The London Borough of Ealing v The Mother
| Jurisdiction | England & Wales |
| Judge | Willans |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] EWFC 201 |
| Court | Family Court |
| Docket Number | Case No: ZW23C50081 |
[2023] EWFC 201
HIS HONOUR JUDGE Willans
Case No: ZW23C50081
IN THE FAMILY COURT AT WEST LONDON
West London Family Court
Gloucester House
Dukes Green Avenue
Feltham
TW14
Matthew Burman (instructed by Ealing Legal Department) for the Applicant
Amanda Meusz (instructed by Caveat Solicitors) for the First Respondent
Mark Blundell (instructed by Osborne Solicitors) for the Second Respondent
Meena Fakhri (instructed by National Legal Service) for the Third Respondent
Hearing dates: 24–26 October 2023
Introductory Points
This reserved judgment is given following a three-day final hearing at the end of which the applicant, child's guardian and father all support the making of a final care order with respect to this 13-year old child, [ ] (“the child”). The child's mother opposes the same and seeks for him to be returned to her care as soon as she has obtained suitable housing for them both. In the interim she would agree a section 20 placement 1.
I heard live evidence from the allocated social worker, mother, father and guardian. The parents were assisted throughout by interpreters. This judgment will likely be published and so to preserve confidentiality I will refer to the parents using those labels, the child accordingly and to the country of origin of the parties as X and the country of current residence of the father as Y. X is a country in East Asia and Y is an East European country. Unfortunately day 1 of the hearing was required to update the parties on the guardian's final analysis. As a result of this the evidence was delayed and I was unable to provide a judgment within the hearing timetable.
I have had regard (whether I refer to it within this judgment) to the papers contained within the hearing bundle, the live evidence of all witnesses and the submissions made by counsel for each party. I also have regard to the limited additional documents provided in the course of the hearing.
The hearing was conducted on a wholly attended basis. I have had care of the case since a further case management hearing on 20 April 2023. Within the proceedings there has been parenting assessments undertaken with respect to both parents and wider family in X. The case has been extended outside of 26-weeks largely as a result of the need for the father to travel to this jurisdiction as part of the assessment process but also to enable a three-day final hearing. Judgment will be handed down in week 38. The full procedural history can be found in the hearing bundle.
The issues in the case / party positions
The applicant and father entered the case from a very different position to the one in which they ended the case. At outset both sought the making of a child arrangements order in favour of the father on the basis that the child would be placed into a boarding school environment living with the father either in this country, X or Y (or a combination of all) during school holiday breaks. This was to be supported by a supervision order. However, by the end of the case both the applicant and father had reached the view that the best outcome for the child was a care order on the understanding that the child's contact with his father would be generous. It is an unusual feature of this case that, by agreement, the child has spent time overseas with his father in the course of the proceedings — including in country X which is a Non-Hague Convention Country.
In changing position the father and applicant now agree with the child's guardian. The guardian took a different view to that of the applicant consequent upon the child's clearly stated and strong opposition to moving into a boarded environment. The guardian considered the child's welfare required appropriate allowance for his clear views given his age and level of understanding. I met with the child prior to Court on 23 October 2023 and a note of my meeting was provided to the parties. I refer to these views later.
The child's mother opposed a care plan. She wished for the child to return to her care as soon as is possible and once suitable accommodation is available to them both. She considered this outcome was consistent with the child's wishes and feelings. It is of
note the child came into care having lived his whole life in his mother's care. There was little if any residual dispute as to the contact plans that would be in effect were a care order made. It was agreed contact would be generous and liberal when compared to many cases in which a care order is made.Legal Principles
My paramount consideration is the welfare interests of the child. In considering this I have regard to section 1(3) Children Act 1989 and to all the circumstances of the case. I presume it will be in the child's welfare interests to have a relationship with both parents so long as such is safe for him. The making of a care order requires the Court to find a legal threshold crossed under section 31 of the Children Act 1989. This is a test which requires the Court to find the child has (for the purposes of this case) suffered significant harm at a given date (typically the commencement date of the proceedings) or would be likely to suffer significant harm if an order were not made and that such harm is attributable to the care being given to the child not being that which a carer would be expected to provide to the child. Plainly the above requires a factual matrix to be agreed or found by the Court. In this case the threshold is not in dispute. However, I bear in mind that any factual disputes are resolved on the balance of probabilities with the burden of proving the allegation placed on the party making the allegation and with no burden of disproof. The legal finding that the threshold is crossed does not resolve the case. It simply opens up the potential for the Court to make public law orders either placing the child into the care of the applicant (care orders) or under the supervision of the applicant (supervision order). Whether to make any such order brings into focus the welfare of the child. It also requires the Court to have regard to the article 8 rights 2 of the family. This is the right to respect for private family life. The intervention of the state in family life is a significant step which can only be countenanced and approved by the Court where it is a proportionate response to the prevailing circumstances and is found to be reasonable, necessary and lawful. If the Court can find a lower form of intervention that will meet the circumstances of the case the Court must take that alternative route. At the outset of the case I was referred to the authority of Re S (A Child) and Re W (A Child)(s 20 Accommodation) [2023] EWCA Civ 1. This case makes clear the propriety of section 20 arrangements as a final outcome in care proceedings and disapproves any suggestion that section 20 arrangements can only be used as interim or short term holding measures. Ultimately this issue fell away in the course of the hearing.
Relevant Background
The parents met and married in this jurisdiction in 2008. Within the year the mother was pregnant with the child. The statement evidence suggests the relationship was poor from an early stage. In general terms the mother describes a situation of isolation and loneliness with the father spending time at work. She also details allegations of domestic violence. Early in the proceedings I considered whether these allegations should form any part of this process. It was agreed they did not need to be resolved given their historic nature and given the lack of contact and likely future contact between the parents. The allegations are denied. It seems the parents emotional relationship ended when the child was about 1-year of age. The mother highlights financial difficulties in the relationship. In 2012/13 the father moved to live and work in Y. In 2014 the mother and child temporarily moved to Y to share a home with the father but this broke down quickly with further allegations of domestic violence and the mother returned to this country alone. During this period the child was placed with paternal family in X. This lasted for about 5 1/2 months during which time there was dispute between the parents as to whether the child should remain there or return to this country with his mother. Ultimately the mother appears to have surreptitiously removed the child using his UK passport. On return to this
country the mother was assisted by a leader within her church whilst she made housing applications and obtained accommodation for her and the childThe mother complains of struggling on her own during this period with only episodic support from the father. His support is said to have ended in 2018 when he filed for divorce. The accommodation she obtained was far from ideal but she remained there with the child for 8 years until her eviction in early 2023. Over time the mother noted concerning behaviour on the part of the child. He was said to be challenging towards her and low in mood and angered quickly. In the period between 2015–2018 the father maintained contact with the child but this stopped in 2018 after the filing of the divorce. Between 2018–22 the father is said to have been absent from the child's life. In 2021 the child was taken to A&E as a result of his presentation. He was referred to mental health practitioners and reported suicidal thoughts. In 2022 the mother received an eviction notice and they were evicted in early 2023. This was incredibly stressful for the mother as she struggled to find replacement property. On eviction they were placed in a one-bedroom room in a hostel with shared facilities. At the time of the final hearing the mother remains within this...
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