Medway Council v JL & Ors

This reserved judgment follows orders I made on 10 November 2016 relating to the future care of three children, LE age 8, LY age 6 and LO age 3.

The applicant is the Medway Council (LA). They seek care orders for all three children, with LE and LY remaining in their current foster placement long term under a care order. The LA issued an application for a placement order for LO with the plan for him to be placed with his paternal uncle and aunt, DB and KB, in the United States. The B’s are British born citizens and temporary (non-immigrant) visa holders living in the United States. They are parties to these proceedings. If LO is placed with them, they will make an application in this jurisdiction to adopt LO after he has been in their care for a period of 10 weeks.

The mother of all three children is JL, she has not had care of the children since December 2014 but has had regular contact with them since then.

The father of LE and LY is BH and the father of LO is JA. Neither father has taken an active part in these proceedings, although they have been represented. BH last saw LE and LY in December 2015, he has not attended court since early August 2016. He has given his solicitor instructions and filed a recent statement. He does not oppose the LA’s care plan for LE and LY and wishes to have future contact with the children. JA supports the placement of LO with his brother and sister in-law, DB and KB.

All the children are represented by their Children’s Guardian, Ms Magson. She supports the LA plans for the children.

The threshold criteria were agreed at the hearing on 14 September 2016 and the matter was listed for a 3 day contested hearing. Following discussions outside court yesterday and today the mother’s position is that she does not oppose the court making care orders in relation to each of the children, she is aware the plan for LO is for him to be adopted by DB and KB. As Ms Farrington explained, on the mother’s behalf, this was a very difficult decision for her to reach. She realistically acknowledged she was not in a position to care for the children, and having had the opportunity to discuss matters with DB and KB outside court she was satisfied that the family ties between the children would be maintained. All the other parties and the court recognise how difficult this decision has been for the mother, she is to be commended for putting the children’s needs above her understandable wish for the children to be returned to her care.

As a result of the mother’s position there was no need for the court to hear oral evidence, and it will only be necessary for me to summarise the relevant background.

The B’s seek a declaration that they have retained their domicile of origin here. No party takes issue with that declaration.

The court is extremely grateful to Mr Griffin, on behalf of the LA, and Ms Cronin, on behalf of the B’s, for their comprehensive and lucid skeleton arguments.

There have rightly, in my view, been a number of criticisms of this LA.

Delay has been a feature in this case caused by the LA. First, the delay of 10 months in issuing proceedings after the mother agreed to the children being accommodated in December 2014. They should have been issued in early 2015. Second, further delays since the proceedings started, mainly through failures by the LA to comply with court orders for the filing of evidence. These delays are inexcusable, they have prevented effective plans being made for the future care of these young children in a timeframe that meets their needs.

LE and LY experienced significant disruption in July/August 2016 with two placement moves, the first was unauthorised by the social worker or the team manager. The placement breakdown was caused in large part by the children’s behaviour following therapeutic intervention with them, for which there is no record on the LA’s files by the previous social worker as to why this work was undertaken and who authorised it.

Despite these actions the children have benefitted from the stability of the same allocated social worker since March 2016. Sadly for the children, she leaves the employment of the LA in a weeks’ time. The recitals in the order I approved include her undertaking some life-story work before she goes, provides for the case to be held by her existing team manager and urges the LA to give priority to allocating a new social worker without delay, with a time frame as to when the parties will be notified of who the new social worker will be.

Finally, a short period before the final directions hearing it was discovered the author of the connected person’s assessment for the B’s was undertaken by an agency social worker whose registration with the Health Care and Professional Council (HCPC) had lapsed. The social work agency used filed a statement confirming that she was registered with the HCPC when she first started working with them. The LA were unable to make contact with her, but quickly put arrangements in place to verify her work and ensured the final hearing was not delayed. The current social work team are to be commended for dealing with this in such a creative and effective way to prevent yet further delay.

Regrettably the major difficulties experienced by these young children has been largely due to the mother’s extensive use of class A drugs. Although mainly cocaine, there is evidence of a broad spectrum of narcotic use. She reports she has used cannabis since the age of 13 years and cocaine since the age of 18.

The mother has been known to social services since the age of 13 years, she was in care until the age of 18 years and her children have been the subject of child protection plans due to drug related matters and domestic abuse since 2006. The mother and both fathers were drug users during each pregnancy and after the birth of the children. BH was sentenced for the importation of cocaine and the mother alleged JA attacked her on a number of occasions during her pregnancy with LO. She refused to make a statement against him, although a restraining order was made in September 2012 preventing him from contacting the mother or attending at her home. He attended again in 2013, attacking her and taking LO from her care. This behaviour continued into 2014. JA alleged he was dealing in drugs from the mother’s home and LO’s behaviour was seen to deteriorate significantly. The mother was not taking up the assistance and support offered to her by the Local Authority.

In November 2014 the maternal grandmother reported she had the children in her care due to the mother’s difficulties, her escalating behaviour, not being able to cope and suicidal thoughts.

On 4 December 2014 the mother agreed to the children being accommodated as the LA had become aware of JA visiting the family home again.

In early 2015 both the mother and JA accepted they used cocaine. Between January and September 2015 the LA conducted pre-proceedings assessments of the mother and children. Assessments were carried out by Graham Flatman, child and family psychologist. He reported on 4 February 2015, 21 May 2015, 7 January 2016 and 28 September 2016. The adults did not attend any appointments for the 2016 assessments. The drug testing of the mother until March 2016 confirmed her continued drug use, she has refused testing since then, although admitted in August 2016 to taking cocaine regularly to the value of £500 per week. Parenting assessments were undertaken with the mother at the early stage of the proceedings. They concluded the mother is unable to safely meet the needs of the children due to her continued drug use and history of unstable and abusive relationships.

Proceedings were not issued until 19 October 2015. The LA have rightly not sought to justify the delay in issuing these proceedings. It was clear from early in 2015, according to the LA’s own assessments, the mother was unable to provide safe care for the children; care proceedings should have been issued then. The LA issued a placement application regarding LO on 9 May 2016.

There have been further delays during the proceedings. At the case management hearing on 17 November 2015 the LA did not seek an interim care order due to the mother’s continuing consent. Comprehensive directions were made through to an IRH on 26 February 2016. That hearing was ineffective due to the LA failing to file its final evidence and the allocated social worker having left the LA. The matter was further timetabled through to a hearing on 16 May 2016.

On 16 May 2016 directions were made providing for expert legal advice regarding the framework for the proposed placement of LO with the B’s and timetabled to an IRH on 30 June 2016. The B’s were made parties.

On 30 June 2016 the proceedings were reallocated to be heard by a HCJ due to the international element of the proposed placement of LO, although they remained allocated to HHJ Cameron until September. The LA was not able to file its final evidence and care plan until 13 September 2016 and the matter first came before me on 14 September 2016. I made further directions and listed the matter for 3 days commencing on 9 November, with a pre-trial directions hearing on 25 October.

Unfortunately the children have experienced a number of placements.

They were first placed together with foster carers, the P’s, on 4 December 2014, moving to new foster carers, the C’s, on 12 October 2015. They were removed from the C’s on 4 December 2015 and LE and LY were placed with their paternal grandparents, the D’s, and LO was placed with his paternal grandparents, the A’s. On 11 December LE and LY were placed back with the P’s. LO remained in the care of the A’s, where he stayed.

LE and LY’s placement with the P’s broke down in July 2016. The matter was returned to court on 2 August 2016 on the court’s own motion, due to the high level of concern regarding LE and LY following the breakdown of their placement and the status of any therapy being provided by Oakfield Psychological Therapies. It transpired LE and LY had been moved from their placement without the authorisation of the allocated social worker or the team manager. At the hearing on 2 August it became clear the new foster carers were about to go on holiday and a further urgent placement was needed. At that hearing the mother withdrew her consent and was initially seeking the return of the children to her care, but when asked if she would provide a hair strand test she said she used cocaine regularly, she estimated about £500 per week.

Such was the level of the court’s concern the matter was listed the following day. At that hearing the LA informed the court the new foster carers had given notice to terminate the placement, the LA had been unable to identify any alternative placement and given that the foster carers were about to go on holiday the LA had authorised a short term placement with LE and LY’s paternal grandparents, the D’s. The LA also informed the court that the children’s therapy that had possibly caused the behavioural problems was a result of a referral by a previous social worker, who had since left and there were no notes on the file as to the therapy and who had authorised it. The therapy was suspended immediately. The matter was listed again on 18 August.

At the hearing on 18 August the court was informed another placement had been found for LE and LY, which has subsequently turned out to be a long term placement where the LA now propose LE and LY remain.

The LA support LE and LY remaining with their current foster carers long term.

Although there had initially been a positive SGO assessment for the A’s to care for LO, they now support placement with the B’s. LO would be placed with the B’s under a placement order, with a view to them adopting him through an adoption application issued by them in this jurisdiction.

The B’s first expressed their willingness to care for LO in a letter from their solicitors in November 2015. They have been assessed and approved as prospective adopters by accredited social workers with the licenced adoption agency Heart of Adoptions Inc. As they are not US citizens they are ineligible to seek a Hague Convention adoption as under US law US resident adopters must be US citizens where the US is the receiving State for the foreign Hague adopted child (see Kent County Council v PA-K and IA (A Child) [2013] EWHC 578 (Fam) [2013] 2 FLR 54). The B’s have also been assessed and approved as kinship carers by Frances Harrison. It was discovered shortly before the pre-trial hearing on 25 October that Ms Harrison had not been registered with the HCPC since November 2015. Efforts made by the LA to contact her proved unsuccessful. Further directions were made, which resulted in the statement from Ms Walker, the interim team manager of the fostering team with the LA, dated the 3 November. She had arranged a face time meeting with the B’s together with Ms Paterson a social worker with the LA adoption team. In their discussions with the B’s on 19 October they had been able to verify the information within Ms Harrison’s connected person’s assessment as being accurate. Ms Walker confirmed in her statement that neither she or Ms Paterson had any reason to doubt the accuracy of the information contained in her report and they supported her recommendations regarding the suitability of the B’s being able to care for LO. A short report validating Ms Harrison’s assessment was considered and accepted by the LA adoption panel on 31 October 2016 and ratified by the agency decision maker on 2 November 2016.

Both the B’s were born in England. DB’s brother is JA, LO’s father. His other brother sadly died in 2015. He worked for a removal company here and by 1994 had set up his own removal business which he ran for 12 years until 2006. The B’s went to the United States in 2006 where he set up an asphalt milling business. He married KB in 2003 and they had one child G, who is now 23 years old, married and has one son. KB’s parents and her younger brother remain living in England, as do DB’s mother and step father, the As. After college KB worked for the LA as a residential support worker for young people aged between 11 – 18 years.

LO has maintained close contact with the B’s accompanying the A’s on their regular visits to the US and when the B’s have visited England. In November 2014 he spent 50 days with his grandparents visiting the B’s, in 2015 the B’s made two trips to the UK totalling 25 days and spent 10 days here in April 2016.

As regards contact there were extensive negotiations at court. The parties were able to reach agreement on all matters, including the terms set out below. They were recorded as recitals in the order approved by the court and in a revised care plan. This included future arrangements for the therapeutic support for LE and LY, life story work being undertaken with the children, the mother having contact with LE and LY on 8 occasions a year, the B’s accepting the jurisdiction of this court regarding contact and arrangements made by the LA for LO to be visited by a social worker whilst he is in the US. The following was agreed regarding contact for LO with his mother and siblings:

There is no dispute between the parties as to the relevant framework. The court cannot make a care order unless it is satisfied the threshold criteria are established pursuant to s 31 Children Act 1989 (CA 1989). The burden of proof is on the LA and they must establish the facts they rely on as being more likely than not to have occurred. There is no issue the threshold criteria is established in this case.

In deciding what order to make each child’s best interests is the court’s’ paramount consideration pursuant to s 1 CA 1989, having regarding to the matters set out in the welfare checklist in section 1 (3).

In relation to the application for a placement order concerning LO, the court cannot make a placement order unless each parent has consented or the court is satisfied that the parent’s consent should be dispensed with (section 21(3) Adoption and Children Act 2002 (ACA 2002)). In the circumstances of this case the court can only do so if the welfare of the child ‘requires’ the consent to be dispensed with (section 52(1) ACA 2002). In deciding whether or not to make a placement order the paramount consideration of the court must be the child’s lifelong welfare (s 1(2) ACA 2002) having regard to the welfare checklist in s 1(4) ACA 2002). The court has rightly been reminded of the President’s summary of the principles relevant to placement decisions in Re B-S (Adoption: Application of s 47 (5)) [2013] EWCA Civ 1146 [2014] 1 FLR 1035 at [22].

Turning to the application for a declaration regarding their domicile Ms Cronin, on behalf of the B’s, has set out the relevant principles in her extremely helpful and comprehensive skeleton argument. She emphasises this issue is fact sensitive and relies on the observations of Mummery LJ in Agulian v Cyganik [2006] EWCA Civ 129 at [46]

In the bankruptcy case Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577, the Court summarised a number of relevant uncontentious principles of law on domicile described in the authoritative text book Dicey, Morris and Collins on The Conflict of Laws (2006)(republished as 15^th edition in 2012).

A person can retain their domicile in a country even where they are living outside that country. The court is required to look at the quality of the residence in order to decide in which country the person has an intention to reside permanently and indefinitely, the ties that bind a person to a chosen domicile and the strength and durability of those ties. The tenacity of a domicile of origin and its loss was considered by Arden LJ in Barlow Clowes at [85].

The B’s made clear in their recent statement their wish to travel with LO and Mr and Mrs A to the US for Thanksgiving and Christmas, then return to the UK for their assessment as adopters and to return to the US with LO in the event of an adoption order being made. Ms Cronin submits the court can permit LO to travel for a defined period with Mr and Mrs B prior to the making of any adoption order (pursuant to s28 ACA 2002) and the court can be confident that LO will be permitted to reside in the US with Mr and Mrs B after an adoption order is made; first as a member of their ‘household’ and after two years as ‘their child’. Mr and Mrs B’s travel proposals will involve:

All parties now accept the advice of US immigration attorney Steven Heller. Ms Cabeza, who was instructed by the LA, defers to his advice. His advice, together with US immigration attorney Gray Robinson, is helpfully summarised by Ms Cronin in her skeleton argument as follows:

The US Embassy was contacted by the LA regarding the efficacy of a B-2 visa application for LO. They helpfully responded as follows on 18 October 2016:

LO’s travel to the US, if a care and placement order is made, results in the B’s and the LA sharing parental responsibility (s 25(3) ACA 2002) and the court can direct his return home within an agreed time. The court will need to give leave as the proposed period is more than one month (see s 28 (4) ACA 2002).

LO’s time in the US as a placed child can count towards the 10 weeks during which prospective adopters are to live with the child prior to the application for adoption (s 42(2) ACA 2002). ECC (The Local Authority) v SM [2011] 1 FLR 234 is authority for the proposition that the 10 week period may be spent outside the jurisdiction, notwithstanding the apparent prohibition in s 85 ACA 2002 which restricts children being taken out of the UK for adoption. In that case Hedley J stated

Ms Cabeza, the expert instructed by the LA, refers in her advice as to whether the making of a domestic adoption order sidesteps the Hague Convention and may be precluded by the UK’s obligations under the 1993 Hague Convention and the Adoption with a Foreign Element Regulations 2005 (AFER).

Ms Cronin submits s 66 ACA 2002 lists the range of orders comprising adoption orders under Chapter 4, as follows:

Each one, domestic, Hague, ‘overseas’ and recognised foreign adoption orders take effect and each type of order has the same legal consequences in English law. Section 67 ACA 2002 sets out the status conferred by adoption and makes no distinction between the different orders. In particular, the Convention adoption orders are not stated to have any greater significance or to apply if there is a foreign element associated with the adoption. The proposed domestic order in this case does not sidestep the Hague Convention, it can properly be sought where, as here, a Hague Convention adoption is not available in the US as neither Mr nor Mrs B are US citizens.

Section 83 ACA 2002, which restricts the entry of certain children brought here for adoption or who have been recently adopted abroad (save via a Convention adoption) does not apply in this case. Section 83 only applies to children habitually resident outside the UK. LO’s habitual residence is here, he was born here, has always lived here and his proposed visit to the US is governed by the time limited leave of this court and his future care remains subject to determination in this jurisdiction.

As Ms Cronin submits, the proposed adoption does not sidestep the Hague Convention or undermine the AFER. The proposed adoption is a domestic adoption involving an English child and adopters who have retained their English domicile. The proceedings require consideration of foreign adoption and immigrations laws, but do not engage either the Hague Convention or the AFER process.

The factual basis for the threshold criteria is established, as set out in the agreed threshold document. It is founded on the significant physical and emotional harm the children were exposed to and would be at risk of caused primarily by the mother’s chronic drug addiction and her history of unsuitable partners, who have been abusive to her, are also drug addicts and involved in drug related criminal activity themselves. Despite the support that has been available to the mother she has, sadly, been unable to change these behaviours which are entrenched and long term and so damaging to the children, as well as herself.

In relation to LE and LY there are no other family members who can care for them. Despite the disruption in placements during their time in the care of the LA the placement with their current carers, since August 2016, has been very successful. They are now experiencing the security and stability their welfare requires. Their current carers are committed to caring for them full time, which accords with the children’s wishes. Whilst they will be in a placement separate from LO they had not lived with him for a significant period of time, although they have been able to maintain regular sibling contact. Whilst the plans for LO will involve a reduction in contact between the siblings, that is only one of a number of factors the court needs to consider.

The evidence points clearly to LE and LY’s welfare needs being met by the court making a care order in favour of the LA, endorsing the care plan for them to remain long term with their current carers.

Turning to LO. He has been placed with his paternal grandparents, the A’s, since December 2015. Whilst there is no doubt they have provided him with excellent care, the toll on them is clear. LO’s placement with them was not planned, it followed the breakdown of the placement with LA foster carers. By that stage the A’s had moved into a residential complex for those aged over 55 as part of their retirement plan. As a result of LO’s placement with them they had to move out to that accommodation. The B’s have funded the A’s accommodation. The A’s are in the early 70’s and have their own health problems, which are unlikely to improve. When LO will be 14 they will be respectively 82 and 80. Whilst there are some wider family members who will be able to assist them, placement with the B’s would avoid these issues.

The B’s circumstances have much to commend them and they have shown enormous commitment to this process. LO’s placement with them would not sever LO’s links with his birth family, but maintain, foster and enhance his links with his birth parents, siblings and grandparents. The B’s have amply demonstrated their suitability to provide long term care for LO through their commitment to this process and their participation with the detailed assessments that have been undertaken to date which all recommend their suitability to provide a long term home for LO. The reports, done both here and in the US, make repeat reference to their parenting characteristics including their ‘realistic’, ‘grounded’, ‘thoughtful, ‘non-judgmental’, ’dependable, ’respectful’ and patient interaction with children; their emotional resilience, their energy and commitment to LO and that they remain fully involved with their English extended families thereby preserving LO’s existing attachments and identity. Such care is essential for LO’s welfare and no other option can provide the necessary care and support for LO throughout his life. It is recognised, due to the physical distances involved, LO’s direct contact with his siblings and mother will be reduced to seeing them on the two occasions they visit the UK each year, LE and LY’s visits to the US from 2018 and there will be regular skype contact in the intervening period.

The B’s agree to preserve the jurisdiction of the English courts to deal with any disputes concerning LO’s family contacts. While the B’s live in the US their family links with the UK remain very strong and LO will share their dual cultural, social and family ties.

Turning to the question of domicile. The B’s seek a declaration that they have retained their English domicile of origin. They are British born citizens who have lived in the US for 10 years under a temporary resident status. They have not lost their close family links and strong attachments to the UK. If a care and placement order is made it is submitted on their behalf the B’s have standing to seek an English adoption orders as they have retained their English domicile of origin.

In their recent statement the B’s describe the daily conversations they have with their family, the support they continue to provide to their parents, as well as their wider family who live here. Despite the distance the frequency of their contact is as if they were living in the same area as their family. This is supported by the many references in the connected persons assessment by Ms Harrison which confirms the strong family and social ties the B’s have retained in England, she concludes that ‘what is immediately clear…is how committed and proactive’ they are ‘to retaining their links to the UK…their long-standing friendships and close bonds with family members in the UK’.

Throughout the relevant period the B’s focus has been their extended family in England demonstrated by their frequent phone calls, readiness to assist in all family difficulties and to join in family celebrations, spend their annual holidays in England and consistently renew their close English cultural, social and family ties. In their statement and Ms Harrison’s report there is reference to the death of Mr B’s brother, they got the first available flights, took responsibility for informing the A’s of their son’s death, made all the necessary funeral arrangements. As Mr B said to Ms Harrison ‘That’s the thing; we may live in the US but were still central to everything that goes on in the family, and with friends. I get that people may be concerned about the distance for LO it never stood in the way of our relationship and honestly we are close to people in the UK as if we were still living in London’.

I am satisfied on the evidence that neither Mr nor Mrs B have given up their domicile of origin, despite living outside the jurisdiction for 10 years. Their strong ties to this jurisdiction remain through their frequent contact with family and friends and the support they provide, their regular visits here and their obvious strong links they retain with this jurisdiction. Their focus has remained on their family, social and cultural ties here and there is no evidence of those links being cut or that they have formed an intention to permanently and indefinitely reside in the US. They have described in their statement their joint wish to be buried in England, which is consistent with the evidence the court has about them retaining their strong links here and still regarding England very much as home.

Having considered the evidence and the options available for the future care of these three young children I am satisfied their welfare needs can only be met by the court making care orders in favour of the LA, endorsing the care plan that they are cared away from their birth parents. Only that order will protect their welfare needs during their minority.

In relation to LO I am satisfied his lifelong welfare needs can only be met by this court making a placement order and dispensing with the consent of his mother and father. His welfare requires him to be in a placement that will safeguard his welfare throughout his life. The B’s offer such a placement, they will provide him with the security and stability he needs and, importantly, will retain his links with his birth family in a way that supports his identity and stability even though direct contact with his siblings will be less frequent. I agree with the evidence from Mr Heller as to the immigration applications that should secure LO’s ability to live with the B’s in the US, and the submissions made on their behalf by Ms Cronin that they can in due course make an adoption application here.

I agree with Ms Cronin’s analysis that the orders made by this court and the plans for LO’s care are not contrary to the Hague Convention or the AFER. The B’s have retained their domicile of origin here which entitles them to make their adoption application in this jurisdiction regarding LO who is habitually resident here.

Advice was sought from Irene A. Steffas, a member of the State Bar where the B’s live in the US, regarding the availability of mirror orders. Having considered that advice all parties agree such orders are not required in this case, a position which the court endorses.

I will make care orders for all three children and a placement order regarding LO. The comprehensive order I approved provides for an overall timetable leading to this court considering the adoption application regarding LO in early May 2017.