X, Re

I am concerned with X (that is the name given to her by the respondents Mr Y and Ms Z), a small Kenyan girl, who was brought to this country illegally in July 2006. (I will explain in due course exactly what I mean by the reference to illegality.)

I have before me two applications:

After some eleven days of evidence, and following submissions the previous day, 15 May 2008, I was able to inform the parties on 16 May 2008 of my decision: see [2008] EWHC 1098 (Fam). I said that my reasons would follow in due course. I now (12 June 2008) hand down my fully reasoned judgment.

This judgment is very long. In part this is a tribute to the very careful and detailed submissions I have received from counsel: Mr Nicholas Stonor representing the local authority, Mr Tim Spain representing Ms Z, Miss Lesley McKenzie representing Mr Y, Mr Justin Gray representing the GRK, and Miss Rachel Hudson representing X’s guardian, Mrs Suzanne Armstrong. I should like to pay tribute to all of them for the very considerable assistance they have given me throughout a long, arduous and complex case.

Albeit for very different reasons, as the oral evidence began to unfold both Mr Stonor, on the one side, and Mr Spain and Miss McKenzie, on the other, were faced with a number of forensic embarrassments which they handled with skill and aplomb. I should like to pay especial tribute to Mr Spain and Miss McKenzie who, as will become apparent, faced a number of particular difficulties. Although as the case progressed, and particularly as it neared its end, they must have been all too aware of the difficulties confronting their clients, they continued to strive to the very end to do the very best for them. Neither Mr Y nor Ms Z could have wanted for more.

This judgment is also very long because Mr Y and Ms Z are entitled to know in some detail why I have come to various findings which will not merely be devastating for them but may also bring unpleasant consequences for them. More especially, however, X – not now, when she is really too young to know much of what is going on, but later in her life – is entitled to a detailed and authentic account of what has happened to her and why I have come to a decision which she may, I fear, struggle to understand and accept.

This truly is, as Mr Stonor put it, a case which is unique, complex and tragic. It has been a tragedy for X and has become, and, I fear will long remain, a tragic nightmare for Mr Y and Ms Z. It is all too easy to say that they have only themselves to blame, that they have brought it on themselves. But the truth – and the tragedy – is that they did it all, I am quite satisfied, with the best of motives and impelled by nothing other than care and love for X. Having in March 2006 made a fatal decision to utilise what they initially thought was a loophole but which almost immediately snared them in what they well knew was illegality, they then found themselves trapped in a nightmare from which they could see no escape.

As Mr Stonor rightly says, I am now faced, as I was at the outset of the hearing, with a stark choice: to return X to Mr Y and Ms Z, or to approve a plan for her return to Kenya. Both options, as he realistically concedes, carry risks. That is also the considered view of the guardian – a view which I share. However, he submits, and as he says without complacency, that after eleven days of evidence the decision for the court is now more straightforward than it might have appeared at the outset. Whilst the oral evidence has served to enhance the merits of the Kenyan option, it has also, he submits, served to diminish the merits of the Mr Y / Ms Z option.

I agree with Mr Stonor. A painstaking process, spread over many days, has indeed done much to make clear what was previously unclear. In the outcome, with considerable sadness in my heart but, I have to say, without any real hesitation at the end of the day, I have come to the clear conclusions:

I turn to the facts as I find them to be. I will explain in due course why I have come to these findings, many of which were, to the bitter end, hotly contested by Mr Y and, more particularly, by Ms Z.

Mr Y and Ms Z are a white British couple, living together as man and wife though not married (Ms Z was previously married; the decree absolute dissolving that marriage was made in February 2005)

They have business interests in Kenya, arranging employment opportunities for Kenyans in this country. Mr Y in particular has a deep affection for Kenya and its people and, generally speaking, he and Ms Z seem to have carried on their business in a responsible and lawful manner. There is nothing I have seen or heard to suggest that (with the exceptions to which I must refer in due course) they exploited those whom they were professing to assist and there is evidence from them, which I am inclined to accept, that they were held in high regard by their clients and, for their part, felt a sense of continuing obligation to them.

In June 2005, on one of his many visits to Kenya, Mr Y visited an orphanage, the H Children’s Home (HCH), run by a woman called MZ. I am quite satisfied that this visit was wholly innocent. X was one of the children he met. The account he was given was that she had been abandoned by her mother at or shortly after her birth on or about 29 December 2004 and brought by the Kenyan police to HCH to be looked after as an abandoned child on 6 January 2005. He decided to sponsor her, and started making monthly payments of £50. I am quite satisfied that there was nothing sinister in this – it was an altruistic and humanitarian response to an aspect of life in Kenya which he had not previously come across and which, it is clear, affected him deeply. Subsequently he and Ms Z also sponsored two other, older, girls at HCH, Wa and J.

During the summer and autumn of 2005 Mr Y and Ms Z’s position gradually changed from one of concern at X’s plight, to a perception that she needed, for her own health, safety and happiness, to be ‘rescued’, as they saw it, from HCH, to a decision to adopt her and bring her to this country. On their own account they were discussing the possibility of adoption in August and September 2005 and we know (see below) that they contacted the local authority seeking information about adoption on 26 September 2005.

During a visit they made to Kenya from 27 December 2005 to 10 January 2006, and with MZ’s approval, Mr Y and Ms Z took X away from HCH to stay with them in their hotel. MZ gave them a letter dated December 2005 “To whom it may concern” stating on behalf of the board of HCH that that they had “released” X, referred to in the letter as Emily Wairimu, to Mr Y and Ms Z “for Adoption trial period while in Kenya.”

It is clear that, by the time they left Kenya on 10 January 2006, Mr Y and Ms Z had decided, in principle, to adopt X and bring her to this country.

It is also clear, despite their denials, that they had by then obtained, even if only indirectly through MZ, at least some advice about Kenyan adoption law from a Kenyan lawyer, Mr Mb. I say this for two reasons. The first is that, although they did not name him, they told the local authority on 15 February 2006 that they had had advice from a Kenyan lawyer (see below). The other is that, contrary to their denials until the document was produced at a very late stage during the hearing, an e-mail from Mr Mb to Mr Y on 28 February 2006 (see below) shows that Mr Y had already been in contact with him.

Mr Y’s first contact with the local authority was on 26 September 2005 when he telephoned and spoke to Mr R. The email which Mr R sent later the same morning to Mrs KL, the manager of the local authority’s permanence team, says “He will be writing in requesting a home study re: the adoption of a child from Kenya. I mentioned costs and he quoted £5000.” Mr Y was unable to give me any explanation as to what the £5000 related to. Having heard nothing more, on 27 October 2005 the local authority closed the file.

The next approach to the local authority by Mr Y was on 16 January 2006, within days of his return from Kenya, when he again telephoned. This produced a letter from Mrs KL dated 18 January 2006 asking them to give some indication of the reasons and circumstances which had led them to consider adoption. Their reply, signed by both of them, is dated 30 January 2006. On 15 February 2006 they were visited at their home by Mrs F, a family placement worker. Though there has been controversy as to what exactly they were told by Mrs F, it is clear from her contemporaneous manuscript note of the meeting that the topic of private fostering was mentioned. Her note also records “have legal rights to adopt” and “Kenya – solicitor advised that could foster”. Having heard Mrs F I am quite satisfied that those two entries in her note accurately summarise information she was given on that occasion by Mr Y and Ms Z. Her evidence was clear and compelling and I have no hesitation in accepting it.

The written and oral evidence of both Mr Y and Ms Z is that following their meeting with Mrs F Ms Z searched the internet in relation to private fostering and downloaded various documents which she and Mr Y then read. Those documents (exhibited to Ms Z’s witness statement of 16 August 2007) included the Home Office Leaflet, Inter-Country Adoption and the Immigration Rules, which it can be seen from the print-out was downloaded on 17 February 2006, and the Department of Health’s publication, Private Fostering – a cause for concern. Both told me in the course of their oral evidence that they had read these two documents though each tried – utterly unconvincingly in my judgment – to downplay the extent to which they had studied and taken on board their contents.

Paragraph 3 of the Home Office leaflet refers to the Adoption (Bringing Children into the United Kingdom) Regulations 2003 and states that anyone habitually resident in England and Wales wishing to adopt a child habitually resident outside the British Islands “must” first comply with certain conditions, including being assessed and approved as suitable to adopt by a local authority or voluntary adoption agency and having a certificate of eligibility and suitability issued by the Secretary of State. It continues: “Failure to comply with the conditions may be punishable by up to 12 months imprisonment and/or an unlimited fine upon conviction.” Paragraph 4 states that the 2003 Regulations aim to deter people from bringing children into the United Kingdom for the purpose of adoption unless they have first been assessed and approved and have the necessary certificate from the Secretary of State. It continues:

“In order to avoid committing an offence, the Regulations require you, as a prospective adopter to have first:

•

applied for your eligibility and suitability to adopt a child to be approved by a local council or VAA;

•

complied with the assessment process;

•

received confirmation, in writing, of the agency’s decision to approve you as suitable to be an adoptive parent;

•

received written notification from the Secretary of State that he has issued a certificate of eligibility and suitability.

Within 14 days of your arrival in the United Kingdom with a child you must notify your local council of your intention to adopt … ”

Paragraph 25 draws attention to and explains some of the implications in terms of English immigration law of the distinction between “full” and “interim” foreign adoption orders.

The Department of Health’s document – it is written in simple English and the text is only five pages long – explains under the heading ‘What is private fostering?’ that private fostering occurs when a child is cared for for more than 28 days by someone who is not a relative. Under the heading ‘What are the rules governing private fostering’ it spells out that amongst the things that the private foster carer “must” do is to “advise their local council of their intention to foster a child at least 6 weeks in advance or, where an emergency placement is made, within 48 hours of the child’s arrival.” Under the heading ‘What should professionals do?’ it spells out that professionals in the health field who know that a child is being privately fostered but think that the local council is unaware are encouraged to notify the local social services department.

In addition to these two official documents Ms Z also downloaded on 17 February 2006, two articles from the Guardian newspaper, one, dated 17 January 2001, headed ‘Difficulties parents face in bringing back a child from overseas’ and the other, dated 12 November 2001, headed ‘Risk of abuse in private fostering arrangements’. The first quoted guidance from BAAF (the British Agencies for Adoption and Fostering) “strongly” advising that you “do not attempt to identify a child until you have been approved as prospective adopters by the authorities here.” The article went on to refer to the need to apply to the relevant British Embassy for permanent admission “before the child arrives in Britain.” The article concluded with the comment that “there are grey areas in the law that can allow parents who have not followed the correct procedures to keep the adopted child” and quoted Felicity Collier, the chief executive of BAAF, as saying that children brought in illegally after private adoptions should be denied entry “but they are usually let through.” The other article quoted a BAAF report as saying that the “overwhelming majority” of local authorities do not give “any priority” to privately fostered children and that the majority of private fostering arrangements were never notified to the authorities as they should be.

A few days later, on 22 February 2006, Mr Y and Ms Z wrote to Mrs F saying “As a consequence of our meeting we have decided not to proceed.” That was thoroughly misleading and, I have no doubt in the light of immediately following events, intentionally misleading. It was calculated in both senses of the word to give the local authority the impression that they were not proceeding with their plan for X’s adoption when in fact (see below) it is quite clear that their intention was to proceed and to do so, moreover, using illegal means and deliberately behind the back of the local authority and, indeed, behind the backs of the other relevant public authorities both here and in Kenya.

The next involvement of the local authority was on 21 May 2007 when (see below) it received details from the NSPCC of an anonymous referral which the NSPCC had received the day before.

Mr E is biologically – not in law, because they were separated by adoption – Mr Y’s half brother. They had first re-established contact with each in November 2005.

Telephone records show that on 18 February 2006 Mr Y had a telephone conversation with Mr E lasting over 18 minutes. Following telephone calls which it is known took place on 20 and 25 May 2006, Mr E, Mr Y and Ms Z met for dinner in a restaurant in Leeds on 25 May 2006. There is no doubt that on each of these occasions there was some discussion about Mr Y and Ms Z’s plan to bring X to this country, but there is acute controversy about what exactly was said by Mr E.

Focussing on the essentials (they made a number of other allegations about what Mr E had said to them), it was Mr Y and Ms Z’s case until the very day when, as they knew, Mr E was due to give oral evidence before me, that:

Mr E was clear and emphatic in his denials that he ever said any of these things to either Mr Y or Ms Z. On the contrary, he says that he advised them to work together with the local authority and told them of the obligation to inform the local authority within 28 days of X’s arrival. And during the dinner in Leeds he advised them in general terms what the processes and procedures would be if X was legitimately in this country.

I have no hesitation in accepting Mr E’s account in all respects where it conflicts with the accounts given by Mr Y and Ms Z. He was a patently honest witness and, as he said, since his entire adult career has been spent supporting vulnerable children and adults, what he is alleged to have said to them would have gone against everything he stands for and believes in and everything he continues to work for.

The fact that Mr Y and Ms Z felt able to make these allegations, and to stand by them until almost the stroke of midnight, reflects very badly on them (just as does their parallel attempt to foist on Mrs F a share of the responsibility, which she does not bear, for their subsequent actions).

Shortly after they had written to Mrs F on 22 February 2006, Mr Y was in communication with Mr Mb. We do not have the e-mail which Mr Y apparently sent to Mr Mb and to which Mr Mb responded by the e-mail dated 28 February 2006 (addressed to both Mr Y and Ms Z) to which I have already referred. It does not particularly matter, because it is clear from Mr Mb’s e-mail that he had been requested to “confirm whether your suggestions are workable” and it is also clear from his e-mail that amongst the topics he had been asked to consider was whether in Kenya there is provision for an interim adoption order. (His advice was that there was no such provision and that under Kenyan law it was “mandatory” for the intending adopters to stay with the child for a minimum of three months before adoption proceedings could commence.) He suggested that to “move forward” Mr Y and Ms Z should, through him, approach a licensed adoption agency.

The fact that Mr Y had raised the possibility of an interim adoption order with Mr Mb seems to me to be of some importance. Where had Mr Y got the idea from? There is nothing either in Mrs F’s contemporaneous manuscript notes or in the worked-up typed version she subsequently prepared (nor for that matter in some notes which Ms Z made during or in the immediate aftermath of the meeting) to suggest that their discussion with her had touched on the topic – indeed, why should it, because so far as English law is concerned the point is relevant for the purposes of immigration law rather than adoption law? The obvious explanation (and he was unable to come up with any other), is that the idea had come to Mr Y as a result of his study of the material which Ms Z had downloaded only a few days earlier. As we have seen, paragraph 25 of the Home Office Leaflet, Inter-Country Adoption and the Immigration Rules addresses the point. And if this is the true explanation, as I find it to be, then it demonstrates what one might in any event have thought was obvious, that, contrary to their continued denials, Mr Y at least had read this material with some care and attention. And if that is so, can it seriously be suggested that in relation to something as fundamental to both of them as the adoption of a little girl who, I have no doubt, they already very much saw as being “their” child, Mr Y did not share with Ms Z the fruits of his study of this material, even assuming, which I decline to do, that Ms Z had not herself read it with care and attention.

Mr Y replied by an e-mail dated 1 March 2006, telling Mr Mb that he was flying to Kenya the next day and saying that it was “vital” that they met “in order to progress matters.”

I do not know exactly what information and advice Mr Mb gave Mr Y when they met, for I never received a full and frank account of their meeting from Mr Y. It is pretty clear that whatever the advice about Kenyan adoption law was (and I suspect that, in addition to what Mr Mb had said in his e-mail, Mr Y will also have discovered from him that he and Ms Z would be unable to adopt as an unmarried couple) the effect of what Mr Mb said was to demonstrate to Mr Y that adoption in Kenya was not going to be a feasible option from their point of view. After all, from this time on there is no further reference to adoption in Kenya as the way forward. Quite the contrary.

Mr Y returned from Kenya on 15 March 2006. By then, as we know (because it was on 15 March 2006 that X’s birth was falsely registered – see below), the plan for X’s illegal introduction into this country was already being implemented. In fact it would seem that it was already in the process of being implemented on 10 March 2006 because that is the date which appears on two important letters addressed to MZ by Mr Y (see below).

Before turning to describe the illegalities that were involved, I need to draw the threads of the narrative together:

In these circumstances, and therefore at some stage between 18 February 2006 and 15 March 2006, Mr Y and, I am satisfied, Ms Z decided to proceed by exploiting the ‘loophole’ as they saw it but – and this is crucial – by means which were, as they must have known, illegal both as a matter of Kenyan law and as a matter of English law.

The first attempt to remove X from Kenya and bring her to this country involved fraudulent deception of both the Kenyan and the United Kingdom authorities:

I should add that Mr Y was in Kenya from 9 April 2006 to 18 May 2006, being joined there by Ms Z between 27 April 2006 and 9 May 2006.

The flavour of this deception is made clear by an affidavit which MZ swore on 24 April 2006 (before Mr Mb it may be noted) “in support of my application for a visitor’s visa for Emily Wairimu Kamau and myself to the United Kingdom.” In this affidavit she deposed to the fact that “I have a child by the name of Emily Wairimu Kamau” and that “I want to travel with her to the United Kingdom to meet some of our sponsors and also to visit her sponsor [Mr & Mrs Y] who have invited us to visit them.” This was all lies.

Of considerable significance in relation to this point is the fact that one of these letters to the High Commission, dated 13 April 2006, was, as she admits, both typed by Ms Z and signed by her, pp Mr Y. It reads:

“I currently sponsor three children from [HCH] … , one is an infant, the others are older …

I wish them to visit me in the UK for the first time with the Mamma of the Home.

I would greatly appreciate any assistance you can offer.”

The initiative for the preparation of this letter may have come from Mr Y, who at that time was in Kenya while Ms Z had not yet joined him there, but it matters not. The letter is short, its contents are perfectly clear and it was prepared and signed by Ms Z who must have known that what it was saying was thoroughly misleading. X was not coming to this country to “visit” her “sponsor” before returning to Kenya; she was – as Ms Z well knew – being brought to this country permanently to be adopted in due course by her and Mr Y, MZ acting as the courier for that purpose. So, whatever she may now say, Ms Z was quite plainly a willing party to a barefaced deception of the High Commission in Nairobi.

This attempt to bring X to this country failed. On 12 May 2005 the High Commission refused MZ’s application for a visa on a number of grounds, one being that – quite correctly as we now know – it refused to accept that MZ was in fact X’s biological mother.

Before passing to the second, and successful, attempt to bring X to this country, there are three aspects of this sorry story which bear further comment:

The simple fact is that Mr Y was, as he well knew, up to his eyes in deceit and deception of both the Kenyan and the United Kingdom authorities. And the simple fact, likewise, is that in at least one documented and demonstrated aspect of the matter Ms Z was also a knowing and willing participant in that deceit and deception.

It will be recalled that the dinner with Mr E took place on 25 May 2006. Within a matter of days, Mr Y and, I am satisfied, Ms Z, were implementing their second – and in the event successful attempt – to extract X from Kenya and bring her to this country. This again involved deception of the Kenyan authorities, though on this occasion Mr Y’s chosen intermediary was one of his employees, his recently appointed country manager in Kenya, Mr FL, and his chosen confederate was a Kenyan he had found work for in this country, Mr O. (Mr FL had been appointed in March 2006 as a replacement for his predecessor in that role, Ms W.)

Again, false documents were obtained from the Kenyan authorities:

This time the plan was successful. On 22 July 2006 X flew from Nairobi to Newcastle via Amsterdam with Mr and Mrs O and their daughter. She entered this country without difficulty on 23 July 2006 (presumably because she appeared to be the daughter of someone who had a work permit authorising him to be in this country and enabling him to bring his children here) and immediately went to live with Mr Y and Ms Z.

Two aspects of this part of the story bear emphasis. First, on Mr Y’s own account, his chosen intermediary on this occasion, Mr FL, agreed without demur, and indeed seemingly without even asking any questions, to obtain the false birth certificate and false passport, both of which he was seemingly able to do without any difficulty. It is revealing that Mr Y seems to have known the very man who was both willing and able to obtain false documents for him. Secondly, it is not clear what pressure or inducements were brought to bear on Mr O and his wife. Mr Y asserts that they willingly agreed to help him out of gratitude for what he had done for them in previously enabling Mr O to come to work in this country. Mr Y’s account was hardly compelling and his explanation is so thin as to be incredible. I suspect, though I emphasise I cannot find as a fact, that darker influences were at play when Mr O and his wife were induced to cooperate.

I should break off the narrative at this point to record that between December 2005 and July 2006 X spent substantial periods of time being cared for by various people away from HCH:

These events are significant for two quite different reasons. In the first place, it is apparent from the materials put before me by the GRK, and no-one has sought to argue to the contrary, that MZ was committing serious breaches of Kenyan law in allowing X to be cared for outside HCH. Secondly, and irrespective of the legality or otherwise of what was happening, this unsettled period in X’s life gives rise to various welfare considerations which I must deal with in due course.

X arrived in this country, as I have said, on 23 July 2006 and immediately went to live with Mr Y and Ms Z in rural Northumberland. She remained with them until her removal by the local authority (see below) on 23 May 2007.

A number of things during this period are striking:

The truth about all this is obvious. Not merely was Mr Y, as he admits, fully aware of the illegality, so too was Ms Z. For why else should she have acted throughout from July 2006 until May 2007 as she did? Her assertion that she discovered the illegality only in January 2007 is simply incredible.

Mr Y says that he acted – or rather, failed to act – as he did because he was trapped in consequence of what he had done. That, I have no doubt, was true. But the same in truth, despite their protestations to the contrary, goes also, in my judgment, for Ms Z. From the moment when X arrived in this country, Ms Z was trapped, in just the same way and for precisely the same reason as Mr Y: she knew, as he did, that X’s removal from Kenya had involved deceit and deception of both the Kenyan and the United Kingdom authorities, just as she knew, as he did, that X’s unannounced presence in this country involved breach of English adoption law.

In fact the matter goes somewhat further than that. One of the purposes of X’s concealment by Mr Y and Ms Z after she arrived in this country was to buy time to strengthen the attachment between them and X and in the hope that they would get 12 months “under their belt” before the authorities became involved, so lessening the risk that she would then be taken away from them. Mr Y actually admitted to a social worker, Mr M (see below), that the intention of ensuring that X remained in their care once in this country was to attempt to achieve a fait accompli of attachment between X and themselves. During all this time they must have known that there was a serious risk that X might at any time be removed, whether by the immigration authorities, the local authority or the courts, inevitably in circumstances of emotional disruption. As Mr Gray says, this all amounted to a manipulation of X’s attachment emotions.

I find that Ms Z was aware of and implicated in the deception and illegality from a very early stage – in fact from March 2006 onwards – even if it was Mr Y rather than Ms Z who undertook most, though I emphasise not all, the active steps in implementing their scheme. I call it “their” scheme, for that, in my judgment, is what it was. They were jointly involved, each with the same essential guilty knowledge, from March 2006 onwards.

It is important to be precise as to what, in this context, I mean by illegality. It is clear that X’s removal from Kenya and introduction into this country involved breaches both of Kenyan law – Kenyan adoption law and Kenyan criminal law (the obtaining of false documents) – and of English law – English immigration law and English adoption law. It is also clear, in my judgment, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved (i) the obtaining by deception of false Kenyan documents, (ii) the introduction of X into this country by deception of the United Kingdom immigration authorities and (iii) breaches of English adoption law (at least insofar as they knowingly omitted to notify the local authority of X’s presence, either before or after her arrival in this country, and deliberately decided to side-step the necessary process of assessment).

It is therefore clear, and I so find, that both Mr Y and Ms Z were aware – knew – that the scheme which they jointly planned and implemented involved, to the extent I have indicated, breaches of Kenyan criminal law, of English immigration law and of English adoption law.

What is not so clear is whether, and if so to what extent, they were aware that what they were doing involved breaches of Kenyan adoption law. I have my suspicions. After all, it is clear that they obtained at least some advice on this topic from Mr Mb, and it might be thought unlikely that he would not have told them enough for them to appreciate that what they were doing was contrary to Kenyan adoption law. But, not least because of their continuing coyness – in plain words, their continuing refusal to give a frank account of their dealings with Mr Mb – I am unable to find as a fact that they were aware that what they were doing involved breaches of Kenyan adoption law.

In this latter connection there is one matter that, in fairness to Mr Y in particular, I must make clear. There is, in my judgment, no evidence whatsoever to implicate Mr Y (or for that matter Ms Z) in any illegal or otherwise prohibited payment in relation to X. (I accept Mr Y’s case that he rejected immediately the extortionate – possibly blackmailing – demand by Mr N in August 2006 for payment of 100,000 Kenyan Shillings.) It has never been suggested, nor was it put in cross-examination to them, that the £50 paid monthly for X, nor indeed the sums paid for the other two children, Wa and J, were anything other than as they were represented to be, namely bona fide sponsorship.

That said, X’s current circumstances are, as Mr Gray puts it, desperately unfortunate. She is caught in the middle of a number of disputes, and is in the limbo of foster care while decisions are made. The court, he says, must ask itself who is responsible for this situation. Ultimately, he says, it is Mr Y and Ms Z. I can only agree.

On the evening of 20 May 2007 (a Sunday) the NSPCC received an anonymous telephone call to the effect that Mr Y and Ms Z had trafficked a Kenyan baby into this country in July 2006. (The informant, I might add, whoever it was, was remarkably well informed about what had happened.) The information was communicated the next day (21 May 2007) by the NSPCC to the local authority. A strategy meeting was held on 22 May 2007. On the afternoon of 23 May 2007 social workers and police officers visited Mr Y and Ms Z’s house, the police removing X in pursuance of their powers under section 46 of the Children Act 1989. She was placed in foster care with a local authority foster carer where she has remained ever since. Mr Y and Ms Z have throughout had regular and extensive contact with X.

The local authority began care proceedings (NE07C00837) in the Family Proceedings Court on 24 May 2007. An interim care order was made the same day, which has been continued ever since. Certain aspects of the way in which the Justices dealt with the matter are of concern but this does not affect the validity of the subsequent proceedings. On the same day the proceedings were transferred to the care centre, Newcastle County Court. On 31 May 2007 they were transferred by the District Judge to the High Court.

On 21 June 2007, Mr Y and Ms Z made an application (NE07Z01064) seeking leave to apply for an adoption order. Leave was required (see sections 42(5) and 44 of the Adoption and Children Act 2002) because X had not lived with them for 12 months and less than three months had elapsed since they gave notice to the adoption agency (the local authority) of their intention to adopt. On 5 October 2007 Her Honour Judge Moir gave them leave to make an application to adopt. Their substantive application to adopt (NE07Z01886) was issued on 4 December 2007.

Various directions were given, by the District Judge on 31 May 2007 and by Judge Moir on 29 June 2007, 5 October 2007 and 2 November 2007. I need refer here only to an order made by the District Judge on 31 May 2007, designed to ascertain the attitude of the Secretary of State for the Home Department (see below), and to the order made by Judge Moir on 29 June 2007 which directed Mr Y and Ms Z to file statements by 17 August 2007 “setting out their knowledge and understanding in relation to” various matters including “the circumstances by which the child was brought from Kenya to the UK”. Pursuant to that order Mr Y and Ms Z filed statements each dated 16 August 2007.

The matter next came before me on 30 November 2007, when I made certain observations to the effect that the statements by Mr Y and Ms Z seemed to me to be significantly lacking in various respects. I made an order that Mr Y and Ms Z were to file statements by 6 December 2007 “containing a full and frank account of their knowledge and understanding as to the circumstances by which X was brought into this country.” By the same order the GRK was joined as a party. In accordance with that order Mr Y and Ms Z filed further statements each dated 7 December 2007.

There were further directions hearings before me on 13 December 2007 and (by video link) on 22 January 2008 and 3 March 2008.

The final hearing began before me on 21 April 2008. It lasted for ten days, until 2 May 2008. I had then had to adjourn, hearing the remainder of the guardian’s evidence (with the agreement of all concerned) by video link on 8 May 2008. Counsel then lodged very detailed and enormously helpful written submissions. On 15 May 2008 I heard supplementary oral submissions. On 16 May 2008, as I have said, I handed down a brief judgment setting out my decision: see [2008] EWHC 1098 (Fam).

The local authority’s written evidence consisted of witness statements by Mrs S, the allocated social worker, dated 24 May 2007, 15 November 2007 and 12 February 2008 and by Mrs T, the team manager, dated 14 April 2008. There was also a core assessment prepared by another social worker, Mr M, dated 5 September 2007 and an updated core assessment, also prepared by Mr M, dated 14 April 2008. The local authority’s care plans were dated 12 February 2008 and (purportedly – see below) 14 April 2008.

The GRK’s evidence was contained in statements by Ahmed Hussein, Director of The Children’s Department in The Ministry of Home Affairs in Kenya, dated 18 January 2008, 19 February 2008 and 4 April 2008. The GRK had prepared a care plan dated 19 February 2008 and a revised care plan dated 24 April 2008.

There was a statement by Mr E dated 19 March 2008 prepared by him in response to letters 6 and 12 March 2008 which I had directed were to be sent to him.

In addition to the statements already referred to there were further statements from each of Mr Y and Ms Z dated 17 January 2008 and 15 April 2008 and, finally, signed by both of them on 23 April 2008, a statement setting out their changed position in relation to Mr E’s evidence. I also had a transcript of Mr Y’s interview by Northumbria Police on 30 May 2007 and a copy of the very short statement which Ms Z gave Northumbria Police on 4 June 2007.

There were expert reports from Lynne Appleby, an independent family placement consultant, dated 29 September 2007, and from Dr Ewa Oboho, a consultant psychologist, dated 15 April 2008.

The children’s guardian, Suzanne Armstrong, had produced reports dated 24 November 2007, 28 February 2008 and (her final report) 19 April 2008.

I heard oral evidence from (in this order), during the first week Dr Oboho, Mrs Appleby, Mr M, Mr E (by video link) interposed during Mr M’s evidence, Mrs S, Mrs F, Mrs T and Mr Hussein, interposed during Mrs T’s evidence. In the second week I heard oral evidence from Mr Y and Ms Z. Mr Y was then recalled to give further evidence. Finally, I heard oral evidence from the guardian, the latter part of it by video link on 8 May 2008.

It is convenient at this point to sketch out how matters seemed to stand at the end of September 2007, following the preparation of the core assessment by Mr M on 5 September 2007 and of Mrs Appelby’s report on 29 September 2007, but prior to the receipt of responses from Joan Magana, an advocate in Kenya, to questions which had been put to her in a letter from the guardian’s solicitors dated 14 September 2007, and prior to any involvement in the proceedings by the GRK. Mrs Magana’s initial response was in an e-mail dated 8 October 2007, which was followed by a detailed letter from her dated 12 October 2007. The first involvement of the GRK was at the hearing on 30 November 2007, following an e-mail sent to the Kenyan High Commission in London on 15 November 2007 by the local authority and the GRK’s indication on 29 November 2007 that it sought to be joined as a party.

Mr Stonor’s summary is balanced and accurate. Mr Y and Ms Z had seemed well placed to adopt X:

Indeed, at a slightly earlier stage, it had been contemplated that X might be returned to Mr Y and Ms Z in the interim. Only after a meeting of its team on 11 September 2007 did the local authority decide that it would be premature to do so pending the response from Mrs Magana. There was, I emphasise, nothing at all improper or inappropriate about the way in which the team considered its position at that meeting, just as there was nothing disingenuous about the stance being taken by the local authority at the hearing on 5 October 2007 (when all parties were anticipating an interim return to Mr Y and Ms Z once Mrs Magana’s replies had been received). Indeed, the stance of the guardian at that stage was that it was premature to return X to Mr Y and Ms Z pending, inter alia, a reply from Mrs Magana.

As everyone is agreed, Mrs Magana’s responses dated 8 and 12 October 2007 represented a crucial milestone, drastically altering perceptions about the likely issues in the case. The information supplied by Mrs Magana signalled significant doubts about the account thus far given by Mr Y and Ms Z and, at the same time, a likely desire on the part of the GRK to seek X’s return to Kenya. She said “it is evident that the child removal from Kenya was totally illegal and irregular” and pointed out that under Kenyan law a child “cannot be adopted by a foreign couple not married to each other, nor by a single foreign person.” She opined that returning X at this juncture to Mr Y and Ms Z would be “ill advised.”

Since then, a very significant amount of further evidence has been filed. Of crucial significance are the materials filed by the GRK: Mr Hussein’s statements dated 18 January 2008, 19 February 2008 and 4 April 2008, the GRK’s initial care plan dated 19 February 2008 and, more particularly, its revised care plan dated 24 April 2008.

Mr Hussein’s first statement had a profound impact on the local authority, causing it to change its stance fundamentally. As I was told at the directions hearing on 22 January 2008, the local authority was now supporting the GRK’s case that X be returned to Kenya. An internal e-mail circulated within the local authority by Mr M the previous day, 21 January 2008, summarises the matter clearly:

“[Mrs T] and [Mrs S] and I have concluded:

(1)

There are no grounds to oppose the Kenyan gov’t wishes to return [X] to Kenya – with a view to her adoption in Kenya if the natural mother is not found …

(2)

If we are not opposing the Kenyan gov’t (because we are not insisting on her adoption in the UK, nor are we advocating her adoption with [Mr Y and Ms Z] in light of the Kenyan information and their gov’t views), then it stands to reason that the Local Authority should seek that [Mr Y and Ms Z] no longer remain party to the legal proceedings.

(3)

Time is of the essence for [X] … ”

As Mr Stonor accurately submits, there are now grave doubts about the capability of Mr Y and Ms Z to meet all of X’s needs. These doubts, he says, can be contrasted with the increased confidence in the capability of the GRK.

Not surprisingly, in the wake of all this, the proposal of an interim return of X to Mr Y and Ms Z was not pursued.

The stance of the GRK is clear and carefully reasoned. I can do no better than to set out its submissions as summarised by Mr Gray in his final written submissions:

I shall return below to how Mr Gray elaborates the GRK’s case.

The local authority in essence adopts precisely the same stance as the GRK.

Mr Y and Ms Z pursue their application to adopt X and fundamentally challenge the case being put forward by the local authority and the GRK.

Although as recently as in her final report the guardian was supportive of Mr Y and Ms Z, the experience of sitting in court throughout ten days of evidence, and particularly of hearing Mr Hussein, Mr Y and Ms Z give evidence, has made the guardian change her mind. She is now supportive of the case being put forward by the local authority and the GRK.

It is convenient at this stage to consider the relevant legal framework as a matter of English law.

As I have said, there are three applications before the court: (1) for a care order pursuant to the Children Act 1989, (2) for an order returning X to her country of origin pursuant to the inherent jurisdiction, and (3) for an adoption order pursuant to the Adoption and Children Act 2002.

As Mr Gray made clear, the GRK’s application is not one for summary or peremptory return of X to Kenya for her future to be determined by the Kenyan courts and in accordance with Kenyan law. As he points out, there was a very substantial and significant delay in the GRK being notified of these proceedings, and consequently the GRK accepts that it is for the English High Court to determine the fundamental direction of X’s future.

All counsel are, correctly, agreed that in relation to all three applications X’s welfare is my paramount consideration. Mr Gray acknowledges that Kenya is not party to the Hague Convention on International Child Abduction, and Mr Spain and Miss McKenzie rightly stress, referring for this purpose to In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, that there is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended or applied by analogy to countries which are not parties to it. So, as they correctly submit, a decision to return X to Kenya can be reached only on the basis that it is in her best interests to do so, not because the welfare principle has been superseded by some other consideration – it has not. Mr Gray does not, of course, dissent in any way from this proposition.

Insofar as I have before me an application for a care order, I am of course bound to apply the relevant provisions of the Children Act 1989. Since this judgment is in the circumstances going to be read by public agencies in Kenya who will not be as familiar as comparable agencies in this country would be with the relevant statutory provisions I should set them out in full.

I start with section 1 of the 1989 Act. The relevant provisions are in sections 1(1), 1(2) and 1(3):

“(1)

When a court determines any question with respect to –

(a)

the upbringing of a child; or

(b)

the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

(2)

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

(3)

… a court shall have regard in particular to –

(a)

the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)

his physical, emotional and educational needs;

(c)

the likely effect on him of any change in his circumstances;

(d)

his age, sex, background and any characteristics of his which the court considers relevant;

(e)

any harm which he has suffered or is at risk of suffering;

(f)

how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)

the range of powers available to the court under this Act in the proceedings in question.”

The jurisdiction to make a care order is conferred but also circumscribed by section 31 of the 1989 Act, the relevant provisions of which for present purposes are to be found in sections 31(1), (2), (3), (3A), (9) and (10):

“(1)

On the application of any local authority or authorised person, the court may make an order –

(a)

placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)

putting him under the supervision of a designated local authority.

(2)

A court may only make a care order or supervision order if it is satisfied –

(a)

that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)

that the harm, or likelihood of harm, is attributable to –

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)

the child’s being beyond parental control.

(3)

No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married).

(3A) No care order may be made with respect to a child until the court has considered a section 31A plan.

…

(9)

In this section –

…

“harm” means ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another;

“development” means physical, intellectual, emotional, social or behavioural development;

“health” means physical or mental health; and

“ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.

(10)

Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.”

So far as material section 31A provides as follows:

“(1)

Where an application is made on which a care order might be made with respect to a child, the appropriate local authority must, within such time as the court may direct, prepare a plan (“a care plan”) for the future care of the child.

(2)

While the application is pending, the authority must keep any care plan prepared by them under review and, if they are of the opinion some change is required, revise the plan, or make a new plan, accordingly.

…

(6)

A plan prepared, or treated as prepared, under this section is referred to in this Act as a “section 31A plan”.”

The ‘threshold’ criterion which must be satisfied before the court can make an interim care order is specified in section 38(2), which provides that:

“A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).”

So reasonable grounds for belief suffices if an interim care order is to be made as opposed to the proof (“if it is satisfied”) required by section 31(2) if a full care order is to be made.

However, insofar as I also have before me an application for an adoption order, and because the care plans put before me by the local authority and the GRK are for X’s adoption, I must also have regard to the relevant provisions of the Adoption and Children Act 2002. They are to be found in sections 1(2), 1(3), 1(4) and 1(5):

“(2)

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3)

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4)

The court or adoption agency must have regard to the following matters (among others) –

(a)

the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b)

the child’s particular needs,

(c)

the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)

the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)

any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,

(f)

the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)

the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5)

In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.”

The contrast between section 1(1) of the 1989 Act and section 1(2) of the 2002 Act will be noted. Section 1(2) of the latter Act directs me to consider X’s welfare “throughout [her] life”. The contrast between the ‘welfare checklist’ in section 1(3) of the 1989 Act and the more extensive ‘welfare checklist’ in section 1(4) of the 2002 Act will also be noticed, in particular the terms of section 1(4)(f)(i). The other contrast which will be noted is that section 1(5) of the 2002 Act – embodying a principle which is of particular importance in a case such as this – has no analogue in the 1989 Act.

As the very recent decision of the Court of Appeal in Re P (children) (adoption: parental consent) [2008] EWCA Civ 535, [2008] 2 FCR 185, shows (see paras [116] and [132]), sections 1(2) and 1(4) of the 2002 Act demand “care, sensitivity and intellectual rigour” on the part of the judge and, in particular, “a careful consideration of all the matters identified in section 1(4).”

That does not, of course, mean that what constitutes X’s welfare is restricted to the specific matters set out in the welfare checklists. I have to have regard to all the circumstances of the case.

What is meant by the statutory provision that X’s welfare is “paramount”? The answer, as Mr Gray submits, is to be found in the speech of Lord McDermott in J v C [1970] AC 668 at page 710: it connotes

“a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.”

“Paramount consideration”, as Lord MacDermott continued, means a consideration which “rules upon or determines the course to be followed”.

There are two particular aspects of “welfare” which in a case such as this require further consideration.

The first arises out of the fact that X is a Kenyan child, born in Kenya, a citizen of Kenya and ethnically of black Kenyan parentage. Insofar as she has now spent somewhat over half of her short life in this country she is also, in that sense, though I emphasise only in that sense, an English child. By what standard, therefore, is her “welfare” to be ascertained?

Mr Gray submits, and I agree, that when considering welfare in an international case such as this, the child’s circumstances and welfare should not be viewed from an entirely domestic perspective. X is a Kenyan child and, he says, Kenyan concepts of welfare are relevant. I agree.

In this connection Mr Gray points me to what Baroness Hale of Richmond said in In re J at para [37]:

“It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child.”

She continued at para [38]:

“Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known “check-list” in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to met those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child’s point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.”

Mr Gray submits that there is nothing in Re J which invalidates the force of the passages from the judgments of Thorpe and Pill LJ in Re E (Abduction: Non-Convention Country) [1999] 2 FLR 642 which I set out in Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 1 FLR 308, at paras [69]-[70]. In particular, he suggests that the words of Pill LJ in Re E at page 651 still ring true:

“It is submitted on behalf of the mother that the welfare of children, paramount in English law, must take priority over notions of international comity and respect for foreign courts in non-Convention States. In my judgment the two are not inevitably in conflict. These are Sudanese children. Their welfare may well be served by a decision in accordance with Sudanese law which may be taken to reflect the norms and values of the Sudanese society in which they live.”

Mr Gray accordingly submits that the court cannot automatically apply Western standards and concepts of welfare given the international nature of this case and Kenyan conceptions of welfare. The views and principles of the GRK as to what constitute or at least influence the best interests of the child are part of X’s welfare. Although it must apply English law, the court, he says, should take an international perspective when considering X’s background and future. He submits that I should recognise the Kenyan concept of child welfare as well as the English or British perspective. I agree.

I shall return in due course to consider the Kenyan materials which Mr Gray has helpfully provided for me.

Mr Gray summarises his position as being that X is a Kenyan child. It is, he says, a fundamental welfare principle that it is in a child’s best interest to live in her own country of origin and culture. Up to a point I agree with this. As I said in Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111, at para [94]:

“M has powerful interests in being brought up by her birth parents and, let me make this absolutely clear, in being brought up as an American in the country of her birth and nationality.”

But as Mr Spain and Miss McKenzie rightly submit, referring to what Baroness Hale said in In re J at paras [30]-[32], there is no “strong presumption” in favour of a return although it may be a convenient starting point. Referring to the GRK’s claim that X is a Kenyan child who should be returned to Kenya, they acknowledge that the court must be cautious to avoid any concepts of “social engineering”. But, they submit, if after an intellectually rigorous evaluation of the welfare considerations the court should conclude that placement far from the country of birth, the country of origin and her cultural and familial ties (if ever they might be established) is, in terms of her welfare, the optimum outcome for X, the court should not shy from such a placement.

The other aspect of “welfare” which requires further consideration arises out of the fact that this is, unhappily, a case of an unlawful inter-country adoption where, as I have already explained, it is quite apparent that X has been brought to this country in circumstances involving breach of both Kenyan law – Kenyan criminal law and Kenyan adoption law – and English law – both English immigration law and English adoption law. What, if any, is the weight or significance to be attached to these factors in evaluating X’s welfare?

Mr Gray acknowledges that public policy is not the paramount consideration but submits that I should have regard to it. He points out that both this country and Kenya are signatories to the 1989 United Nations Convention on the Rights of the Child, and to the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. So far as concerns the United Nations Convention, Mr Gray referred me to Articles 4, 11 and 35:

“Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.

Article 11

1

States Parties shall take measures to combat the illicit transfer and non-return of children abroad.

2

To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form.”

So far as concerns the Hague Convention, he acknowledges that Kenya acceded to it only in February 2007 but submits that although X’s abduction took place prior to this date I should nonetheless take it into account as one of the relevant matters at the date of hearing. He recognises that the Hague Convention does not provide a mechanism for the return of children wrongfully abducted, or those brought to this country outside the Convention scheme, but says that I should nevertheless have regard to the recitals to the Convention in considering the purpose behind it, in particular the following:

“Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children”.

In the same vein, Mr Gray directs attention to the reference in my judgment in Singh v Entry Clearance Officer at para [87] to the views expressed by the Parliamentary Assembly of the Council of Europe on 26 January 2000 in Recommendation 1443(2000) – International Adoption: Respecting Children’s Rights, where the Assembly affirmed that:

“The purpose of international adoption must be to provide children with a mother and father in a way that respects their rights, not to enable foreign parents to satisfy their wish for a child at any price,”

and went on to express its fierce opposition to:

“the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries.”

The Assembly drew attention to the fact that:

“In many cases, receiving countries perpetuate misleading notions about children’s circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country.”

Mr Gray points to the important principle of comity between states concerning the welfare of children, especially concerning international child abduction. He submits that, notwithstanding the decision in Re J, the principle enunciated by Balcombe LJ in Re F (A Minor) (Abduction: Jurisdiction) [1991] 1 FLR 1 at page 6, remains true today:

“as a general principle, courts should act in comity to discourage the abduction of children across national borders.”

Pointing to the fact that the GRK is putting forward a positive case for X’s return, he submits that comity should apply to the executive decisions of child welfare departments as well as to decisions of courts. Moreover, as he rightly points out, Kenya is a friendly nation with a similar welfare system and similar principles to our own. And as he reminds me, in her oral evidence Mrs T expressed her opinion that “if the tables were turned, then we would be seeking the return of the child to this country.”

Unhappily, as the experience of the judges of the Family Division all too frequently demonstrates, inter-country adoptions can involve dishonesty, subterfuge, criminality and exploitation of the vulnerable. How do such factors feed into the welfare balance?

Mr Stonor draws attention in particular to the judgments of Butler-Sloss LJ and Sir Stephen Brown P in Re K (Adoption and Wardship) [1997] 2 FLR 221, of Johnson J in Re C (Adoption: Legality) [1999] 1 FLR 370 and of Bracewell J in Re R (No 1) (Inter-Country Adoption) [1999] 1 FLR 1014 (he refers also to the judgment of Kirkwood J in Flintshire County Council v K [2001] 2 FLR 476 and to my judgment in Re M (Adoption: International Adoption Trade) [2003] 1 FLR 1111) as showing how the courts have considered the interface between welfare considerations (usually involving a strong attachment between the child and its carers) and public policy considerations (principally that unlawful conduct should not be condoned and should be deterred).

Mr Stonor submits, and I agree, that the following principles can be derived from these three cases:

As they correctly submit, the court must not refuse to make an order which is otherwise required by the dictates of X’s welfare so as in any way to punish or to penalise the “parents”. Nor must it be used here to deter others from acting in a similar vein, whilst of course offering such people no possible encouragement. As Ormrod LJ put it in Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at page 425:

““Kidnapping”, like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law” (emphasis added).

That, as they point out, was quoted with approval by Baroness Hale of Richmond in Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, at para 38. As she went on to say (at para [54]):

“These children should not be made to suffer for the sake of general deterrence of the evil of child abduction world-wide”

Mr Stonor recognises that, except insofar as the cases he refers to can be said to lay down general principles, they are of only limited value. He rightly says that each case must be considered on its own facts, that none of those cases involved the ‘home country’ actively seeking the child’s return, and that none of them involved a serious threat of extradition and thus potential disruption for the child. He submits (and this is something I will have to return to below) that X’s case is different in a much more fundamental way: in each of the three cases he has taken me to, the welfare considerations pointed towards the child remaining with its carers; here in contrast, he submits, X’s welfare points towards her return to Kenya. That said he emphasises that the local authority’s support for the GRK is not based upon a view that policy trumps welfare; whilst policy, he says, is clearly important, the local authority’s support for the GRK is founded upon its view that this is what X’s welfare requires. That, of course, is at the end of the day the fundamental question with which I have to grapple.

Mr Gray, as we have seen, submits that the fact that X is a Kenyan child, and the involvement of the GRK in these proceedings, bring a new dimension to the matters to which the court should have regard. He has helpfully directed me to the relevant Kenyan legal framework.

The starting point is that by the law of Kenya, the GRK has a quasi-parental responsibility in respect of Kenyan children. Sections 3 and 4 of the (Kenyan) Children Act 2001 provide as follows:

“3

The Government shall take steps to the maximum of its available resources with a view to achieving progressively the full realization of the rights of the child set out in this Part.

4(1) Every child shall have an inherent right to life and it shall be the responsibility of the Government and the family to ensure the survival and development of the child.

(2)

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(3)

All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to –

(a)

safeguard and promote the rights and welfare of the child;

(b)

conserve and promote the welfare of the child.”

This court, says Mr Gray, should have regard to the obligations of this particular party to the proceedings – the GRK –, particularly those under section 4(1), just as, he says, I should have regard to the manner in which the GRK proposes that its obligations should be carried out.

Mr Gray suggests that some idea of the Kenyan conception of welfare can be gleaned from the provisions of Part II of the 2001 Act. The basis of the law, he submits, is very much ‘rights-based’, examples of this approach being found, he suggests, in sections 6, 11, 13 and 21, which for convenience I set out in Annexe 1 to this judgment.

This rights-based approach, Mr Gray continues, reflects the regard that Kenya has both for the 1989 United Nations Convention on the Rights of the Child and for the 1990 African Union Charter on the Rights and Welfare of the Child.

I have already set out the parts of the United Nations Convention on which Mr Gray relies. So far as concerns the African Union Charter, Mr Gray submitted that I should consider one of the recitals and Articles 24, 25, 29 and 31, which for convenience, together with other provisions of the Charter, I set out in Annexe 2 to this judgment.

There is much in this material which will be familiar to any English family lawyer. But there are important provisions, perhaps with a less familiar resonance to English ears, which are, as it seems to me, of particular significance in the present case and which principles of comity with the judicial and other public authorities of a friendly State, and indeed a member of the Commonwealth, demand that I take particularly into account.

I have in mind, in particular:

It is also important to note the important provisions of the African Union Charter relating to inter-country adoption and child trafficking: see Articles 24(b), (c) and (d) and Article 29(a). In particular, Article 24(b) is important in making it clear that inter-country adoption is a “last resort” to be considered only if the child “cannot in any suitable manner be cared for in [his or her] country of origin.” The thinking and the policy which underlies that is, as will be appreciated, very similar to that espoused by the Parliamentary Assembly of the Council of Europe. It is a principle and a policy which demands careful and respectful consideration by this court.

I need not go into the details but, as I understand it, the Kenyan law of adoption mirrors and gives effect to those provisions in the African Union Charter.

The Kenyan concept of welfare was further illuminated for me by Mr Hussein in his oral evidence. Mr Gray summarises the main points helpfully and accurately as follows:

Drawing the threads of all this together, I can summarise my conclusions as follows:

Before I leave the law there are two other important matters to which Mr Spain and Miss McKenzie helpfully and appropriately drew attention.

First, as they rightly emphasise, it is obviously necessary to have a factual basis for any order which is to be made. The burden of proof lies throughout on the local authority and the GRK. The standard of proof is the balance of probabilities, though as explained by Lord Nicholls of Birkenhead in the well-known passage in his speech in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, the more serious the allegation the more cogent must be the evidence required to establish its truth. On this approach, they submit, allegations of such deceit of immigration procedures and deliberate steps to defeat systems which are in place for the protection of children are of a type which require strong and cogent evidence to establish on a balance of probability. They refer in this context to Re H (A Minor); Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313. I agree; this is the approach which I have adopted. Moreover, they submit, when the court has to attempt to evaluate the chances of an event occurring, such as the chances that one or other of the parents may face extradition proceedings, that the proceedings in turn may prove to be successful and that, ultimately, after a trial in Kenya there may be a deprivation of liberty, the court must proceed on the basis of proper evidence, rejecting speculation, persuasion and mere bold assertion unless and to the extent that it is based upon facts which are established to the requisite standard of proof. Again, I agree.

Secondly, they accept, of course, that all evidence which is relevant to the issue before the court will be admissible, subject to considerations of the weight to be attached and any exclusionary rules. As this is an investigation concerning the welfare of a child the rule against hearsay does not apply to exclude evidence. Accordingly, written statements by witnesses, whether prepared for the instant proceedings or for the police, or prepared in a foreign jurisdiction, are all admissible as a class, whether or not the maker of the statement attended before the court to present oral evidence and be subject to cross-examination. Obviously, however, as they point out, less weight may be given in the absence of such an ability to test the evidence. Equally the court will consider whether, in making such a statement for which it has not been possible to challenge the maker in court, such as the statement by MZ, the maker had any purpose of her own to serve at the time she made the statement.

The fact that a party or a witness has been shown to have lied, or lied repeatedly and consistently, in the same way as a witness or a party may be shown to have previous convictions or cautions or allegations of offences of dishonesty, cannot by itself, as they correctly say, prove that the account provided as to the role of that person in the possible unfolding of the events must be rejected. There are many reasons which may explain why a party has chosen to lie, either in court or out of court, to professionals or to others. The age of the person, the abilities of the person, the timing of the lie, the significance subjectively and objectively applied to the prevailing circumstances at the time of the lie, together with the possible advantage to that party, are all matters which may have to be considered. However, admitted or proven lies may well, unless otherwise satisfactorily explained in their true context, when the total picture is considered, be used to establish that the account provided by that party in the court proceedings may not be safely relied upon as to establish the truth: see R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 293 as applied by Charles J in A Local Authority v K, D and L [2005] EWHC 144 (Fam). I have had this principle very much in mind and have, wherever appropriate, reminded myself of the need for a Lucas self-direction.

Finally, they submit, and again I agree, that even if the parents are found to have lied out of court and, indeed, on their own separate admissions, in court, the fact of such lies, no matter how reprehensible such conduct may appear to the court, to professional lawyers and to other professionals, cannot of itself serve in any way so as to disqualify them from being considered as permanent carers for X, if all other considerations of her welfare dictate that her optimum placement shall be with them. That must be right. To repeat, and I emphasise the point, from beginning to end X’s welfare – now and throughout her life – has to be and has been my paramount concern.

There are a number of factual issues, some more directly relevant to welfare than others, which require to be addressed at the outset and before turning to consider the welfare checklists and, in particular, the capability of Mr Y and Ms Z to meet X’s needs.

At the outset it is convenient to consider two key issues. The first is a general one relating to the attitude of Mr Y and Ms Z towards the truth. The second issue is more specific and relates to the point at which they were each aware of the illegality involved in the process of bringing X into this country. These are both matters which I have already considered in some detail in the course of setting out the narrative of my factual findings but it is right that I address them here in terms.

Mr Stonor submits that I can properly find that Mr Y and Ms Z have each shown a scant regard for the truth. That is indeed my finding. Mr Gray is more pungent in his submission, when he asserts that their lack of honesty throughout this matter is manifest. That assessment, if harsh, is in my judgment fully justified.

Mr Stonor and Mr Gray draw attention to a number of matters which, they say, and I am driven to agree, amply justify these findings. I summarise them as follows. All, in my judgment, are made out. Some are more significant and telling than others, but the cumulative effect is damning. Some, of course, I have already mentioned:

This is a formidable analysis which in substance I accept. Even at the very end, there was a continuing and worrying lack of frankness and indeed lack of truthfulness on the part of both Mr Y and Ms Z. There were too many evasions, prevarications and, in too many instances, straightforward lies. And this, to make clear, is a factor that in my judgment extends far beyond the purely forensic in its implications. Lying, per se, I entirely accept does not disqualify a potential adoptive parent. But persistent, continuing and unacknowledged lying on the scale with which I have here, I find, been faced is, I regret to have to say, a very different matter.

It is convenient at this stage to deal with a point which I raised during the course of the hearing, namely the implications of a finding that one member of the couple had shown a greater lack of frankness than the other. Mr Stonor says that bluntly, from the local authority’s perspective, such a finding would not affect its views as to the inappropriateness of X being returned to either or both Mr Y and Ms Z:

I do not need to go any further into this issue. Mr Y and Ms Z put themselves forward as a couple who wish, as a couple, to adopt X. The reality, in my judgment, is that they must be considered, for good or ill, as a couple; each, as it were, is saddled with the failings of the other. And in any event, in the light of my findings there is, in truth, not that much, if anything, to choose between them.

In my narrative of events I have set out my findings in relation to Mr Y’s and Ms Z’s knowledge of and participation in the many illegalities involved in bringing X to this country. It is right that I should explain why I have come to those adverse findings. I do so against the background of my findings as to their untruthfulness, prevarications, evasions and general lack of frankness but having reminded myself of the need – in this particular case the more than usually vital need – for a Lucas direction.

As Mr Stonor rightly says, the written and oral evidence from Mr Y and Ms Z on this topic has varied enormously. So it has, but he submits, and I agree, that at the end of the day, and evaluating all the evidence, both in detail and in the round, I can nonetheless safely come to this conclusion, as I do: that by March 2006 Mr Y and Ms Z had both decided that they would pursue illegal means. The crucial step – the decision, as it were, to implement their plan in the knowledge that it involved illegality – can, in my judgment, be pinpointed even more precisely. It occurred on (or, to be precise, no later than) 15 March 2006 when the first false birth certificate was obtained.

In his careful analysis of the evidence, Mr Stonor sets out the following suggested basis for this finding:

This is a truly formidable combination of arguments which, taken in conjunction with all the other points I have already made in the course of setting out my findings of fact, points ineluctably, in my judgment, to the conclusion which both the local authority and the GRK would have me reach, namely, as I have found, that Ms Z was aware of and implicated in the deception and illegality from a very early stage – in fact from March 2006 onwards.

Miss McKenzie, and more particularly Mr Spain, seek to persuade me otherwise. They acknowledge that it would be idle to suggest that Ms Z had no interest in becoming a parent. However, as they point out, the innocence of the initial enquiries may be illustrated by the way in which there were approaches made to professionals, such as Mr R, Mrs KL and Mrs F, before the discussions with Mr E. In the same way, they point to the fact that in December 2005 Mr Y had told the doctor that they planned to adopt a child from Kenya. I can accept all this, but it does not detract from the fact that thereafter – in March 2006 – what had begun so innocently turned into something very different.

Much the same goes for the arguments which they seek to build based on the fact that the discussions at very early points in the history included references to “trial adoption”, “adoption” and “private fostering”, to which there was never any professional expression of disapproval or prohibition; on the fact that the letter from MZ of December 2005 purporting to give them permission to have X with them in Kenya under a “trial adoption” was so significant to them that they carried it with them the whole time in case they were asked (this, it is suggested, crediting the idea that the permission for “private fostering” or “adoption” was within the gift of MZ alone); and on the fact that enquiries were made by Mr Y of Mr Mb as to the prospects of an “interim adoption order” (from which, it is said, two points emerge: first, that they were interested in a potential adoption of X in Kenya; secondly, that this regime, as they would have understood it, allowed them to parent X immediately). As to this group of arguments I would only add that, however plausible it may be as an answer to the charge that they were knowingly breaking Kenyan adoption law (as to which I remain sceptical and suspicious), it hardly begins to address the other aspects of the alleged illegality.

Mr Spain says that if this was a concerted attempt to illegally introduce X into this country, then it is an extremely surprising modus operandi which would have been bound to bring them so openly to the attention of so many officials, without any guarantee that there would be no follow-up. He elaborates by suggesting that the initial plan was considered by both parents to be legal, save that they were prepared to mislead the authorities in relation to the visa application. The fact that Ms Z, as originally planned, was to accompany X and MZ is, he says, indicative of their appreciation of the lack of risk involved. So far as concerns the second plan, he suggests that, given his willingness to lie on oath to protect Ms Z, it is therefore credible that Mr Y would similarly have attempted to insulate her not only from his actions but also from any knowledge of them and asserts that there is no evidence, directly or by any admission, to establish that Ms Z knew either the details or even the general effect of the plan.

Mr Spain adds that any illegal removal of a child is serious, that the potential impact in terms of danger to X in the course of her removal and until her arrival could not be understated, and that the prospect of her suffering significant harm thereafter is also high. He makes that submission for two different purposes: first in support of the proposition that Ms Z is simply not the kind of person who would have been willing to put X at such risk and, secondly, in support of the argument, based on Lord Nicholls of Birkenhead’s analysis of the standard of proof in Re H, that the evidence does not support a finding that the illegality was more extensive than that necessary to implement the second plan to introduce X into this country. The layers of deceit, he submits, all arise from the one transaction and its aftermath.

I have given these submissions very careful consideration but I simply cannot accept them. The combined strength of all the contrary arguments so carefully and compellingly interwoven by Mr Stonor and Mr Gray is, in the final analysis, too much even for Mr Spain to overcome.

Pursuant to an order made by the District Judge on 31 May 2007 in accordance with the President’s Protocol of December 2002, the Immigration and Nationality Directorate of the Home Office was asked for answers to a number of questions including, in particular, whether the Home Office would wish to make representations or otherwise participate in the proceedings. By letter dated 21 June 2007 the Border & Immigration Agency replied that “The Home Office does not wish to participate in the current proceedings”.

At that date, of course, the only matter on foot was the local authority’s application for a care order. But on 16 October 2007 the local authority wrote to the Border & Immigration Agency notifying it that at the hearing that day the court had given Mr Y and Ms Z leave to bring an application to adopt X. Observing that “it may well be that the outcome is that X is adopted” by Mr Y and Ms Z, the letter asked for confirmation in writing that no action will be taken to remove X “prior to the conclusion of the proceedings” – that quite plainly being a reference to the proceedings including the adoption proceedings.

On 6 December 2007 the Border & Immigration Agency wrote to the local authority to confirm that “Tyneside Enforcement Unit will make no attempt to remove [X] from the UK while she is involved in ongoing court proceedings.”

The next involvement of the Home Office was on 18 March 2008 when it gave X Notice in form IS151A that she was an illegal immigrant as defined in section 33(1) of the Immigration Act 1971, being “specifically considered a person who has been facilitated into the United Kingdom for the purposes of illegal adoption”, and therefore liable to be detained under paragraph 16(2) of Schedule 2 to the Immigration Act 1971 pending a decision whether or not to give removal directions. On the same date she was also given notice in form IS151A Part 2 that a decision had been taken to remove her from the United Kingdom and that if she did not now leave the United Kingdom voluntarily, directions would be given for her removal from the United Kingdom.

Asked by the local authority to clarify its position, on 4 April 2008 the Border & Immigration Agency wrote to the local authority to “confirm that no removal action will be pursued until the current Court Case which begins on 21^st April 2008 has been concluded.” The letter continued by stating that the service of the papers on 18 March 2008 “is purely to formalise the child’s status in the United Kingdom from a United Kingdom Border Agency standpoint.”

The current stance of the Border & Immigration Agency is spelt out in a letter dated 21 April 2008:

“IS151A Part 2 was served … outlining our intention to remove should the Courts decision be unfavourable as previously agreed. As previously discussed prior to making a decision of this nature further liaison with all interested parties would be made as the child’s welfare remains paramount.”

The letter went on to confirm, as I read it, that no form IS151B – removal directions – had been issued, as “it is not appropriate for service in [X’s] case.”

In these circumstances, and not least in the light of:

Given the stance of the parties, the litigation is likely to conclude either with an adoption order in favour of Mr Y and Ms Z – which will trump the Secretary of State – or with an order providing for X’s return to Kenya in the fairly near future – in which case the Secretary of State is unlikely to have any particular interest in resorting to her own powers.

Both the evidence I heard from Mr Hussein and the instructions which Mr Gray tells me he received from the GRK as recently as 13 May 2008 make it absolutely clear that the GRK intends to pursue extradition proceedings against Mr Y and Ms Z – and, indeed, to do so even if X was to be placed with them by order of this court.

Mr Gray sketched out the factual basis for this as follows. The GRK asserts that both attempts to remove X from Kenya were entirely at the behest of and pursuant to arrangements made by Mr Y and Ms Z; that either they, or Mr FL or MZ at their behest, procured various false documents to enable them to do so; and that both of them wrote letters in support of X coming to visit this country, in the knowledge that she was not in fact going to return, both being aware that this breached visa limitations.

Mr Gray has helpfully set out for me the legal basis upon which, as the GRK would have it, both Mr Y and Ms Z are amenable to extradition and notwithstanding, as he accepts, that much of the conduct directed to securing X’s transfer here took place in this country rather than in Kenya.

I need not set out the details. Mr Gray has taken me to the relevant provisions of the Extradition Act 2003 (in relation to which Kenya is a Part 2 territory: see The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003), and in particular to section 137; to the relevant provisions of Kenyan law to be found in Chapter V, paragraphs 20 and 22, Chapter VI, paragraph 36, Chapter XVI, paragraph 174, Chapter XXV, paragraphs 254-257, and Chapter XXX, paragraphs 320-321, of the Kenyan Penal Code; and to the decisions of the House of Lords in Office of the King’s Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, and of the Divisional Court in Hosseini v France [2006] EWHC 1333 (Admin), [2006] Extradition LR 176. In the light of all this material, taken in conjunction with the relevant principles of English domestic law as required by section 137(3)(c) of the 2003 Act, Mr Gray submits that Mr Y and Ms Z – who he says are for this purpose equally implicated in the relevant wrongdoing – are amenable to extradition not merely (see section 137(2)) in relation to various offences committed by them in Kenya but also (see section 137(3)) in relation to what, from the Kenyan point of view, would be various extra-territorial offences.

Furthermore, says Mr Gray, pointing in this context to the decisions of the European Commission of Human Rights in Launder v United Kingdom (1997) 25 EHRR CD67 and of the Divisional Court in R (Bermingham) v Director of the Serious Fraud Office and other [2006] EWHC 200 (Admin), only in a “wholly exceptional” case will otherwise properly constituted extradition proceedings involve a disproportionate (and thus unlawful) interference with the right to respect for family life protected by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly, only if they could show that their case was “wholly exceptional” would Mr Y and Ms Z, were X to be placed with them, be able to rely upon the Convention as a bar to extradition.

So, in sum, Mr Gray submits that the GRK has a good arguable case for the extradition of Mr Y and Ms Z to Kenya to face serious criminal charges connected with their conduct.

Mr Stonor says that whilst Mr Hussein is principally responsible for children’s affairs, there is no reason to doubt the authority and clarity with which he gave his evidence in relation to the prospect of criminal charges being pursued in Kenya. It is, he submitted, “highly likely” that charges will be pursued.

Miss Hudson says that the likelihood of extradition proceedings being pursued successfully remains unknown, as does the likely timescale, though she suggests that the timescale is likely to be years rather than anything less.

As against all that, Miss McKenzie and Mr Spain say that although there has been much talk of extradition, although sentiments of determination to prosecute the parents and to pursue all avenues “to bring the parents to justice” have been expressed by or on behalf of the GRK, and although sentences of significant length have been spoken of, there has been little in terms of credible or admissible evidence adduced by or on behalf of the GRK upon which a request for extradition could be based; certainly little by way of evidence which would be admissible at present before the magistrate to establish a case. A careful analysis of the evidence provided by Mr Hussein serves only to indicate, they say, that his department, Children Services, has submitted its final submission, that the Criminal Investigation Department has submitted its final submission and that the matter has been handed to Interpol. But to date, they say, there has been little further information shared with the court and it would be wrong for me to speculate in this regard. Moreover, as they observe, documents filed by the GRK have repeatedly given wholly unrealistic time-scales promising, for example, the identification and location of the birth family, but with little progress made thereafter. Accepting that the GRK is acting in good faith, there must still, they submit, be residual doubts as to the prospects of successfully gathering sufficient evidence to establish a prima facie case against either Mr Y or Ms Z. And all this, they say, is subject to disclosure which may already have occurred and disclosure which may subsequently be ordered, specifically of the evidence given by the parents and of this judgment.

In the light of all this, they submit that I must not, on the evidence which is presently available, attempt to evaluate the prospects of any successful application for the extradition of Mr Y and Ms Z or either of them, especially if that evaluation is included in the determination of the welfare of X by reference to her need for certainty, stability and security. On the evidence, they say, the prospects of such extradition should be treated as unquantifiable and should not be used to the detriment of Mr Y and Ms Z’s claim to parent X. If quantifiable at all, they submit that although one cannot exclude the possibility of them being extradited it is unlikely. And they deprecate any attempt by Mr Gray to draw an analogy with the so-called ‘Miracle Baby’ case (see Haringey London Borough Council v C, E and another intervening [2004] EWHC 2580 (Fam), [2005] 2 FLR 47, and Haringey London Borough Council v C, E and another intervening [2006] EWHC 1620 (Fam), [2007] 1 FLR 1035) and the extradition of the Kenyan Pastor, for all such applications for extradition are, they say, case-sensitive.

I agree that I must resist any temptation to speculate and I must certainly decline to be drawn into any detailed analysis of the proposed extradition proceedings with a view to trying to predict their outcome (or indeed, if extradition occurs, the outcome of the criminal proceedings in Kenya). My conclusions, in the light of all the evidence (crucially that of Mr Hussein) and submissions is that:

There is a general consensus between the local authority, the GRK and the guardian as to the possible consequences for X were the GRK in fact to pursue an application for the extradition of Mr Y and Ms Z.

In the first place, were Mr Y and Ms Z to be extradited, convicted and sentenced to terms of imprisonment, the consequences for X, if she was then in their care, would be very severe indeed. As Mr Stonor says, the prospects for X would be bleak: the delight of a return to Mr Y and Ms Z’s care, only to be followed by a further separation from them which would be far more difficult to manage than the current separation. It could last for several years; there would be no direct contact between X and Mr Y and Ms Z; and as X grows older she would become far more questioning about the separation and in need of an explanation. And in this connection Mr Stonor is rightly sceptical of Mrs Appleby and Dr Oboho’s seeming willingness to rely upon grandparents to ‘step in’ (though commenting, in fairness to Mrs Appleby, that she had had only a limited opportunity to consider this aspect). As he points out, the guardian was far more circumspect in her final report and then, in her oral evidence, expressed grave doubts as to how realistic it would be to expect the grandparents to shield X in the event of Mr Y and Ms Z’s extradition. I would share those concerns.

In addition to the more obvious consequences Mr Gray points to two matters highlighted by the guardian:

Secondly, and even if the extradition request was not ultimately successful, or if, having been extradited, they were to be acquitted or released, Mr Y and Ms Z would have to cope with lengthy, complex and stressful proceedings – a circumstance which is likely, Mr Gray says, to impact on their ability appropriately to care for X.

In short, whether ultimately successful or not, protracted extradition proceedings would plainly, they say, affect the practical ability of Mr Y and Ms Z to care for X, if not by their physical removal from this country then at least by the consequent disruption and stress to their lives.

Finally, and in any event, there is the fact, confirmed by Mr Hussein in his evidence, that at the very least, Mr Y and Ms Z will not be able to go to Kenya, and therefore will not be able to take X to Kenya should she be placed in their care. Whilst it would be possible for members of the extended family to take her to Kenya, Mr Gray suggests that for such a momentous occasion as a journey to visit her home country, with all the complicated issues that might involve for X, it would be far from ideal for X to know that her parents are not welcome and at risk of arrest in that country, and that they cannot travel with her to assist her in coming to terms with so much of her background. Mr Stonor makes the same point. Mr Y and Ms Z’s inability to visit Kenya would of itself, he says, be an important factor given X’s need to know and appreciate her cultural heritage. The optimum means for that need to be met would, he says, be for X to be able to visit Kenya with her carers, and that indeed is what had been envisaged by Mr Y and Ms Z, as their discussions with Mrs Appleby show. But that cannot now happen. DVDs, photos and even visits with grandparents would, as Mr Stonor rightly says, be a poor substitute.

I agree with the evaluation of the potential consequences as formulated by Mr Stonor, Mr Gray and Miss Hudson, though plainly they have to be discounted to the extent appropriate to reflect the chance – whatever it is – that the various risks will not in fact become a reality.

I shall return to this topic below.

The guardian helpfully, and properly, expressed her concerns about certain aspects of the local authority’s handling of the case.

From an early stage in the proceedings she had perceived tensions between the members of the social work team, apparently centring on the weight to be given to the issue of the illegal means by which X had been brought into this country and how that should be reconciled with the high quality care she then received from Mr Y and Ms Z and her obviously strong attachment to them. It was apparent to the guardian, just as it became very apparent to me as they were all giving their oral evidence, that Mr M took a different approach to his co-worker, Mrs S, and their team manager, Mrs T. But as the guardian rightly says, the fact of division within a social work team is not necessarily unusual and need not be a negative feature in a case – indeed it can, as she says, provide a constructive arena in which the social work decisions are carefully and thoroughly considered.

But, Miss Hudson submits, the apparent effect of the divisions in this case and more particularly the approach of the local authority to X’s planning are significant when considering the future planning and the appropriate legal framework within which her future is determined. And as she helpfully explained, it was in this context and for these reasons that the local authority’s evidence was explored in detail by her on behalf of the guardian.

As Miss Hudson correctly submits, both Mrs S and Mrs T were clear in their evidence that the issue of illegality was the central consideration which, for them, outweighed the positive features of the care given to X by Mr Y and Ms Z. And she suggests, and I can only agree, that their stance appears to have had an effect upon the planning for X: the intervention of the GRK provided the opportunity for the local authority to support a plan for X to return to her home country, unqualified support being given to this plan at an early stage and without the vital information required to assess either the appropriateness of the plan or the consequential impact on X of the proposed return to Kenya.

The evidence of Mrs S that she had not read the Kenyan care plan, even by the time she was giving evidence as the hearing progressed, was, as Miss Hudson says, a most surprising and troubling admission. Her explanations, that she had been on holiday (when it transpired that she had been away for one week, whereas the care plan had been available for over two months) and that she thought that the others in the social work team had read the care plan (although she did not determine whether they had in fact done so), could not, as Miss Hudson rightly says, explain her failure. And as Miss Hudson points out, Mrs S’s evidence was all the more significant as it appears that, of the two social workers co-working the case (the other, of course, being Mr M), she had primary responsibility as the case manager and was the main author of the local authority’s care plans. It is also, I have to say, surprising and disconcerting that her omission was not detected by Mrs T as the team manager, not least in circumstances in which, it was said, there was regular supervision as well as detailed discussion about the case and the local authority’s recommendation.

The reality is that at the hearing on 22 January 2008 the local authority stated its unqualified support for the proposal that X return to Kenya without having any detailed knowledge of what arrangements would be made for her; that the local authority’s interim care plan dated 12 February 2008 deferred throughout to the proposed Kenyan care plan; and that the local authority’s final care plan dated 14 April 2008 – initially put before the court, it may be noted, in a seriously defective form which seems to have gone unnoticed – again deferred to the GRK and its plans for X in all significant respects, and this, moreover, without the principal social worker having even read the Kenyan care plan. (In fact, as Miss Hudson pointed out, the final local authority care plan conflicted – unwittingly? – with the Kenyan proposal in an important respect, namely in relation to the plan for a familiar person to accompany X to Kenya.)

It is, as Miss Hudson fairly acknowledged, much to Mrs T’s credit that she accepted the shortcomings of her social work team in relation to what everyone acknowledges were the difficult issues and planning in this case.

Miss Hudson expresses the guardian’s concern as being that the significance of these omissions goes beyond poor social work practice and has potential implications for the future planning for X. The deficits in the planning, reflecting the local authority’s unequivocal support for X’s return to Kenya, without consideration of the detailed plan and its impact on X’s welfare, is, the guardian suggests, an important consideration when determining the extent to which the local authority is given responsibility for approving the final plans of the GRK in relation to a return of X to Kenya.

That said, the guardian makes clear that she welcomed the active involvement of the local authority in discussions with a view to informing the revised Kenyan care plan and hopes that this close working relationship will be maintained in the future in the event of a decision to return X to Kenya, just as she would hope herself to be included in relevant planning meetings.

Mr Stonor was realistic and frank in his submissions. For that I am grateful, as indeed, I hope, are his clients who, in authorising him to say what he did, have shown a commendable willingness – lacking in too many cases where criticism is appropriately made of local authority failings – to face up to and learn from their failings.

As Mr Stonor comments, it might be said that much water has passed under the bridge since the first week of the hearing. But he says that the local authority is acutely aware of the criticisms which, justifiably in my judgment, were levelled at it. As was conceded by Mrs T in her evidence (and he paraphrases):

I do not propose to add to the local authority’s misery, for I am sure that painful lessons have been learned by all, not least through unhappy experiences in the witness box. But in fairness I should point out that the local authority and its officers, both in social services and in the legal department, were faced with an unusually difficult case which was quite outside the range of anything that any of them had previously had to deal with. For all of them it was, in the true sense of that much abused word, unique. It is not surprising that they struggled and at times stumbled.

As Mr Stonor says, it is clear that, at times, there have been differences of view amongst the social work team and between the local authority and the guardian. There is, as he correctly says, and as I would wish to emphasise, nothing improper in any of that. Indeed, it would be surprising if, in a case such as this, there were not differences of opinion along the way. On the contrary, it is very much to the credit of all concerned that there were these differences of opinion and that, over time, opinions were modified. Too often local authorities are criticised, sometimes with justification, for an unbending determination to stick to the original thinking and plan. And on occasions social workers too readily cleave to the ‘party line’ even though it may differ, to a greater or lesser extent, from their own professional appraisal. Here, all concerned were doing their best, in a very difficult case, to exercise their personal professional responsibilities and to come to considered professional judgements as to what was best for X. The fact that those professional judgements differed, and that individuals may have wavered in their judgements over time, is cause for approbation not cause for concern.

Singling any one practitioner out for praise is always invidious, insofar as it tends to suggest oblique criticism of colleagues, and that is certainly not my intention. But in the circumstances I think I should say how particularly impressed and assisted I was by Mr M for his thoughtful assessments and his equally thoughtful oral evidence. In some ways his approach was untypical, perhaps in some respects almost quirky, but I found it all the more impressive and useful for that. In many ways, if one has to compare him with his colleagues, it was Mr M rather than the others who early on saw, and thereafter did the most to grapple with, what he, most of all, understood were the very real and taxing difficulties of a very complex case.

Whatever can be said against the local authority, there cannot, in my judgment, be any suggestion of any form of bad faith. At times it stumbled during what was, I repeat and emphasise, a uniquely challenging case. But it was throughout, as were all its social workers and others, conscientiously trying to do the best for X and, indeed, for all concerned. That is apparent both if one has regard to its conduct as a whole and, as Mr Stonor correctly observed, if one has regard to the guardian’s evidence.

I turn to consider the evidence of the two experts, Dr Oboho and Mrs Appleby. Mr Stonor submits that where their evidence differs from that of the social workers and the guardian I should prefer the latter. Mr Gray and Miss Hudson likewise expressed some reservations about parts of their evidence.

I consider first the evidence of Dr Oboho.

I agree with Mr Stonor and Miss Hudson that Dr Oboho’s evidence although well-intentioned was of limited assistance. Without in any way questioning his expertise, it was apparent that his experience in children’s cases is limited. In some key respects his evidence (both written and oral) lacked depth and balance. There was little sense that Dr Oboho appreciated the complexities involved in this very difficult case; indeed, for him it was a simple case. And there was scant consideration in any depth of the potential benefits for X of a return to Kenya. Moreover, I have also to say that a number of the views and opinions espoused by Dr Oboho struck me as concerning: for example, that children are highly likely to be damaged if their parents work full-time (in oral evidence, Dr Oboho confirmed that he held this view in relation to children generally not just in relation to adopted children); that it is highly likely that X’s birth mother would take some form of revenge on her; that parenting capacity has nothing to do with whether Mr Y and Ms Z lied about how they brought X in to this country; that the means of X’s removal from Kenya are not relevant to welfare (as Mr Gray pointed out, Dr Oboho expressed the view that the background to the case was not part of his remit, and that it was not relevant to the capacity of Mr Y and Ms Z to parent X); that X will be grateful to Mr Y and Ms Z for bringing her to this country illegally, more so if they are imprisoned; and that extradition is not a concern because it will not happen. It should also be noted that Dr Oboho undertook an assimilation scale test, and concluded that “they do not have a tendency to lie” – an evaluation which their subsequent evidence showed to be sadly adrift from the reality.

The guardian said that she found Dr Oboho’s report and evidence of some assistance, in that he addressed the impact of the proposed move to Kenya from a psychological perspective. His conclusions about the significant and potentially damaging effect this could have upon X reflected the risks she had identified. But the extent to which his report and conclusions are relied upon by the guardian is, however, tempered by her evidence that she could not agree with some aspects of Dr Oboho’s report and evidence. His evidence therefore forms part of the full picture which she has considered, but her conclusions, as she makes clear, have never rested upon his assessment.

I share these concerns about the ultimate usefulness of Dr Oboho’s evidence. I agree with and therefore adopt the guardian’s measured appraisal of where and to what extent it really assists.

Everyone was agreed, in contrast, that Mrs Appleby was an impressive witness. As Mr Stonor commented, and I agree, her evidence was measured, thoughtful and in some respects (for example, in relation to the desirability of involving Mr Y and Ms Z in the process of moving X to Kenya if that were the court’s decision, and in relation to the desirability of there being some level of ongoing contact) it was of very considerable assistance.

The guardian likewise found Mrs Appleby’s assessment and report to be thorough and well reasoned and was similarly impressed by her oral evidence. In the guardian’s mind it reinforced the very positive aspects of the parenting Mr Y and Ms Z have provided for X since she came to live with them in July 2006, just as it also reflected and reinforced the conclusions of the local authority’s core assessment, completed in September 2007, and the evidence of a continuing strong relationship between X and those she clearly considers to be her parents. The guardian considers this to be important evidence of the strength of the attachments between X and Mr Y and Ms Z, and it is, she makes clear, evidence to which she has given considerable weight throughout the proceedings when considering how X’s welfare needs are best met. This continues to be the case.

On the other hand (and this, I wish to stress, is no criticism whatever of Mrs Appleby), there are, as Mr Stonor, Mr Gray and Miss Hudson reminded me, a number of significant qualifications which have to be borne in mind and which, as Mr Gray put it, impose inherent limits to the overall weight which I can safely attach to her assessment:

Having carefully considered all these submissions I agree with the guardian’s analysis of Mrs Appleby’s evidence and of the weight and significance to be attached to it.

I can make the care order being sought by the local authority only if ‘threshold’ is established in accordance with section 31 of the 1989 Act or (if the order is only an interim care order) established in accordance with the less stringent requirements of section 38(2) of the Act.

Very little was said on this topic during the hearing. Tacitly at least Mr Y and Ms Z accept that threshold is established under section 38(2) – after all they have never sought to challenge the successive interim care orders that have been made from time to time since the original order was made on 24 May 2007.

I am quite satisfied that the requirements of section 38(2) are met; indeed if the need arose – in the event it does not (see below) – I would be quite satisfied that the more stringent requirements of section 31(2) are also met. The plain fact is that, whatever actual harm she may or may not have suffered, X was plainly exposed to real risk of significant harm at the time the proceedings were commenced, and that suffices to meet the requirements of section 31(2). Further elaboration is not required. The facts as I have set them out speak for themselves. It has not been suggested that I lack the power to make a care order if satisfied that that is what is in X’s best interests. In other words, ‘threshold’ has not been put in issue. Indeed, as we have already seen, the risk of harm has in effect been admitted, albeit in a different context and for a different purpose: see Mr Spain’s submissions as referred to in paragraph [154] above.

Threshold is accordingly established.

I turn now to the central and determinative question of X’s welfare.

Mr Stonor identifies the following factors in particular as impacting upon X’s needs, now and into the future:

Against that background Mr Stonor summarises X’s welfare needs as embracing:

As Mr Stonor points out, whichever option is chosen there will be change for X, for she has been living with foster carers for the best part of a year. He accepts that a return to Mr Y and Ms Z is unlikely to have any negative impact upon X in the short-term. Indeed, she is likely to be very happy. (The longer-term implications are, of course, a very different matter, a topic to which I return below.)

A return to Kenya, on the other hand, will bring with it what Mr Stonor, without exaggeration, calls a seismic change in her relationship with Mr Y and Ms Z and will, I do not doubt, be, at least in the short term, distressing – profoundly distressing – for X. As was emphasised by most of the professionals involved, its management will be of crucial importance. As Mr Stonor observes, careful and sensitive attention needs to be given to: what X is told at various stages and by whom; the involvement of Mr Y and Ms Z in this process; and the introduction of X to the Kenyan social worker, Catherine Maina (see below), and then to her proposed carers.

But Mr Stonor also makes a most important point when he observes that, whilst not detracting from the need to manage such a change with the utmost care, the key professionals involved (save for Dr Oboho) all agree that the fact that X has shown herself able to form attachments is a positive prognostic factor for her being able to form attachments with prospective adopters.

Although, as I have said, at one stage during the proceedings Mr Y and Ms Z had seemed well placed to adopt X, there are now, says Mr Stonor (and Mr Gray says much the same), grave doubts about their capability to meet all of X’s needs. Mr Stonor summarises these doubts under the following headings:

Mr Stonor and Mr Gray elaborate their case as follows.

Inability or unwillingness to put X’s needs before their own: Mr Stonor submits that, although from the outset Mr Y and Ms Z have insisted that they have always acted out of a desire to do what is best for X, the evidence now shows that in many important respects they have seemingly had little if any regard to X’s welfare. What is depressingly clear, he says, is that where X’s interests conflict with their own (or perhaps more accurately in relation to Mr Y, where he perceives that X’s interests conflict with Ms Z’s interests), X’s interests will not be prioritised. He gives the following examples:

Lack of insight into X’s emotional needs: As Mr Gray points out, there is no suggestion in Mr Y and Ms Z’s statements that the multiple changes of carer for X between January and July 2006 may have been unsuitable. Their insight into the needs of a young child is therefore questionable. And, as Mr Stonor points out, on his own account it had not occurred to Mr Y that X might grow to resent him and Ms Z for the way in which she was taken from Kenya and brought to this country and the fact that she would be unable to visit Kenya with her carers. He observes that when Ms Z came to give her evidence she clearly knew what was coming, saying that these matters had indeed occurred to her. But when pressed (by me) as to how she proposed to address these matters, Ms Z resorted once more to rather simplistic reference to the DVDs, photos and so on which they used to tell X about Kenya. As was pointed out to her, those materials may be relevant to meeting X’s cultural needs, but have nothing to do with the question of resentment. Sadly, says Mr Stonor, and I can only agree, this was all lost on Ms Z. The reality, unhappily, is that neither Mr Y nor Ms Z seemed able to understand, let alone engage with, the issue of X’s possible resentment.

The problem of resentment seemed to me during the hearing, and the opportunity for reflection does not change my perception, to be an issue of some potential significance. It therefore merits further elaboration. I am grateful to Mr Gray for the following analysis, with which I agree. He submits, and I agree, that:

Disregard for the truth: As Mr Stonor rightly says, many parents tell lies. Many parents treat other adults in a shoddy fashion. It does not follow that they are incapable of meeting their children’s needs. Why, he asks rhetorically, should it be different for X? There are two reasons he says, both relating to X’s needs; one general, one specific:

Disregard for others: Mr Stonor says that, in relation to Mr Y and Ms Z’s attitude towards other people, the evidence does not reflect well upon them. He submits that their treatment of a number of individuals has been at best shoddy and at worst callous:

Relationship and ability to manage stress: Mr Stonor says that although it has never been doubted that the process of X’s removal from Kenya, and all that followed, must have been extremely stressful for Mr Y and Ms Z, prior to the commencement of the final hearing (and indeed prior to the second week of the hearing), it had been thought that Mr Y and Ms Z were mutually supportive and were coping remarkably well. However, he says, a different picture emerged during the second week of the hearing as I heard the oral evidence of Mr Y and Ms Z and also had the opportunity of reading Mr Y’s medical records:

Risk of extradition to Kenya: I have already dealt with this as a discrete issue.

Incapacity to meet X’s cultural needs: Mr Gray submits as we have seen that, whether or not extradition is pursued or successful, Mr Y and Ms Z will not be able to travel to Kenya. If X were to remain in this country with a white couple such as Mr Y and Ms Z, then, he says, travel to Kenya would be very important to her; yet some of the ‘moment’ will be removed by the fact that she is prevented from travelling to her country of origin with the people she would have come to regard as her own parents. A trip to Kenya may involve an inquiry as to her birth family, and it would assist if Mr Y and Ms Z could be there to provide reassurance and assistance. X’s extended adoptive family would be able to assist but, says Mr Gray, constitute a lesser substitute. As he points out, Mrs Appleby agreed that travel to Kenya with Mr Y and Ms Z would be the ideal.

Understandably in the circumstances the case put by the GRK is to much the same effect as the case put by the local authority and there is, inevitably, much overlap between Mr Gray’s submissions and those of Mr Stonor. And I have already had occasion to refer to much of its case. But the GRK is so central to the proceedings, and its role in relation to X is so crucial, that I ought to set out the way in which it puts its case.

Mr Gray submits that Mr Y and Ms Z have to all intents and purposes stolen X from her country of origin by a series of actions that impact upon her welfare. He points in particular to the following matters:

As Mr Gray points out, adopters need to be able to provide more than good enough care of children to qualify as adopters. This is particularly so where there are significantly complicating factors such as the trans-racial element and the history of how X came to live with them. As he says, X’s adoption and raising will be particularly complex once she is mature enough to inquire into her history and origins. Far from Mr Y and Ms Z being able to meet this standard, says Mr Gray, their actions in transporting X to this country and concealing her thereafter demonstrate a disregard for her welfare.

Mr Gray acknowledges – the GRK he says fully appreciates – that there is a very good attachment between Mr Y and Ms Z and X. But, he says, the attachment has been tempered by the placement in foster care for almost a year. Moreover, and crucially, he submits that given her age and characteristics, X is very capable of forming a good attachment with a new family:

In summary, Mr Gray submits that the good care and attachment provided for X in this country do not outweigh the advantages to her of a return to her home country:

Mr Gray makes a powerful case that X has a natural right to be brought up in her own country – Kenya.

He says that X is a Kenyan child. And it is, he says, a fundamental welfare principle, expressed in Kenyan law and international treaties and recognised by Mrs Appleby, by the social workers, and by the guardian, that it is in a child’s best interest to live and be brought up in her own country of origin and culture. He identifies a number of specific reasons why in X’s case this may be especially important in the longer term: (a) X’s future identity in her more mature childhood – Dr Oboho indicated that X may better understand the concept of identity when she is aged eight or nine; and (b) in respect of X’s adulthood, particularly having regard to the matters referred to in the 2002 Act.

This informed the Kenyan initial stance in relation to where X should grow up, as set out in the report of Ms Muyanga attached to a letter from the Children’s Department dated 21 November 2007 and, submits Mr Gray, renders return to Kenya as an appropriate starting-point for the court, as permitted by Baroness Hale in her speech in Re J. Mr Gray goes on to note that once the Kenyan Children’s Department had access to the court papers and was able to view a bigger picture of X’s welfare needs, the stance remained the same, albeit based more on arguments of ‘pure welfare’ with reference to X’s natural socio-cultural background.

Mr Gray says that I must consider the impact of X growing up as a black child of African heritage in very white rural Northumberland, though he accepts that, seemingly, although opinion is divided as to the extent of those opportunities, there are nonetheless some opportunities for her to mix with other ethnically diverse children. Importantly in this context, as he points out, whatever the fate of the GRK’s plan for extradition, Mr Y and Ms Z will be unable to travel to Kenya to accompany X as she explores her home country and attempts to find her roots and, possibly, her origins.

Mr Gray submits, and I agree, that there are a number of reasons why what he calls the background deceit and lack of frankness on the part of Mr Y and Ms Z impacts directly on the question of X’s welfare. Many of these have been identified by the guardian (see below). To these Mr Gray would add the following:

I have already set this out above.

The GRK’s plan for X is set out in some detail in its revised care plan dated 24 April 2008. In essence the GRK proposes that X should be returned to Kenya for adoption there or, if adoption is not feasible (and it is confident that it is), long-term fostering. The GRK accepts that in no circumstances will X return to institutional care.

If returned to Kenya, X will be treated as a priority case. The GRK will ensure that the care alternatives available to X in Kenya will be to a good standard, but, as Mr Gray puts it, without the precarious background and questionable motives provided by Mr Y and Ms Z. On the other hand, and as Mr Hussein explained in his evidence, the Kenyan adoption committee will consider X’s environment in the last year or two: “This fact will have to be closely considered” and “We will go out of our way to ensure that things are as close as they are to here.” At the same time, Mr Hussein has kept open the option of white parents in Kenya. As he gently reminded us all, “there are white Kenyans”.

Mr Gray submits that the revised care plan provides for a careful and consultative process of easing X’s transition from one country to another:

The time limit for the final search for X’s biological family has now passed without success – no member of the natural family has so far come forward – and the GRK Children’s Department has commenced the adoption matching process. (In the now unlikely event that the biological family is identified, then careful assessments will be carried out as to any of its member’s willingness and ability to care for X.) The matching process will be carried out in consultation with the local authority and, if the proceedings remain in existence, with the guardian, the court remaining in the background in the event of a significant disagreement between the professionals.

The contingency plan in the event that adoption in Kenya is not possible is, as I have said, for X to be placed in foster care. Foster care will also serve as a ‘stop-gap’ measure if necessary prior to any adoptive placement.

In addition it is proposed that quarterly reports and then annual reports will be provided to the local authority. The GRK sees two purposes to this:

Both the original care plan of February 2008 and the revised care plan of April 2008 were drawn up by Mr Hussein as Director of Children’s Services. By virtue of both his office and his practical experience, he is, as Mr Gray submits, and I agree, exceptionally well placed to consider and make arrangements to meet the best interests and welfare of a Kenyan child.

Mr Gray acknowledges that the original care plan was devised without reference to the views of the local authority and the guardian but, he says, the revised care plan takes into account the views of all the various professionals, including the opinions of the expert witnesses, Mrs Appleby and (to an extent) Dr Oboho. Moreover, and as Mrs S accepted, the change of care plan was an example of the GRK taking account of English concepts of welfare.

Mr Hussein has every confidence that the care plan can be effected in accordance with its provisions and that the effect of change upon X will be minimised. The court, says Mr Gray, should take comfort from the personal involvement of Mr Hussein, his treatment of X as a priority, and the considerable time and resources that the Children’s Department have devoted to this case. Furthermore, Mr Hussein has confidence in Ms Maina’s abilities – she was selected out of a choice of about 300 potentially suitable social workers – and I should, says Mr Gray, share Mr Hussein’s confidence in her.

Importantly, the guardian placed considerable confidence in Mr Hussein and Ms Maina. She had an “important and hugely reassuring” meeting with them both. She found both of them very keen to find out about and receptive to her concerns, very keen to find out about X’s needs and how her needs could best be met, and agonising over X’s situation but concluding that this was a unique and special case. The guardian also found Mr Hussein’s evidence to be reflective of his understanding of X’s particular and personal needs:

The local authority was likewise impressed by the response of the GRK to these proceedings. Mr Stonor submitted that Mr Hussein’s written statements seemed to reflect:

For my part I should say that I found Mr Hussein to be a very impressive and compelling witness. The fact that, despite his elevated status in Kenya, he had involved himself personally in this case and, with Ms Maina, had travelled to this country and attended court throughout the first week of the hearing (for which I am exceedingly grateful), testified compellingly to his commitment and the commitment of the GRK generally to X’s welfare. His thoughtful, nuanced, reflective and child-centred evidence similarly testified to both his understanding of the issues in this very difficult case and to the welcome openness of mind and flexibility of thinking he was so very willing to bring to bear. Obviously I was not privy to what were plainly the very fruitful discussions he had out of court with both the local authority and the guardian, but I am not at all surprised to hear how positively they reacted to their discussions with him. It accorded entirely with the impression I had gained seeing him in court and hearing him give evidence.

I have complete confidence in Mr Hussein and my confidence in him enables me to be similarly confident about Ms Maina, even though I did not have the advantage of hearing her give evidence, and, indeed, to be similarly confident about the GRK generally. The commitment it has demonstrated to one of its children is, if I may be allowed to say so, very impressive. It contrasts very favourably indeed with the lack of interest which in too many such cases is exhibited by foreign states which find themselves in similar circumstances.

Miss McKenzie and Mr Spain rightly say that there can be no issue with the quality of the day-to-day care afforded to X by Mr Y and Ms Z. For a child without any familial ties to be ‘rescued’ from the institutional environment of a children’s home, brought to England and to thrive in the manner in which she clearly has thrived, is, as they rightly say, a testament to the care given to her by these first-time parents. As they rightly stress, all this was universally borne out in the core assessment and oral evidence of Mr M and the assessment by Mrs Appleby as well as by the investigations of the guardian. They submit that the stability, security, protection and emotional warmth required by a child being removed from her life in Kenya to a wholly different life in Northumberland was unreservedly forthcoming. It is, they say, all the more remarkable that it was provided by parents under considerable emotional stress and in circumstances, admittedly of their own making, in which they found themselves without recourse to professional help, support or guidance.

They challenge the proposition that Mr Y and Ms Z failed properly to prioritise X’s interests and that they lack insight into X’s emotional needs – something, they say, which was not identified by either Mr M or Mrs Appleby –, pointing, for example, as explanation for X’s multiple carers between January and July 2006, to what they saw as the need to avoid the greater evil of her continuing in institutional care with consequent risk to her health. And in that connection they make the important point that there is nothing to show that X has in fact suffered any emotional (or, indeed, any other kind of) harm as a result of her experiences – witness, they say, the excellence of her attachment and her current emotional stability.

They submit that selflessly, when many other parents might have clung to her with the idea that it might make it difficult for her to settle, so as to expedite a placement by return to them, the evidence supports the contention that Mr Y and Ms Z gave her ‘permission’ to live with the foster carer, thus avoiding unnecessary distress for her. As they submit, when it is asserted that Mr Y and Ms Z have acted selfishly, that they have failed to act in a child-centric manner, that they have prioritised their own needs over those of X, it is only fair to place their care of her in this regard in the balance.

Again, as they rightly stress, such was the quality of the care that, notwithstanding the effluxion of time during which she has remained in the care of the foster carer, X’s primary attachment remains with Mr Y and Ms Z. However, they submit, and this is an important point, it would be overly-simplistic, and contrary to the expert opinion of Dr Oboho and the assessment of Mrs Appleby, merely to transpose this ability to move without apparent harm in a domestic setting and to employ this as a predictive tool for the success of a move for X back to Kenya in line with the GRK’s revised care plan – a process which, as they rightly emphasise, is self-evidently not reversible. The factual situation envisaged in the care plan is, they say, readily and obviously distinguishable from the change she has experienced in Northumberland in moving from her ‘parents’ to the foster carer.

There have undoubtedly, say Miss McKenzie and Mr Spain, been times of great stress and great distress experienced by Mr Y and Ms Z. They are strangers to court procedures, to police interviews, to awaiting decisions by the Crown Prosecution Service. Throughout, reading as they have in the papers filed and listening to the evidence, particularly from Mr Hussein on behalf of the GRK, the threat of extradition proceedings cannot have failed to become a real matter to have to contemplate. But still, they submit, Mr Y and Ms Z have managed to insulate and protect X from such distress. (It was, as they tell me, only over the weekend of the recent Bank Holiday, with the reduction in the length of contact and a tightening of the strictures applied to contact by way of supervision at the behest of the local authority, that X has reacted.)

They submit that, on the evidence given by their clients, it was the implementation of the second (successful) attempt to bring X to this country that uniquely saw Mr Y and Ms Z not communicating. This, they say, is contrary to the core assessment and the assessment of Mrs Appleby, which both emphasise as a positive their ability to work together. (I understand the point but in the light of my findings I do not, of course, accept the premise.)

In conclusion, Miss McKenzie and Mr Spain submit that striking the balance is not a matter of merely weighing the future risk posed by Mr Y and Ms Z as against the uncertainties in the Kenyan plan. They submit that I should start with the question “Why should X be deprived of the care of these parents?” Only if the risks posed by them are proved to be unmanageable should X lose the prospect of being brought up in their care. And, they ask rhetorically, if the GRK had not intervened would the local authority be seriously challenging their ability to look after and care for X.

In this connection Mr Spain says that the reservations expressed by Mr Y as to the ability in practice of Mr Hussein to deliver what is in X’s best interests are not unreasonable. As he points out, until the third day of the final hearing, the GRK, through the head of its Children Services, adhered to the policy that upon her return to Kenya there was an absolute requirement that X be returned to a children’s home for a significant period of time. This changed only when the guardian expressed severe misgivings. In light of this, he says, it could not be accepted that the planning for X had been specifically child-centric to X’s needs.

In many such cases, as they point out, the relevant foreign country may have displayed no interest in the proceedings, whereas here the GRK has played an active role in the proceedings and has evinced an intention to pursue matters relating to the alleged dishonesty as to the manner of X’s removal from Kenya and arrival in this country. But that should not, of itself, they say, afford any more weight to submissions by the GRK, nor should it in any way detract from or lessen the intellectual rigour to be applied to the proposals and to the evidence submitted. I agree.

Mr Y and Ms Z say that it would be unfair to X for their presentation whilst giving their evidence to stand in substitution for the absence of a full psychological assessment of each of them. The stress applied to each in the course of their evidence, say Miss McKenzie and Mr Spain, may not be a safe indication of their presentation in the more controlled environment of an assessment. They submit that before the undoubted and numerous positive attributes of each of them as described by Mr M and Mrs Appleby may safely be disregarded to X’s disadvantage, a full psychological assessment should be undertaken to attempt to determine whether the lying is endemic and whether, in turn, their ability to cope with stressful situations serves to compromise their ability to offer stable care for X. In this connection and, as they say, ever conscious of the necessity of avoiding delay, even more so in this case than many, they submit, nevertheless, that the GRK’s revised care plan provides a window of opportunity for such a psychological assessment and for a further consideration of Mr Y and Ms Z by Mrs Appleby.

The local authority in response to this adopts the same stance as that of the guardian and commends her replies in evidence: decisions need to be made for X now; there can be no more ‘yo-yoing’; X needs to be told what is going on in her life, including (if I approve the Kenyan option) that she will not be returning to Mr Y and Ms Z.

The guardian’s final assessment as set out in her oral evidence and in the written submissions prepared on her behalf by Miss Hudson is objective, measured, balanced, thorough and compelling. I propose in the circumstances to set it out in some detail.

The guardian sees this case as being of unprecedented complexity and, for her, as X’s guardian, a difficult and anxious case. At the outset she emphasises two things: first, she has sought to deal with the very difficult issues and often competing and opposing claims by focussing on X’s welfare; secondly, she makes it clear that she considers there to be risks for X whatever the outcome.

She also emphasises – and this in my judgment is amply borne out by an analysis of her involvement in the proceedings (I need not go into the details) – that she has throughout been willing to give the fullest consideration to Ms Z and Mr Y as X’s future carers. And she has throughout been willing to consider the illegality surrounding X’s entry to this country in a more open-minded light. Indeed, as she said in her oral evidence, in the balancing exercise of the welfare considerations she considered the separation of X from her ‘family’ in England to be of greater significance than the issue of the illegality itself.

But is also important to note that, as she told me, the guardian has nonetheless consistently reinforced to both Mr Y and Ms Z the need for openness and candour in the proceedings and in particular in relation to the events leading to X’s arrival in their care. Her encouragement to them to adopt this approach pre-dated the hearing, but (and this in the event has a particular significance) was also reinforced repeatedly throughout the proceedings before they gave evidence.

The guardian emphasises how very greatly she has been assisted by hearing all the evidence in the case. It provided her, she says, with a greater insight not only into the factual issues and disputes between the parties, but also – and for her most significantly – as to the welfare considerations for X. She considers that the evidence over the eleven days of hearing has left the court much better equipped to assess the competing claims and to provide for X’s long term welfare. That is certainly so, but it is clear that it equally left the guardian in a much better position to do so.

It is apparent that this was so in two separate respects.

In the first place, it undoubtedly affected her appraisal of Mr Y and Ms Z. Correctly, she acknowledged that it was not, of course, for the guardian to determine the truth of what she heard, but, having listened with care to all the evidence in the case, she was dissatisfied with the evidence she heard from both Ms Z and Mr Y, which she repeatedly found to be unsatisfactory on a number of different levels. The approach taken in cross-examination of Ms Z and Mr Y on her behalf reflected, she says, her increasing frustration at their apparent inability to tell the truth and to appreciate the significance of their actions and evidence for X. Three areas of their evidence gave her particular concern.

The first was their evidence relating to the illegality. She submits, in common with the local authority and the GRK, that the evidence from Ms Z and Mr Y, particularly when viewed together, is so flawed that no reliance can be placed upon it. Most particularly, she says:

The significance of all this for the guardian is twofold: first, the information which is now available might well have had an impact on the other assessments undertaken in the proceedings had it been known at an earlier stage; secondly, their evidence indicates a willingness to jeopardise the safety of others, most particularly X.

The second area of their evidence which concerned the guardian was their lack of consideration for X in their actions. She was, she says, surprised and disappointed at the lack of consideration by both Mr Y and Ms Z of the risks inherent in their actions in arranging for X to be brought into this country as she was. The failure even to consider these risks at the time may, she suggests, reflect a lack of consideration for X’s safety and wellbeing or, worse, a determination to put their own desire to have her first. And their lack of appreciation of the risks she faces even now shows a continuing failure or inability to understand the import and potential consequences of what could have happened to her.

The third area of the guardian’s concern relates to the future. She considers that the evidence from Mr Y and Ms Z has implications for their ability to meet X’s long term welfare. In her evidence she highlighted the following:

In short, the guardian’s confidence in Mr Y and Ms Z has decreased since they gave their evidence.

The other respect in which the guardian was very greatly assisted by hearing all the evidence in the case relates to the GRK.

Prior to the final hearing the guardian had acknowledged in her final report the strong claim of GRK. She was impressed by the concern shown by the GRK in pursuing the return of one of their own children, wrongly removed, but she was nonetheless unhappy about significant aspects of the planning in relation to X, her concerns relating to what in her view were crucial parts of the plan for X:

For the guardian there were important developments during the final hearing. She found the contribution of Mr Hussein, both in his evidence and in his detailed discussions with professionals out of court, valuable and reassuring. She was impressed by his commitment to formulate a plan for X which would address the acknowledged risks inherent in a return to Kenya, she found him to be very receptive to her own views and those of the local authority social workers as to X’s needs, and she was considerably reassured by the meeting she had with him and by the content of the revised Kenyan care plan. She also found it beneficial to meet Ms Maina. At the same time, Mr Hussein’s evidence also stressed the approach of the GRK in relation to criminal proceedings against Mr Y and Ms Z and the pursuit of extradition proceedings. This aspect of the case, and the potential for one or both of them to face extradition and criminal proceedings in Kenya, assumed a higher prominence for the guardian as a result.

The guardian is, she says, “entirely satisfied” that Mr Hussein is committed to doing all that can be done to meet X’s needs if she returns to Kenya. Nonetheless, as she points out, and as Mr Hussein himself said in evidence, there are many differences between Kenya and this country as well as the many similarities. And there remain many and important uncertainties in the planning for X in what would undoubtedly be a traumatic move for her. So the GRK’s willingness to work in conjunction with the English High Court and with those professionals involved with X to ameliorate the effects of a move, should it be ordered, is, in the guardian’s view, an important safeguard in seeking to ensure that X’s return to Kenya, if ordered, is undertaken in the most appropriate manner.

It is against this background that the guardian makes her final recommendation which is, as she indicated in her oral evidence, that in principle she now supports the local authority and the GRK in recommending X’s return to Kenya, this being based on her final assessment of the balance of the welfare considerations which relate to X.

The guardian emphasised, both in her final report and in her oral evidence, that she considers that both proposed outcomes for X involve risks to her future well-being. She has sought to balance all relevant factors relevant to X’s welfare in making recommendations at each stage. As Miss Hudson rightly observes, the guardian’s changed final recommendation should be seen against this background.

At the time when the guardian prepared her final report, application of the welfare checklist to X’s circumstances and the balancing of all the relevant considerations led her to a recommendation that X be returned to the care of Mr Y and Ms Z. The guardian stands by her analysis and recommendation at the time of filing her final report but invites me to conclude that the balancing of those considerations now leads to a different conclusion. Her oral evidence reflected the change in her view and was supportive of the plan for X’s return to Kenya. The change in her recommendation, based on the oral evidence and developments over the previous ten days, came as the result of her increased confidence in the plan put forward by the GRK in contrast with her decreased confidence in Mr Y and Ms Z.

The guardian’s analysis is that the evidence has led to a changed emphasis in the following areas relating to X’s welfare:

On behalf of the guardian, Miss Hudson submits that there are other relevant factors in balancing the welfare considerations: the extent of the illegality, the risk of extradition and X’s precarious immigration status.

Miss Hudson submits that the extent of the findings of illegality is relevant in balancing the welfare considerations. If the findings are that Mr Y and/or Ms Z behaved in a way which goes beyond the admitted illegality, it reflects, she says, a continuing dishonesty in their evidence, despite the very clear encouragement from professionals (and indeed from the court) of the need for candour, with clear explanation of the reason why it may be significant in determining X’s future. This would be evidence of a failure to put X’s needs before their own. There would also be a consequent risk that circumstances might come about where X’s needs would once again not be given the precedence they require. Miss Hudson adds that this is so whether it is found that one or both of them has continued to lie about the circumstances and extent of the illegality given that they remain strongly united. (That said, Miss Hudson suggests that it is difficult to envisage findings which exonerate one (or both) of them in the light of the evidence as it developed during the course of the hearing.)

So far as concerns the risk of extradition, Miss Hudson points out that although the prospect of criminal charges being brought by the GRK and extradition proceedings has been known to be a possibility since Mrs Magana’s contribution to the proceedings in October 2007, it has assumed a greater significance in the light of the evidence of the GRK, particularly Mr Hussein’s oral evidence, of the determination of GRK to press charges and the likelihood that extradition proceedings would then follow. This, she submits, must be a relevant factor when considering X’s welfare. The stress brought about by the continuing uncertainty (potentially over years) as to whether such charges and proceedings will be brought and, in the event that they are, until they are finally determined, will inevitably take its toll and is likely to have an effect upon Mr Y and Ms Z’s ability to parent. Furthermore, it brings with it the prospect that one or both of them may be unavailable to care for her for what could be a lengthy period.

All that said, as Miss Hudson acknowledges, the likelihood of extradition proceedings being pursued successfully remains unknown, as does the likely timescale, though she suggests that the timescale is likely to be years rather than anything less – so X’s awareness of the situation would then be greater by virtue of her age and understanding. In addition to the impact of the absence of one or both of her primary carers should extradition be successful, the guardian also raised the further issue of the potential effect upon X of knowing that extradition and possibly imprisonment came about because of the actions of her parents in relation to her. The guardian was concerned about the impact this could have upon X’s emotional wellbeing and, while not questioning the support of the extended family and their commitment to X, also referred in her evidence to the very difficult situation they would face if they were caring for X in circumstances in which she was the cause of the absence and possible imprisonment of a family member.

In her final report, the guardian had described the prospect of extradition as being a “barrier … and … a very significant one” to the ability of Mr Y and Ms Z to provide for X; she went on to describe this as a “very significant concern”. Miss Hudson submits that the extent of this concern has increased in the light of the evidence of the approach of the GRK to pursuing extradition and the evidence of the guardian as to the potential consequences for X.

Miss Hudson observes that the correspondence with the Borders & Immigration Authority makes it clear that X’s status in the UK is a continuing issue. But she submits that if X’s welfare otherwise dictated that she should continue to live in this country with Mr Y and Ms Z the potential for action by the Borders & Immigration Authority with a view to X’s removal should not lead to a different conclusion regarding her placement, though it would require careful consideration of the appropriate legal framework within which she were placed in their care, given that anything short of an adoption order would leave her status vulnerable. In those circumstances, the court, she says, would need to consider the orders that would best achieve the placement, determined by her welfare needs rather than any attempt to subvert immigration procedures. (As she points out, X’s immigration status will also require consideration in the event of any fall-back plan of family finding in this jurisdiction should permanency not be appropriately achieved by the Kenyan authorities.)

In conclusion, the guardian invites me to approve the plan for X to be returned to her country of origin in accordance with the plan of the GRK, which she supports, in principle, and submits that the application by Mr Y and Ms Z to adopt X should therefore be dismissed.

In the light of the continuing uncertainties and the undoubted complexities in working out the plan for X, the guardian would wish the proceedings to continue and the court to retain oversight of the implementation of the plan. Importantly, the guardian wishes to be actively involved in the planning for X, indeed she will travel to Kenya if required. She sees the court as having a continuing and crucial role in the current circumstances in safeguarding X’s welfare. Moreover, as Miss Hudson points out, having regard to the assurance of the Borders & Immigration Authority, the continuing court proceedings will also provide the necessary security in relation to X’s continuing presence in this country for as long as is required to implement the revised Kenyan care plan.

The guardian supports the provisions in the revised care plan for X which provide for her to remain in her current foster placement while the necessary steps are taken to progress the care plan for her adoptive placement in Kenya.

The guardian gave evidence in relation to the appropriate plan for X in the event that an adoptive placement is not found for her by the GRK (whether in Kenya or elsewhere). She is confident that an appropriate placement will be identified, having regard to the priority she accepts will (and in her view should) be given to X by the GRK. But in the event that such a placement is nonetheless not found, she advocates family finding here – this following from her conclusion that Mr Y and Ms Z are ruled out as carers for X and taking account of X’s need to be told that she is not returning to their care.

That said, the guardian recommends that Mr Y and Ms Z have a continuing involvement in X’s life:

At the end of the day, Miss Hudson submits, the guardian’s contribution is clear and measured and her conclusions and reasoning at the conclusion of the evidence are cogent. Very significant, as Miss Hudson observes, is the fact that the guardian’s final recommendation in support of X’s return to Kenya is less qualified than her previous recommendation in favour of X’s return to Miss Z and Mr Y. Her previous recommendation was couched in cautious terms, the guardian expressing herself in her final report to be “not as strong in the support of this as I would want to be”. Her support of the revised Kenyan care plan is not subject to that qualification.

Between them, the local authority, the GRK and the guardian mount a formidable and closely argued case in support of the GRK’s amended care plan. I find that case compelling and, essentially for all the reasons identified by Mr Stonor, Mr Gray and Miss Hudson, I agree that X’s best interests – now and throughout her life – will be served by my approving, as I do, the GRK’s amended care plan.

I take as my starting point:

Mr Stonor has in effect invited me to make various other findings of fact, in particular (paragraph [223]) findings in respect of Mr Y and Ms Z’s misuse of Ms W and of Wa and J. I can understand why Mr Stonor makes the submissions he does, and I share his suspicions, but I decline to make findings in relation to these two matters. The evidence is not sufficient to carry the case from the realm of suspicion to that of proof. In contrast, I am driven to agree with his characterisation of their treatment of Mrs F and Mr E.

In common with the local authority and the guardian I approach the ultimate decision recognising:

Miss McKenzie and Mr Spain mount a powerful case in support of the proposition that X’s best interests will be served by her remaining in this country in her care. They point in particular to the following factors, each of which I accept:

These are, I accept, powerful factors amounting to what I also accept is a strong argument for rejecting the case being put forward by the local authority and the GRK. But the case the local authority and the GRK mount, with the support of the guardian, is, in my judgment, even more formidable. The balance at the end of the day comes down, and in my judgment comes down clearly, even overwhelmingly, against Mr Y and Ms Z.

The various factors relied upon the local authority, the GRK and the guardian and which, in my judgment, have to be taken into account, can be summarised as follows:

In relation to this last point, Miss McKenzie and Mr Spain suggest that the process will be more problematic and uncertain than the local authority, the GRK and the guardian are willing to accept, and they caution me against too ready an assumption that the quality of X’s attachments will carry her through without major difficulties (paragraph [254]). I accept that one has to be cautious and not jump too readily to optimistic assumptions, but, making every appropriate allowance, I agree on this point with the local authority and the guardian.

The various factors which I have identified in paragraph [300] above plainly carry different weight, but the important features of the analysis, in my judgment, are:

At the end of the day, when it comes to the final balancing of the various factors which I have identified in paragraph [298] above as pointing in the one direction against the factors identified in paragraph [300] as pointing in the other direction the balance, in my judgment, comes down, as I have said, clearly, even overwhelmingly, in favour of the local authority and the GRK and against Mr Y and Ms Z.

I have very much in mind the powerful plea made on behalf of Mr Y and Ms Z to the effect that I should not – that I cannot fairly – decide the case without affording them the opportunity of a full psychological assessment (see paragraph [260]). I have obviously given this much thought but I have concluded, without, I have to say, much hesitation, that this is neither necessary nor appropriate:

For all these reasons I agree with the proposals put forward by the local authority and the GRK. Mr Y and Ms Z must be ruled out as future carers for X. I must and do approve the latest care plans put forward by the local authority and the GRK. In approving these care plans I emphasise the vital importance of the way in which, as the guardian indicates, they need to be implemented. I wholeheartedly agree with and wish to endorse everything the guardian has said about this.

Mr Y and Ms Z seek an adoption order, though accepting this is premature at this stage pending completion of the further assessments they seek. In the interim they submit that the appropriate orders would be pursuant to the inherent jurisdiction, placing X in the care and control of the local authority but remaining with the foster carer pending the court giving further consideration to X’s placement and any further orders on completion of the further assessments.

The GRK’s preference, Mr Gray tells me, is for an order under the court’s inherent jurisdiction giving it care and control of X. In considering this, he invites me to bear in mind the observations of Johnson J in Re JS (Private International Adoption) [2000] 2 FLR 628 at page 643:

“I am confident that her future will be determined under the supervision of the courts of the State of Texas and the administrative agencies there charged with responsibility for the future of children. However, even had I been satisfied that Mr and Mrs S had made out a proper case under Art 13 I would none the less not have thought it right to exercise my discretion not to order JS’s return. I repeat my regard for the matters relating to JS’s welfare which have been canvassed before me and principally, may I say, the quite excellent way those concerns have been elaborated by young Adam, but all said this little girl is American and her future ought to be decided by an American court and by American procedures and American ways.”

As to that, I observe only that that was a case of summary return where part of Johnson J’s thinking was that the child’s future should be determined by the foreign court, whereas in the present case it is common ground, and accepted by Mr Gray, that it is for me to determine X’s future.

Realistically, however, Mr Gray accepts that while X remains in this country pending her move to Kenya someone ought to have parental responsibility for her, not least because various inoculations will have to be administered. Accordingly, he accepts that it may be appropriate for a care order to be made, albeit with leave for X to be placed abroad. Moreover, as he makes clear, the GRK welcomes the assistance of the guardian in planning the difficult task of preparing X for departure to Kenya, and accordingly, an interim care order could be made in order to retain her involvement, albeit expiring without renewal once X has moved to Kenya. Therefore, he says, notwithstanding its preference the GRK will accept the making of an interim care order in relation to X, subject to the court approving the local authority’s plan to effect the GRK’s revised care plan.

However, Mr Gray submits, the plans, once approved by the court, should be left to the GRK to execute. The GRK is confident that it will be able to achieve a suitable adoptive placement for X in Kenya and Mr Gray submits that I should entrust this to the GRK, in collaboration with the local authority and the guardian and with the anticipated involvement of Mr Y and Ms Z should they prove co-operative. He fears that retention of the court’s involvement in the adoption process, even if merely to indorse the matching adopters with X, leaves open the possibility of significant delay and the danger of tactics that risk the smooth transition of X by the professionals who are particularly familiar with her needs. Consequently, he says, the GRK resists any notion that there should be a further fixed court hearing or that X should not make the journey to Kenya until the court has given its further approval. He points to the possibility of Mr Y and Ms Z restoring the matter to court in the event that there were problems implementing the revised care plan, though acknowledging the unlikelihood of them being considered as carers once it has been decided (if it is) that X is not to return to their care. (As he rightly says, to reverse such a decision would cause considerable confusion for X.)

Were I to decide to exercise the inherent jurisdiction then the GRK offers the following undertakings:

The local authority makes clear that, if I approve the Kenyan option, it intends to work closely with the GRK in executing the plan for X. It considers that the appropriate legal framework at this stage would be continuing interim care orders, thus ensuring that there is someone able to exercise parental responsibility for X whilst she remains in this country.

The local authority suggests that there should be interim care orders because it sees considerable merit in the court remaining involved, at least until the point where X is set to return to Kenya. (Mr Stonor suggests that the question of any continuing involvement after X has left this country can perhaps be addressed at a later stage.) The local authority helpfully identifies the pros and cons in my stipulating that the matter must be listed for review prior to X’s departure:

The guardian says that the care proceedings should continue, with X subject to continuing interim care orders, as this will secure X’s position and give the local authority the necessary parental responsibility to take appropriate decisions and steps in relation to her. Furthermore, she says, the court should take an active role in monitoring the progress of the plan. Since she anticipates that the steps required to put the plan for X’s return to Kenya into effect will take some months, she suggests that provision should be made for the further consideration of the case at an appropriate stage by me. As she points out, the care plan and its execution require particular care and consideration in this case, having regard to the changes the plan will bring about, and a further hearing will give the parties the opportunity of making any representations in relation to the plan and, crucially, for the court to give its approval (or otherwise).

I agree with the guardian’s analysis of the appropriate way forward. In all the circumstances the most appropriate legal framework to ensure X’s protection whist she remains in this country in an interim care order. Both the guardian and the court must remain closely involved in the process until such time as X actually leaves to return to Kenya.

It is for these reasons that, as I said in paragraph [4] of my earlier judgment, I have come to the following conclusions:

“With considerable sadness in my heart but, I have to say, without any real hesitation at the end of the day, I have come to the following clear conclusions:

(i)

The further assessments of Mr Y and Ms Z proposed by their counsel are neither necessary nor appropriate.

(ii)

Mr Y and Ms Z must be ruled out as future carers for X.

(iii)

The search for X’s natural family in Kenya having thus far proved fruitless, it should no longer be pursued (though obviously if her natural family was to emerge at any stage before her adoption was finalised their claims would have to be assessed and her welfare reappraised in the light of all the then circumstances).

(iv)

X’s welfare, now, into the future, throughout her childhood, into adulthood and throughout her life, requires – indeed, demands – that:

(a)

if at all possible, X should achieve permanency through adoption or, if adoption is not possible, through long-term fostering, in either case in Kenya;

(b)

if permanency in Kenya is not achievable within a reasonable time, X should achieve permanency through adoption in this country (but not by Mr Y and Ms Z);

(c)

under no circumstances should X be returned to institutional care either in Kenya or in this country.

(v)

Accordingly I approve the final care plans for X put forward by the local authority and by the Government of the Republic of Kenya.

(vi)

It follows that the application by Mr Y and Ms Z to adopt X must be dismissed.

(vii)

It is vital that the local authority and even more so X’s children’s guardian, Suzanne Armstrong, remain involved and taking an active part in relation to:

(a)

the process of matching X with prospective adoptive parents in Kenya; and

(b)

the process of planning for and preparing X for her return to Kenya.

I emphasise that this is not because of any lack of confidence on my part in the Government of the Republic of Kenya – quite the contrary – but because in this uniquely complex and difficult case, involving a little Kenyan girl who is currently living in this country, her welfare can best be assured by a continuation of the collaboration between the relevant professionals in both countries.

(viii)

Mr Y and Ms Z also have a vital role to play, in conjunction with the professionals, in helping X and preparing her for her return to Kenya. However devastating this judgment must inevitably be for them, I hope, and indeed believe, that they will be able to find it within themselves to help X at this critical time in her life. It will be of immense help to X, not just in the immediate future but later in her life as she is gradually introduced to her full history, to know that at this critical time in her life Mr Y and Ms Z were able to make this enormous sacrifice for her and to put her welfare before their own wishes and feelings.

(ix)

It is equally vital that for the time being the English court should continue to be actively involved in monitoring and, if appropriate, supervising and approving the various steps being taken, whether by the local authority or by the Government of the Republic of Kenya, in furtherance of X’s welfare. I appreciate that comity with a friendly foreign state requires sensitivity on the part of the English court, but so long as X remains physically within the jurisdiction of the English court it has, and cannot shirk, an unavoidable responsibility for her welfare. I would currently envisage, therefore, that for so long as X remains in this country, but not, I am inclined to think, thereafter, the English court should continue to be actively involved. Plainly the case must be reserved to me.

(x)

The appropriate legal framework which best meets X’s needs in the interim and before she returns to Kenya is an interim care order to the local authority. There is an imperative need for someone to have parental responsibility for her in circumstances where neither Mr Y nor Ms Z has parental responsibility and where, whatever the position may be under Kenyan law, there is no sensible way in which, under English law, I can vest parental responsibility in the Government of the Republic of Kenya.

(xi)

The precise form of order which should be made at the point when X is about to return to Kenya is a matter to be considered at that stage. It may be that at that stage it would be appropriate to invoke the inherent parens patriae or wardship jurisdiction.”

In paragraph 5 of my earlier judgment I indicated that it would be appropriate for there to be a brief directions / review hearing before me when I am sitting in Newcastle during the week commencing 9 June 2008. I said that I envisaged the purpose of that hearing as being twofold:

I went on to invite counsel to agree, if possible, appropriate orders – one in the care proceedings and one in the adoption proceedings – both to give effect to my earlier judgment and to regulate the position pending that hearing. Those orders were quickly agreed by counsel and approved by me. Dated 16 May 2008, I need not set out their terms.

Both the GRK and, in the light of my decision, the local authority seek disclosure of various documents in the case to various public authorities both in this country and in Kenya. The local authority invites me to consider:

The GRK for its part seeks disclosure of relevant documents to its Criminal Investigation Department, and its Ministry of State for Immigration and Registration of Persons. In fact, as Mr Gray very frankly made clear, documents have already been disclosed within the GRK to the First Secretary and the Principal Counsellor of the Kenyan High Commission in London; to two officials of the Criminal Investigations Department; to an official of the Department of Immigration; to an official of the Attorney-General’s Office; and to an official of the Ministry of Home Affairs. Understandably, the GRK wishes to consider my judgment before making any detailed applications for disclosure, but Mr Gray has it in mind that, on one view of the law, he may need to obtain retrospective approval for the disclosures which have already taken place, quite apart from consent to any further disclosure that he may be instructed to seek.

Bearing in mind its intention to press for Mr Y’s and Ms Z’s extradition, Mr Gray envisages that the GRK may well seek leave to disclose the case papers, this judgment and the transcript of the evidence of Mr Y and Ms Z to the prosecuting authority in Nairobi; to the High Court in Nairobi; to Interpol in London; and to the Magistrates’ Court in London dealing with the extradition proceedings. He submits that in all the circumstances such disclosure is amply justified in the light of the principles in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, just as he submits that any proper application of the balancing exercise as I described it in Re X (Children) [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, and in Re X (Children) (No 2) [2008] EWHC 242 (Fam), comes down clearly – indeed heavily – in favour of disclosure.

The guardian has indicated that she does not make any application in relation to the disclosure of documents, but will wish in due course to respond to the applications for disclosure by the local authority and the GRK.

Miss McKenzie and Mr Spain, on behalf of Mr Y and Ms Z, observe that it is clear from the concessions, admissions or submissions made by Mr Gray that information from the proceedings has been fed back to various Kenyan authorities in Nairobi in circumstances which may not have been appropriate, assuming, as they submit, that as the GRK has appeared as a party in the proceedings it is bound by the same restrictions which would apply to any other corporate litigant in such proceedings. (Picking up a comment I had earlier made, they submitted that merely because Northumberland County Council is a party to the proceedings it does not follow that every officer and elected member is entitled, ex officio, to see the papers. There must be a legitimate need to have access for some proper purpose and the same, they submit, goes for the GRK.)

In these circumstances, they say, two separate issues arise:

In my judgment these are all matters best left for further consideration once the parties have had an opportunity to study and assess the implications of this judgment. There is, however, no reason why the GRK should not, in the meantime, supply the information requested by Miss McKenzie and Mr Spain. And it would be helpful if the GRK could agree to do that voluntarily,

The relevant provisions of the (Kenyan) Children Act 2001 referred to in paragraph [126] above are as follows:

“6

(1) A child shall have a right to live with and to be cared for by his parents.

(2)

Subject to subsection (1), where the court or the Director determines in accordance with the law that it is in the best interests of the child to separate him from his parent, the best alternative care available shall be provided for the child.

(3)

Where a child is separated from his family without the leave of the court, the Government shall provide assistance for reunification of the child with his family.

11

Every child shall have a right to a name and nationality and where a child is deprived of his identity the Government shall provide appropriate assistance and protection, with a view to establishing his identity.

13

(1) A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person.

(2)

Any child who becomes the victim of abuse, in the terms of subsection (1), shall be accorded appropriate treatment and rehabilitation in accordance with such regulations as the Minister may make.

21

In the application of the provisions of this Act, and in any matter before a court of law concerning any child, due regard shall be had to the duties and responsibilities of a child to –

(a)

work for the cohesion of the family;

(b)

respect his parents, superiors and elders at all times and assist them in case of need;

(c)

serve his national community by placing his physical and intellectual abilities at its service;

(d)

preserve and strengthen social and national solidarity; and

(e)

preserve and strengthen the positive cultural values of his community in his relations with other members of that community.”

The relevant provisions of the African Union Charter on the Rights and Welfare of the Child referred to in paragraph [128] above are as follows:

“RECOGNIZING that the child occupies a unique and privileged position in the African society and that for the full and harmonious development of his personality the child should grow up in a family environment in an atmosphere of happiness, love and understanding,

…

TAKING INTO CONSIDERATION the virtues of their cultural heritage, historical background and the values of the African civilization which should inspire and characterize their reflection on the concept of the rights and welfare of the child,

…

Article 24: Adoption

States Parties which recognize the system of adoption shall ensure that the best interest of the child shall be the paramount consideration and they shall:

(a)

establish competent authorities to determine matters of adoption and ensure that the adoption is carried out in conformity with applicable laws and procedures and on the basis of all relevant and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and guardians and that, if necessary, the appropriate persons concerned have given their informed consent to the adoption on the basis of appropriate counselling;

(b)

recognize that inter-country adoption in those States who have ratified or adhered to the International Convention on the Rights of the Child or this Charter, may, as the last resort, be considered as an alternative means of a child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin;

(c)

ensure that the child affected by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d)

take all appropriate measures to ensure that in inter-country adoption, the placement does not result in trafficking or improper financial gain for those who try to adopt a child;

(e)

promote, where appropriate, the objectives of this Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework to ensure that the placement of the child in another country is carried out by competent authorities or organs;

(f)

establish a machinery to monitor the well-being of the adopted child.

Article 25: Separation from Parents

1

Any child who is permanently or temporarily deprived of his family environment for any reason shall be entitled to special protection and assistance;

2

States Parties to the present Charter:

(a)

shall ensure that a child who is parentless, or who is temporarily or permanently deprived of his or her family environment, or who in his or her best interest cannot be brought up or allowed to remain in that environment shall be provided with alternative family care, which could include, among others, foster placement, or placement in suitable institutions for the care of children;

(b)

shall take all necessary measures to trace and re-unite children with parents or relatives where separation is caused by internal and external displacement arising from armed conflicts or natural disasters.

3

When considering alternative family care of the child and the best interests of the child, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child’s ethnic, religious or linguistic background.

…

Article 29: Sale, Trafficking and Abduction

States Parties to the present Charter shall take appropriate measures to prevent:

(a)

the abduction, the sale of, or traffick of children for any purpose or in any form, by any person including parents or legal guardians of the child;

…

Article 31: Responsibility of the Child

Every child shall have responsibilities towards his family and society, the State and other legally recognized communities and the international community. The child, subject to his age and ability, and such limitations as may be contained in the present Charter, shall have the duty:

(a)

to work for the cohesion of the family, to respect his parents, superiors and elders at all times and to assist them in case of need;

(b)

to serve his national community by placing his physical and intellectual abilities at its service;

(c)

to preserve and strengthen social and national solidarity;

(d)

to preserve and strengthen African cultural values in his relations with other members of the society, in the spirit of tolerance, dialogue and consultation and to contribute to the moral well-being of society;

(e)

to preserve and strengthen the independence and the integrity of his country;

(f)

to contribute to the best of his abilities, at all times and at all levels, to the promotion and achievement of African Unity.”