London Borough of Tower Hamlets v Mac, mother M, a boy, (by his Guardian)
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Carol Atkinson |
| Judgment Date | 10 January 2017 |
| Neutral Citation | [2017] EWFC B6 |
| Date | 10 January 2017 |
| Court | Family Court |
| Docket Number | Case No: ZE16C00638 |
[2017] EWFC B6
IN THE FAMILY COURT AT EAST LONDON
11, Westferry Circus,
LONDON,
E14 4HD
Her Honour Judge Carol Atkinson
(sitting as a Deputy Judge of the High Court)
Case No: ZE16C00638
Mr Chris Barnes for the LONDON BOROUGH OF TOWER HAMLETS MAC, the mother did not appear and was not represented
Ms Sabina Mahmood for the M, by his Guardian
Hearing dates: 10th January 2017
Monica, as I shall call her, is a Romanian National. It is believed that she was brought to England by an abusive partner in order to be a sex worker. In the first week of July 2016 she presented at hospital suffering from sepsis. She was pregnant and subsequently gave birth to a baby boy by emergency Caesarean section at just 27 weeks gestation. I shall call him Matthew.
Monica told staff that she wanted to relinquish the child because she would not be able to care for him. She refused to provide details of family members and indicated that she did not want her family to be contacted. She wanted him adopted in the UK.
A section 20 consent was signed on 25th July 2016 and Monica initially agreed to remain involved to provide consents under sections 19 and 20 of the Adoption and Children Act 2002. She visited the child regularly until her own discharge on 11th August 2016 following which there was no further contact.
Monica next presented to the same hospital on 31st August 2016, having been assaulted by her partner. She was provided with assistance by a charity to return to Romania. It is understood that she returned to Romania by 2 nd September 2016. She had not signed the formal adoption consents.
The LA issued care proceedings in relation to Matthew on 15 th September 2016. On 23 rd September 2016, I made an interim care order pursuant to Article 20 BIIR as the issue of jurisdiction was still to be determined. In the meantime, directions were made regarding contact with the Romanian authorities by liaising with the Romanian Consulate with permission to disclose the order and other relevant documents to the relevant Romanian authorities.
Mindful of the difficult issues raised in cases involving the children of foreign nationals relinquished in this jurisdiction consideration has been given whether this matter should be transferred to be heard by a Judge of the Division. In consultation with the FDLJ I have transferred to the case to the High Court but it has remained listed before me sitting as a Deputy.
Whilst there is no active challenge by any party to the LA plan for Matthew there is opposition to it in the position taken by the Romanian authorities. Although they are not parties to the proceedings, the local authority is concerned that the court considers all alternative arguments before sanctioning a course which is opposed by the Romanian authorities. I agree with that course of action and observe that in any event I am obliged to satisfy myself that the arrangements for Matthew's future pressed upon me by the local authority are the best that can be made.
The issues for determination at this hearing are as follows:
a. Does the court have jurisdiction to make decisions in relation to Matthew?
b. If the court has jurisdiction, is the statutory threshold crossed?
c. Does the court consider an Article 15 request for transfer might be indicated?
d. If not, on a proper welfare analysis should the court make a final care order and placement order in respect of Mattthew with a plan for his adoption in this jurisdiction?
Additional background information
There is very little more to add by way of background information. The local authority's evidence records Monica saying that she " was brought to the UK by a male, who had been sexually exploiting her in Romania. She said that, when they arrived in the UK, she lived with him at an address in [the north of England]". On Monica's account she was " forced to sex work" during her time in the north of England and assaulted by her partner in the course of her pregnancy. There is evidence that she was assaulted by someone after his birth when she presented again at the hospital.
According to Monica she had been in the jurisdiction for no more than 6 months when she gave birth to Matthew. After the birth, having indicated her desire to relinquish the child, she refused to provide details of family members and indicated that she did not want her family to be contacted in relation to the child.
The Romanian Consulate's response was in the standard terms in the form of the usual generic letter objecting to adoption and requesting then repatriation of the child to Romania. There has been no attendance from any representative of the Consulate at any of the hearings despite an invitation to do so.
More recently, pursuing alternative information via the ICACU, the local authority received a response from the Romanian Central Authority following extensive – and eventually fruitful – communication. The mother was not contactable. However, the report received confirms that the mother has another child – a half sibling to Matthew living in Romania though not in the care of his mother. Contact was made with Matthew's maternal grandmother. Information regarding the mother's family was pieced together. She is one of a large sibling group. She has 5 older siblings – all of them married it would seem. The grandmother signed a declaration that she cannot offer Matthew a home and considers that he would be better off being looked after by a family in the UK. There is nothing so specific from the siblings and indeed it is not clear that they have responded to the enquiry. However, the report concludes that:
" Considering all of the above, we conclude [Matthew's] repatriation and placement with his biological family would not be in the child's best interests."
This response does seem at odds with the earlier responses to requests for information received from the Romanian Consulate. It seems to me that the information is that there is no-one who has come forward from within the birth family to care for the child. Thus repatriation in order to be reunited with his biological family is not an option. However, the Consular position remains opposed to adoption in this country.
Since the hearing on 2 nd November 2016 the local authority has received a report from Dr G, Consultant Paediatrician, dated 2 nd December 2016 setting out the child's range of additional health and developmental needs. I will set those out in full later in this Judgment.
Jurisdiction
The law
I must start by determining whether this court has jurisdiction in respect of this infant. Jurisdiction is established here through habitual residence (Article 8 BIIR).
The combined effect of Article 8 and 16 BIIR is that the relevant date for the determination of habitual residence for the purpose of establishing jurisdiction is the date of the issue of the local authority's application – in this case, 15 th September 2016.
There are five essential Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 (" A v A"); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017 (" Re KL"); In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC (" Re LC"); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, (" Re R"); Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 (" Re B"). However, I am grateful indeed to Mr Barnes who has set out in an excellent skeleton argument a reminder of the useful summary provided by Hayden J in the case of B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam).
The following principles, drawn from those authorities, are of the greatest assistance in the instant case:
a. The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment ( A v A, adopting the European test).
b. The test is essentially a factual one which should not be overlaid with legal glosses and must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence ( A v A, Re KL).
c. In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42).
d. A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and the child's integration which is under consideration.
e. Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B);
f. It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL);
g. The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary...
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