Tower Hamlets London Borough Council v MK and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BAKER |
| Judgment Date | 02 March 2012 |
| Neutral Citation | [2012] EWHC 426 (Fam) |
| Court | Family Division |
| Date | 02 March 2012 |
| Docket Number | Case No: FD10P02666 |
[2012] EWHC 426 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Baker
Case No: FD10P02666
In the Matter of the Children Act 1989
In the Matter of the Inherent Jurisdiction
In the Matter of Wk and Ak (Minors)
Mr. Brian Jubb (instructed by the local authority solicitor) for the Applicant Local Authority
Mr. Maurice Guyer (solicitor of Vickers and Co) for the 1st Respondent mother
Mr. Henry Cleaver (instructed by Fort & Co. Solicitors) for the 3 rd Respondent KK
Ms. Gill Honeyman (instructed CAFCASS Legal) for the 4 th and 5 th Respondents by their Children's Guardian
The 2 nd Respondent was neither present nor represented
Hearing dates: 16th, 17th, 18th, 19th, 20th and 27th January 2012
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 being handed down in private on 2 nd March 2012. It consists of 32 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr. Justice Baker:
Introduction
On 13 th May 2010, British Transport Police discovered two girls, aged 8 and 6, in a disused hut by a railway line in East London in the company of two men. It transpired that all four were from Poland and that the girls were the subject of the Polish equivalent of care proceedings and had been abducted from Poland without the consent of the Polish authorities. The two men, SK and KK, were brothers. SK was married to the girls' mother and believed by the Polish authorities to be the father of the girls (along with their seven older siblings). Both SK and KK insisted, however, that the father of the girls was, in fact, KK.
The discovery of the girls by the Police set in train a long investigation by the local social services department of the London Borough of Tower Hamlets ("the local authority"). Through the invaluable assistance of the office of Lord Justice Thorpe, the Head of International Family Justice, and in particular his legal secretary Victoria Miller, contact was made with the Polish authorities. In the event, however, no application was made by those authorities for the return of the children to Poland, and their family, specifically KK and the girls' mother (when she was in due course located and contacted) indicated that they wished that the girls remain in England. The local authority therefore started care proceedings which were transferred to the High Court and eventually came before me in January 2012 for a final hearing. This reserved judgment is delivered following that hearing.
Background History
The information concerning the girls' background in Poland is not as detailed as is normally the case in care proceedings, but in my judgment it is sufficient to enable me to get a clear picture for the purposes of making a decision as to their future.
The mother was born in 1963 and is therefore now aged 48. She lives Tarnow in south east Poland. She is married to SK but it is her case that their relationship broke down a number of years ago and that they no longer live together as man and wife, although they remain on cordial terms and SK regularly stays at her flat. The mother has had nine children, of whom W (born 17 th January 2002 and therefore now aged ten) and A (born 13 th May 2004 and therefore now aged 7 3/4) are the youngest. SK is registered as the father of all nine children but it is the mother's case that he is the father of only the older six and that the father of the three youngest (W, A and their older sister M, born in 2000 and now aged 11) is his brother KK with whom she has been involved in a relationship with for a number of years. The mother and KK state that all the family know that KK is the father of the three younger children, although not, it seems, the Polish authorities. On the mother's behalf it is submitted that Poland being a devout Catholic country she and the children would be stigmatised if the situation concerning their paternity (as she claims it to be) were widely known.
The paternity of the two girls has been an issue in these proceedings and the subject of DNA evidence which I shall consider below.
Both SK and KK work outside Poland. The precise movements of SK, who has not given evidence in these proceedings, are unclear but it seems that he spends some time in Poland but also times in other countries in Europe including Italy. In about 2004, KK moved to England to work in the building trade. Other members of his family live here, including an older brother, X, who lives in East London. K's evidence is that he returns to Poland for a few weeks every year.
For a number of years, the mother has suffered from alcoholism. The extent of her addiction, and the length of time she has been suffering from it, are issues in these proceedings which I shall also consider below. The local authority has information that concerns were first raised by the Polish authorities over twenty years ago. Suffice it to say that the problem became so serious that it lead the authorities to question the quality of care provided by the mother to the three younger children, M, W and A. Those concerns were compounded by the living conditions in which the family lived – a two-roomed flat, accommodating not only the mother and the three younger children but also the mother's two older daughters and four of her grand children. In addition both SK and KK stayed in the property on occasions. The mother slept in the kitchen.
The mother asserts that the Polish authorities took M in to emergency care and started court proceedings. The date on which these proceedings were started is not clear from the papers. The mother stated in evidence that this took place in 2009, but there are grounds for believing that it was at an earlier point, possibly in 2007. In those proceedings, SK was named as M's father. In her evidence, the mother said that she was not invited to attend the court hearings concerning M, at the conclusion of which an order was made that lead to M being placed in a children's home several hours away from Tarnow. The mother said that, when she visited the children's home, she was extremely concerned about the poor quality of the care that M received there and in particular about issues of safety. Meanwhile, the Polish authorities took further proceedings in respect of W and A. On 28 th August 2009, an order was made by the Third Family and Minor's Division County Court in Tarnow (a translation of which is included in the court bundle) directing that W and A be placed with their older sister at the children's home. The mother stated in evidence that this order was again made at a hearing to which she was not invited and that, upon receiving notification of the decision, she sent a letter to the court stating that she wished to appeal. According to the mother, neither W nor A was in fact removed from her care at that stage. On 11 th February 2010, the First Civil Division of the County Court in Tarnow dismissed the mother's appeal. The evidence given by the mother and KK is that, following that decision, they arranged for KK and SK to remove W and A from Poland and bring them to England to avoid the children being placed in the children's home. There is some confusion and conflicting evidence as to the exact date on which they left Poland, and also as to where they stayed during the next few weeks. I shall consider the events of those weeks in more detail below.
As stated above, on 13 th May 2010 KK, SK and the two girls were discovered in London. The circumstances are described in a CRIS report produced by the Metropolitan Police
"A member of the public contacted the Police as they had seen people around the Tower Hamlets area walking along the railway track. Police have attended the scene and found the suspects and subjects living in a shed at the side of the track. Suspects were arrested and subjects taken into Police protection. The arresting officers describe the living conditions being a brick built shed situated approximately ten feet away from live mainline tracks and in close vicinity of a twenty foot drop down to a canal. KK was outside the shed lighting a small fire and was shortly joined by SK and the two subjects from within the shed. Police describe the shed as being split into two rooms. The first room contained cooking utensils, food, water and various tools. The second room contained an old mattress, duvet, rubber mats, sleeping bags and clothing. The two windows within the shed had been covered in plastic sheeting as had the door."
The children were removed from the location (it seems by train) and KK and SK were arrested. Subsequently they were interviewed by the Police. I shall consider their respective accounts of events during those interviews later in the judgment. Ultimately, however, no charges were brought against either man in respect of this incident.
With the consent of SK, the children were accommodated by the local authority and placed with foster carers. Regrettably, it has been necessary to move the children on no fewer than three occasions so that they are now with their fourth set...
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Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [Family Division]
...and Family Court Advisory and Support Service [2012] EWCA Civ 853; [2013] 1 WLR 163, CATower Hamlets London Borough Council v MK [2012] EWHC 426 (Fam); [2012] 2 FLR 762V (Forum Conveniens), In re [2004] EWHC 2663 (Fam); [2005] 1 FLR 718W and W v H (Child Abduction: Surrogacy) (No 2) [2002] ......