Manchester City Council v D
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 11 May 2021 |
| Neutral Citation | [2021] EWHC 1191 (Fam) |
| Date | 11 May 2021 |
| Docket Number | Case No: MA20P02495/MA20C00280 |
| Court | Family Division |
and
and
[2021] EWHC 1191 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: MA20P02495/MA20C00280
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Sitting Remotely
Ms Louise Harvey (instructed by Waddington & Son) for the Applicant
Ms Hilary Lennox (instructed by Abbey Solicitors) for the First Respondent
Mr Damian Sanders (instructed by Zacharia & Co Solicitors) for the Second Respondent
Ms Nazmun Ismail (instructed by Alfred Newton Solicitors) for the Third, Fourth and Fifth Respondents
Hearing date: 21 April 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be at 10.30am on 11 May 2021.
THE HONOURABLE Mr Justice MacDonald
This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
This case raises the question of how the court should treat an application by the local authority pursuant to FPR 2010 r.29.4 for permission to withdraw care proceedings under Part IV of the Children Act 1989 where the parents have abducted the children who are the subject of those proceedings from the jurisdiction of England and Wales and, following all reasonable efforts being made by the court, it proves impossible to secure the return of the children to this jurisdiction within a timescale commensurate with the care proceedings.
In this case the court is concerned with the welfare of H aged nine, E aged six, and M aged three. Those children are represented through their Children's Guardian, Ms Angela Rumble, by Ms Nazmun Ismail of counsel. The children are believed currently to be in Pakistan. The applications before the court with respect to the children comprise an application in wardship, an application for summary return orders under the inherent jurisdiction and an application for care orders under s.31 of the Children Act 1989. Those applications are brought by Manchester City Council, represented by Ms Louise Harvey of counsel. The mother of the children is D (hereafter ‘the mother’), represented by Ms Hilary Lennox of counsel. The mother has declined to attend the hearing today. She is believed currently to be in Pakistan. The father of the children is T (hereafter ‘the father’), represented by Mr Damian Sanders of counsel. The father has not attended this hearing and is believed currently to be in Italy. Both parents are Pakistani nationals. It is understood that both parents also hold Italian passports.
On 14 December 2020 I gave judgment on the application of the local authority for summary return orders under the inherent jurisdiction of the High Court. At the conclusion of that judgment I made an order requiring the mother to return each of the children to the jurisdiction of England and Wales from the jurisdiction of Pakistan within 14 days of the date of that order. In addition, I made a passport order with a view to securing the passports of the children when they re-entered the United Kingdom. Both the mother and the father attended that hearing, the mother by video link from Pakistan and the father by video link from Germany. Both parents were therefore on notice that the order had been made, both by hearing the order pronounced by the court and, in respect of the mother, by being sent subsequently a sealed copy of the order of the court. The parents have to date failed to comply with the order for summary return from Pakistan.
In circumstances where all subsequent efforts to secure the return of the children to this jurisdiction have failed, the local authority now applies for permission to withdraw the care proceedings in respect of the children pursuant to FPR 2010 r 29.4. The local authority however, submits that the children should remain wards of this court for the remainder of their minority in case it becomes possible later to secure their return to this jurisdiction. Whilst each parent has provided their respective counsel with limited instructions, it is clear that neither opposes the application of the local authority for permission to withdraw the care proceedings. On behalf of the mother, Ms Lennox further submits that it would be wrong in the circumstances of this case for the court to continue to ward the children and, in any event, wrong to ward them for the period contended for by the local authority. Albeit reluctantly, the Children's Guardian supports the local authority's application for permission to withdraw the care proceedings and supports the local authority's submissions with respect to the continued wardship.
BACKGROUND
Care proceedings under Part IV of the Children Act 1989 were issued by the local authority on 20 March 2020 and the children were each made the subject of interim care orders in the care of their mother, with an exclusion requirement being put in place in respect of the father pursuant to s. 38A of the 1989 Act. The principal risk to the children which grounded the care proceedings was an alleged risk of harm arising out of domestic violence perpetrated by the father on the mother over a period of 11 years.
That alleged abuse is described in the local authority evidence as having included sexual abuse, financial abuse, physical abuse and emotional abuse by the father against the mother. The evidence filed in the care proceedings includes the following specific allegations:
i) The father had been domestically abusive towards the mother throughout their marriage.
ii) The allegations of domestic abuse made by the mother included that the father had regularly hit her in the face, had dragged her into the kitchen and held a knife to her throat in front of the children, had driven his car at high speed whilst with the mother and the children with the intention of scaring them and had controlled the family finances to the exclusion of the mother.
iii) In November 2018 the mother had suffered a miscarriage and heavy bleeding after being pushed by the father, who thereafter refused to take her to hospital.
iv) The father threw and broke objects in the family home in front of the children.
v) The father threw a mobile phone at the mother's foot, injuring her and leaving a permanent scar.
vi) The father made threats to kill the mother, including a threat to smash her head with a hammer, threats to kill the children and threats to kill himself.
vii) In February 2020 the father held a portable radiator over the mother and threatened to burn her face with it.
viii) The father sexually assaulted the mother and raped her vaginally, with incidents of rape being a regular occurrence.
Within the foregoing context, I note that the children were spoken to by Greater Manchester Police during the course of a criminal investigation into the father's conduct and stated that they had witnessed the father domestically abusing the mother in the family home. H and E stated that they were scared of their father and had asked him to stop. On a subsequent occasion, H described the father slapping the mother in the face and asserted that this happened often. Whilst the father was arrested in February 2020 the mother retracted her allegations and a prosecution was not pursued. However, during the course of the social work assessment in the care proceedings the father conceded that some of the mother's allegations were true, although he asserted he could not remember which ones. During the course of the Initial Child Protection Conference held on 10 March 2020 the father is recorded as having admitted to raping the mother but asserted he thought this was permitted to do so because of his religious beliefs, believing he could have sex with the mother whenever he wished and even if she did not consent. The father made further concessions with regard to the allegations levelled at him by the mother in his statement filed within the care proceedings.
Subsequent to the issuing of care proceedings on 20 March 2020 the local authority undertook a comprehensive programme of assessment of the parents. The father was assessed to continue to pose a significant risk to the children in the circumstances I have outlined in the foregoing paragraphs. The assessment of the mother however, was positive. In the circumstances, the local authority's care plan approaching the conclusion of the care proceedings was for the three children to remain in their mother's care under a court order, the nature of which was to be determined at the final hearing, the local authority contending that the order should be a supervision order under s.31(1)(b) of the Children Act 1989. Whilst the Children's Guardian agreed that the children should remain in the care of the mother, she contended that this should be under the auspices of a final care order rather than a supervision order.
I pause to note that the practice of placing children at home under final care orders has recently been the subject of some scrutiny by the...
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Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request)
...18–26 of the recent decision in Manchester City Council v D (Application for Permission to Withdraw Proceedings after Abduction) [2021] EWHC 1191 (Fam). In summary: a) Distinct tests apply in cases where the local authority may, or conversely may not, be capable of satisfying threshold; b)......