A Local Authority v E
| Jurisdiction | England & Wales |
| Judge | SIR MARK POTTER,THE PRESIDENT OF THE FAMILY DIVISION,Sir Mark Potter |
| Judgment Date | 19 October 2007 |
| Neutral Citation | [2007] EWHC 2396 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD 05 PO1625 |
| Date | 19 October 2007 |
[2007] EWHC 2396 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter
the President of the Family Division
Case No: FD 05 PO1625
Mr Robert Cameron (instructed by A Local Authority Legal Services Department) for the Claimant
Ms Jakens (instructed by Messrs Stevens Drake Solicitors) for the 1st Defendant
Mr Serugo Lugo (instructed by John Itsagwede & Co) for the 2nd Defendant
Mr Nick Armstrong (instructed by Fisher Meredith LLP) for the Official Solicitor
Hearing dates: 12–14 June 2007
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.
SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 19 October 2007. It consists of 25 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Mark Potter, P:
Introduction and background
These proceedings brought by a local authority (“The Council”) concern the welfare of A, a young Ugandan woman born 24 August 1987 and now almost 20 years old. She has a severe learning disability and a possible diagnosis of Rubinstein Taybor Syndrome. She currently resides in a supervised long term residential unit owned by the Council (“the Unit”) In March 1997 A was diagnosed as having Lymphoblastic Leukaemia which condition was ameliorated by a course of chemotherapy and has been in remission since June 1997. She requires assistance in every aspect of her self-care. She does not have manual dexterity to undertake a number of tasks. In others, she requires verbal prompting. She has poor fine motor skills, which adversely affects her independence. She uses Makaton sign language with a good range of signs which she employs to assist her spoken words. Her presentation is lively and sociable and can mislead one to believe that she understands and has greater perception and ability than is in fact the case.
Her mother E (“the mother”) and her father D (“the father”) brought her to the United Kingdom in 1989 from Uganda, where she had been born and where the family were resident as Ugandan citizens, together with her elder brother AAK, born 14 January 1986, who is now 21. They were concerned about A's developmental delay and wished to seek advice and help for her which was not available in Uganda. A younger sister AK was born in the United Kingdom on 20 March 1993. The mother had returned to Uganda in 1991 to care for dependent extended family members with whom A had previously been living, but the father took up residence here, having been granted limited leave to remain in the UK with the two children to access medical treatment for A. He remained here in work, looking after the children until care proceedings were started on 9 March 2001. The first of a series of interim care orders was granted in respect of A and AK on 15 March 2001. In December 2001, the mother arrived back in the United Kingdom to live with the father at a time when difficulties were developing in the course of the care proceedings. In mid-2002, contact between A and her parents ended because they refused to attend contact which was supervised by the Council.
On 18 November 2002 His Honour Judge Lloyd granted full care orders in respect of both A and AK to the Council, the approved care plans providing for A and AK to be looked after in long term foster care. They remained in a joint foster placement until 19 August 2003 when A was moved to O House, a residential care facility for children with special needs (“the children's facility”). Unfortunately, since mid-2002, when the parents first refused to attend contact supervised by the Council, no direct contact took place between A and her parents for 3 years. This was the unhappy position until June 2005 when the father made a contact application which was settled by agreement, the Council agreeing to provide as much contact as possible between A and her parents. At that time A was happy living in the children's facility, attending a special needs school adjacent to it.
On 15 August 2005, shortly before A's eighteenth birthday, the Council issued proceedings under the inherent jurisdiction in order for the court to decide A's future residence and contact with her family because the Council would no longer be able to exercise parental responsibility through the medium of a care plan, albeit it appeared that in adulthood A would continue to need twenty-four hour, seven day a week care and attention and, if A remained in an institution, she would need to move to long term accommodation, her then current placement in the children's facility being for young persons up to age 19 only.
By their claim, the Council sought a direction that the Official Solicitor should be invited to act as Litigation Next Friend for A, which he subsequently consented to do so. The Council sought declarations that (1) A lacks capacity to make a decision as to where she should reside or who should supply her day to day care needs; (2) that it was in A's best interests that she should continue to reside at the children's facility for the time being and thereafter for her to move to a long-term residential unit nearby which catered for young people over the age of 18, the Council being at liberty to move her to such a unit upon giving 28 days notice to E and D; (3) the contact between A and her parents should be at the discretion of the Council in accordance with the commitments of the Council to promote contact between A and her parents; (4) that the Council should be able to consent to any medical treatment which A requires, subject first to having attempted to consult with E and D about such treatment; (5) the Council should make all other decisions in respect of A as are necessary and in her best interests subject to consulting E and D.
The above is the briefest possible introduction and background to these proceedings. It would not be complete without making clear the following matters which have coloured, complicated, and extended the proceedings, because they have instilled into the father in particular a deep suspicion and resentment of what he regards as unwarranted past and present interference by the Council with his parental rights and his desire, with the mother, to care for A.
A's early illness was potentially terminal and the father brought her and her siblings to England so that A could have the treatment she required. Unhappily it appears that the family did not receive the support which it required from Social Services for reasons which remain unclear but may well reflect badly upon the relevant local authority. Because of his position as family breadwinner and the absence of the mother in Uganda, the father was obliged to resort to maladaptive strategies to help him cope with his three young children, including relying heavily on the help of friends, the lodgers in his house, and A's more able younger sister. The care proceedings were brought after allegations were made to Social Services by the younger sister against her father, causing the removal of the children from the family home. The father alienated Social Services by his behaviour and attitudes following A's removal. He was and remains convinced that he is the subject of cultural misunderstanding and racial discrimination and he has an entrenched attitude of mistrust towards the Council and its social workers with a wholly negative and un-cooperative attitude towards any supervision or “interference” on its part. Having heard from him and the mother in evidence, it is plain that the mother is devoted to the father and supportive of his position. I am satisfied that, independently of those considerations, she would herself be more amenable to co-operate with the Council. That is not to say, however, that she does not share the father's personal convictions and cultural influences which lead both of them to be mortified at the position taken by the Council and the Guardian, supported by all the experts who have assessed A and given evidence, that A's particular circumstances and welfare interests would be best served by a “shared care” arrangement, whereby A is primarily looked after and encouraged, in so far as possible, to lead a relatively independent life among a peer group in the Unit, attending college during the week, with generous contact to her parents, principally through spending the weekends at home. This has unhappily led the mother and father to declare in evidence before me the extreme position that, if the court does not make an order that A should reside whole time with the father and mother, they will cease contact with A altogether.
The History of the Proceedings
On 19 August 2005, supervised contact having been established for no more than two months, Kirkwood J directed the obtaining of two independent expert reports, from a Consultant Clinical psychologist (subsequently identified as Ms Annabel Poate-Joyner) and an independent social worker (Stewart Sinclair), both to report on A's capacity and best interests.
Further to agreed instructions of 21 September 2005 interim reports were prepared by Mr Sinclair dated 6 December 2005 and by Ms Poate-Joyner dated 14...
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