Re K (Children)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P |
| Judgment Date | 26 May 2021 |
| Neutral Citation | [2021] EWHC 1409 (Fam) |
| Docket Number | Case No: WV17C00664, WV18C00394 and WV20C00030 |
| Date | 26 May 2021 |
| Court | Family Division |
[2021] EWHC 1409 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Case No: WV17C00664, WV18C00394 and WV20C00030
Mr Stefano Nuvoloni QC and Ms Laura O'Malley (instructed by Sandwell Childrens Trust) for the Applicant Local Authority
Mr Nkumbe Ekaney QC and Ms Wendy Frempong (instructed by Living Springs Solicitors) for the Respondent Mother
Mrs Kemi Ojutiku (instructed by Mould Haruna Solicitors) for the Respondent Father
Mr Richard Hadley and Ms Kathryn Taylor (instructed by Anthony Collins Solicitors) for the Children's Guardian
Hearing dates: 4 th, 5 th, 6 th, 7 th and 10 th May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is given at the conclusion of a rehearing with respect to applications for care orders and placement for adoption orders relating to three children. The children are R, a boy now aged 4 years, J, a boy who will shortly be 3 years and Q, a girl aged 1. The proceedings, which started as long ago as December 2017, at a time when R was the only child, have been protracted and extensive as a result of the unrelenting efforts of the parents to avoid engagement with the local authority and with the court, and to conceal the birth of their subsequent children.
On 29 March 2019, following a six day hearing, Keehan J handed down a judgment determining a number of important factual issues (‘the fact-finding judgment’). There followed an extensive further delay, again occasioned by the evasive behaviour of the parents, before Keehan J was able to undertake a final hearing, in which further findings of fact were made and which concluded with the making of a care order and a placement for adoption order with respect to each of the three children (‘the welfare judgment’) on 2 September 2020.
The Court of Appeal granted permission to appeal against Keehan J's welfare determination on the basis that the judge did not properly identify the risk of future harm to the children when undertaking his final welfare analysis. In the event, that ground of appeal was successful and, on 5 November 2020, the Court of Appeal (Underhill, Peter Jackson and Simler LJJ) allowed the appeal in so far as the judge's welfare determination was set aside and the matter was remitted to the High Court for re-determination.
It is right to stress that the ground of appeal did not involve any challenge to the findings of fact made by Keehan J either in the fact-finding judgment or in the welfare judgment. It is accepted by all parties that those findings, together with any subsequent findings made by this court, must remain the basis for determining whether or not any or all of these three children should now move forward towards an adoptive placement or, as the parents urge, remain in foster care for a period whilst the possibility of rehabilitation is further investigated following a course of couple counselling.
In due course it will be necessary to set out in some detail the findings of fact that Keehan J made. In doing so I will, of course, refer directly to both of his judgments. I should, however, stress that, save for reading the Court of Appeal judgment in November 2020, when I directed that this case now be brought into my list, I have not referred to either Keehan J's welfare analysis or any observation that the Court of Appeal made about it in the course of their judgment. What follows is, therefore, my own evaluation of the children's welfare based on the findings of fact that have already been made and based upon the altered position and additional evidence that is now before the court.
The factual background
Both parents were born in West Africa. The mother, who is now in her early forties, entered the UK in 2007 and became a UK citizen in 2012. She is said to have a Master's Degree and works as a professional consultant in a job which, on occasions, involves international travel. The parents underwent a religious marriage in their home country. Subsequently the father entered the UK and the couple were married in a civil service at a Register Office in England in 2016. The father, although apparently only having a provisional driving licence, carries on business selling cars as a sole trader. There is no evidence of addiction or criminal conviction with respect to either parent. Both are said to have the ability to deliver good enough physical care for their children.
At this stage I gratefully adopt the factual summary of Keehan J's findings set out by Peter Jackson LJ in the Court of Appeal judgment:
“5. Unfortunately, the parents set their faces against cooperation with the local authority. In July 2017, the police found the father hiding in the family home. From October 2017, the local authority was repeatedly unable to make contact with the family and on 22 December 2017 it issued an application for a care order in respect of R. Papers relating to the proceedings had been posted through the letterbox of the family home and on 21 December the mother and R left the jurisdiction.
6. Because the child could not be found, the proceedings were allocated to High Court level and in January 2018 they came before the Judge for the first time. In the 2 1/2 years that followed he conducted no fewer than 30 hearings. The mother returned to the jurisdiction, apparently without R. Orders were made that she should not leave the jurisdiction and that R should be returned. Despite this, both parents left the jurisdiction. At the time, unknown to the authorities, the mother was pregnant with J. Further orders were made and publicity was given to the return order relating to R.
7. J was born in Florida in July 2018. As a result of the publicity, the mother was by chance identified in hospital. The father was arrested and both children were placed in care in the USA. Care proceedings were issued in relation to J.
8. After legal proceedings in Florida, R was returned to the UK in August 2018 and J arrived here in October 2018. The boys were placed in the same foster home under interim care orders. The parents participated in a parenting capacity assessment over the course of several months. Their relationship with the children, seen at contact, was positive and R was noted to be a healthy child who had been well cared-for. They had suitable accommodation. Concerns remained about the initial incident in May 2017, about which the mother had changed her story, and about the events surrounding J's birth. Nonetheless, in January 2019, the local authority concluded that the two boys could be returned to their parents under a supervision order. The Children's Guardian did not agree. She expressed scepticism about the genuineness of the parents' co-operation and about the risks arising from domestic abuse and instability of care arrangements. She was concerned at the parents' stated intention to take the children to [Africa], where their welfare could not be monitored. More information was needed before a return to the parents could be supported and a plan for adoption also needed to be considered.
9. After a six-day fact-finding hearing ending on 29 March 2019, the Judge found that neither parent had told the truth about what had led to the injury to R and that it was caused by one or other of them, that the mother had abducted R to avoid the care proceedings, that the father was complicit and that the parents were a flight risk. He found that the mother had lied about her statements against the father, and about what she had said to a doctor, a police officer, her former solicitor and her counsel. The father had also lied about a number of matters. Directions were given for a welfare hearing to determine the children's future.
10. At the time of the hearing, again unknown to the authorities, the mother was expecting Q. From June 2019 she stopped attending contact to avoid her pregnancy being detected. She next saw the boys in December 2019.”
At a hearing in September 2019, the father first informed the court that he had separated from the mother (who did not attend the hearing) and that he sought to care for the two children as a sole carer. The following evening police officers in Scotland stopped a car on the road to Stranraer, where there is a ferry terminal linked to Northern Ireland. The car was registered in the name of the father. The driver produced a provisional driving licence in the name of the father. He was reported as having said that he was travelling to the ferry and that he was accompanied by his wife. Both parents denied to Keehan J, as they denied to me at this hearing, that either of them was in that car on that evening.
Five days later the mother gave birth to Q in a hospital in Southern Ireland. She had attended two days or so earlier in the latter stages of labour. She gave a false name and a false address. Knowledge of Q's birth did not reach the local authority or the court until January 2020, some four months later, when the parents were again stopped in a car by police, on this occasion in the vicinity of the North Terminal of Gatwick Airport. Baby Q was with them.
Returning to events that were in the knowledge of the local authority and the court in the Autumn of 2019, the father persisted in presenting himself as being separated from the mother and as a candidate for the sole care of the two boys. At the final hearing in November adjourned part-heard to December, having heard evidence from the father, Keehan J, contrary to the advice of the local authority and the children's guardian, agreed that a rehabilitation plan should be implemented so that the two boys...
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