A Local Authority v X
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 19 April 2018 |
| Neutral Citation | [2018] EWHC 874 (Fam) |
| Court | Family Division |
| Date | 19 April 2018 |
[2018] EWHC 874 (Fam)
Mrs Justice Knowles
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Clive Newton QC and Miss Joanne Ecob for the Applicant
Miss Anna McKenna QC and Mr Christopher Poole for X
Mr Hugh Southey QC and Miss Markanza Cudby for D and S
Mr Sam Momtaz QC and Miss Kate Tompkins for E and SL
Mr Guglielmo Verdirame and Mr John Bethell for the Secretary of State
These public law proceedings concern four children: D, a boy born on [a date in] 2000 and thus 17 years old; S, a boy born on [a date in] 2005 and thus 12 years old; E, a girl born on [a date in] 2007 and thus almost 11 years old; and SL, a girl born on [a date in] 2010 and thus 7 years old. All the children are nationals of X and came to the UK on 11 June 2013 with their mother. The children's mother is also a national of X and works as a secretary for the X High Commission. She is also, I understand, a serving member of the armed forces of X. The mother and the four children with whom I am concerned entered the UK with diplomatic rights and privileges arising from the mother's employment at the X High Commission. The mother also has an older daughter, C, born on [a date in] and thus 23 years old, who lives with her.
The father of D is EB who lives in X and is unrepresented in these proceedings. He had some minimal contact with the local authority in the early stages of the proceedings but none recently. The father of S, E and SL is SM who also lives in X and is unrepresented in these proceedings. It has not been possible to ascertain his views about the children as attempts to contact him have met with no success. I understand that SM is in the armed services of X and that his marriage to the mother has come to an end.
The local authority was represented by Clive Newton QC and Joanne Ecob. The mother was represented by Anna McKenna QC and Christopher Poole. D and S were represented separately from the Children's Guardian by Hugh Southey QC and Markanza Cudby. E and SL were represented through their Children's Guardian by Sam Momtaz QC and Kate Tompkins. I also had the benefit of written and oral submissions from Guglielmo Verdirame and John Bethell on behalf of the Secretary of State for the Foreign and Commonwealth Affairs.
I held a hearing in two parts. The first part of the hearing from 12 February to 16 February 2018 inclusive concerned itself with welfare issues. The second part of the hearing on 26 February 2018 concerned itself with legal argument about the status of the children and their mother in this jurisdiction and whether I had the jurisdiction to make final public law orders with respect to any of the three younger children.
I read four lever arch bundles of documents and also considered a full Lever Arch bundle of law and authorities. I heard evidence from the local authority's social worker; a worker from the Keeping Families Together project; a family finding social worker; Dr Van Rooyen, a clinical psychologist appointed as an expert in these proceedings; the mother and the Children's Guardian.
I am extremely grateful to all the counsel who appeared before me for the quality of their written and oral submissions. They have been of enormous assistance to me.
SUMMARY OF KEY ISSUES
The key issues fell into two categories: the first concerned the court's jurisdiction to make final care orders in respect of children if those children continued to have diplomatic immunity by reason of their mother's employment in the X High Commission; the second comprised classic welfare issues in public law children proceedings where the threshold criteria have been satisfied, namely (a) whether the children could be safely returned to the care of their mother; (b) if not, what their alternative placements should be; and (c) what if any public law orders should buttress the court's decision on welfare.
All the parties were in agreement that the court had no jurisdiction to make public law orders with respect to D as he was now over the age of 17. D had returned to the care of his mother on 3 July 2017 and was no longer the subject of any interim public law order.
This judgment therefore falls into two parts, the first of which analyses the jurisdictional and status arguments with respect to the children; and the second, the welfare issues. It is, however, necessary for an understanding of the legal issues in this case to set out the background to the proceedings and the recent developments since I last dealt with this matter in October 2017.
BACKGROUND
The mother and her five children came to the UK on 11 June 2013 so that she and her then husband, SB, could work at the X High Commission. The mother and her children thus had diplomatic status arising from her employment as a member of the administrative and technical staff at the High Commission. Problems relating to the children emerged relatively soon after the family's arrival in the UK. During 2015 there was a report from D's school that D and his siblings did not have lunch money. In May 2015 a referral was made to Children's Services following D being stabbed. D changed his account of what had happened to him several times and stated that five white males had attacked him. No further action was taken with respect to this incident. In July 2016 a further referral was made after D went missing just before the family were due to travel to X on holiday for a month. On 14 July 2016 D was at risk of being excluded from school for an assault on another student. He was withdrawn from school by his stepfather, SB, and was taken to X by his mother and stepfather. D returned with his mother to the UK to start a new school in September 2016 but his stepfather remained in X.
On 25 November 2016, D divulged to the school a history of ongoing physical abuse from his mother which involved her using implements to beat him. During the subsequent police and local authority investigation, D disclosed that his mother had thrown a shoe at him causing injury to his head and had hit him with a metal stick causing an injury to his finger. He also reported incidents of his mother shouting at him, threatening him, withholding lunch money, withholding dinner, and shaving his head as a form of punishment. D said he was fearful of being taken to X by his mother, a threat which she often made to him when she felt he was not listening to her.
D also reported that the mother used physical punishment on all the younger children. He said that they were all hit with a belt up to 40 times or until the mother became tired. S and SL then confirmed that their mother had hit them with a belt. S corroborated D's account that his hair had been shaved as a punishment and that he had been sent to X for bad behaviour. D was also seen with a mark on his left cheek. He explained that this had happened when his elder sister, C, had put a hot iron on his cheek. D had told his mother who denied that this had happened.
All of the children were made subject to police protection and were placed in foster placements. D and S were placed separately from E and SL. Following the expiry of police protection on 28 November 2016, the mother signed a s.20 agreement for the children to remain in foster care although she denied the allegations of physical abuse. On 29 November 2016 a child protection medical was undertaken of D which revealed that he had multiple marks all over his body consistent with non-accidental injuries. E and SL were ABE interviewed and both confirmed being hit with a belt by their mother and having seen their siblings being hit. D's ABE interview was cancelled on 30 November 2016 due to concerns that his family had diplomatic immunity.
On 1 December 2016 the mother accepted at a meeting that her parenting of the children had been inappropriate at times although she said that she was not aware that her parenting was inappropriate in the UK. She accepted that she sometimes smacked the children as a form of discipline but said that the children had exaggerated some of what had occurred in the family home. She said that D was lying because he wanted his freedom. The local authority was concerned that the mother minimised the difficulties and was only willing to work with the local authority because she was frightened of being sent back to X. Nevertheless, she agreed to work with the local authority, saying that she and her children would be sent back to X by the High Commission if she did not cooperate. The local authority issued care proceedings on 9 January 2017.
On 7 February 2017 Ms Justice Russell allocated the case to the High Court on the basis of (a) the continuing element of international law arising from the mother's diplomatic status consequent upon her employment as a member of the administrative and technical staff of X High Commission; and (b) concerns that D and the mother might feel under pressure to engage with the local authority and with the care proceedings due to their concerns that they may be sent back to X. The order dated 7 February 2017 recorded that the courts of England and Wales had jurisdiction to hear the care proceedings and that the mother and children did not have immunity from those proceedings by virtue of the mother's employment with X High Commission. There remained a live issue as to whether public law orders could be enforced against the mother and the children by reason of their diplomatic privileges and immunities.
During the early part of 2017, D's behaviour deteriorated. He went missing from his foster home and was guarded as to his whereabouts when questioned. When placed in semi-independent accommodation, he became involved in criminal activity whilst...
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