A Local Authority v MM
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 07 October 2020 |
| Neutral Citation | [2020] EWFC 65 |
| Court | Family Court |
| Docket Number | Case No: NG18C00111 |
| Date | 07 October 2020 |
[2020] EWFC 65
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: NG18C00111
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Elizabeth McGrath QC (instructed by the local authority) for the Applicant
Stefano Nuvoloni QC and Nicola McIntosh (instructed by NFLG Sols for the 1 st Respondent
Lorraine Cavanagh QC and William Baker (instructed by Bhatia Best Ltd) for the 2 nd Respondent
Vickie Hodges (instructed by Elliot Mather Sols) for the 3 rd Respondent
Mark Twomey QC and Amanda Bewley (instructed by Jackson Quinn Sols) for the 4 th Respondent
Beryl Gilead (instructed by Hawley and Rogers Sols) for the 5 th to 8 th Respondents
Hearing date: 28 September 2020
The hearing was conducted remotely by CVP
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 private. The judge has given leave for this anonymised version of the judgment to be published. It would amount to a contempt of court for any publication to reveal the identities of the children and members of their family.
This is an application by the fourth respondent under article 15 of Council Regulation (EC) No 2201/2003 (“Brussels IIa”) for the welfare stage of these care proceedings to be transferred to Romania. Although this may be one of the last applications of its type to be heard given the United Kingdom's impending abandonment of the European Union, the issue will remain relevant as article 8 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children contains a similar (but not identical) provision.
The care proceedings were commenced on 1 June 2018. The article 15 application was made on 21 January 2020, 19 months after the case was commenced and after a vast amount of work had been done on it.
The application is supported by the first, second and third respondents i.e. all the parent parties. It is opposed by the local authority and the guardian for the children.
The third and fourth respondents are the mother and father respectively to Z, a girl aged 12, and Y, a girl aged 10. They are also de facto non-biological parents to the second respondent who is the father of both X, a girl aged 4, and W, a girl aged 2. The first respondent is W's mother. All of the respondents formed one household. The whereabouts of X's mother is unknown, and she has not participated in these proceedings.
The children, in addition to the usual expected professional input, also receive support from CAMHS. Z is partially sighted and has started to use braille.
All the parents and all the children are Romanian nationals. Significantly, in the context of this application, the parents all identify as part of the Romani ethnic group, which linguistically and culturally is distinct from the Romanian language and culture. Indeed, the Roma language and culture transcends the borders of the State of Romania and has distinct origins. The children have been, or would have been were it not for separation, raised accordingly.
All the parents are assisted by interpreters, as they have been throughout these proceedings. I am told that whilst all of the parents are fluent in Romanian, the language spoken habitually at home is Roma. The first and third respondents are also assisted by the use of an intermediary. The third respondent's needs are such that she has been assessed as lacking litigation capacity and accordingly she is represented by the Official Solicitor.
Z and Y left Romania at the respective ages of seven and six and came to England in 2015. It is said that they now have very few memories of life in Romania and no longer speak Roma or Romanian. The children's guardian reports that they are particularly anxious about the prospect of a return to Romania and they had a number of questions about this prospect. The guardian has been able to complete direct work with Z and Y regarding this. Y considers England to be her home and although she likes to visit Romania, as her grandmother lives there, she does prefer England. She attends school here and has plenty of friends. Neither Y or Z could imagine what life would look like for them in Romania save that Y was able to give a vague description of the family home. Both children shared their wish for proceedings to remain in England where they feel safe and listened to. They felt they may be questioned or pressured in Romania and that there was a risk of life going back to the way it was “before”. Z is described as a bright and articulate young adolescent. She was concerned about her education and opportunities in Romania; she had heard about attending a residential school for blind children in Romania. She is currently making good progress at a mainstream school.
X and W were both born here in England.
All the children have been in foster care with English-only speaking foster carers since an interim care order was made in June 2018. Z and Y live together in one foster placement. X and W live together in another foster placement.
All counsel at the hearing before me accepted that the reality is, that if I were to order a transfer of these proceedings to Romania, that would entail the children being moved to Romania also. I know very little about what would happen in the immediate aftermath of the children's return to Romania. The only information I have is in a letter dated 22 June 2020 from Buzau County Council General Directorate for Social Care and Child Protection. It states:
“In accordance with the provisions of the applicable legislation concerning the repatriation of minor children, we advise that Buzau General Directorate for Social Care and Child Protection, upon repatriation, will take over the minors and will put in place a special protection measure – respectively, emergency placement, in agreement with the provisions of Law 272/2004 with respect to the protection and promotion of children's rights, republished as subsequently amended and completed. Depending on the needs identified in the detailed assessment, specialist psychological and legal counselling services, as well as medical and educational integration services will be provided. Also, the psychological counselling of the minors and their family members can be provided, for the purpose of reintegration within the extended family, if this undertaking is in their interest.”
Of the adult respondents, it is only counsel for the second respondent, Ms Cavanagh QC and Mr Baker, who engaged in any substantive way with the prospect of a summary return to Romania. In summary, they argued that:
i) Y and Z lived in Romania previously and have some memories of there;
ii) Until two years ago the children lived in a household where only Roma was spoken and work can be done to ensure that they retain a familiarity with the language;
iii) Equally, the children were raised until two years ago in a household that was culturally Romani;
iv) The children will be supported by being transferred together. Any suggestion that they would be separated is purely speculative;
v) Any short-term impact will be outweighed by long term benefits;
vi) The parents are intent on following the children to Romania in the event of a transfer; and
vii) The children will be caused emotional confusion and loss in the event that the parents are deported as they have never lived in a different country to one another before.
It is the events shortly after W's birth that precipitated the local authority's application for a care order. On 10 August 2019 the allocated Judge made a series of findings of the utmost seriousness against the parties following a fully contested fact-finding hearing conducted over 15 days. They are:
i) On 31 May 2018, at 41 days old, W was admitted following a routine midwife visit with extensive bruising and marks to her face and body and healing fractures to her right 6 th rib posterolaterally and her left 3 rd, 4 th, 5 th, 6 th and 7 th ribs posterolaterally;
ii) The rib injuries were inflicted by being crushed across her chest by an adult hand. This occurred during the care of the first to fourth respondents on or around 21 to 26 May 2018. It would have caused her exquisite pain during the crushing injury and also afterwards upon movement or handling. This would have been obvious to any carer or anyone within earshot of her screaming;
iii) The bruises and marks to W were caused by inappropriate application of excessive force on more than one occasion;
iv) The first, second and third respondents failed to seek medical attention for W;
v) The first to fourth respondents are within the pool of potential perpetrators of the injuries to W;
vi) Extensive nappy rash was caused due to neglect of W's basic care by infrequent nappy changes;
vii) W, being a girl, was unwanted by all the adults save for her mother, the first respondent;
viii) The first respondent was controlled and experienced coercive behaviour from the second, third and fourth respondents but they all would have accepted this as culturally normative;
ix) The second, third and fourth respondents used inappropriate force on Y, Z and X and in particular:
a) The third respondent would frequently slap and pinch X;
b) The third and fourth respondents would on occasion use inappropriate force towards X;
c) The third and fourth respondents would strike Z and Y usually by slapping or smacking;
d) The fourth respondent kicked Y on one or more occasions;
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