D v E

In this matter I am concerned with the welfare of a young boy called C. C is now 11 years old. C is the child of the Applicant D (hereafter ‘the father’) and the First Respondent E (hereafter ‘the mother’). At present C resides with his maternal aunt, the Second Respondent T (hereafter ‘the aunt’).

The issue I am asked to decide in this case is that of whether C should continue to live with his aunt in London or move to live with his father in Manchester or his mother in Mozambique. If I determine that C should continue to reside with his aunt there is an issue as to whether that arrangement should subsist under the auspices of a special guardianship order or a child arrangements order.

The aunt submits that C should continue to reside with her. She further submits that this should be under the auspices of a special guardianship order. The father submits that C should live in his (and his partner’s) care. As noted, the mother resides outside the jurisdiction of England and Wales in Mozambique. Her primary case is that C should reside with the aunt in this jurisdiction. If however, the court determines that C should not continue to live with the aunt, then the mother submits that C should return to live with her in Mozambique.

Within the foregoing context there are three applications before the court. First in time is the father’s application for a prohibited steps order and a child arrangements order pursuant to section 8 of the Children Act 1989 issued on 17 December 2014. On 17 February 2015 the aunt issued an application for a special guardianship order and on 18 February 2015 issued an application for a prohibited steps order. Finally, on 23 February 2015 the father issued an application for the delivery up of C’s passport.

The father attended the hearing and was represented by Mr Lynch of counsel. The aunt attended the hearing and was represented by Mr Woolley of counsel. The mother was not represented. Whilst it has not been possible for the mother to be present at this final hearing it has been possible for her to attend the entirety of the hearing by means of a telephone link from Mozambique. Thus, whilst not represented, the mother has nonetheless been able to participate fully in the final hearing and has had the opportunity to give oral evidence and cross examine witnesses. All parties, including the mother, have filed comprehensive written closing submissions.

The parents met in 2003. The mother alleges that the parents’ relationship became characterised by jealousy and regular domestic abuse from the father who, the mother contends, would beat her and shout and swear at her on a daily basis, sometimes in front of C. The mother repeated these allegations during the course of her oral evidence.

Specifically, the mother alleges that she was slapped by the father when twelve weeks pregnant in June 2004 in front of a friend of his. The mother repeated this account to the allocated social worker undertaking the section 7 report in these proceedings, the social worker. The father admits that the parents argued on this occasion (he says over the mother drinking alcohol during her pregnancy) but denies slapping the mother. In relation to the father’s contention that the argument was over the mother drinking alcohol during her pregnancy the mother’s medical records indicate that she stated to her general practitioner on 7 May 2004 and to the midwife on 29 November 2004 that she was not smoking or drinking Within the mother’s general practitioner records there is a risk assessment dated 7 May 2004 with the box labelled “Unsupported mother/ Social Problem” ticked, although the annotation adjacent to the box reads “Awaiting income support decision”.

The mother further contends that the father hit her in front of the father’s mother when she was six months pregnant in September 2004, leaving a mark on her face. Again, the mother repeated this allegation to the allocated social worker. Again, the father admits that an argument took place between the parents (over the mother allegedly being verbally abusive to the father’s mother) but denies hitting the mother. The mother states that she fled to the home of the aunt when seven months pregnant in October 2004 after an incident of domestic abuse. I note that the mother’s medical records indicate that she was describing herself as single as at 15 October 2004.

The mother states she returned to the father after C was born in December 2004 by reason of the fact that she was an 18 year old mother of a premature baby and felt lonely and scared. The mother alleges that the father continued to hit her leaving marks all over her body. She concedes that she did not inform anyone of this alleged abuse. Within the context of these proceedings the mother repeated to the allocated social worker the allegation that she was hit by the father following C’s birth. These allegations are denied by the father.

On 17 July 2005 a call was made to the Police following an incident in which the mother alleges that she was hit by the father in front of another of her sisters. The mother has not sought to file evidence from that sister. Once again, the father concedes that an argument took place on this occasion (he alleges over the mother using alcohol and cannabis when C was present in the household) but the father denies any violence took place. It is of note that the father’s account of this incident changes as between his statement of 10 September 2015 and his statement of 19 November 2015, which latter statement was compiled after he had seen the Police disclosure.

In his statement of 10 September 2015 the father states clearly that he had an argument with the mother and does not mention arguing with any other person. Having seen the FWIN report for 17 July 2005 disclosed by the Police (which states “fight domestic now husband sister having a fight”) the father changes his account in his statement of 19 November 2015 to state that he was mainly arguing with the mother’s sister. The FWIN record of Police attendance describes the incident as a verbal argument and that no allegation of an assault was made. The father is described as calm when the Police attended. The mother states that on 17 July 2005 the police asked her if she wished the father to be taken away but that she refused because she did not want the father arrested. The mother cites this incident as the trigger for leaving the father in August 2005.

It is of note that during the period in which the mother alleged persistent violence on the part of the father the father was convicted of an offence of violence in October 2005. This offence was not mentioned by the father in his first statement dated 18 December 2014 or in his statement of 18 June 2015 or to the allocated social worker. The father did however disclose the offence in his statement dated 10 September 2015 (although it is there wrongly described as having occurred in 2015). It is of note that this disclosure by the father only arose after the court recorded on 9 July 2015 that the local authority would be conducting Police checks in relation to each of the parties. In his statement the father describes the offence as resulting from his acting in self-defence in response to racist provocation, pleading guilty on the advice of his solicitor and being sentenced to 160 hours community service. However, the PNC check and concessions from the father in evidence paint a different picture.

The PNC check reveals that the father was, in addition to the community service order of 160 hours, given a suspended prison sentence of 18 months for the offence of affray. Further, whilst in his statement of 10 September 2015 the father describes himself as having acted in self-defence, pleading guilty to affray only because he did not speak English well enough to understand his solicitor and because he was advised that “it may be determined that I did use excessive force in defending myself”, in oral evidence the father conceded that the assault he had perpetrated had involved the victim falling over, after which the father “kicked him” and “beat him” whilst the victim was on the ground. The significant sentence passed on the father (presumably discounted for the guilty plea) is better explained by this account.

C was born in December 2004 six weeks premature due to a placental abruption and spent the first three months of his life in an incubator in the paediatric intensive care unit. C was identified as having neurological dysfunction as a result of prematurity. It is important to note that, within this context, C has a number of specific welfare needs above and beyond those ordinarily arising from being an eleven year old child.

C has an amblyopic right eye with significant reduction in vision. He has a slight curvature of the spine and his left leg is longer than his right. By the efforts of the aunt in 2014 C was referred to the Newham Child & Family Consultation Service (CFCS). A letter dated 14 December 2014 from the doctor in Child and Adolescent Psychiatry and the Family and Systemic Psychotherapist confirms that C fulfils the diagnostic criteria for moderate attention deficit hyperactivity disorder (ADHD) of a combined type and, in addition, presents with global developmental delay. The functional impairment caused to C by his ADHD has been assessed as being moderate to severe. C also suffers from dyslexia. The CFCS highlight that C’s ADHD and global developmental delay have resulted in academic and social impairment for C. The aunt states that C’s behaviour can also, at times, become challenging due to his ADHD and that he needs stable and consistent routines.

As a result of the referral to the CFCS C was further referred to the Newham Complex Needs and Dyslexia Service (NCNDS) who completed a full assessment of C. The NCNDS have recommended C receive comprehensive one to one educational intervention four days per week to support his reading, learning of high frequency words and spelling. C also benefits from weekly counselling sessions and is due to continue these sessions into next year.

Following his premature birth, the first two years of C’s life were characterised by a number of moves. It is important to observe that, whilst all parties are in broad agreement as to the moves that occurred, the relevant dates are the subject of differing accounts by each of the parties with little corroborating evidence and can, therefore, only be approximate.

At some point in 2005 the parents moved to Manchester with C. As noted, in August 2005 the parents’ relationship broke down and the mother moved to London. The father remained living in Manchester. At the end of 2005 or the beginning of 2006, realising that C was suffering from health problems consequent on his premature birth, C was taken to Portugal and left in the care of the aunt whilst he received treatment, which treatment was funded by the aunt. The father contends that C was in fact cared for in Portugal by the maternal grandmother and not the aunt although on this point I prefer the evidence of the aunt and the mother. C was cared for in Portugal by the aunt until he was three years old, when he returned to his mother’s care in England.

Upon the return of C from Portugal the father says that he maintained contact with C when he could, with C coming to stay with him in Manchester on a regular basis. By contrast, the mother and the aunt contend that the father was not involved in C’s upbringing following the parents’ separation and had little contact with C.

The parties agree that in November 2008 the father left the United Kingdom to go to Angola to pursue his career. He did not see C for two years. The father maintains that he kept in touch with C regularly by means of telephone. The mother contends that the father continued to have very little contact with C and the aunt states he disappeared from C’s life completely. The father contends that he returned to the United Kingdom for a short period in 2010 when C was five years old. At this time the father states that C had been left in the care of his maternal grandparents in Portugal and that the mother had moved to Mozambique. Notwithstanding this, the father returned to Angola without C to pursue his career. The father remained in Angola until 2013 and, consequently, did not see C for a further three years until C was 8 years old. Once again, the father contends that he was in regular telephone contact with C but, once again, the mother contends that the father had very little contact with C and the aunt that the father disappeared from C’s life entirely. The father conceded that during this period he did not send Christmas or birthday cards or presents to C. During this period the mother contends that C began to call her current partner ‘father’ by reason of the father’s absence from C’s life.

Whilst the father was away in Angola between 2010 and 2013 C continued to lead a rather peripatetic existence. As I have noted, C returned from Portugal when he was three years old into the care of his mother in London and in 2010 was in Portugal for a period of time. By 2012 C was living in Mozambique with his mother and remained in that jurisdiction until 2013. In September 2013 C returned to live with the aunt in London. The mother remained in Mozambique and continues to reside in that jurisdiction.

C has remained in the care of his aunt since September 2013. I have before me documents purportedly prepared by lawyers in Mozambique which state that the mother has authorised the aunt to be the guardian of C. The aunt contends that the father has never contributed financially to C’s care whilst C has been living with her.

On 21 January 2014 the school made a referral to social services after C disclosed he had been hit with a slipper by the aunt. A section 47 investigation was undertaken by the London Borough of Newham. The aunt expressed remorse and the case was closed with no further action taken. In her statement of 23 June 2015 the aunt concedes that she did hit C with a soft bed slipper when he was displaying extremely challenging behaviour. The aunt accepts that this was wrong. It was following this incident that the aunt sought to have C assessed and he was diagnosed with ADHD and global developmental delay. The aunt subsequently attended a Managing ADHD Group from 15 June 2015 to 20 July 2015, which group dealt with the impact of ADHD on the child-family system, developing and maintaining positive relationships with you child-family, praise, ignoring, commands and parents looking after themselves. I have had sight of a letter from East London NHS Foundation Trust dated 24 July 2015 confirming the aunt’s attendance, confirming that the aunt feels better able to manage his behaviour and confirming that a follow up group will be held and medical review of C will be arranged.

The father alleges that C has made further allegations that he has been physically and verbally abused by the aunt and hit by the aunt’s partner, F. C told the social worker that his aunt hit him with a towel and also made allegations to his school teacher. These allegations are denied by the aunt.

The father returned to the United Kingdom from Angola in October 2013. The father has resided in Manchester since he returned from Angola. The father has had contact with C since returning to the jurisdiction. The aunt contends that this contact has been limited and that, as at June 2015, contact had comprised, in total, a weekend in December 2013, a few hours in Portugal in February 2014, a period during the Easter holidays in 2014 (during which time the aunt contends that C spent most of his time at the home of a paternal aunt), two weeks during the summer holidays 2014, his birthday in 2014 and a number of days in February 2015, which episode I deal with in detail below. The aunt contends that she had to contact the father in December 2014 to remind him that it was C’s birthday. The father also had contact during the summer holidays this year. Again, I deal with this in more detail below.

The father states that in December 2014 a number of maternal relatives (who he does not name) sought to persuade him to remove C from the care of the aunt and take him to Manchester. The father stated he was reluctant to remove C from the aunt’s care as he wished first to make plans and did not wish to disrupt C’s schooling or health care in London. Within this context however, a dispute appears to have arisen regarding Christmas contact resulting in the father issuing an application dated 17 December 2014 in which he sought a child arrangements order for C to reside with him on a permanent basis and a prohibited steps order preventing the removal of C from the jurisdiction. Whilst a prohibited steps order was made on 17 December 2014 C had already travelled to Mozambique on 16 December 2014 pursuant to prior arrangements put in place by the mother.

On 14 February 2015 the father removed C from the care of the aunt, he contends as a result of an agreement that he could have a week’s contact with C. This is disputed by the aunt. The aunt contends that on 14 February 2015 she met the father following a request by him to have contact with C. The aunt states that she informed the father that she would call the father to arrange the collection of C later the same day. When the aunt attempted to telephone the father his phone was switched off. The aunt continued to attempt to contact the father. The aunt was finally contacted by the father through the medium of a text message on the evening of 14 February 2015 to inform her C was well. On 16 February 2015 she received a text from the father requesting C’s passport in order to register him with a general practitioner. On 18 February 2015 told the aunt he would be “taking her to court” to obtain C’s passport.

At court on 9 July 2015 it was agreed that the father would collect C for summer holiday contact on 23 July 2015. The aunt contends that on 21 July 2015 the father telephoned C to tell him he would collect him on 22 July 2015. C accordingly packed his bags but, the aunt contends, the father failed to turn up. When C called his father on 22 July 2015 his father told him he would collect C on 23 July 2015. The aunt contends that, once again, the father failed to attend and eventually notified the aunt very late on 23 July that he would attend to collect C 24 July 2015. The father conceded to the social worker that he had not texted the aunt until midnight on 23 July 2015 to inform her he would collect C the next day, two days late. The aunt’s account of the father’s conduct was not challenged by the father. The aunt states that the father’s conduct caused C much upset and resulted in deterioration in his behaviour and in him lashing out.

As I have noted, the current arrangements for C are that he resides in with the aunt and her 10 year old daughter J. The aunt has a partner, F, who is the father of J. The aunt states that F is not part of the household. The housing conditions are not at present ideal, with C and J having to share a room. The aunt acknowledges that this is not a realistic long term arrangement and has taken steps to try to secure a larger property.

Following the aunt securing the comprehensive assessment of C by the CFCS and NCNDS C now receives weekly one to one educational support four days per week for his reading, learning of high frequency words and spelling and weekly counselling sessions. It is clear from the documentary evidence before me that the aunt is in touch with relevant medical professionals in the area with respect to managing C’s needs arising out of his ADHD, global developmental delay and dyslexia. C is well settled at his current school and is able to remain at the same school when he moves into secondary education, allowing consistency of educational support and established peer relationships.

Finally by way of background, both parents now also have children by other partners. In addition to C the mother has two children by her current partner. The father has a six year old daughter by a former partner. The father states that he keeps in touch with his daughter via telephone. He last had direct contact with his daughter over a year ago in December 2014. The father states that his current partner is W. They have no children. The father contends that he has been in a relationship with W since February 2013 although the aunt contends that she encountered the father with a different woman in Portugal in February 2014. The father first described this person as his cousin before conceding he was not related to her. The father’s explanation for this change was one that I found to be entirely unconvincing.

The court has before it a section 7 report and two addendum section 7 reports prepared by the social worker, the social worker allocated to C by the London Borough of Newham. The court also has the benefit of a special guardianship report prepared by the allocated social worker and an independent social worker, Ms Lara Bloom.

Whilst I shall draw on various aspects of the special guardianship report below when setting out my reasons for the conclusions I have come to in this case, I need at this stage to make some preliminary observations about the methodology adopted by the social worker and the consequent quality of that report.

On 25 February 2015 His Honour Judge Millon directed the London Borough of Newham to prepare a report pursuant to the Children Act 1989 s 7 (by reason of the local authority having had prior involvement as a result of the section 47 investigation detailed above) considering the issue of whether C should live with the aunt or the father. On 9 July 2015 Newton J directed the social worker to prepare an addendum section 7 report in circumstances where the allocated social worker had not spoken to the partners of each of the parties seeking care of C, to C’s teacher nor to the SENCO worker allocated to C nor secured Police checks in respect of the adults involved. On 21 September 2015 I was required to repeat the direction of Newton J in circumstances where the social worker had still not undertaken these tasks. The social worker had at that date also yet to speak to C alone. I also made clear that the addendum report must include a parallel welfare analysis of the three options available to the court in relation to C’s care.

It transpired in oral evidence that the social worker is newly qualified and has never before authored a section 7 report. Her current position with Newham is her first. The social worker told me that her academic studies (a BSc in social work) did not cover the preparation of section 7 reports. She further made clear that the training afforded to her by Newham in preparation for completing what was to be her first section 7 report, comprised a ninety minute discussion with her supervisor.

Within this context, it became apparent that the social worker appeared to lack even a basic understanding of the nature of the proceedings in which she was being asked to provide a report, she describing these proceedings as being “private care proceedings” on 12 August 2015 when making enquiries of the hospital at which C was born.

Further, it was apparent from the evidence of the social worker (and the late filing of her section 7 report) that there was a substantial delay in the legal department at Newham communicating His Honour Judge Millon’s direction for a section 7 report to the social services department. This delay on the part of the legal department meant that a newly qualified social worker who was already prejudiced by her lack of experience in preparing a section 7 report was further challenged by having limited time in which to prepare what constituted a complex piece of work in respect of a child with complex needs in a complicated family situation spanning two continents.

Finally, it is important, and indeed concerning, to note that each of the social worker’s reports were signed off by her supervising Practice Manager as meeting the standards required by the court following a discussion between them. In the circumstances, the mistaken view of the social worker that she was doing that which was required of her was further amplified and reinforced by her supervising Practice Manager. This, perhaps and in part, explains the social worker’s repeated failures to comply with the express directions of the court.

Having listened to the evidence of the social worker I was left with the clear impression that her academic social work qualification and such training, administrative support and supervision as was provided to her by her employer left this newly qualified professional poorly equipped to undertake a competent report pursuant to section 7 of the Children Act 1989 in what is a complex and demanding private law case. Such criticisms of the social worker’s work as I feel compelled to make in this judgment must be seen in this context.

The substantive section 7 report contains a significant number of factual errors, contradictions and omissions. These include the periods of time that C has been in the care of the aunt. Of even greater concern, and quite inexplicably, the social worker did not speak to the mother of C, or make any attempt to speak to her, before reaching her conclusions and filing her substantive report. Indeed, the account of the family set out at the beginning of the report simply makes no mention of the mother at all. In addition to being extremely poor practice this had significant forensic consequences. In particular, it meant that the report did not consider the significance of the mother’s allegations of domestic violence and relied solely on the father’s account of the history of the parents’ relationship. Further, when pressed in cross examination by Mr Woolley, the social worker had to concede that even now that she is aware of the issue of domestic violence she has not sought to investigate that issue further with the parties. She likewise conceded that she had not discussed with the father his motivation for making his application nor had she discussed with him his removal of C from the aunt’s care in February 2015.

The social worker’s substantive report contains only the most cursory examination of the factors set out in the welfare checklist. Whilst C’s wishes and feelings as expressed to the social worker are set out (about which I will say more below) they are not analysed in anyway by reference to C’s age and understanding or in the context of his ADHD or family situation. C’s health needs are summarised as being “ADHD” with “no other concerns”. There is no mention of C’s global developmental delay, the consequences of his medical conditions or the nature and level of support in place in respect of the same. In relation to the effect of a change of circumstances on C the social worker simply concludes that “if given time to prepare for a change in circumstances C will be able to prepare and adapt” but offers no explanation of why she reaches such conclusion. In respect of the capability of those seeking to care for C in respect of the father the social worker’s conclusions are limited to noting that the father and his partner are “aware” of C’s health and education needs, have identified a school for C and “report that they have routines and boundaries in place when C visits and these would be in place if he lived with them permanently”.

Within this context, and as I have already alluded to, the substantive section 7 report contains no parallel welfare analysis of the competing options for C’s care. Indeed, during the course of cross examination by Mr Woolley, the social worker was forced, properly, to concede that her substantive report contains no analysis of C’s best interests. The report is simply a list of facts and statements by the parties followed by a bald conclusion that C should move to live with his father. The social worker simply dismisses out of hand the aunt’s application for a special guardianship (seemingly on the ground that social worker believed such an application to be “irrelevant” in circumstances where the mother had left C with the aunt under a private arrangement). The report recommends that C have direct contact twice per year with the aunt without explaining the welfare rationale for this recommendation.

With respect to her first addendum section 7 report dated 30 October 2015 the picture is, regrettably, no better. The social worker had been provided with a wealth of new information from the mother concerning allegations of domestic violence and the contents of the special guardianship report. The social worker had further been provided with information from C’s SENCO, further information from the partners of each parent and the aunt and the disclosure of the relevant Police records relating to allegations of domestic violence and the mother’s medical records. The social worker had also spoken to C alone.

Again, notwithstanding that the social worker had been provided with this new information, some of it directly contradicting previous statements made by the father, the addendum report contains no analysis. Further, despite the order of Newton J of 9 July 2015 the social worker had not sought PNC checks in relation to the adults involved. Despite my direction there is no parallel welfare analysis, the report, once again, constituting simply a list of facts and statements with a bald conclusion that C should live with his father. The only welfare factor examined is that of C’s wishes and feelings although, once again, there is no attempt to analyse them by reference to C’s age and understanding or in the context of his ADHD or family situation. I agree with Mr Woolley’s submission that the addendum report gives every impression of the social worker having placed determinative weight on C’s wishes and feelings (an impression reinforced during the social worker’s oral evidence when she stated that C’s wishes and feelings are “paramount”). This time the addendum report recommends, again without explaining the welfare rationale, that C have direct contact four times per year with the aunt.

The social worker’s final, undated, addendum report is subject of the same flaws. Again, notwithstanding that she had been provided with new information, and in particular the details of the father’s conviction for violence, and the fact that she had been told by C during a home visit on 18 November 2015 that he was now unsure about what he wanted, the addendum report again contains no analysis. The social worker conceded that she had undertaken no analysis of the significance for or impact of the father’s conviction on her recommendation. Again the addendum report constitutes simply a list of facts and statements with a bald conclusion that the father “has made the necessary changes in his life to enable him the care for C” (although what those changes might be is not specified) and that C should live with his father.

I have of course borne in mind that a social worker’s day to day role and knowledge of the court process differs from that of a Child and Family Court Reporter (see Re W (Welfare Reports) [2995] 2 FLR 142 at 146). I have also borne in mind the evidence I have heard from the social worker at this hearing regarding her lack of experience and training. However, for the reasons set out above the substantive and addendum section 7 reports prepared by the social worker nonetheless fall well below the standard expected by the court.

In the circumstances summarised above, and where neither the substantive section 7 report or the addendum reports contain any welfare analysis whatsoever of the issues engaged in this case nor a welfare analysis of the competing options available for C, and where the social worker was, despite being given every opportunity, entirely unable in her oral evidence to articulate the analysis and reasons underpinning her recommendation, I have felt unable to attach any weight to the recommendation of the social worker.

In addition to constituting a disservice to C and his family, the failure of the social worker, under the supervision of her Practice Manager, to complete her work competently leaves the court in the invidious position of not having before it part of the information the court decided, at the case management stage, was required to determine this matter. I have however concluded that, notwithstanding difficulties with the section 7 reports, I have sufficient information to undertake the forensic analysis I am required to in order to determine the applications before me.

In the case of Re K (Special Guardianship Order) [2012] 1 FLR 1265 the Court of Appeal held that where work is incomplete at the date of the final hearing the court must look at the information that is available and determine whether further work is required having regard, inter alia, to developments since the work was directed, the impact of delay and the totality of the evidence available. The Court of Appeal noted that having undertaken such a review it may transpire that evidence is available that covers the ground that the missing work would have covered. In my judgment, having regard to the totality of the evidence before the court, I am satisfied that that is indeed the position in this case.

The London Borough of Newham should note that had I been forced to adjourn this hearing due to the deficiencies in the section 7 reports this would have been a case in which, having regard to the decision of Cobb J in Re HB, PB, OB and Croydon London Borough Council [2013] EWHC 1956 (Fam), I would inevitably have had to consider whether a non-party costs order should be made against the local authority.

The legal framework governing the court’s approach in this case is provided by the Children Act 1989 s 1 which stipulates as follows:

Accordingly, in summary, in exercising my judgment with respect to the applications before the court I must have regard to (a) the principle that C’s best interests are my paramount concern, (b) the principle that the involvement of the parents in the life of C will further his welfare unless the contrary is shown, (c) the factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s.1(3), (d) the principle that no order should be made unless to do so would be better for the subject child than making no order and (e) to the principle that delay is ordinarily inimical to the welfare of C.

It is particularly important to recall the principle of the paramount nature of the child’s best interests pursuant to section 1(1) of the Children Act 1989 in cases in which the court is required to consider competing applications between a parent and a member of the extended family in the context of private law proceedings.

Whilst there may be a temptation in such circumstances to elevate the importance of parenthood when deciding where a child should reside, within the context of section 1(1) of the 1989 Act that temptation must be firmly resisted. The Supreme Court has made clear on a number of occasions that all consideration of the importance of parenthood in private law disputes must be firmly rooted in an examination of what is in the child’s best interests. Pursuant to s 1(1) of the Children Act 1989, that is the court’s paramount consideration (see Re B (A Child) [2010] 1 FLR 551 at [37]).

Within this context, I also recall that the courts have repeatedly emphasised that in most cases it is in a child’s best interests for both parents to have and to exercise parental responsibility for their child. In particular, and within the context of this case, the courts have emphasised the vital importance of encouraging the exercise of parental responsibility by fathers, children having a right to that benefit (see Re D (A Child) [2014] EWCA Civ 315 at [33] and Art 5 of the United Nations Convention on the Rights of the Child).

With respect to the specific factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s 1(3), the wishes and feelings of a mature child do not carry any presumption of precedence over any of other the other factors in the welfare checklist (Re P-J [2014] 2 FLR 27). The weight to be attached to the child’s wishes and feelings will depend on the particular circumstances of each case. In particular, having regard to the words of section 1(3)(a), it is important in every case that the question of the weight to be given to the child’s wishes and feelings is evaluated by reference to the child’s ‘age and understanding’. Once again, it is important to recall in this context that C’s best interests are the court’s paramount consideration.

Further with respect to the specific factors set out in the statutory ‘welfare checklist’ in the Children Act 1989 s 1(3), the court is required to consider the effect on C of any change in his circumstances. In the same way that the fact that a person is a natural parent does not in itself create a presumption in favour of that person, the fact that a child has been living with a person for a significant period of time does not create a presumption in favour of that person. However, when considering the outcome that best meets C’s welfare needs the court should also consider, as an element of its analysis of best interests, the extent to which it is desirable to maintain C’s current status quo (see Re E-R (a child)(child arrangements order: best interests) [2015] 2 FLCR 385 at [35]). In Re B (A Child) [2010] 1 FLR 551 at [42] Lord Kerr observed as follows:

“What we heard of the contact and residence arrangements, made as a result of the conditions imposed by the Court of Appeal’s order granting a stay, confirmed the view that considerable disruption to Harry’s life would have been involved in a transfer to live with his father. The distance between the homes of his grandmother and his father exceeds 30 miles, we were told. It seems inevitable that, if he were to live with his father, he would no longer be able to attend the nursery where he has already made good progress. Transfer of his residence would involve a great deal more than a change of address. Many of the familiar aspects of his life which anchor his stability and sense of security would be changed. The justices were, therefore, right to give significant weight to the desirability of preserving the status quo. This is a factor which will not always command the importance that must be attached to it in the present case but we are satisfied that it was of considerable significance in the debate as to where this child’s best interests lay”.

Pursuant to the welfare checklist I must also consider the range of orders available to the court under the Children Act 1989 in these proceedings. Within this context and the context of the aunt’s application, it is important to note the key features of the special guardianship regime as follows.

A special guardian has parental responsibility for the child and, subject to any other order in force, is entitled to exercise that parental responsibility to the exclusion of any other person with parental responsibility. A special guardianship order gives the carer clear responsibility for all aspects of caring for the child and for making decisions about their upbringing, it provides a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person, it preserves the legal link between the child and his parents and it allows access to a full range of support services (see Re J (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819 at [41]). In Birmingham City Council v R [2007] 1 FLR 563 at [78] the Court observed as follows:

“…special guardianship is an issue of very great importance to everyone concerned with it, not least, of course, the child who is its subject. It is plainly not something to be embarked upon lightly or capriciously, not least because the status it gives the special guardian effectively prevents the exercise of parental responsibility on the part of the child's natural parents, and terminates the parental authority given to a local authority under a care order (whether interim or final). In this respect, it is substantially different from a residence order which, whilst it also brings a previously subsisting care order in relation to the same child to an end, does not confer on any person who holds the order the exclusivity in the exercise of parental responsibility which accompanies a special guardianship order.”

With respect to the application of special guardianship orders it important to remember that there are no ‘routine’ circumstances in which a special guardianship order is appropriate (Re J (Adoption Order or Special Guardianship Order) at [43]). Each case depends on the order which in all the circumstances of the case best meets the welfare needs of the child concerned (Re M-J (Adoption Order or Special Guardianship Order) [2007] 1 FLR 691 at [17]).

With respect to child arrangements orders, pursuant to the Children Act 1989 s 12(2), where the court makes a child arrangements order and a person who is not a parent or guardian of the child concerned is named in the order as the person with whom the child is to live, that person shall have parental responsibility for the child whilst the order remains in force so far as it provides for the child to live with that person. Pursuant to the Children Act 1989 s 2(7), where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility, subject to the operation of any enactment which requires the consent of more than one person in a matter affecting the child.

Finally, in this case I am required to determine which of three competing options for C’s full time care best meets his welfare needs having regard to the matters set out above. Specifically, the court is faced with deciding between competing applications for private law orders that will, if made, determine whether C will live with one or other of his parents or with the relative caring for him currently and will, if a special guardianship order is made, significantly curtail the parents’ parental responsibility. Within this context, a court must be satisfied that a special guardianship order is a proportionate response to the child’s welfare needs (see Re J (Adoption Order or Special Guardianship Order)).

In the circumstances, the task facing the court is one which engages the right to respect for family life under Art 8 of the Convention, such that the court must (as a public authority) comply with the obligation under s 6(1) of the Human Rights Act 1998 not to determine the applications in a way incompatible with that right, and is one of exercising its judgment as distinct from exercising its discretion (see Re A (Intractable Contact Dispute: Human Rights Violations) [2014] 1 FLR 1185 at [42]-[46] applying Re B (A Child) [2013] 1 WLR 1911 at [45]).

Within the foregoing context, it seems to me that, notwithstanding that these are private law proceedings, in deciding which of the three competing options for C’s care will best meet his welfare needs the process of comparative welfare analysis of the competing options articulated in the context of public law cases (see in particular Re G (A Child) [2013] EWCA Civ 965 at [49]-[50] and Re B-J (Children) [2013] EWCA Civ 1146 at [44]) provides the appropriate analytical framework for determining C’s best interests in the particular circumstances of this case (see Re H (A Child) (Analysis of Realistic Options and SGOs) [2015] EWCA Civ 406 at [4]).

Within this context, in determining which of the competing options in respect of C’s care is in his best interests, having identified C’s welfare needs it is necessary then to undertake a global, holistic evaluation of each of the three options available for C’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to C’s welfare having regard to the principle of proportionality under Art 8 of the Convention.

The father submits, through Mr Lynch, that the evidence in this case demonstrates that it is in C’s best interests to move to live with him and his partner in Manchester. He relies on what he contends are C’s settled and clearly expressed wishes and feelings in this regard. The father further submits that for C to live with him, his father, will assist in the development of his identity. The father submits that there will be an adverse emotional impact on C if he is not living with a parent, relying on C stating that his friends ask if his mother and father are dead as he does not live with either of them. The father contends that C will have a better standard of living with him and will reside in accommodation better suited to C’s age and impending puberty in that he will be able to have his own room. The father submits that no findings should be made with respect to the mother’s allegations of domestic violence.

The Father advances a positive case that it is not in C’s best interests to be cared for by the aunt. He makes clear that he believes that C is treated badly by the aunt and the aunt’s partner F, that the aunt has failed to involve him in key decisions concerning C, that she is not prioritising C’s educational needs, that the aunt will obstruct his contact with C, that she will favour her own daughter J over C and that he “strongly” believes that her primary motivation for caring for C is to secure the financial benefits that flow from doing so. The father also suggests that once the proceedings are concluded the aunt will not care for C as much as she is now.

The father accepts that evidence that the specific services required to ensure that C’s particular needs would be met should he move to the care of his father is not before the court. Within this context, the father proposes in his closing submissions that a “comprehensive, fully researched plan is put in place” pending C moving to his care at the end of his current school year this summer.

The aunt submits that it is plainly in C’s best interests to continue to be cared for by her. The aunt urges caution in respect of C’s expressed wishes and feelings in the context of the same being expressed by reference to the fun he has at contact, the fact that C’s understanding must be assessed within the context of his ADHD and global developmental delay and the fact that his wishes and feelings appear to oscillate. She prays in aid the fact that she has cared for C for substantial periods of his childhood, during which time she has met all of his needs and pressed for support for his medical, educational and mental health needs. The aunt submits that she has provided a stable, secure and loving environment for C in which his emotional needs have been fully met and that she has and will continue to foster appropriately his individual and cultural identity. She relies on the report of Ms Bloom to demonstrate that she is a fully capable carer for C who understands, and can meet his particular needs. The aunt submits that the appropriate order in this case is a special guardianship order rather than a child arrangements order but does not press the point strongly.

The aunt advances a positive case that it would not be in C’s best interests to be placed in the care of his father. She cites the fact that the father has only been sporadically involved in C’s life, primarily by way of telephone contact, has never had full time care of C and that the father is completely untested as a parent of a child with considerable needs. The aunt submits that the father’s actions and evidence demonstrate that he does not understand sufficiently either C’s condition or the welfare needs that arise from it, such that the father would not be in a position to meet adequately those needs. The aunt submits that the father has taken no adequate steps to ensure that the professional and medical support that C currently receives in Newham will be available to him were he to move to Manchester.

The mother submits that C should remain in the care of her sister and supports the aunt’s application for a special guardianship order. She, in essence, adopts the submissions made by Mr Woolley on behalf of the aunt in this regard. In particular, she cites the progress she considers that C has made whilst he has been in the care of the aunt.

The mother submits that it is not in C’s best interests to be in the care of his father for the reasons articulated by the aunt. Should the court not accede to decide that C should remain in the care of the aunt (whether under a special guardianship order or otherwise) the mother submits that C should return to live with her in Mozambique.

Having regard to the totality of the evidence in this matter, and applying the foregoing legal principles, I have decided that C should remain living with his aunt and that he should do so under the auspices of a child arrangements order (which order will also confer on the aunt parental responsibility in respect of C for the duration of the order) rather than a special guardianship order. My reasons for so deciding are as follows.

C is an 11 year old child with specific physical, emotional and educational needs. As I have already noted C fulfils the diagnostic criteria for moderate attention deficit hyperactivity disorder (ADHD) of a combined type and in addition presents with global developmental delay. The functional impairment caused to C by his ADHD has been assessed as moderate to severe. C also suffers from dyslexia. C’s ADHD, global developmental delay and dyslexia have resulted in academic and social impairment for C. C’s behaviour can also, on occasion, become challenging due to his ADHD and that he needs stable and consistent routines. In addition, C suffers from some physical disability.

Within this context C has a need for consistent and understanding care by a carer or carers who appreciate the nature and extent of his particular needs and who will use that insight to parent C appropriately and secure and maintain the professional and educational support C requires. Within this context, C also requires a carer or carers who are able to manage the behavioural and emotional aspects of C’s ADHD and global developmental delay by providing appropriate guidance and boundaries. Further, by reason of his particular needs, C requires stability and consistency with respect to those medical, therapeutic and educational resources and relationships required to assist and support C in his continued development.

Beyond C’s welfare needs arising out of his particular health issues he, in common with all children of his age, needs to live in an emotionally warm, caring and physically safe environment with a carer or carers who are able to provide him with safety, stability and security. C needs the opportunity to continue to develop educationally in a suitable school environment and a carer or carers who will support and stimulate him in this regard. A particular aspect of this for C in the context of the specific needs arising out of his ADHD and global developmental delay is the need for consistency, stability and security in established family, peer and educational relationships.

Finally, C has a need to maintain and develop his relationships with each of his parents and his wider family in order to maintain and continue to develop a sense of his own identity.

As noted, within the foregoing context C at present receives weekly one to one educational support four days per week for his reading, learning of high frequency words and spelling and weekly counselling sessions. It is planned that this intervention will continue. It is clear from the documentary evidence before me that the aunt is in regular touch with relevant medical professionals in the area with respect to managing C’s needs arising out of his ADHD, global developmental delay and dyslexia. C is well settled at his current school, supported by a SENCO and is able to remain at the same school when he moves into secondary education. This would allow consistency in respect of the educational support and established peer relationships. By contrast, there is no evidence before the court as to the support and services that would be in place with respect to C’s specific needs should he move to the care of his father.

C’s wishes and feelings are an important factor to be taken into account when determining the applications before the court. C has stated on a number of occasions that he wishes to live with his father. In summary, C has expressed the following views:

It is important to note that children may also express their wishes and feelings in a non-verbal manner. In this context the aunt informed Ms Bloom that C acted differently towards her (the aunt) when Ms Bloom visited the family home on 21 July 2015, C making a point of coming up and kissing his aunt and telling her that he loves her. The aunt stated that such overt displays of affection by C were unusual. Ms Bloom postulated that C’s actions were a way of communicating his wishes to Ms Bloom regarding his aunt and reinforcing what he had initially told her on 15 July 2015.

The father invites the court to place great weight on C’s views as an 11 year old child who has, the father submits, expressed clearly his wishes and feelings as to where he should live. However, within the foregoing context, in my judgment some caution is required when determining what weight to attach to C’s wishes and feelings.

C’s ascertained wishes and feelings must be considered in light of his age and understanding. In this respect, whilst C is 11 years old I must bear in mind the fact that he suffers from global developmental delay. Further, and more importantly, having seen C Ms Bloom is clear that he is very conflicted as regards the issue of where he wishes to live, not wishing to hurt either of his aunt or his father, both of whom he loves. This conflict plainly affects his expressed wishes and feelings as can be seen clearly in the oscillation of those wishes and feelings as set out above and the uncertainty he expressed to the social worker on 18 November 2015. It is also important to have regard to C’s understanding of what living with his father as opposed to living with his aunt will be like. It is clear on the evidence that on those occasions he has stated he wishes to live with his father the key motivation behind C’s wish is that it will be “fun” with C focusing on the activities he undertakes during contact with his father when seeking to explain why he wishes to live with him. Further, on those occasions when C has stated that he does not wish to live with aunt C’s motivation has centred on what Ms Bloom described as the ordinary frictions in his sibling relationship with J. Within this context, there is little evidence that C understands or has considered what a move to live with his father will entail for him in terms of changes to his family and peer relationships, to his educational provision and to the provision of the support he receives in respect of his ADHD, global developmental delay and dyslexia.

Having regard to the matters set out above, whilst I have had regard to C’s wishes and feelings I have not felt able to attach to them major, let alone determinative weight. Having regard to the obviously conflicted nature of C’s wishes and feelings I agree with the evidence of Ms Bloom that, whilst C’s wishes and feelings must be considered and taken into account, the question of where he lives is one to be determined by the adults in order to relieve C of the anxiety and weight of responsibility for making a decision that he is plainly worried and uncertain about.

The Father

I regret that I found the father to be an evasive witness who was prone to dissemble when pressed with respect to his history and actions. The father gave the impression of attempting to present himself in the best light by avoiding direct answers to questions put to him rather than providing the court with a candid account of himself in the witness box.

The father clearly has positive attributes when it comes to his son. He plainly has much love for C and displays a strong wish to ensure that C is properly educated and the subject of proper guidance and boundaries. He displayed a strong ethic in this regard and has clearly made some efforts to identify school provision for C should he come to live with the father in Manchester. He was clear as to the manner in which he would seek to provide boundaries for C. That said I was concerned in listening to the father that at times his desire in this regard displayed a lack of understanding with regard to C’s particular needs arising out of his ADHD and global developmental delay. I will come to this in more detail shortly.

I have also, of course, borne in mind as an aspect of C’s best interests that D is C’s father. His parenthood is an important aspect of the welfare analysis in this case in that C’s parentage and his relationship with his father is a key element of his identity and emotional wellbeing. Knowledge of and a relationship with his father is a key constituent of maintaining and developing both these aspects of C’s welfare. It is important also to recognise that the concept of parenthood is important within the wider context of C’s peer relationships. C told the social worker that his friends have asked him if his mother and father are dead as he does not live with them.

Within the foregoing context however, it is clear on the evidence before the court that these important welfare aspects of parenthood have not been overly prejudiced in respect of C by his not living with his father to date. Ms Bloom was clear that, notwithstanding the relative lack of the father’s involvement in C’s life historically, C knows he has a father who loves him and wants C to live with him. Ms Bloom says that, having met and spoken to him, C has a very clear sense of himself as an individual. There is no evidence to suggest that the fact that C has not lived with his father over the course of his life has prejudiced his sense of identity, his identification of his father as his father or his feelings for his father. Indeed, C clearly has a good and positive relationship with his father. Finally, whilst the fact that C mentioned the comments of his peers indicates that those comments played on his mind, there is no evidence that they have unduly disturbed C’s emotional equilibrium.

The father accepts that he has not been physically present throughout C’s life. The father has never had full time care of C. The father maintains that he kept contact with C via visits and, when he was absent in Angola, telephone. However, both the aunt and the mother say this was at a very low level. C told the social worker that he had not always seen his dad but had had contact with him on the phone, although he could not say when. Having regard to the evidence I am satisfied that the father’s contact with C was not as regular as the father now seeks to portray. I am satisfied that he was, effectively, almost completely absent from C’s life for the 5 years he was in Angola. That said, as I have already observed, the father nonetheless has a good relationship with C. When seen with his father by the social worker C appeared comfortable and relaxed with his father and was observed to be chatty and engaged with him. Indeed, C clearly idolises his father.

There is no mathematical correlation between amount of time a parent spends with their child and that parent’s ability to meet their child’s needs. However, time spent with their child is inevitably relevant to the depth of a parent’s knowledge regarding their child’s physical, emotional and educational needs and the parent’s ability to meet those needs. Both Ms Bloom and the social worker stated that it is very important for C’s primary carer to understand his particular needs. It is here where I have significant concerns regarding the extent to which C’s best interests would be served by living with his father.

What I found to be the father’s lack of understanding of and lack of insight into C’s physical, emotional and educational needs and the manner in which they require to be met was demonstrated by a number of matters.

First, I found that the father was unable to give any accurate account of C’s current medical conditions or their effect. In his application of December 2014 he describes C as having a “severely damaged eye”, and a “crippled left leg” as a result of which he required “significant and constant” medical treatment. No mention is made of ADHD or global developmental delay (at that point C did not have a diagnosis of dyslexia). In seeking to describe C in his oral evidence almost a year later the father incorrectly described C as having autism and made no mention of his global developmental delay or dyslexia. At times during his evidence, the father questioned whether C has ADHD at all in circumstances where he has not seen bad behaviour and where C is “100% relaxed” with him and does “100% of what I ask him.”

As to C’s ADHD, the father’s understanding of its impact appeared limited to the assertion that “all children with ADHD lie” and that “95% of children with ADHD have trouble with the Police”. As I alluded to above, within this context it was concerning that the father’s strategy for dealing with C in the context of his ADHD appeared to centre on the need to instil discipline and respect in C. In his statement he describes C as needing “discipline and stability” and during his oral evidence he described how he would “build” C’s behaviour through his love of sport, the key in the father’s view being for C to build self-respect and respect for others. The father’s partner’s idea of imposing boundaries, as expressed to the social worker, was to ensure C would not use the cooker or electrical appliances and being supervised when out in the community with road support. The father’s partner stated that she would calm C down if he becomes “hyper” by talking to him and that once C is calm he will admit if he has done something wrong.

Whilst I bear in mind that the father speaks English as a second language and that (particularly as at December 2014) the father has had limited contact with C and has not been involved in his day to day care, the father had had, by the time he gave his evidence, the benefit of full disclosure of the documentation detailing the outcome of C’s assessments, his current needs and current support. Within this context, and having regard to the matters set out above, I found the father to demonstrate a poor level of insight into C’s current physical, emotional and educational needs and how those needs should be met.

Second, and within this context, what I consider to be the father’s lack of understanding of and lack of insight into C’s physical, emotional and educational needs was further demonstrated by his attempt unilaterally to alter the care arrangements for C in February 2015.

Whilst the father denies that he decided to remove C from the aunt’s care in February 2015 with the intention of not returning him, I have no difficulty rejecting the father’s contention in this regard. It is plain from a letter dated 27 February 2015 that the father had made an application for a school place for C with a view to C commencing school in Manchester well before he removed C from the aunt’s care on 14 February 2015. More importantly, the text messages that I have seen from the father to the aunt for this period (the content of which the father accepts) make clear that two days after removing C from the aunt’s care the father requested C’s passport so that he could register him with a GP and on 18 February 2015 told the aunt he would be “taking her to court” to obtain C’s passport. The only proper inference to be drawn from this evidence is that, having removed C from the aunt’s care peremptorily the father intended to retain C indefinitely. Finally, it was only by the intervention of the court on 19 February 2015 that the return of C to the aunt was achieved. Having regard to the matters set out above I am satisfied that the father simply decided to change C’s living arrangements unilaterally and removed him from the care of the aunt with every intention of retaining him permanently.

It is important to note that, at the time the father retained him on 14 February 2015, C had with him only the clothes he was wearing (which further militates against the father’s contention that it had been agreed he would have extended time with C). More importantly C did not have with him the daily medication he was at that point taking and the father appears to have made no efforts to secure it. Before removing C the father engaged in no prior discussion with the aunt who had been caring for C and meeting his needs for over a year prior in order to ascertain the nature and extent of those needs. Within this context, the father appears to have taken no steps prior to his removal of C to put in place provision to meet C’s ongoing medical needs or a planned transition in respect of the professional support by then being received by C. At the point the father removed C he was due to attend an appointment with a specialist concerning his ADHD on 24 February 2015. The father appears to have taken no steps to inform C’s school that C would be leaving. At the time he removed him C was due to return to school on 23 February 2015. The father appears to have taken no steps to prepare C for the change of living arrangements the father sought to impose or indeed to inform him that the same was going to happen. The aunt contends that upon returning to her care C stated that he had been told by his father that his mother and aunt only wanted to care for him for money and that, if C stayed in the care of his aunt, he would not see his father until he was 18. This account was not challenged in cross examination.

I also consider that the father’s conduct in relation to his summer contact displayed a marked lack of understanding and insight into C’s needs. Whilst the father informed the social worker that C was upset during the course of this period because the aunt had said she did not want him in the house, I am satisfied that, in so far as C was upset, this was caused by the father reneging on the contact arrangements agreed at court on 9 July 2015. I reject the father’s assertion that the aunt had told C that she did not want him in the house.

Within the foregoing context, I am satisfied that in February 2015, and again during the summer of 2015 the father displayed a lack of insight into the physical, emotional and educational needs of C and an inability to meet those needs by exposing C, a child who requires certainty and stability, to considerable and unnecessary uncertainty and instability.

Third, having regard to C’s needs and the manner in which those needs are being supported currently by the aunt and the professional support she has accessed, what I consider to be the father’s lack of understanding of and lack of insight into C’s physical, emotional and educational needs is further demonstrated by the paucity of practical arrangements the father has place regarding a change of care arrangements for C.

In his statement dated 18 June the father states that there are three schools in his local area in Manchester and that he had made enquiries with his local GP with a view to registering C. By a Position Statement dated 7 July 2015 the father states that he has sought a referral to “ADHD educational services” through the social worker but she had been unable to assist and the father would “seek further information independently”. It remains however unclear what steps he has taken in this regard. It would appear that the father has made an application for a school place which application will not be determined until 1 March 2016. There is therefore no information of the educational or professional support that would be available for C having regard to his particular needs were he to move to live with his father. Beyond making an application for a school place the father has not taken any steps to investigate to what extent the comprehensive package of assistance and support that C receives, including therapeutic input, would be replicated.

Within the very limited compass of her experience the social worker gave evidence that she could not say what support would be available to C in Manchester as, in order to determine what services will be available to C, there will first have to be a referral to Manchester (which has yet to take place). Thereafter, and notwithstanding the level of assessment that has taken place in Newham, the social worker stated that Manchester will have to begin the assessment process again to determine what support will be provided. The social worker had not taken any steps to investigate, in general terms, what the level of service provision for C was likely to be should he move to live with his father.

I accept that it is difficult, where referrals are not possible after a child has moved into a local authority area, for a parent to ascertain definitively what support might be available. Further, I accept that it is highly likely, given his level of need that C would be assessed by Manchester as eligible for support. However, whilst Mr Lynch says on behalf of the father that it is unfortunate that the social worker did not investigate fully the options and services, in light of C’s very particular needs I would have expected father to have made far greater efforts to ascertain, at least in broad terms, what educational and professional support would be available for C were he to move to Manchester. It is quite possible for parents to liaise with local services in order scope out what is available. Further, it would have been prudent for the father to make enquiries of the aunt (through her solicitors if necessary) as to precisely what support C is receiving with a view to determining the extent to which it could be replicated. Whilst the father now suggests that C’s move to his care could be delayed whilst a “comprehensive, fully researched plan is put in place” it is the father who would have to put in place that comprehensive, fully researched plan. Having regard to his efforts to date I do not have much confidence that, even given further time, such a plan would be produced.

These matters are, overall, reflective in my judgment of the father’s failure to appreciate fully the extent of his son’s physical, emotional and educational needs, which failure is in turn is grounded in a relative lack of involvement in his life over a significant period of his childhood. I agree with the evidence of the aunt that the father does not actually understand the extent of C’s needs and concomitant behaviour having spent so little time with him and none outside the confines of contact where C is getting to do all the things he enjoys. In this context, in my judgment it is relevant that the father has not been heavily involved in C’s life to date, has no experience of caring for C full time and is entirely untested in this respect.

In relation to the father’s proposal to care for C, I am further concerned about the impact on C of this change of circumstances. A move to the father would require for C a change of school and a change in the agencies providing him with support. In respect of the latter, as already noted, this would require the assessment process with respect to his educational and medical needs to recommence in another area. In addition, a move will separate him from his current peer group, his established friendships and from his current primary carer (who is the adult who has cared for C longest during his life and who has worked diligently to ensure C’s specific needs are met). When questioned during cross examination, the father demonstrated little, if any insight into the consequences and effect on C of the change of circumstances the father is proposing.

In my judgment, and within this context, having regard to his particular needs, the effect on C of such a change of circumstances will be considerable. Further, given the extent of that effect and the effect of change and uncertainty on C generally, the court would need to be confident that any change of circumstances would not have to be repeated in the short to medium term. Given my observations regarding the father set out above, it is difficult to be confident in this regard. Accordingly, in my judgment, and having regard to C’s particular needs, when evaluating the option of the father caring for C the impact of disturbing his current status quo is a factor of considerable significance in the debate as to where C’s best interests lie.

With respect to the question of risk of harm, in my judgment there is insufficient evidence before the court to make findings against the father on the balance of probabilities with respect to the mother’s allegations of domestic violence. I am satisfied that the father has been less than candid regarding the state of his relationship with the mother. I am further satisfied that the fact that father did not disclose a serious offence of violence in 2005 until it became clear that Police checks would reveal it to this court, and the fact that the father has sought to play down both the substantial sentence and the concerning circumstances of the offence, are suggestive of a tendency on the part of the father to minimise violent conduct in which he has been engaged. However, in my assessment the evidence before the court is not sufficiently cogent to allow findings to be made on the balance of probabilities regarding allegations of domestic abuse. In any event, in my judgment, even had the allegations of domestic violence resulted in findings, having regard to their extent neither those findings nor the father’s minimisation of the circumstances of his offence in 2005 would constitute weighty factors when determining C’s best interests a decade later.

Overall however, having regard to the matters set out above I regret that I am left with considerable reservations regarding how capable the father is of meeting C’s needs within the context of the nature and extent of those needs.

I found the aunt to be a straightforward witness who very plainly had C’s best interests at heart. Her focus during the course of her evidence was C. I cannot accept Mr Lynch’s submission that the aunt was evasive under cross examination. She bore the indignities of the father’s allegations that she only cares for C to obtain benefits, and that her considerable efforts to meet C’s welfare would last only as long as these proceedings with equanimity and gave a clear and credible account of the manner in which she has met C’s needs since September 2013 (and before) and of her intention to continue to do so.

In my judgment the aunt displayed an extremely good understanding of C’s physical, emotional and educational needs. The aunt has provided good care, stability and security for C, she pressed for his assessment by the Newham Child & Family Consultation Service which resulted in a definitive diagnosis in respect of his ADHD and global developmental delay. Thereafter the aunt has diligently sought to ensure that the professional support required to address the needs arising out of C’s diagnoses are in place. Within this context, having regard to the evidence of Ms Bloom and to the evidence of the aunt in the witness box, I am satisfied that the aunt has provided a stable and loving environment for C, that she has established a stable and secure routine for him, that she has promoted contact to the father (despite the father’s questionable conduct in respect of the same) and that she has assured C’s relationship with his mother is maintained.

That the aunt has safeguarded and promoted C’s educational welfare is plain from the documentary evidence before the court. Despite the father’s allegation that the aunt fails properly to promote C’s education those documents clearly demonstrate C’s educational progress whilst in his aunt’s care. C’s report for 2013-2014 shows that C has made progress in English whilst in his aunt’s care and is now able to read over his work, is speaking much more clearly and corrects his own tenses. He is described as a keen student who shows an interest in his learning. The aunt works closely with the school and has a good working relationship with the school. Whilst C’s attendance in the recent school year was 92.38%, this coincides with the period following his diagnosis, during which he has had to attend a number of medical appointments, and with seeing his mother in Mozambique for a week in January 2015. The aunt says that the school has approved each absence and she was not challenged in respect of this assertion. I note that C’s attendance in the 2013-2014 school year is recorded as 100%.

During her comprehensive assessment Ms Bloom saw evidence of a clear attachment between C and his aunt. She considered that the aunt was acutely aware of C’s emotional needs and the need to display more patience with him. Ms Bloom was impressed by the aunt’s sensitivity and responsiveness to C’s emotional needs. Ms Bloom considered that the aunt knows C, his personality and his individual needs extremely well. Contrary to the father’s evidence C was seen by Ms Bloom to have a good bond with the aunt’s partner, F. As noted above, on 19 October 2015 C told the social worker that F was good and that he is like a dad as he gives him love and is very nice.

Notwithstanding the father’s allegation that the aunt treats and will treat C and her own daughter J differently, there is no evidence before the court indicating preferential treatment of J. The social worker’s record of observed contact makes clear that the aunt praised C and J equally during the course of a game and C was observed to laugh and interact positively with J and his aunt throughout the game. C appeared happy and content throughout the visit. Ms Bloom saw no instances of differential treatment of C and J by the aunt.

Indeed, I must say that I found the whole of the father’s case regarding the conduct and motivations of the aunt deeply unattractive. Within the context of the dedicated care that the aunt has provided to C, the patent progress C has achieved in her care and the father’s historic absence from his son’s life it is particularly unattractive for the father to charge the aunt with only caring for C for money (not least because I am satisfied that the father has been wholly parsimonious with respect to contributing financially to his son’s upbringing). More importantly, the evidence simply does not support the father’s allegation in this respect. For the father, in his closing submissions, to criticise the aunt for being “highly critical” of him (which, I am satisfied, she was not) is hypocritical in the extreme. I make clear that I reject in their entirety the father’s allegations regarding the aunt’s motivation for caring for C.

Having regard to the evidence before the court I am entirely satisfied that the aunt has proved herself to be, and is, eminently capable of meeting all of C’s physical, emotional and educational needs. C’s current status quo meets each of his needs. Within the context of a relatively disrupted early childhood the aunt has provided C with a stable environment conducive to his welfare since September 2013.

With respect to the risk of harm, I have of course had regard to the admitted occasion on which the aunt struck C with a bed slipper in January 2014. However, as set out above, this unfortunate incident was fully investigated and no further action was deemed necessary. The aunt was remorseful and took steps to address the issue by having C’s behaviour investigated and assessed resulting in his diagnosis. Further, the aunt actively sought advice by way of attending a Managing ADHD group in order to be better able to deal with those occasions when C’s behaviour becomes more difficult to manage.

As to father’s allegation that violence continues from both the aunt and from F, I am not satisfied on the evidence that there have been further incidents of the aunt or her partner, F striking or otherwise harming C.

C has made further allegations that he has been physically and verbally abused by the aunt and hit by the aunt’s partner, F. On one occasion C told the social worker that his aunt hit him with a towel and on another, told his teachers that his aunt shouts at him and hits him. However, it is of note that on each occasion these allegations immediately followed C having contact with his father. In this regard, I once again note the aunt’s unchallenged account that upon being returned by the court to her care in February 2015 C stated that he had been told by his father that his mother and aunt only wanted to care for him for money and that, if C stayed in the care of his aunt, he would not see his father until he was 18.

Further, C’s account of his relationship with his aunt and F, and observations made by Ms Bloom, author of the special guardianship report, of C’s interaction with his aunt and F are at odds with the allegations. Ms Bloom noted a good relationship between C and his aunt and F, noting that C and his aunt have a warm physical and emotional interaction and that C approaches his aunt freely and without caution. As previously set out, on 19 October 2015 C told the social worker that if his father did not exist he would want to live with his aunt forever. C also told the social worker that the aunt’s partner F was “like a dad” and gives him love and is very nice. C further informed the social worker that the aunt is not bad and that if he is bad he gets a time out in his bedroom and that his aunt is nice and kind and buys him the same as J. These statements are in complete contradiction to the picture painted by the father. He repeated that if he could pick one person to live with it would be his father. The mother states that C has never told her of any problems with living in the aunt’s household and has certainly never stated that he has been the subject of violence from the aunt or the aunt’s partner.

Having regard to all of the evidence, I am satisfied that the allegations that the aunt and F have struck C on occasions in addition to January 2014 are not made out. Further, I am left with the strong impression that, insofar as C has claimed otherwise, those claims are borne out of the uncertainty and conflicted loyalties created by these proceedings and possibly also influenced by what has been said to him by his father.

A further issue that arises for consideration in relation to the current situation of C in his aunt’s care is the issue of housing. The aunt accepts that her housing situation is not ideal and requires C and J to share a room, a situation that both children at times find difficult. The aunt is however actively seeking alternative accommodation with a view to moving to a large property. Ms Bloom did not consider the current situation to present a welfare issue at this point in time (indeed, Ms Bloom considered that the situation encourages C and J to learn to compromise and share). Whilst Mr Lynch submits that C would have a better “standard of living” with his father, privacy and his own room, which would be better suited to a child soon to enter puberty, and whilst these are clearly important matters to take into account, they do not in my judgment militate against the aunt being able to care appropriately for C.

The final area relied on by the father is his assertion that the aunt has not involved him sufficiently in decisions concerning C notwithstanding that he has parental responsibility for his son. In particular, the father relies on not being told about an operation C had in Portugal and not being consulted over the choice of C’s godfather (who is the aunt’s partner, F). Having listened to the evidence I was left with the impression that the aunt has not been as diligent with respect to consulting the father regarding important decisions concerning C as she should have been. That said, I also bear in mind that this situation occurred within the context of the father being historically absent from C’s life for a significant part of C’s childhood. In my judgment, whilst it would be my expectation that the aunt would consult both parents with respect to important decisions concerning C, I am not persuaded that her omissions in this respect to date militate against her capability in meeting C’s needs.

Overall, having regard to the matters set out above I was entirely satisfied that the aunt is more than capable of meeting C’s needs within the context of the nature and extent of those needs.

Notwithstanding the difficulties with the mother attending the hearing by way of a telephone link from Mozambique, I was able to form an impression of the mother when she gave evidence. The mother was, like her sister, a straight forward witness who clearly displayed confidence in her sister’s ability to care for her son.

The mother’s primary case is that C should remain in the care of her sister. The mother’s statements repeatedly emphasise that her first choice is for C to remain in the care of the aunt, reflecting the fact that this is the very arrangement that the mother took steps to establish in September 2013. The mother’s secondary proposal is that she cares for C if it is not possible for C to remain in the care of her sister. However, the mother’s closing submissions do not advance this option with any vigour. Further, and within this context, I very much gained the impression that this secondary position does not comprise a fully thought through proposal. Accordingly, and in light of the decision I have come to, it is not necessary for me to say much in relation to this secondary proposal.

Whilst the mother cites the fact that she has a good job in Mozambique and owns her own house with a swimming pool she has sought to adduce no evidence as to what educational and professional resources are available in Mozambique to meet C’s needs beyond stating that she can engage the “private sector” to meet his educational and medical needs and that C’s diagnosis will make it easier to seek and advocate for the appropriate support. Having regard to the matters set out above regarding the current situation of C in this jurisdiction, the absence of any evidence concerning what educational and professional resources are available in Mozambique to meet C’s needs throws into sharp relief the likely adverse impact of a change of circumstances for C that saw him moving to Mozambique to live with his mother. C himself has expressed a strong and clearly expressed objection to returning to Mozambique to live and the experience of having lived there in the past was clearly, from C’s perspective, a negative one.

Within this context, I would not have been persuaded that, at this point in time, it would have been in C’s best interests to return to live with his mother in Mozambique. However, as I say, given my decision it is not necessary for me to say more with regard to the option of C living in Mozambique.

Placing the options for C’s care side by side, I have come to the clear conclusion that it is in C’s best interests to remain in the care of his aunt. The aunt clearly has the best understanding of C’s particular physical, emotional and educational needs and has a proven record of meeting them effectively and consistently. By contrast, the father in my judgment lacks any detailed understanding of C’s needs and is, by reason of his longstanding absence from his son’s life, entirely untested in his ability to meet them. Allowing C to remain in the care of his aunt will allow his relatively complex needs to continue to be met to a very high standard indeed by an established network of familial and professional support. By contrast, the change of circumstances constituted by C moving to the care of his father will constitute a move into considerable uncertainty, both in respect of professional and educational support available to C and the father’s ability to parent him to the standard required to meet his needs. Further, within this context, I am not confident that any move of C to the care of his father would be sustainable having regard to my analysis set out above, resulting in appreciable risk of a further change of circumstances for C. The mother supports C remaining in the care of his aunt and does not seek his care in such circumstances.

I of course acknowledge that D is the father of C and I have borne this carefully in mind. I likewise acknowledge that C has, on a number of occasions, expressed a wish to live with his father and, again, I have borne his wishes and feelings carefully in mind. However, the ultimate test of where C should live is what is in his best interests. I am satisfied that remaining in the care of his aunt is eminently in his best interests.

I have further come to the conclusion that C should reside with his aunt under the auspices of a child arrangements order rather than pursuant to a special guardianship order.

I accept that a special guardianship order would give a high level of security for C in the care of the aunt, further undergirding the stability, security and consistency he experiences currently. However, set against this factor there are in my judgment powerful factors that militate against the making of a special guardianship order in the particular circumstances of this case.

This is not a case in which, in my judgment, C’s welfare requires the level of restriction on the parents’ parental responsibility which a special guardianship order would apply. Subject to the incidents set out above concerning contact and of the father removing C from the aunt’s care, this is not a case where the parents have actively sought to undermine the care provided by the aunt or to exercise their respective parental responsibility in a way antithetic to C’s best interests. By way of example, neither parent has sought to gainsay the aunt’s decision to have C assessed nor has sought to dispute the decisions she has made regarding educational and professional service provision for C. The aunt has plainly been able to meet the needs of C notwithstanding each parent has retained full parental responsibility for him.

Further, I bear in mind the importance to children of encouraging the exercise of parental responsibility by parents and, specifically, fathers, children having a right to that benefit. After an extended period of time in which he was only sporadically involved in the life of his son the father is now making an effort to play an active and complete role in C’s life. Subject to the father respecting the aunt’s role as C’s primary carer this can only be to C’s benefit. Within this context, it would not in my judgment be in C’s best interests to respond to the father’s efforts with an order which almost completely restricts the exercise of his parental responsibility.

More widely, in my judgment, in circumstances where, subject to the difficulties set out above, neither parent has sought to exercise their parental responsibility in a manner antithetic to C’s best interests it is in C’s best interests to know that both parents are involved in decisions concerning his welfare. The maternal aunt wishes to involve the parents in decisions concerning C’s care. Within this context, I note that Ms Bloom, the author of the special guardianship report, makes clear that in circumstances where the court was satisfied that the adults could work together under the framework provided by a child arrangements order then this would be the appropriate order.

In circumstances where the aunt will continue to be the primary carer in respect of C it is of course important to empower her to make the necessary decisions concerning his welfare. However, in my judgment this can be achieved without the need for an order as restrictive of the parents’ parental responsibility as that constituted by a special guardianship order. Having regard to the terms of the Children Act 1989 ss 12(2) and 2(7), I am satisfied that the making of a child arrangements order providing for C to live with the aunt will allow the aunt to exercise parental responsibility to the extent required to continue to meet his needs, particularly having regard to the manner in which the parents have accepted the steps taken by the aunt in this regard to date.

Having regard to these matters, in my judgment a child arrangements order providing that C shall live with his aunt will, in all the circumstances of the case, best meet the welfare needs of C. I am satisfied given the matters set out above that to make a special guardianship order, with the concomitant level of restriction on the parents’ parental responsibility for C, would not, in the particular circumstances of this case, constitute a proportionate interference in the right of C and his parents to respect for their family life.

The parties in this case have a good record (subject to the issues I have set out hereinabove) of agreeing the principle and practicalities of contact. It would be my hope that the parties can continue to agree the contact that takes place between C and his mother and C and his father. No parties invite me to make a child arrangements order in relation to the time that C will spend with each of his parents and it is my hope that this can continue to be agreed between them.

In conclusion I make a child arrangements order in favour of the aunt which will provide that C will live with her. Pursuant to the operation of the Children Act 1989 s 12(2) that order will also operate to confer upon the aunt parental responsibility for the duration of the order. I dismiss the father’s application for the delivery up of C’s passport. I will invite the parties to submit an agreed draft order in the requisite terms.

Finally, there is an issue as to costs in this case arising out of the circumstances which arose in February of this year and which I have described in detail in above. As set out there, I am satisfied that on that occasion the father deliberately removed C from the care of the aunt with the intention of retaining him permanently. Within this context, the aunt was required to make an application to the court to secure the return of C to her care. The costs of that hearing were reserved. Within this context, Mr Woolley submits on behalf of the aunt that I should make a costs order in favour of the aunt summarily assessed in the sum of £5,707.80.

In reply, on behalf of the father Mr Lynch submits that, even were the court to find, as I have, that the father deliberately removed C from the care of the aunt with the intention of retaining him permanently, he was not at the time in breach of any order of the court, and was acting within his legal rights as a father with parental responsibility. Mr Lynch further relies on the fact that the father was acting without the benefit of legal advice at the time.

It is unusual to order costs in children cases. In Re J (Children) [2015] 1 WLR 1631 the Supreme Court held that, in both public and private law proceedings, there are two exceptions to the general approach that there should be no order as to costs, namely (a) the party has engaged in reprehensible conduct and (b) where the party has taken an unreasonable stance in the litigation (see Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 at 1319).

I have considered carefully the respective submissions made on behalf of the aunt and the father. Having done so I do not consider that it is appropriate to make a costs order in respect of the costs reserved in this case. The father’s conduct in February 2015 was misguided, poorly thought through and failed to prioritise C’s best interests. However, having regard to the legal principles set out above, and within the context of the matters outlined above, I am not satisfied that his conduct was reprehensible for the purposes of determining whether an order for costs in children proceedings should be made. In the circumstances there will be no order as to costs.

That is my judgment.