Northumberland County Council v Z, Y, X and Another

JurisdictionEngland & Wales
CourtFamily Division
JudgeMr Justice Munby
Judgment Date16 Mar 2009
Neutral Citation[2009] EWHC 498 (Fam),[2008] EWHC 1098 (Fam)
Docket NumberCase No: NE07C00837

[2009] EWHC 498 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

NEWCASTLE UPON TYNE DISTRICT REGISTRY

(In Private)

Newcastle Combined Court

The Law Courts

Quayside

Newcastle-Upon-Tyne NE1 2LA

Before:

Mr Justice Munby

Case No: NE07C00837

NE07Z01886

Between:

In The Matter Of X (dob 29.12.2004)

And In The Matter Of The Children Act 1989

And In The Matter Of The Adoption And Children Act 2002

Northumberland County Council
Applicant
and
(1) Z
(2) Y
(3) X (by Her Children's Guardian)
(4) The Government Of The Republic Of Kenya
Respondents

Mr Nicholas Stonor (instructed by Northumberland County Council Legal Services) for the local authority

Miss Rachel Hudson (instructed by Wholley Goodings LLP) for X

Mr Justin Gray (instructed by Moorehouses) for the Government of Kenya

The First and Second Respondents, Z and Y, were neither present nor represented

Hearing date: 20 February 2009

This judgment was handed down in private but the judge hereby gives leave for it to be published in this anonymised form

Mr Justice Munby

Mr Justice Munby:

1

I have before me applications for disclosure of various documents generated in the course of care and adoption proceedings which I heard in 2008.

2

The proceedings before me concluded on 15 May 2008. The following day (16 May 2008) I delivered a short judgment announcing my decision: Re X (a child), Northumberland County Council v Z and ors [2008] EWHC 1098 (Fam). My fully reasoned judgment followed on 12 June 2008: Re X (a child), Northumberland County Council v Z and ors (No 2) [2008] EWHC 1324 (Fam). All references hereafter are to the latter judgment.

The background

3

The proceedings related to a black African girl, X, who was born in Kenya on 29 December 2004. Within days of her birth she had seemingly been abandoned and was placed in a children's home from which plight, as they saw it, she was 'rescued' by a white British couple, Mr Y and Ms Z. They brought her to this country on 23 July 2006, using a false Kenyan birth certificate and a false Kenyan passport for her and concealing her presence from the local authority.

4

Tipped off by the NSPCC on 21 May 2007 the local authority, with the assistance of the police, removed X from their care on 23 May 2007. She was placed with a foster carer.

The proceedings

5

The next day (24 May 2007) the local authority commenced care proceedings in respect of X. On 30 November 2007 the Government of the Republic of Kenya (the GRK) was joined as a party. On 4 December 2007 Mr Y and Ms Z issued an application to adopt X.

6

Both sets of proceedings came on for trial before me in April 2008. Following eleven days of evidence I ruled out Mr Y and Ms Z as future carers for X. I approved the care plans put forward by the local authority (dated 14 April 2008) and the GRK (dated 24 April 2008) providing for X's adoption or, if adoption was not possible, long-term fostering, in either case in Kenya.

7

In accordance with the detailed arrangements I had approved, X returned to Kenya on 15 September 2008, where she has since been adopted in accordance with the GRK's care plan.

Findings

8

I need not rehearse all my findings. They are set out in great detail in my previous judgment.

9

It suffices for present purposes to record my finding that, at some stage between 18 February 2006 and 15 March 2006, Mr Y and Ms Z decided to bring X to this country using illegal means – means which were, as they must have known, illegal both as a matter of Kenyan law and as a matter of English law – and deliberately behind the back of the local authority and, indeed, behind the backs of the other relevant public authorities both here and in Kenya.

10

I found Mr Y to be “up to his eyes in deceit and deception of both the Kenyan and the United Kingdom authorities” and Ms Z to be “a knowing and willing participant in that deceit and deception”. They were, as I found, “jointly involved, each with the same essential guilty knowledge, from March 2006 onwards.”

11

I spelt out exactly what I meant by my references to illegality:

“It is important to be precise as to what, in this context, I mean by illegality. It is clear that X's removal from Kenya and introduction into this country involved breaches both of Kenyan law – Kenyan adoption law and Kenyan criminal law (the obtaining of false documents) – and of English law – English immigration law and English adoption law. It is also clear, in my judgment, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved (i) the obtaining by deception of false Kenyan documents, (ii) the introduction of X into this country by deception of the United Kingdom immigration authorities and (iii) breaches of English adoption law (at least insofar as they knowingly omitted to notify the local authority of X's presence, either before or after her arrival in this country, and deliberately decided to side-step the necessary process of assessment).

It is therefore clear, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved, to the extent I have indicated, breaches of Kenyan criminal law, of English immigration law and of English adoption law.

What is not so clear is whether, and if so to what extent, they were aware that what they were doing involved breaches of Kenyan adoption law. I have my suspicions. After all, it is clear that they obtained at least some advice on this topic from [Mr M, a lawyer in Kenya], and it might be thought unlikely that he would not have told them enough for them to appreciate that what they were doing was contrary to Kenyan adoption law. But, not least because of their continuing coyness – in plain words, their continuing refusal to give a frank account of their dealings with Mr [M] – I am unable to find as a fact that they were aware that what they were doing involved breaches of Kenyan adoption law.”

12

That needs to be put in perspective. I had earlier observed that:

“This truly is … a case which is unique, complex and tragic. It has been a tragedy for X and has become, and, I fear will long remain, a tragic nightmare for Mr Y and Ms Z. It is all too easy to say that they have only themselves to blame, that they have brought it on themselves. But the truth – and the tragedy – is that they did it all, I am quite satisfied, with the best of motives and impelled by nothing other than care and love for X. Having in March 2006 made a fatal decision to utilise what they initially thought was a loophole but which almost immediately snared them in what they well knew was illegality, they then found themselves trapped in a nightmare from which they could see no escape.”

13

I also made clear that I was “quite satisfied that there was nothing sinister” in the monthly payments of £50 which Mr Y had made to the Kenyan children's home as 'sponsorship' for X. It was, I said, “an altruistic and humanitarian response to an aspect of life in Kenya which he had not previously come across and which, it is clear, affected him deeply.” I added that:

“There is, in my judgment, no evidence whatsoever to implicate Mr Y (or for that matter Ms Z) in any illegal or otherwise prohibited payment in relation to X … It has never been suggested, nor was it put in cross-examination to them, that the £50 paid monthly for X, nor indeed the sums paid for [two other children], were anything other than as they were represented to be, namely bona fide sponsorship.”

The applications

14

As foreshadowed in my previous judgment, and in accordance with directions I gave on 4 July 2008 and 19 August 2008, both the local authority and the GRK have made application for disclosure of certain documents.

15

The local authority seeks disclosure which, as finally formulated, is in the terms of the following draft order:

“Without prejudice to:

(a) section 12 of the Administration of Justice Act 1960 (as amended);

(b) section 97(2) of the Children Act 1989 (as amended);

(c) section 98(2) of the Children Act 1989 (as amended)

IT IS ORDERED THAT:

1 Subject to the conditions set out in the Schedule to this order, Northumberland County Council ('the local authority') shall have permission to disclose a copy of the transcript of the judgment handed down on 12 June 2008 ('the transcript') to the Chief Constable of Northumbria Police and the UK Border & Immigration Agency ('the recipients'); and the local authority is hereby directed to disclose the transcript to the recipients within 7 days of the making of this order.

2 The recipients shall have liberty to apply with a view to the discharge or modification of the provisions of the Schedule to this order. Any such application shall be made to a Judge of the Family Division of the High Court (the Honourable Mr Justice Munby if available).

3 There shall be no order as to costs save public funding detailed assessment of X's costs.

The Schedule

The disclosure permitted by paragaph 1 of this order shall be subject to the following conditions:

(1) The transcript is and shall remain at all times confidential.

(2) The transcript is to be used by each recipient:

(a) for the purpose of considering what lessons might be learned from the circumstances surrounding X's arrival into the United Kingdom with a view to safeguarding against other children being brought into the United Kingdom unlawfully;

(b) if they consider it appropriate, to assist in their investigations into whether any proceedings should be commenced against Mr Y and/or Ms Z.

(3) Save with the prior leave of this court:

(a) no part of the transcript shall be read into the public record or otherwise put in the public domain;

(b) nothing shall be published that might lead to the identification of any of the persons referred to in the transcript;

(c) the recipients may not:

(i) disclose the transcript to any other...

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1 cases
  • Re N (Family Proceedings: Disclosure)
    • United Kingdom
    • Family Division
    • 8 July 2009
    ...disclosure of such materials to other public or regulatory agencies: see, for example, Northumberland County Council v Z, Y, X (by her children's guardian) and the Government of the Republic of Kenya [2009] EWHC 498 (Fam), [2009] 2 FLR xxx. 44 In particular, and unsurprisingly, there is a s......

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