S and T (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 19 June 2015 |
| Neutral Citation | [2015] EWHC 1753 (Fam) |
| Docket Number | Case No: FD14P00572 |
| Date | 19 June 2015 |
| Court | Family Division |
[2015] EWHC 1753 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: FD14P00572
Mr Damian Garrido QC and Mr Edward Kirkwood (instructed by Turpin & Miller) for the applicants (the children's maternal great aunt and great uncle)
Ms Janet Bazley QC and Mr Mark Jarman (instructed by Freemans) for the children's father
Mr John Vater QC (instructed by Reading Borough Council) for the local authority
Mr Robin Barda (instructed by Cafcass Legal) for the guardian
Hearing dates: 5–7 May 2015
This judgment was delivered in open court
Sir James Munby, President of the Family Division:
I am concerned in this unusual and difficult case with the welfare of two children, S born in September 2010 in Pakistan and her younger sister, T, born in this country in June 2012. Their parents had married in Pakistan in 2009 and came to live in this country in 2012 shortly before T was born. The mother died, tragically young, of cancer in September 2013.
There had been litigation in the mother's lifetime, triggered by the father's removal of the children to Pakistan in December 2012. The children were made wards of court on 8 January 2013 and have remained wards ever since. The father remained in Pakistan and did not return to this country until 12 April 2014. In the meantime, following their mother's death, the children lived initially with a maternal uncle in Reading and, in April 2014, with family in Bedfordshire for a short time before returning to the maternal uncle in Reading.
On 9 April 2014 the children's maternal great aunt and great uncle, who live in Illinois in the United States of America, had begun proceedings under section 8 of the Children Act 1989, seeking leave to remove the children from this country to live with them in Illinois. The proceedings have not progressed as smoothly or as quickly as might have been thought desirable.
Much of the delay has been caused by the need, first, to obtain expert advice from lawyers in the United States of America as to how, compatibly with their immigration law, it might be possible for the children to go and live permanently with the applicants in Illinois and, then, to consider the implications of that advice. There is no need for me to go into the detail. Put shortly, it is common ground that, if this is to be achieved, the applicants must comply with procedures requiring completion of the United States of America's Department of Homeland Security's Forms I-800A and I-800. These require that the children be adopted by the applicants in accordance with the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993. Initially, the applicants were minded to seek an adoption order in this country. Their plan now is to seek an adoption order in Illinois, having first obtained from this court an order under section 84 of the Adoption and Children Act 2002.
The proceedings
Moylan J had given directions on 7 April 2014. His order recited that the wardship orders were still in effect. Further directions were given by Parker J on 15 April 2014 and by Sir Peter Singer on 21 May 2014.
Following a further hearing before him on 9 July 2014, Sir Peter Singer made two orders. The first permitted the applicants to take the children to the United States of America "for the purposes of a holiday … which is not to exceed 90 days in duration." The relevant parts of the order read as follows:
"UPON [the maternal great aunt] giving the following undertaking to the court
(4) To bring back the children to the jurisdiction of England and Wales within 90 days of leaving the jurisdiction of England and Wales or in the interim if so ordered to do so by the court.
RECITAL BY THE COURT
(5) The wards of this court [S and T] ("the wards of this court") are habitually resident in the jurisdiction of England and Wales.
(6) This court has responsibility for determining issues relating to the wards of this court, which it will seek to do in a manner that promotes their best interests.
DECLARATION BY THE COURT
(7) The court declares that the permission given below does not confer any custodial rights of any description upon [the applicants] in relation to the wards of this court for the following reasons:
(i) "Custody" as such has ceased as a term to have legal effect by reason of section 12 of the Children and Families Act 2014;
(ii) The arrangements as to where the wards of this court (ie the children) shall live and looked after are subject to ongoing proceedings before this court in which there are different contentions put by [the applicants] on the one hand and by the father on the other;
(iii) The question whether, ultimately, this court will give any permission to remove the wards of this court to the United States of America (on the case of [the applicants]), subject to any immigration issues, or to Pakistan (on the father's case), is an issue of which this court is seised and which in due course it will determine.
IT IS ORDERED THAT
(8) The High Court of Justice of England and Wales in its capacity as Guardian of the children, [S and T], as wards of this court, hereby authorises their removal from England and Wales to the United States of America for the purposes of a holiday with [the applicants] (who are the maternal great aunt and maternal great uncle of the children) which is not to exceed 90 days in duration."
It is common ground that this order was carefully crafted to comply with the requirements of United States of America immigration law.
In accordance with that order, the children travelled to the United States of America on 18 July 2014.
The second order made by Sir Peter contained directions including, importantly, a direction for a finding of fact hearing to commence on 22 September 2014 for consideration of the various issues identified in the Schedule to the order. In a further order dated 8 August 2014, Sir Peter gave further directions, including adding a further issue to the list of matters to be considered at the finding of fact hearing.
On 1 October 2014, Sir Peter gave judgment setting out his findings. I shall return to the detail of this below.
On 3 October 2014 Sir Peter made a further 'holiday' order which, except in trivial and immaterial respects, was in the same terms as his previous order of 9 July 2014. In a second order also dated 3 October 2014 Sir Peter gave directions providing for a three-day hearing to commence on 19 November 2014 "for the determination of the future arrangements for the children."
The children returned from the United States of America nine days later on 12 October 2014 and travelled to the United States of America a fortnight later on 26 October 2014.
In the event, the hearing fixed for 19 November 2014 was vacated by an order made by Sir Peter on 10 November 2014 and re-fixed for hearing by Baker J on 2 February 2015. A recital to that order indicates that at that stage the applicants were seeking to obtain an adoption pursuant to the Convention. Sir Peter gave further directions in an order dated 21 November 2014.
The children returned from the United States of America on 17 January 2015.
Baker J gave various directions on 22 January 2015, shortly before the hearing fixed for 2 February 2015 had to be vacated because of the unexpected over-running of another case.
On 4 February 2015, Ms Deborah Eaton QC made a further 'holiday' order in the same terms as the previous order made by Sir Peter Singer on 3 October 2014. In a second order made the same day she gave various directions.
On 12 February 2015 the children travelled – now for the third time – to the United States of America.
On 12 March 2015 the matter came before Her Honour Judge Parry. The applicants indicated their intention to issue an application pursuant to section 84 of the 2002 Act and to "give notice to Reading Borough Council of their intention to do so pursuant to s. 44 of the Act by no later than" 20 March 2015. Judge Parry gave directions providing that the matter be listed for three days on 5 May 2015:
"for determination of the following issues:
(a) The procedural and regulatory viability of the Applicants' s84 application and whether there can be a non-consensual Convention adoption without public law proceedings.
(b) Renewal of the Applicants' permission to remove the children for a further 90 day period to the USA."
That was the matter which, in accordance with those directions, came on for hearing before me on 5 May 2015.
The applicants issued their section 84 application on 14 April 2015. In their application, they specifically asked the court to dispense with the father's consent on the ground that the welfare of the children requires it. They gave notice to the local authority on 15 April 2015.
Before me, the applicants were represented by Mr Damian Garrido QC and Mr Edward Kirkwood, the father by Ms Janet Bazley QC and Mr Mark Jarman, the local authority by Mr John Vater QC and the children, through their guardian, by Mr Robin Barda. I should place on record the fact that Mr Garrido, Mr Kirkwood and their instructing solicitor, Ms Ruth Hawkins of Turpin & Miller, are all acting pro bono, something which calls for public recognition in addition to what no doubt is the gratitude of their clients.
At the end of the hearing on 7 May 2015 I reserved judgment. On 11 May 2015 I notified the parties that:
"Irrespective of the eventual outcome, it is in the best interests of the children to return to the USA for a further period of not more than 90 days. This will avoid harmful disruption in the event of a final decision in favour of the applicants. It will be a necessary part of the transition if I...
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