39. It was again refused, by letter dated 28 March 2014. Judge Murdoch transferred the adoption applications to the High Court and directed that they be listed before me on 7 May 2014 "for determination of the application for leave to oppose the making of adoption orders … or further directions." He directed the local authority to serve copies of his orders on the Central Authority of the Slovak Republic and gave the Central Authority liberty to attend the hearing on 7 May 2014. He directed that "HMCTS do provide 2 Slovak interpreters for the hearing on 7 May 2014."
The hearing on 7 May 2014
The hearing before me on 7 May 2014 was unable to proceed. Despite the order made by Judge Murdoch, and although HMCTS had, as was subsequently conceded by it, gone through the appropriate procedures with Capita Translation and Interpreting Limited (Capita) to book two interpreters, no interpreter was present at court. I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me – this, after all, was their final opportunity to prevent the adoption of their children – if the parents were unable to understand what was being said. Anyone tempted to suggest that an adjournment was not necessary might care to consider what our reaction would be if an English parent before a foreign court in similar circumstances was not provided with an interpreter.
I accordingly adjourned the hearing until 15 May 2014. I directed that HMCTS was to provide two interpreters for that hearing. I directed that Capita's Relationship Director, Sonia Facchini, file a written statement (with statement of truth) explaining the circumstances in which and the reasons why no interpreters had been provided by Capita for the hearing on 7 May 2014. I gave Capita permission to apply to vary or discharge this order. It chose not to. I reserved the costs of the hearing on 7 May 2014 to the hearing on 15 May 2014 "for consideration of, inter alia, whether Capita should pay such costs."
Capita
Ms Facchini's statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.
Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.
The hearing on 15 May 2014
On 12 May 2015 I received a request from Mr Igor Pokojný, Counsellor-Minister and Head of the Consular Section of the Embassy of the Slovak Republic, that he be "invited to monitor the hearing … on 15 May 2014." I had no hesitation in acceding to this request. I repeat and emphasise in this context what I said in Re E [2014] EWHC 6 (Fam), para 47:
"it is highly desirable, and from now on good practice will require, that in any care or other public law case … the court … should normally accede to any request, whether from the foreign...
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