Re A Child (SGO and Contact)
| Jurisdiction | England & Wales |
| Judge | Willans |
| Judgment Date | 06 October 2023 |
| Neutral Citation | [2023] EWFC 167 |
| Court | Family Court |
| Docket Number | Case No: ZW22P00367 |
[2023] EWFC 167
His Honour Judge Willans
Case No: ZW22P00367
IN THE FAMILY COURT AT WEST LONDON
Gloucester House,
4 Dukes Green Avenue
Feltham, TW14 0LR
Niamh Daly (instructed by Piper May Solicitors) for the Applicant's
( Mr Mann (solicitor) at handing down)
Neeta Amin (instructed by S Satha & Co Solicitors) for the Respondent's
( Ms Hassan (counsel) at handing down)
Hearing dates: 29–31 August 2023
At the heart of this decision is an 10-year-old girl, “P” (“the Child”). I should not lose sight of the fact that it is her, not the adults, welfare that is paramount in the decisions I have to make.
The parties who appear before me are two married couples. The applicants are the Child's biological parents. The respondents are caring for her and have been doing so now for the majority of her life. The first respondent is the Child's special guardian pursuant to an order dated 26 April 2016. The first respondent is not related to the applicants but was a close friend of the first applicant when the guardianship order was made. The picture is complicated by the fact that the second applicant and second respondent are brothers making the second respondent the uncle of the Child. The applicants have two other children who are full siblings to the Child. The applicants care for these two children of whom one is older and one is younger than the Child. The respondents have another child in their care arising out of a surrogacy relationship.
This somewhat complicated dynamic functioned without meaningful difficulty for a period following the making of the special guardianship order. Exactly when it began to come under strain is a matter of debate which I will return to below. However, it is clear it completely fractured by the summer of 2021 since which date there has been only the most limited contact between the applicant's and the Child pursuant to order of the court.
Within this judgment I examine the likely causes of the fracture and I evaluate the impact this may have on the welfare of the Child. In reaching my conclusions I am assisted by the papers contained within the final hearing bundle (supplemented by additional witness statements filed following the first day of the hearing); the live evidence of each party and of the CAFCASS reporting officer (Ms Bond) and a local authority social worker (….) who has been working the case. I have also been assisted by the representations made by counsel for the parties. This judgment is by necessity selective as to the documents and evidence cited but I have borne all the evidence in mind when reaching my conclusions. The final hearing proceeded as a 3-day attended hearing but due to some loss of time on both days 1 and 3 it was not possible to provide an ex-tempore judgment at the end of the hearing. This application has had continuity before me throughout the proceedings.
The parties' positions
The applicants commenced these proceedings seeking the discharge of the special guardianship order and for the Child to return to their care. However this application was later withdrawn with the applicants instead seeking a spending time with order. This is their position before me today. They seek direct contact on a regular basis. Faced by the opposition of the Child to such contact they argue for an adjournment of the proceedings for further work to be undertaken and for a guardian to be appointed to represent the interests of the Child. Whilst they do not oppose the making of a SGO in principle they argue the requirements for the making of an order have not been met and that an addendum report is required before the Court can consider a final order. Further, they argue this is a case in which the Court can expect a support plan to be provided and that this might be a route under which further support can be offered.
The respondents at face value do not oppose contact occurring although they reference the Child's wishes as being relevant as to whether it in fact occurs and if so the pace at which it proceeds. By the end of the hearing their finalised position was for gradual development of contact with it being on an indirect basis only pending the Child changing her position as to direct contact. Separate to the child arrangements the second respondent also seeks the making of a special guardianship order (“SGO”) to complement the order held by the first respondent. Ms [….] is the author of a Special Guardianship Assessment (“the SGA”). By the end of the hearing the respondents appeared to accept a final SGO could not be made pending receipt of further information.
Law
The Child's welfare is paramount and I am guided in my assessment by the matters set out within section 1(3) of the Children Act 1989 (‘the welfare checklist’). An order should only be made if the making of such order would be positively better for the child than making no order. The issue of child arrangements is found in section 8 of the Act and the special guardianship provisions in section 14A and in supporting regulations to which I will return in more detail in my analysis below. Consideration of each question turns on a welfare analysis.
The making of a SGO gives the holder a form of enhanced parental responsibility (“PR”) for the child which allows that holder to overrule the other holders of simple PR. The purpose of this is to fortify the placement and to permit its sustainability. A SGO is intended to meet the placement needs of a child throughout their minority. As a result, a party seeking to discharge such an order requires the permission of the Court to do so.
There is no appropriate means by which the second respondent can gain PR other than by obtaining an SGO. A lives with order would give him PR but this cannot subsist alongside an SGO. He does not fit within the category of individuals who can gain PR within the provisions of the Act. The only manner in which he could, would be if a contact order were made in his favour under section 12(2)(A) of the Act but that would be highly artificial and is not proposed by any party.
I should presume, unless the contrary is shown, that involvement of the applicants in the Child's life will further her welfare. The form of that involvement is silent within the presumption and will always turn on the facts of the case.
There are detailed regulations and some case law considering the contents of an SGA. The parties agree the current SGA fails to meet these criteria. I will return to this subject in a later section of this judgment.
I am asked to determine a specific factual dispute between the parties concerning the events of April and August 2021. It will be for the party making an allegation to prove it took place and they will establish it as a fact if they demonstrate it is more likely than not to have happened. In considering this I will bear in mind the broad landscape of evidence with a particular focus on the evidence of the parties themselves. To the extent I find any of the parties have not been truthful in respect of other evidence I should nevertheless proceed with caution before applying this dishonesty to the key issue in dispute. A witness may lie for a host of reasons and specific dishonesty on one matter does not prove general dishonesty on all matters.
In this case each of the witnesses gave evidence with the assistance of an interpreter. This has a real impact on my ability to gauge questions of credibility from the manner in which the evidence was given. However, whilst demeanour of a witness can assist the Court in considering whether something is true or not, the Court is much more likely to be assisted as to issues of credibility when considering the detail of what is said and considering whether it is inherently consistent and also consistent with other known information.
Background
This is not a case which requires a detailed account of the background. Rather I will identify the key features which found this dispute. I largely draw on the account found in the first statement of the first applicant (as none of the other parties detail the history in their statements) as supplemented by the CAFCASS s7 report and SGA.
The first respondent cannot have children. All four individuals originate from country X and share a common cultural background. I accept the basic history given by the first applicant in her initial statement. She details meeting the first respondent when arriving in this country in 2011 and of them forming a very strong bond akin to sisterhood. She was sympathetic to the pain caused to the first respondent arising out of her infertility and agreed to ‘gift’ her second child to the first respondent.
I am told that such ‘gifting’ is not uncommon within the culture shared by the parties. On the first applicants case she retained the Child during the breast-feeding stage before passing the Child to the first respondent. The first applicant informs me it was understood or considered likely that the first respondent would never marry as her infertility meant she would be unlikely to find a husband within her culture. Instead, she would focus on raising the Child with it being understood the applicants would remain a part of the Child's life albeit secondary to the first respondent.
Shortly after this steps were taken to formalise the placement. It appears this commenced with an application for an adoption order however in due course this was withdrawn and the application proceeded successfully to a consensual SGO (April 2016).
In 2017 the respondents married. There is some question raised as to when the relationship in fact commenced (there is mention of a marriage in X in 2008) although there is simply insufficient evidence available to me the resolve any dispute. I am not persuaded it is...
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