Warrington Borough Council v TN (Care Proceedings: Comity)

In this matter I am concerned with the welfare of JN who is aged 8 years old. She is represented by Mr Gordon Semple through her guardian, Ms Anglim. JN’s mother is TN (hereafter ‘the mother’). The mother is represented by Ms Rachel Jones of counsel. JN’s father is KC (hereafter ‘the father’). His current whereabouts are unknown. The parents are Lithuanian nationals. JN was born in the United Kingdom and has a British birth certificate. According to the mother, JN also has a Lithuanian birth certificate and passport.

JN has been accommodated by Warrington Borough Council since 3 March 2020 and these proceedings were commenced by the local authority on 31 March 2020, following which JN was made the subject of an interim care order which remains in force to date. The local authority is represented by Ms Lisa Edmunds of counsel. JN has been having telephone contact with her mother three times per week in circumstances that I will come to.

All parties are agreed that the threshold criteria under s 31(2) of the Children Act 1989 are made out in this case. All parties are agreed that it is in JN’s best interests to be reunited with her mother and for her to return with her mother to Lithuania upon her mother’s deportation to that jurisdiction. All parties are agreed that the appropriate outcome in this case will, in due course, be that the court makes no order pursuant to the principle set out in s 1(5) of the Children Act 1989.

The parties now seek the approval of the court for the course of action they have agreed. I have had the benefit of reading the bundle in this matter and from short oral submissions from counsel.

By way of background, on 29 October 2019 the mother was convicted of three counts of arranging or facilitating travel of another with a view to exploitation (an offence sometimes known colloquially as ‘people trafficking’). On 27 November 2019 the National Probation Service contacted the local authority to notify it that the mother, who had care of JN, was at risk of a custodial sentence consequent upon her conviction.

Following the local authority becoming involved with JN as a child in need, further concerns were identified centring on JN having attended a number of different schools and of there being a significant gap in her education. In addition, on 24 February 2020 the mother fled to a domestic violence refuge after alleging that she had been the victim of domestic abuse at the hands of her then partner, EP. EP also stood accused of offences related to people trafficking.

On 26 February 2020, ahead of her sentencing hearing, the mother provided advance consent to the accommodation of JN under the provisions of s 20 of the Children Act 1989. On 3 March 2020 the mother received a custodial sentence of 2 years and 4 months imprisonment. JN was placed in local authority foster care and has remained in foster care to date. As I have noted, care proceedings were commenced by the local authority on 31 March 2020.

The mother is now subject to a deportation order. Whilst the mother was scheduled to be deported on 30 October 2020, the Home Office has provided an assurance that the deportation will not take place until this court has determined whether it is in JN’s best interests to return to Lithuania with her mother. If the court determines that this course of action is in JN’s best interests, the Home Office has confirmed that JN will be able to return to Lithuania with her mother when her mother is deported from the United Kingdom.

Within this context, the mother has been the subject of a positive social work assessment. As a result of this, the local authority’s care plan is one of rehabilitation of JN to the care of her mother. Within this context, the mother seeks the rehabilitation of JN to her care at the earliest opportunity. The Children’s Guardian is also of the view that it is in JN’s best interests to be rehabilitated to the care of her mother.

Within the foregoing context, the dispute between the parties prior to agreement being reached ahead of this hearing centred on the extent to which the English court should have before it confirmation of the steps that would be taken by the Lithuanian authorities to safeguard JN’s welfare upon her return to Lithuania before the court could ratify the rehabilitation of JN to her mother’s care ahead of the mother’s deportation. Given the international issues involved, this matter was re-allocated to me on 15 October 2020.

Over the course of a number of hearings prior to 15 October 2020 the court made directions with a view to obtaining evidence from the Lithuanian authorities regarding the support that would be made available to the mother and JN were they to return to Lithuania. In response to these directions, the Lithuanian State Child Rights Protection and Adoption Service confirmed on a number of occasions the position under Lithuanian law and practice:

Notwithstanding these repeated assurances by Lithuanian State Child Rights Protection and Adoption Service, the first provided on 5 June 2020, setting out the approach to safeguarding under Lithuanian law and practice that would pertain were JN to be returned to Lithuania, ahead of the matter first coming before me on 22 October 2020 the Children’s Guardian had concluded that she could not “support JN returning to the care of the mother unless and until a package of monitoring and support is available.”

This position was taken by the Children’s Guardian despite the Lithuanian State Child Rights Protection and Adoption Service having repeatedly made clear that the safeguarding procedure in that jurisdiction would be applied to the family upon their return, namely that, upon the arrival of the mother and JN in Lithuania, the territorial unit would visit the family in order check how the mother ensured the child’s rights and best interests, determine what help the family needed and that, if indicated following an assessment, (a) the family would be supervised by the Lithuanian State Child Rights Protection and Adoption Service, (b) JN would be provided with therapeutic services and (c) the mother would be supported by Lithuanian social workers. Notwithstanding this information, the Children’s Guardian went so far as to describe the situation set out above as an “impasse”. The reality, however, was that the Lithuanian State Child Rights Protection and Adoption Service had confirmed in clear terms that it would, if necessary, intervene appropriately in the family, in accordance with Lithuanian law and practice and based on assessment, once the mother and JN had arrived in Lithuania.

Within the foregoing context, when the matter came before me on 22 October 2020 I indicated to Mr Semple that the court considered that the Lithuanian authorities had provided sufficient information, that the English court had no jurisdiction to compel the Lithuanian State Child Rights Protection and Adoption Service to take a particular course of action ahead of the arrival of the mother and JN in Lithuania and that the court would, in deciding whether it was in JN’s best interests to be rehabilitated to her mother’s care and returned with her mother to Lithuania, give appropriate weight to the principle of comity as it pertains to judicial and social care arrangements in different jurisdictions when considering the position that would pertain in respect of JN in Lithuania. Within this context, I gave further time to the Children’s Guardian to consider her position ahead of this hearing.

Within the foregoing context, at today’s hearing the parties advance the following agreed position:

Finally, within the latter context, the parties invite the court to record the support recommended for the mother within the assessment undertaken in these proceedings in order that that information is available in the context of this judgment when a copy of the judgment is provided to the authorities in Lithuania. Within that context, the admirably comprehensive and balanced parenting assessment of Karen Traynor, Senior Practitioner, identifies the following matters:

Within this context, in the final social work statement dated 4 August 2020, the following matters are made clear by the local authority with respect to the support available for JN in Lithuania:

Within the foregoing context, the court is now invited by the parties to endorse the agreed course of action set out above. JN herself is desperate to return to her mother’s care.

The legal principles applicable to these proceedings are well established and no detailed exegesis is required.

The court may only grant an order under Part IV of the Children Act 1989 where it is satisfied that the threshold criteria pursuant to s 31(2) of the Children Act 1989 are made out. In determining whether an order, and if so what order is appropriate in proceedings under Part IV of the Children Act 1989 in the child’s best interests the legal framework governing the court’s approach is provided by the Children Act 1989 s 1 which stipulates as follows:

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

As provided for in s 1(5) of the Children Act 1989, where a court is considering whether or not to make one or more orders under the 1989 Act with respect to a child, it shall

In light of the approach taken in this case by the Children’s Guardian to the position repeatedly communicated by the Lithuanian State Child Rights Protection and Adoption Service, and the outcome for JN that this court is being asked to endorse, it also appropriate to reiterate the following matters regarding the principle of comity as it pertains in the context of judicial and social care arrangements in different jurisdictions.

In Nottingham City Council v LM [2014] EWCA Civ 152 Ryder LJ (as he then was) observed as follows in the context of Council Regulation (EC) 2201/2003:

“[19] The question of whether a court of another member state would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child, given the construction for the regulation and the logical connection between the questions. That said, the starting point for the enquiry into the second question is the principle of comity and co-operation between member states of the European Union enshrined in the European Union Treaty which the provisions of B2R were designed to reflect and implement (see, for example [2] [21] and [23] of the preamble to BIIR). In particular , the judicial and social care arrangements in member states are to be treated by the courts in England and Wales as being equally competent: RE K (A Child) [2013] EWCA Civ 895 at [24] per Thorpe LJ.”

In In re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15 at [4] Baroness Hale stated, again in the context of Council Regulation (EC) 2201/2003, that:

“It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between the member states. It is not for the courts of this or any other country to question the “competence, diligence, resources or efficacy of either the child protection services or the courts” of another state: see In re M (Brussels II Revised: Article 15) [2014] 2 FLR 1372, para 54(v), per Sir James Munby P. As the Practice Guide for the application of the Brussels IIa Regulation puts it, at p 35, para 3.3.3, the assessment of whether a transfer would be in the best interests of the child “should be based on the principle of mutual trust and on the assumption that the courts of all member states are in principle competent to deal with a case”. This principle goes both ways. Just as we must respect and trust the competence of other member states, so must they respect and trust ours.”

Whilst this judgment is given in what is now the lengthening twilight of the transition period following the departure of the United Kingdom from the European Union, the principle of comity as applied to judicial and social care arrangements in different jurisdictions in cases concerning children and families does not, of course, derive solely from Council Regulation (EC) 2201/2003. Comity is an established common law principle based on courtesy, respect and reciprocity (see Buck v Att-Gen [1965] Ch 745 at 770). Whilst it has been noted, not always favourably, that the principle of comity is of “very elastic content” (see Dicey and Morris on Conflict of Laws 15^th Ed. at [1-008]), it has been accepted that, in the context of family law cases with an international element, the principle of comity encompasses administrative, judicial and social services. Within this context, and by way of example, in cases involving the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction it is well established the court should accept that, unless the contrary is proved, the administrative, judicial and social services in another jurisdiction are as adept at protecting children as they are in this jurisdiction (see Re H (Abduction: Grave Risk) [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433).

As set out above, all parties are agreed in this case that the threshold criteria under s 31(2) of the Children Act 1989 are made out. All parties are agreed that it is in JN’s best interests to be reunited with her mother and for her to return with her mother to Lithuania upon her mother’s deportation to that jurisdiction. All parties are agreed that the appropriate outcome in this case will, in due course, be that the court makes no order pursuant to the principle set out in s 1(5) of the Children Act 1989. I am satisfied that it is appropriate to endorse that agreement for the following reasons.

Having considered carefully the papers in this matter and heard the short submissions of counsel, I am satisfied that the threshold criteria pursuant to s 31(2) of the Children Act 1989 are made out. The mother accepts that she has exposed her daughter to criminal conduct by being involved in offending related to human trafficking and forced slavery, including at one point keeping an individual in bondage in the loft in property where JN also resided and thereafter in a cupboard under the stairs. As a result the mother was convicted and received a custodial sentence of 2 years and 4 months, by reason of which JN had to be taken into care, there being no other person able to exercise parental responsibility in respect of her. In addition, the mother failed to adequately meet JN educational needs, resulting in an adverse impact on JN’s attainment and social development. To the mother’s credit she has accepted, and evinced credibly an intention to address the grave shortcomings as a parent evidenced by the aforesaid matters.

Within this context, I am satisfied that at the time the local authority took statutory protective measures in respect of JN she was likely to suffer significant harm, that likelihood of harm being attributable to the care given to her by her mother, not being care that it would reasonable to expect a parent to give to her.

I am also satisfied that it is in JN’s best interests to be returned to the care of her mother and for JN to return to Lithuania with her mother when her mother is deported from the United Kingdom. The comprehensive and balanced parenting assessment undertaken by the local authority concludes as follows:

“[13.22] Based upon all of the above information, this is a positive parenting assessment of [the mother]. There is no evidence to support a hypothesis that she is unable to meet JN’s basic care needs or that JN has suffered significant harm whilst in her mother’s care or is likely to suffer significant harm if she returns to her mother’s care. In line with Article 8 and the right to family life, consistent with the child’s welfare, everything must be done to preserve the family. It is not enough to show that a child could be placed in a more beneficial environment. (Baroness Hale re B). Therefore whilst JN may have made certain improvements in foster care this is not a basis on which to make a decision regarding her future care. There are areas in which [the mother] needs to improve her parenting, specifically to avoid a repetition of her overprotective approach which has resulted in JN being able to have greater control over decisions such as her whether to go to school or not. [The mother] admits that she was preoccupied with JN’s health, borne out of a fear of losing her which on refection was not rational. [The mother] also accepts that this over protectiveness limited JN educationally and socially which in turn has had an impact on her language skills, her attainment and the benefits of having peers, to play and talk and learn how to communicate with and develop autonomy and resilience within these interactions which will build her sense of self-esteem. [The mother] needs to reflect further on how her well intentioned actions to safeguard JN, have in fact had the opposite effect and she must ensure that in order for JN to develop and achieve and become a well-rounded adult she needs to experience a broader spectrum of life experiences that promote her well-being. More importantly [the mother] needs to continue to take full responsibility for her behaviour which led to her incarceration and how JN had had to cope with the loss of her mother, conclusion regarding why she is no longer caring for her and the worry that she has had to endure. The dominant issue however is risk and [the mother’s] part in exposing JN to this by her decision making. Whilst there is little evidence of impact on JN from what has taken place, the risk was nevertheless present and [the mother] must ensure that this is never repeated to minimise the potential for harm to JN in the future.”

Within the foregoing context, in her report dated 27 August 2020, and noting that JN has always assumed she will return to her mother’s care, that she sees her current circumstances as temporary pending her mother’s release from prison and that she loves her mother dearly and wishes to return to her care, the Children’s Guardian concludes as follows:

“[28] I do not believe, in the circumstances of this case, it is in JN’s best interests to be permanently removed from the care of her Mother into Local Authority foster care. This would deny JN’s legal right to her own family life and in the longer term, enforced separation from her Mother, against her wishes could only serve to impact significantly and negatively upon her positive sense of self, and family identity and upon her emotional development.”

Within the context of the foregoing evidence, and having regard to the factors set out in s 1(3) of the Children Act 1989, I am satisfied that it is manifestly in JN’s best interests to return to the care of her mother upon her release from custody and prior to

With respect to the appropriate legal framework in this case, it is plainly necessary to allow the interim care order to subsist whilst the mother remains in custody and arrangements are made with the prison and the Home Office to facilitate the mother’s deportation to Lithuania with JN. This is particularly the case in circumstances where the Home Office has informed the local authority that the timeline for effecting the deportation order in respect of the mother spans the period between January and May 2021. Within this context, during the planning process and whilst JN remains in foster care, I am satisfied that it is in her best interests and necessary for the local authority to continue to share parental responsibility for JN. In that context, the local authority will be completing the following work with, and with respect to JN:

I am further satisfied that upon JN being reunited with her mother it will be appropriate to conclude these proceedings by making no order. It is plain from the assessments before the court, and from the report of the Children’s Guardian, that any role for agencies in respect of the family moving forward will be purely supportive in nature. Further, within this context and as I have already set out, upon the departure of JN and the mother from this jurisdiction and their arrival in Lithuania, the Lithuanian State Child Rights Protection and Adoption Service has made clear that the territorial unit will visit the family, check how mother ensures JN’s rights and best interests, determine what help the family needs and, if indicated following an assessment, (a) the family will be supervised by the Lithuanian State Child Rights Protection and Adoption Service, (b) JN will be provided with therapeutic services and (c) the mother will be supported by Lithuanian social workers. This court has every confidence that the Lithuanian State Child Rights Protection and Adoption Service will proceed in the manner they have indicated. Within this context, it cannot be said in my judgment that making an order at the conclusion of these proceedings in respect of JN is better than making no order at all.

It is, of course, appropriate for the aforementioned assessments conducted within these proceedings to travel with the family to Lithuania. The welfare recommendations derived from those assessments are summarised above. However, the weight to be given to those assessments and the actions taken consequent upon them will be a matter for the Lithuanian State Child Rights Protection and Adoption Service.

For the reasons I have given, I approve the course of action jointly advanced before the court by all parties in this case and approve the draft order prepared by the parties and submitted to the court.

Finally, this case demonstrates once again the importance of having proper regard to the principle of comity as it relates to judicial and social care arrangements in different jurisdictions in those cases involving children and families that concern more than one jurisdiction.

The desire of the Children’s Guardian to ensure that JN’s care by the mother is properly supported when she returns to Lithuania is entirely understandable and, indeed, consistent with the proper discharge of the professional obligations of the Children’s Guardian. But care is also needed in cases involving an international element to ensure that professionals do not simply assume that the child protection system in a foreign jurisdiction operates in the same way as the system in this jurisdiction, or that because the system in another jurisdiction operates differently it is necessary to impose on that system the expectations and approach that is taken in this jurisdiction. At certain points in this case the Children’s Guardian appears to have approached the Lithuanian State Child Rights Protection and Adoption Service as if it were an English local authority over which the court has jurisdiction, rather than an agency in a foreign sovereign State subject to the laws and practices in that State and over which this court has no jurisdiction.

In this case, that approach led to the same question being asked of the Lithuanian State Child Rights Protection and Adoption Service multiple times from June 2020 onwards when in fact, having regard to the principles I have set out above, the question was answered appropriately by the Lithuanian State Child Rights Protection and Adoption Service at the first attempt on 5 June 2020. In this context, a significant period of delay was caused trying to extract from the Lithuanian State Child Rights Protection and Adoption Service an answer that had already been given and an answer which was, having regard to the principle of comity, already sufficient.

That is my judgment.