Newcastle City Council v JK (Mother) & Ors

Three young brothers fled Country Z with their parents in 2015 and were granted asylum in Austria. Their parents had a fourth son in 2019. In February 2022 the children were made the subject of an Austrian Guardianship Order placing them in long term residential care, revoking parental custody, and transferring it to the relevant Austrian state. The Austrian Court made findings of severe domestic abuse, mutual assaults by the parents, neglect, and failure of parental supervision of the children. The parents separated. In early July 2022 the children’s mother abducted them from a contact supervision centre and travelled with them through Germany and France and then by an inflatable dinghy across the English Channel. On arrival on the English shore she claimed asylum for her and the children which was later granted. Within a short time of arrival in England (or perhaps before arrival) the Mother had divorced the children’s father and entered into a religious marriage with another man from Country Z who himself arrived in England from Austria by small boat in July 2022. They settled in the Northeast of England. In October 2024, after repeated concerns being raised about the children being left alone, abuse, and neglect, the children were removed from the Mother, initially by the police and then under an interim care order. They remain in Local Authority care, but each child is now placed separately. The Local Authority seek final care orders for each child with plans for each child to be placed individually in long term foster care.

I have previously determined that the children are habitually resident in England and were at the commencement of the proceedings. As the Judge conducting family proceedings and seeking to determine the best interests of the children, it is not my role to enquire as to whether the Mother and children ought to have been granted asylum in England given that the Mother abducted the children from care in Austria. However, I must consider the credibility of the Mother insofar as it affects my decision-making about the welfare of her children, and so what she said to the Home Office is material. I have previously indicated an intention to disclose my earlier judgment to the Home Office but was persuaded to receive submissions from the parties before doing so, the Mother opposing disclosure. I am content now to receive submissions on disclosure of both that judgment and this judgment to the Home Office before making a decision whether to do so. However, this judgment is to be published in any event.

The Mother seeks the return to her care of all four children. One obstacle to her application is that her current husband who, she says, does not live with her but on whom she will rely to help her care for the children, has not engaged in the proceedings. The children’s father, who remains in Austria, engaged in the proceedings only fleetingly but has had legal representation. On the eve of the final hearing he filed a statement and proposed that the elder two children could live with one of his brothers, the younger two with another brother: both paternal uncles live in Austria. Statements from them were also filed.

The Guardian supports the Local Authority’s proposals even though the children say they want to return home to live with their mother. At their request I met the two elder boys individually during the course of the hearing.

I heard oral evidence from the allocated social worker, Ms A, who also produced parenting and sibling assessments; her predecessor, Ms B; two members of staff from a supported housing provision where the Mother and children stayed for three to four months in early 2024, Ms C and Ms D; a family finder Ms E; the Mother JK; and the Guardian Ms F. I heard evidence by video link from Austria from the Father, LM, and the two paternal uncles, Mr G and Mr H. I received a large volume of written evidence including a psychological assessment of the Mother and children prepared by Dr Swart.

At the outset of the hearing the Local Authority sought care orders in respect of all four children and a placement order in respect of the youngest child, but it now seeks to withdraw its placement order application in the light of the oral evidence of the family finder. No other party opposed the withdrawal of the placement order application. Both parents accept that the threshold for making care orders is met although Mr O’Sullivan for the Mother raised an issue in closing submissions regarding the threshold which I shall address briefly in my conclusions. The competing proposals are:

The children were known by the Father’s surname which appeared on S’s birth certificate and all formal documents for the four children including their passports which the Father produced during the hearing. On arrival in England the Mother had her own surname recorded as the children’s surnames. There is no application before me concerning the children’s surnames but I shall address that issue in my conclusions.

A further issue which I need to address is that of the children’s dates of birth. It is important to the children that their dates of birth are clearly determined and recorded. On arrival in England, the Mother gave different dates of birth for three of them than had been recorded in Austria. Some of the dates recorded in Austria are unlikely to be accurate.

In this judgment I set out a history of events and the evidence received. I refer to the applicable law and, after analysis of the evidence, provide my conclusions. I then address a procedural issue that confronted the Court part way through the hearing involving the Father and paternal uncles giving evidence from abroad. I have annexed to the judgment an anonymised version of the letter I have written to one of the children, as an example of the letters I have written to all four of them.

The Mother, JK, is 33 to 36 years old. She has given several different dates of birth at different times over the last ten years. Her passport says that she was born in 1989 but she has also said she was born in 1992. Her current partner whom she married in a religious ceremony, but which marriage is not registered, Mr V is about 25. The Father, LM, is 46. The children are P, aged 14 or 15; Q aged 13, R, aged 10, and S aged 6. P, Q and R were born in a country in the Middle East I shall call “country Z”, S in Austria.

The parents claimed asylum for themselves, P, Q, and R in Austria in November 2015 having travelled from their home country of Country Z, purporting to flee violent repression. It is said that each parent was detained by the repressive regime at various times, that the Father was tortured, and the child P witnessed beheadings. Their escape from Country Z was perilous.

The family members were granted asylum in Austria on 1 September 2017 and S was born there in early 2019. In June that year, the child R very nearly died by drowning at a swimming pool when the Mother was sunbathing near to the pool but without a direct view of the pool or her child. R was then aged 4 years 10 months. This incident led to the Mother’s prosecution but not to her conviction. There were reports of S, then aged 7 months having been left home alone whilst the Mother picked up another child from kindergarten and of the children being left home alone in July 2021. The elder children reported domestic violence to the police: by the Father against the Mother and the children in June 2019, by the Father against the Mother and by the Mother hitting the Father back, in December 2020. There were reports of the mother cutting herself with glass in October 2019, and that she had beaten a child in February 2020. The Mother reported the Father had hit her on the head and strangled her so she could not breathe in March 2021. It was reported that the Father attempted suicide in front of S in the same month. The children were taken into interim care in November 2021 and later that month it was reported that the Father had strangled the Mother, covering her mouth so that she could not breathe.

In January 2022 it was noted by the Austrian authorities that P was at a special needs school. There had been several incidents of him being aggressive towards workers and children. He had been diagnosed with a mild intellectual disability, developmental disorder, PTSD and enuresis. He was prescribed medication for ADHD and was attending psychotherapy. Q was overprotective of S and had difficulties recognising boundaries. He was often in conflict with other children, would self-harm by punching walls, frequently openly, and had enuresis. R was a friendly child, increasingly settled in care. He was bed wetting when he saw a brother. S was developing well in care.

When making Guardianship Orders for the children, removing their parents’ custody rights and placing the children in long term residential care, the Austrian Court recorded in its judgment on 8 March 2022:

“Since 2019, a total of six restraining and prohibition orders under § 38 of the Security Police Act have been issued against the father in connection with acts of violence against the mother. In her application for an interim injunction dated 9.12.2021, the mother stated that shortly after their marriage, the father began committing acts of violence against her, specifically noting that on 17.3.2021, the father hit her on the head and strangled her so that she could not breathe. On 27.11.2021, the father again strangled her and covered her mouth so that she could not breath.

Both parents have an unstable psychological condition. Psychiatrist Dr. Petter has diagnosed both the father and the mother with "depressive adjustment disorder".

Furthermore, according to Dr. Petter, who treats both parents, a post-traumatic stress disorder is suspected in both parents, but cannot be definitively diagnosed due to their reticence.

Both the mother and the father currently pose an evident and serious threat to the well-being of the children under their care. Such an evident and serious threat to the children’s welfare would persist even if only one of the parents were to have sole custody.

The acute threat to the children’s welfare posed by the mother is, from a professional perspective, primarily due to chronic neglect in her supervision, especially concerning the minor S and the minor R. The mother does not adequately supervise the children. Due to this chronic neglect, there is, from a professional standpoint, a specific risk of accidents, as has already occurred in the past (cf. the near-drowning accident involving minor R). Moreover, during a two-hour observation of the interaction between the mother and the children, multiple situations arose that were considered hazardous, in which the mother did not react appropriately from a professional standpoint. What is crucial from a professional perspective is the mother’s consistent refusal to take responsibility in such situations. Due to her personality, it cannot be assumed that the mother is capable of recognizing and addressing the needs of the minors. It is also assumed from a professional standpoint that this inadequate supervision does not stem from an acute state of being overwhelmed but rather arises from the mother's personality.

Therefore, as a last resort, it is necessary to remove custody from the parents under Section 181 of the General Civil Code. Additionally, no indications have emerged during the proceedings that relatives of the children or other suitable persons could assume custody of the four children, making it necessary to transfer custody to the Child and Youth Welfare Authority of the Province of [State’s name redacted].”

P’s psychotherapist reported that he was subject to severe intimidation by the Mother, including the use of threats of the “devil” or “hell” and removal from the family. The Mother would undermine corrective attempts by other agencies such as schools. According to a psychological assessment within the Austrian proceedings, the “mental integrity” of all the children:

“… is severely compromised by massive psychological influence, stress, pressure to keep secrets, neglect, parentification, and trauma exposure.

… Within the family, no stimulating cognitive, emotional, ethical, or social incentives and experiences for the minors are observed. The family’s lack of social contacts and a "black-and-white thinking" of the parents do not correspond to the children's needs. The mother would hardly engage with the minors, but media consumption via mobile phone, tablet, and television seems to take priority and there is no shared playtime.”

Reports in January 2022, prior to the Austrian Court’s final order but about two months after the children had been removed from their parents’ care, revealed positive progress for all four children. LM moved away to another town in Austria but maintained family time with the children. Both parents engaged well with family time for the children but it was noted that the Father appeared better able than the Mother to respond to the boys’ needs. The Father was spending time with the children once a fortnight, enjoying activities with them such as swimming and going to a park.

On 2 July 2022 the Mother abducted the children. She has not given a full account of the abduction but has told the Court that she had decided that she needed to leave Austria because of threats made against her. Her evidence as to whether threats were made against her life and were made by the paternal uncles G and H as well as the Father, has been very inconsistent. She has told the Court that she informed the children that she was going to leave and they begged her to take them with her. On the Mother’s account she received help from an unnamed person who must have worked at the contact centre to arrange for the children to be in the playground, unsupervised, shortly before family time began. The Mother told me that she had arranged for a driver. He drove her to the contact centre and she got the children into the car and was driven across the continent to the French coast. She paid for a crossing in a small boat and she and the children arrived in England. She said that the cost of the driver and the boat amounted to EUR 15,000 which she had received from family members. There is no corroboration for her account. Naturally, corroboration from people smugglers would not be forthcoming. On the other hand, the family members who funded the abduction might have provided evidence but have not.

On 9 July 2022, on arrival in England, the Mother gave information to a Home Office Interviewing Officer for the purpose of completing an Initial Contact and Asylum Registration Questionnaire. It is recorded that she gave her own date of birth as being in September 1989 whereas the Austrian Court had her date of birth as being in January 1992. She gave the surnames of the four children as being her own whereas they had been known by the Father’s surname in Austria. She gave dates of birth for three of the children that differed from those recorded by the Austrian Court. She did not give any name or details for the Father but is recorded as saying that she had got divorced and that “my previous husband and his relatives they were going to kill me … they told my sister and nephew that they wanted to decapitate or slaughter me.” She denied having ever committed an offence. She did not reveal that the children had not been living with her in Austria but had been in care.

The Mother completed an Asylum Support Applicant Form with the assistance of a volunteer from Migrant Help on 14 July 2022. She again gave her date of birth as being in 1989 and gave the same dates of birth for the children as she had given on 9 July 2022. She said that her marital status was “married or civil partner” and that she had four dependants. She is quoted on the form as saying, “Victim of domestic violence by ex-husband, and he beat and raped me and the children.” She said that the children had “no contact with father” and gave no name or other details of the Father. Under “additional information” she said that “My ex-husband was abusive to myself and my children, beating and raping us. We fled because of him. I am now married to someone else…”

In her oral evidence to the Court the Mother said that she arranged for her sister to pronounce divorce three times to the Father on her behalf only after she had arrived in England. However, on 9 July 2022, within hours of arrival on the shores of England she said that she was divorced. In her oral evidence she denied ever having claimed that the Father had raped the children. She maintained that she was born in 1989. She said that she had not named the Father on the forms because she had not been asked. She told the Court that she had met Mr V in Austria but had no relationship with him whilst in that country. Upon arriving in England she telephoned him and told him that England was nice. He travelled over on a small boat across the English Channel and they married about a week after he had arrived which, she told the Court, was about one month after she had arrived in England. In fact, she declared on 14 July 2022, less than a week after her arrival that she had re-married. She told Dr Swart in April 2025 that she had not known that she was not allowed to remove the children from Austria and that:

“she met [Mr V] her current partner in Austria in 2021 and though they were married in a religious ceremony they weren’t formally legally married…. [She] said that when she moved to the UK she came with the children followed later by [Mr V].”

Mr V has not engaged in these proceedings. The current allocated social worker, Ms A, has tried to make contact with him for a discussion but he has not co-operated. The Mother told me that his refusal to engage was due to the influence of his mother. The Mother told me that she and Mr V do not live together but that he used to assist with taking the children to and from school, playing with them and with some shopping. On her accounts he was relied upon by her for child-minding at various times. She told the Court that she would rely on him in the future if the children were returned to her care.

The Mother and children spent a very brief time in London, then Bradford - where the Mother says she and Mr V were married - before moving to the Northeast of England.

On 8 August 2022 a GP recorded that the Mother had said she had fled Austria due to domestic abuse and that her husband had tried to kill her when he found out she was in a different relationship. That record suggests that the Mother told the GP that she was in a relationship with Mr V whilst they were both in Austria. The GP referred P to the Child and Adolescent Mental Health Service.

On 8 September 2022, the police were contacted by a welfare worker with concerns that the three elder children had been left alone by “their parents”. The police recorded: “on being given advice it appears the family had only been resident in the UK for 2 days and were not aware of this issue.” The welfare officer had also expressed concerns about the state of the house but police officers found it to be relatively clean and tidy. Only twelve days later, on 20 September 2022 a member of the public contacted the police when S, then aged 3, had been found alone next to a motorway near to where the family lived. The police recorded that JK attended when they were with S and told them that he was her son. One of her other children was “on the other side of the motorway alone.” JK explained to the police that she had left the house with one son leaving the other three and Mr V asleep and that S had followed her out of the house without her realising. No other concerns were raised for the children.

By 1 November 2022, it was noted that whilst R had started school, P and Q had not attended school since arriving in England.

On 20 December 2022, the Mother’s GP noted a bruise on her face which she said had been caused by falling over and hitting her face on a table. Two days later the police attended the family home after a reported domestic dispute. It was reported to them by JK and Mr V that in fact Mr V was being threatened by LM. There were no other concerns about the children, who were present, or the state of the house.

On 31 January 2023, S was brought to the Royal Victoria Infirmary by Mr V and staff were sufficiently concerned about the lack of supervision of S and one of his brothers (unnamed) by Mr V that they made a referral to the Local Authority. Mr V threatened to leave the two children at the hospital unaccompanied. S was admitted for a liver condition and remained in hospital for several weeks. The following day the ward manager called the Local Authority with concerns about supervision and the reluctance of the Mother and Mr V to share their names and those of the children. On 15 February 2023, the Mother accepted a referral to the Local Authority’s Safer Families Team. A social worker visited the family home unannounced and found P home alone and presenting as “very vulnerable”.

During the first six months or so after arrival in England, it appears that Mr V was living with the Mother and children – certainly he was present or involved in caring for the children on each occasion when the police or social services had contact with the family. On three separate occasions members of the public or welfare workers had called the police due to concerns about the children and family, and hospital staff had referred their concerns to the Local Authority. However, enquiries had not led to escalating safeguarding concerns and, following assessment by a social worker, in April 2023 the family was “stepped down” to early help from the Safer Families Team.

The Mother was noted to have left R alone outside school on two occasions in May 2023, and in July 2023 staff at P’s school raised concerns with the Mother about P having demonstrated sexualised behaviour at school when he had unzipped his trousers to touch his genitals. The school also raised concerns with the Mother that Q and R were hanging around shops on their own. The Mother said the children did not listen to her and that in fact they had been accompanied by a 19 year old male. The school was sufficiently concerned to call the police about this. The police were satisfied that the children had not come to any harm but gave advice to the Mother that it was not safe for her children to be with the 19 year old male on the streets. It was recorded that a neighbour had recently called the police because they thought that S was playing out unsupervised. The Mother said she was watching him through the window.

On 13 August 2023, Mr V was arrested by police on attending the family home. The children were all present at home. The police record is that Mr V was the Mother’s “ex-partner”. He had “attended her address, he was refused entry due to a previous argument they’d had. [Mr V] is currently staying at a hotel and not allowed in the home address. It was reported that [Mr V] had smashed the rear living room window, however [JK] stated that she has not witnessed it and will not provide a statement to Police.” Mr V received a caution and Social Services were notified.

On 15 August 2023, an asylum worker called the police having found P, who was known by then to have autism spectrum disorder and was aged 12, home alone for over an hour.

On 22 September 2023 P’s school contacted social services because of extensive bruising to his right let right arm, left shoulder and face. The injury to his right arm “looked like a bite mark” which P said had been caused by R. He reported that his leg bruising had been caused by a fall on stairs at school but no incident was shown on cctv when that was checked. At a meeting at the school on 27 September 2023, involving the asylum seeker liaison officer, housing support worker and Early Help Adviser it was noted that the Mother had been offered support with P but had not taken it up. It was recorded, “Step-dad [Mr V] does not want Mum to learn English. He was also on the phone in the background throughout the meeting. Mum kept her phone face down on her lap but we heard his voice. Mum reported that her and [Mr V] are separated but he does come to see the family at the house.” It was noted that one of the other children [name redacted from the record] had been suspended from school, was frequently late for school and could be disruptive.

In October P’s school variously noted that he was sleeping at school and wearing pyjamas under his trousers. In late October it was noted that he had told a member of staff to “Fuck off”. On 7 November 2023 P’s school made a referral to the Local Authority following concerns including his sexualised behaviour including touching other pupils and mimicking masturbation and oral sex. He had been telling pupils about his grandfather having shot people at a school in Country Z. He had a “nasty looking scab” on his left arm. When asked about it he said that “when his mam was cooking she hit his arm with a pan that was still hot.” The Local Authority offered Early Help to the Mother. On 17 November 2023 the school again noted concerns about P’s sexualised behaviour and about his internet use not being monitored at home.

On 28 November 2023, the Mother and all four children were granted refugee status with leave to remain until 28 November 2028.

On 3 January 2024, the Mother and children moved to homeless accommodation at “X Home”. It appears that Mr V was also housed in another unit at the same accommodation.

On 28 February 2024, the Mother reported that she had removed P’s mobile phone from him after he was looking at pornographic websites. On 14 March 2024, the school again expressed concerns to the Mother about P’s sexualised behaviours and that he was lacking guidance at home.

On 19 April 2024, Q was left unsupervised at home for 1 hour 45 minutes in the morning. In the afternoon he was found alone at home with two carpet fitters at the home to which the family was to move, and a referral was made to social services. That evening P came to the reception at X Home and alleged that he had been hit by the Mother with a frying pan and that she had stood on his head. Staff called the police who attended. P changed his account from having been hit with a pan on his head to being hit on his bottom. The Mother and Q came to the reception area and Q said that P was lying and would get the mother into trouble. The Mother denied assaulting P and told police that she had restrained P when he had become angry and was smashing items after an argument with S. P had broken free and gone to the reception. The police arrested the Mother but no charges were brought against her.

On 21 April 2024, it was reported that Q had been left alone at home for over two hours with no food or drink and had been found by electricians. The following day he was again left on his own at the new flat. The Mother and children moved there on 24 April 2024.

In May 2024, the Austrian authorities advised the Local Authority about the Austrian proceedings. As I understand it, this was the first time that the Local Authority was made aware that the children had been removed from their parents’ care in Austria.

On 14 May 2024, P was observed to self-harm by hitting his face on his desk at school and punching himself on the leg. On 16 May 2024 P’s behaviour at school was described as “appalling”. He had told a girl to “suck his willy” and his sexualised behaviour was becoming more of a concern. The Mother reported that she keeps him away from his siblings and that he will “behave for his stepfather but not for her.” On a social worker’s visit on 24 May 2024, Mr V had been present at the family home and was described as “volatile” and shouting at the social worker. He would not provide his name or date of birth and would not take part in any assessment. The Mother had bruising to her arms which she said had been caused when separating the children.

On 18 July 2024 the Austrian children’s services authority advised the Local Authority that it viewed the return of the children to Austria “critically and not in the best interests” of the children.

Q was given a 12 week exclusion from his school in or around early September 2024. A social worker was working with the Mother at this time and on 12 September 2024 noted her concerns about the Mother being isolated and controlled by Mr V. On 13 September concerns were raised that Q was associating with persons known for exploitation. On 14 October 2024, Q was excluded from school for pushing a staff member. The children were by now all on a Child in Need plan.

Following a multi-disciplinary team meeting involving police and social workers at which concerns were recorded as including “neglect, lack of supervision, possible physical harm, possible exposure to scary adult behaviour, worrying behaviours from the two eldest boys, and their mother’s mental health”, there was a joint visit to the family home on 23 October 2024 having received information that other males were staying at the property who refused to give details to staff members. On arrival Mr V and the Mother were noted to “get a little hostile refusing to give required information.” The police decided to remove the children for their protection and to take them to a protected address. The following day care proceedings were issue by the Local Authority and Interim Care Orders were made on 25 October 2024, with P and Q being placed in one foster placement and R and S in another. On the same day P and Q ran away from Local Authority premises whilst awaiting transport to foster care but they returned later.

On 28 October 2024 foster carers for P and Q reported that they were damaging property and being physically and verbally aggressive towards each other. The carers ended the placement the following day. The children were throwing chairs and one social worker suffered an injured thumb. The boys were separated. A few days later their placements were swapped when P’s carer asked that his placement be ended. On 6 November 2024, Q attempted to open the car door when being transported to his foster care placement from school and was rude and aggressive. At family time on 15 November 2024 P and Q were fighting with Q punching P. There were continuing behavioural problems at their schools. Q’s placement was ended by his carer due to his behaviour on 10 December 2024. P pushed the Mother at family time the following day and on 12 December 2024 R and S’s placement was changed after R alleged the foster carer had grabbed his arm and had pushed S over. On 16 December 2024 the social worker informed the Mother that family time was becoming unmanageable with building and contents being damaged.

From 27 January 2025 and 4 February 2025 respectively, P and Q have been placed in a residential facility. Initially they were in the same bungalow but due to conflict between them they were later separated. On 24 January 2025 R and S were placed with a new foster carer. S remains with that carer but R had to be moved to another foster carer in late May 2025 after concerns about his relationship with S and R’s aggression to his carers.

Dr Lennon Swart, Consultant Clinical Psychologist, carried out psychological assessments of the Mother and four children and reported on 28 April 2025. None of the parties had questions for him and so oral evidence was not required. Nevertheless, his report is of considerable importance. His summary findings were set out at paragraphs 3 to 7:

3.

My assessment of mother did not identify her to currently suffer from any mental health problems. She has a history of trauma, but she did not acknowledge any impact of it on her mood or parenting currently.

4.

I identified the children to each present with significant psychological needs. P has behavioural difficulties and problems with emotional regulation associated with trauma, neurodevelopmental difficulties, while Q’s, and R’s difficulties are mainly emotional in nature reflecting their exposure to trauma and poor parenting. S presents with some evidence for generalised developmental delay though he appears to be in a phase of developmental catch-up. However, all four children experienced considerable disruption to their lives from trauma from multiple sources.

5.

The children’s history has made them highly sensitive to change and uncertainty, and the issue of the current proceedings has caused additional significant emotional insecurity for them.

6.

Given that mother does not present with obvious mental health problems, her mental health is not a factor in the concerns about her current parenting. Her history is pervaded by trauma, but she does not acknowledge any impact on her parenting. This makes it difficult to make recommendations for support for her, but I recommend culturally attuned intervention for her in the area of domestic abuse and parenting. The matter of how she would manage four children with significant needs remains an issue.

7.

I make recommendations for support for the children. The family dynamics, and mother’s reported inability to manage the four children together raises concerns about placing the children in her care.”

Dr Swart repeated an error within the social work evidence that the Mother assaulted a worker at a residential unit, Home X, with a frying pan. That is a misunderstanding and no such allegation has ever been made. Dr Swart advises that P has underlying autism spectrum disorder adversely impacted by traumatic experiences throughout his life which have left him vulnerable. He also probably has undiagnosed ADHD and presents with extremely difficult behaviour. Dr Swart notes that the evidence of therapeutic and other interventions for P when in care in Austria were bearing fruit and he was making good progress until the interventions came to an abrupt end when he and his brothers were abducted by the Mother. Q does not demonstrate any diagnosable psychiatric disorder but he has considerable emotional difficulties manifesting themselves in behavioural problems that have led to school exclusion and hypotheses that he has oppositional defiant disorder and conduct disorder. He has been exposed to considerable trauma throughout his life. His emotional difficulties are compounded by him taking a parenting role or leadership role amongst his siblings which has led to P having a “dysfunctional attachment” to Q.

R is perhaps progressing better than any of his siblings and there is no evidence of neurodevelopmental delay or cognitive issues. However he too has been exposed to considerable trauma and has emotional difficulties. In particular, at home he is less regulated, argumentative and has considerable health anxiety. S presented with significant developmental delay on being taken into care in Austria, which was thought to be due to inappropriate parental attention and feeding. Dr Swart advises that S “may well have an underlying learning difficulty but I doubt that he is going to have an intellectual disability confirmed …. I do not think that he has any underlying neurodevelopmental problems that can’t be accounted for by the trauma he has been exposed to and the turbulent life he had to date.”

Dr Swart advised the Court that “In my opinion the children collectively are strongly attached to their mother, but I have significant doubts that their attachments are secure attachments.” He advised, “If the children are not returned to their mother's care, the current level of family time would have to reduce as it is disruptive to the children's routines. I would suggest a frequency of once a month. I do not think that it would be a positive experience for the four children to see the Mother together so the current configuration [each child spending time with the Mother separately] may need to continue.” Dr Swart advised that the Father should be encouraged to begin by writing simple cards or letters to the children as a first step to re-building some kind of relationship with them.

The Mother gave evidence via an interpreter and I make due allowance for difficulties in giving evidence in that manner and the inevitably intimidating circumstances of giving evidence in a courtroom when the stakes were so high for her and her children. She was shielded by screens from seeing the Father, and the paternal uncles when they were on the video monitor in court.

The Mother made a direct plea to the Court at the conclusion of her evidence for the return of her children, asking to be given another chance. However, during her evidence she was largely unemotional and was able to deal with questioning without apparent difficulty. I am afraid that I found her evidence to be evasive and frequently inconsistent. As examples:

The Mother lacked insight into the consequences of her actions. She appeared to believe that her abduction of the children was justified because they had said they wanted to be with her. In her written evidence she suggested that a social worker or family time support worker in Austria had all but encouraged her to abduct the children because they wanted to live with her. She showed no awareness that her abduction had caused further trauma to the children and had deprived them of stability and the benefits of therapeutic and other interventions. She showed no awareness of the consequences for the children of removing them from any contact with the Father.

The Austrian Court had found that the Mother was responsible for poor supervision of the children, leading on one occasion to R very nearly dying by drowning. If there is a culture in her country of birth of not supervising children (as she claimed) she will have known that Western states expected more supervision of her children than she had given them in Austria and yet she claimed not to know what was expected when Police in the Northeast of England gave her advice about not leaving her children unsupervised. Furthermore, she kept repeating the failing even after one of her children was seriously endangered by walking beside a motorway at midday on a Tuesday when only three years old.

The Mother did not dispute that she had been given considerable support in Austria before the children were taken into care, and that she had been given support and advice in England before the children were again removed from her care, including the offer of support from the Angelou Centre which provides support and assistance to women from ethnic minorities in circumstances such as her own. She did not take up those offers. It was quite clear to me from the Mother’s evidence that she resents any interference with her family and other than admitting “mistakes” in abducting the children and bringing them across the Channel in a dinghy, and allowing S to wander beside a motorway, she does not really believe that she has let the children down at all.

The Father also gave evidence via an interpreter and he was not present in court but reliant on a video link. He had engaged only fleetingly in proceedings but did attend and engage in the hearing. He was disadvantaged by his own lack of initiative in engaging with his solicitor and the Court prior to the hearing but also by the fact that neither the allocated social worker nor the Guardian had taken any or any adequate steps to contact him, to work on starting some form of contact with the boys, or to provide him with more information. Both accepted their failings in those respects. He accepted that he had been violent to the Mother, including having put his hand over her mouth and, on one occasion, damaging a tooth with a mop-handle. However, he said that he had good relations with the boys when he had fortnightly face to face family time with them when they were in the care of Austrian authorities, and his claim is supported by documentation about family time there. He revealed for the first time in his oral evidence in cross-examination, that in late 2022 he had travelled to England by small boat across the Channel (making him the seventh person in this case to have done so) to see if he could find his children. He had a suspicion but no hard evidence that they were here. He claimed asylum on arrival to allow him to have some status here. He left after three to four months without completing that claim for asylum having not found his children. He had, however, obtained a telephone number for Mr V and had had an argument with him over the telephone. He denied threatening Mr V but this is the incident that led to a report to the police about a suspected domestic incident at the family home in December 2022. The Mother said at the time that she suspected the Father was in England. She could have given the children an opportunity to see the Father and enlisted the help of the Local Authority to support safe contact, but she chose not to do so. She had never revealed his identity to the authorities in England.

The Father variously told the Court that the Mother had stolen the children away from him, poisoned their minds against him so that they are now hostile to him (which they are) and that he did not want Mr V anywhere near his children. And yet he supports the return of the children to the Mother. More than anything else this speaks to his distrust of child protection and child welfare institutions and the overwhelming importance to him of children being cared for within a family. I am concerned that he supports a return to family care at all costs rather than thinking more objectively about the interests of the children. In a similar vein he proposed that P and Q should live in Austria with his brother G, and R and S in Austria with brother H. They both gave evidence and I found them to be open, well-meaning but lacking any detailed knowledge of the children and circumstances of the case. When the Father was reminded of the fact that P and Q have had to be separated because of their aggression, indeed their violence, to each other he swiftly changed his proposal for the arrangements in Austria. He had not thought through the fact that the children had been in state care when last in Austria or how the Mother would be able to see the children in Austria given that she might well be arrested for child abduction on her return there.

The Father robustly denied sexually abusing the Mother, as she has alleged in these proceedings but not in the proceedings in Austria. He said that whilst they argued they had a warm relationship. That evidence does not sit easily with the evidence from the Austrian authorities and the Austrian Court decision. There were no fewer than six restraining orders made against the Father. He readily admitted suffering long term mental health problems including depression and that he continues to take medication. The Austrian Court found that his parenting was impaired by his mental health.

Ms A conceded that she should have been more pro-active in making contact with the Father. She also made concessions about a lack of emphasis in her care plans on re-building the children’s relationship with the Father and on cultural and religious factors. Having sought a placement order for S she and the Local Authority swiftly applied to withdraw that application after not unexpected evidence from Ms E that it would be difficult to find a match for the adoption of S. There were some flaws in her approach but I was struck by her openness to criticism and her ready flexibility. Overall she had a good understanding of the Mother and children and her sibling and parenting assessments were well set out and persuasive.

Her conclusion that the children should be placed separately is striking. Ordinarily it would be desirable to place siblings together where at all possible. However, her assessment is consistent with Dr Swart’s evidence and with the experiences of foster carers and others who have had care of the children since October 2024. The relationship between P and Q is violent and dysfunctional. R and S had to be separated too because of difficulties in their relationship causing the carer to give up the care of R. There appears to be a closer bond between Q and R and the possibility of their being placed together in the future will be considered.

Ms A confirmed some very troubling and upsetting conduct by the elder children in recent months. Even at the weekend during the hearing P punched a carer for no apparent reason. There have been frequent assaults on staff and damage to property. Neither P nor Q are willing to attend school at present.

Ms E’s evidence concerned the mechanics following a placement order but that is no longer sought by the Local Authority. In short, she accepted that once factors such as a cultural match, or willingness to support S’s culture and faith, post adoption sibling contact, and his developmental issues were taken into account, it might take 9 to 12 months to find a match.

Ms C and Ms D gave evidence about the incident at Home X when P reported that he had been hit by the Mother with a pan. They were entirely credible witnesses. It was not put to them that P had not reported what they had recalled. The question for me is whether he was telling the truth. As Mr O’Sullivan pointed out there was no ABE interview nor any other evidence directly from P other than what Ms C and Ms D recalled him saying to them on the day in question

The Guardian “wholeheartedly” supports the Local Authority’s position and proposals. The Local Authority has in fact adapted its proposals regarding the frequency of family time with the Mother in accordance with the Guardian’s recommendations in her final analysis report. The Guardian is clearly very troubled by the Mother’s parenting of the children, her decision to abduct them, and the considerable emotional harm and risks of physical harm that have arisen as a consequence.

The Guardian sat in when at their requests, I separately met P and Q during the hearing. Notes were taken of each meeting and circulated to the parties. Each child wanted to tell me that they wished to go home to live with their Mother and brothers. P told me that his Mother is “not a monster”. Q told me that he did not care about his Father. What they told me fully accorded with what the Guardian had reported about their wishes and feelings. All four children feel a close bond with their Mother and want to return home to live with her. The Guardian has fully represented the children’s views, wishes and feelings to the Court but also her view as to their best interests. The Guardian’s view is that it is important to do life story work with the children and to support the rehabilitation of their relationship with the Father which may progress as the children wish in the future.

The Court’s paramount concern is the welfare of each child and the Court must apply the principles set out in the Children Act 1989 (CA 1989) s1 and have regard to the welfare checklist as s1(3). I should consider all the evidence and analyse the realistic options side by side before making my determinations.

I am not engaged in a separate finding of fact hearing but insofar as I seek to resolve disputed facts I remind myself that the burden of proof is on the party making an allegation and that the standard of proof is the balance of probabilities. The Court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President observed in Re T [2004] EWCA Civ.

It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The Court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything: see R v Lucas [1981] QB 720. In the Court of Appeal judgment in A, B, and C (Children) [2021] EWCA 451, Macur LJ advised at [57],

“I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”

Put bluntly, Mr Rowlands for the Local Authority submitted that the Mother was dishonest and manipulative whenever she felt the need to be in order to get her own way. That included dishonesty about aspects of her relationship with the Father and her relationship with Mr V, the abduction, her misrepresentations to immigration officers, police officers and social workers. There have been too many lies to list. They are designed to conceal the truth so that the Mother can achieve her goal of having the children returned to her care.

No party sought to go behind the findings of the Austrian Court and I proceed on the basis that I can rely on its findings.

I make full allowance for the fact that the Mother has been the victim of abuse by the Father, that she has fled her home country and been granted asylum first in Austria and then in England. She has undoubtedly suffered trauma. She has had to take part in these proceedings through an interpreter and with her abusive ex-husband listening to her. The stakes are high for her. Nevertheless, her evidence was riddled with significant inconsistencies, concealment, and dishonesty. I am sure that she lied to the Court on many occasions about important events in the children’s lives and her own interactions with authorities and other adults. She has concealed the nature of her relationship with Mr V, his role, his character and activities. She lied to immigration officials about the Father raping the children. As she admits, she changed the dates of birth of some of the children, and their surnames in order to reduce the chance of the history of the family being exposed – namely that the children had been removed from her care in Austria and that she had then abducted them.

I am satisfied on the balance of the evidence that the Mother had begun a relationship with Mr V before she left Austria and that he knew that she was going to abduct the children and bring them to England. I do not have sufficient evidence that he assisted with the abduction but that is because of concealment and evasion by him and the Mother within these proceedings. However, I am satisfied that whether they travelled together or separately, JK and Mr V planned together to move to England and to be together here in a relationship.

The three elder children suffered the trauma of fleeing their home country. P may well have witnessed appalling scenes of brutality when a young child in Country Z. The Mother is not to blame for that nor for the children witnessing abuse of her by the Father or suffering abuse at his hands. However, she has responsibility for causing further trauma, and physical, emotional and psychological harm to the children:

When in England, the Mother has been incapable of providing safe parenting for the children including when she has been assisted by Mr V. She has exposed them to physical risk by leaving them unsupervised, alone or with strangers. S’s life was endangered when he was found by a motorway alone at the age of 3. The evidence suggests that another child was later also standing alone on the other side of the same road. The Mother has not told the police or Court the truth about how that occurred. I cannot know the truth because of her evasion and concealment but her account is too inconsistent for me to be able to accept it as credible. Nevertheless, S was in her care at the time and was exposed to a risk to his life.

When at Home X, P alleged that the Mother had struck him with a pan. I have not heard evidence from P about that allegation and I note that he changed his story when reporting what had happened to staff at the Home. Nevertheless, the Mother accepts that she had physically restrained him and I am satisfied that the situation within the family accommodation, behind closed doors, was sufficiently troubling to P that he sought help from the staff at reception. They told the Court that this was a unique situation for them to have to deal with. I am unable to find, on the balance of probabilities, that JK struck P on the head (or on his bottom) with a pan, but I do find that there was heightened conflict within the family accommodation that day, that the Mother used physical force on P, and that he was sufficiently distressed by the Mother’s conduct towards him to seek independent help.

P has suffered unexplained bruising on more than one occasion.

The Mother’s lack of insight into her own parenting deficiencies have led to the elder children becoming emotionally unstable, dysregulated, exhibiting very challenging behaviour and becoming very difficult to manage. I find P’s sexualised behaviour very worrying. Again, because of the Mother’s evasion and concealment, it is not clear why he has learned such behaviour. I cannot find that it is due to the involvement of Mr V because I have so little evidence about him and his relationship with the children, the Mother and Mr V choosing not to provide any such information to the Court or to expose Mr V to scrutiny. The Mother told me that P could not have accessed pornography because that was against his and her religion, but she has admitted to social workers that he was doing so. Her evasiveness on this very troubling aspect of P’s behaviour means that the Court has no reassurance as to how it has arisen, that she would address it if P were returned to her care, or that the other children would not follow P’s course of behaviour. Her children have been “hanging out” with a 19 year old in the streets of the city when they were about 11 or 12 years old. They have been excluded from school. They have been aggressive to each other. P has had various injuries which have not been satisfactorily explained. Referrals have been made by various professionals and members of the public due to concerns about the children’s welfare.

Consistent with the findings of the Austrian psychologist and the Austrian Court, the Mother in England failed to impose boundaries for the children, to be able to control significant levels of conflict between them, or to provide them with stimulation.

The Mother has not accepted help when offered. She has been evasive with social workers and other professionals, concealing important information that would have helped them to protect the children.

The Mother’s belief appears to be that the children’s current problems are due to, or have been exacerbated by, their unstable care following their removal in October 2024 but my analysis of the evidence is that all the children have suffered emotional and psychological harm, with actual physical harm and a continuing risk of physical harm for several years, all present on the date of their removal on 23 October 2024. The true extent of their harm and challenging behaviour has been exposed by their removal from the Mother’s care. Of course their behaviour may wax and wane depending on particular stresses, including these proceedings, but none of their difficulties are new: they are a continuation of years of neglect, inadequate supervision, harmful parenting, exposure to domestic conflict, and traumatic experiences (some caused by the Mother, some not).

I have no confidence that the Mother would support any relationship between the children and their Father if the children were returned to her care. She has abducted the children from Austria and has said that a significant reason for doing so was to separate the family from him. She frustrated his attempts to connect and have time with them when he came to England. She lied about him to immigration authorities, claiming he had raped the children. She has given no priority at all to the children having a relationship with him, indeed she has gone out of her way to prevent it. I have no confidence that she would change her approach in the future.

The Mother would rely on Mr V for support if the children or any of them were returned to her care. I have so little information about him that I cannot find that it would be safe for the children to be in his care. Indeed, the very little information I have about him is negative – he failed to supervise the children when he took S and a brother to hospital when, in fact, S was very unwell and subsequently required prolonged in-patient care. He was violent and smashed a window at the family home with the children present, leading to his arrest. He and the Mother were so evasive about men who had been in the family home with the children that the police removed the children for their own safety. I am satisfied that if the children were returned to the Mother’s care, then Mr V would be involved in their care and that his involvement is a high risk factor for serious physical and emotional harm.

I have no confidence that the Mother would engage adequately with professionals were the children returned to her care – she has not done so in the past. She would be likely to continue to conceal what was happening within the family home as she has done so for years.

I am satisfied that there would be a high flight risk if the children were returned to the Mother’s care. Upon return, the Mother would continue to have the involvement of the Local Authority to support her care of the children. She would regard this as interference. She would know that there was a considerable risk of the children being removed again in the future – it has happened twice to her already. She has no ties to England other than the children and Mr V. She has abducted the children previously. She has shown a facility for concealment and subterfuge. She has prioritised the children being with her over their welfare and I have no doubt that she would be prepared to do so again. I also conclude that the risk of flight exists if the children are made subject to final Care Orders with a plan for long term foster care, but the risk can be better managed in such circumstances.

The Father’s support for the return of the children to the Mother is motivated by his distrust of state authorities more than his considered view of the best interests of the children. His support for the Mother’s case is surprising given that she has deprived him of time with his children, falsely alleged to authorities that he has raped them, and, on his own account, manipulated the children to hate him. His alternative proposals for the children to be cared for by his brothers in Austria are wholly unrealistic and there is no merit in undertaking assessments of the uncles. Amongst the many problems with the proposal are:

The proposed placements in Austria would be likely to break down within days. It reflects poorly on the Father’s ability to consider the best interests of the children that he has proposed their placement with his brothers.

It is rightly conceded that the threshold for making a care order or supervision order in respect of each child is met. The option of placement of one or more of the children in Austria with one or more paternal uncle is not realistic.

The Local Authority no longer pursues an application for a placement order for S. It would create a further period of instability for him at a time when he needs stability. He is progressing well with his present foster carer. Foster care would allow him sibling contact, maternal contact and the opportunity of paternal contact all of which would be either excluded or much more circumscribed were he to be adopted. He would thereby have connections with his religious and cultural heritage which the evidence showed was very unlikely to occur were he adopted. The Guardian supports the Local Authority’s application for permission to withdraw the application for a placement order.

Aside from the possibility of a placement order, the realistic options are return to the care of the Mother of one or more of the children or placement in long term foster care. Return to the Mother’s care would re-establish the children within the family. It would meet the wishes and feelings of the children, strongly expressed by the two elder boys to me in person. It would allow the children to live with their siblings. It would remove from them the uncertainties and stigma of being looked after children. The children variously face five to twelve years as looked after children if not rehabilitated to their Mother’s care. Long term foster care is fraught with uncertainty. The children, and any of them, may face several changes of placement during their childhoods. Time with their mother and each other would be restricted. The children’s cultural and religious heritage would not be supported as it would be were they placed back with their mother.

Were the children placed in long term foster care there would be advantages to them over a return to their Mother’s care. The children would be much more likely to be adequately supervised and kept safe from unacceptable risks such as those to which R was exposed to at the pool in Austria, and S was exposed to by the roadside. The younger children would be unlikely to be left home alone. The children would not be vulnerable to the consequences of neglectful parenting by the Mother. The children would not be exposed to the risk factors associated with Mr V. There would be no obstacle, other than the children’s wishes and feelings, to rebuilding a positive relationship with the Father. The children would not be living together which has been a source of emotional harm to all of them and physical harm to P and Q. I have grave doubts about the Mother’s ability to sustain adequate parenting and to prevent circumstances arising under which further applications for the removal of the children from her care would be made.

The children all wish to return home to the Mother but I accept Dr Swart’s unchallenged evidence that their attachment to the Mother is not secure. They have been very troubled and harmed when in her care. They are loyal to her and have been through some very traumatic experiences with her. They cannot take an objective view of their own interests. They all have significant needs and are vulnerable. P is particularly vulnerable and needs a high standard of parenting and guidance. He is at an age when he needs to be engaging in school and learning to regulate his behaviour otherwise he is likely to have significant lifelong difficulties and challenges. Q is in a similar situation and needs to be freed of the sense of responsibility he feels to protect his siblings and his Mother. He was subject to what the Austria Court called “parentification” : the child taking a parenting role. R is a bright boy who needs stability and a nurturing home and parenting so that he can flourish at school and in life as he has the potential to do. S is an engaging but somewhat demanding child who needs stability and security in a supportive home. All the children need boundaries to be set. P and Q in particular show clear signs of having no respect for others or for social and personal boundaries. They have not been set in their home life under the Mother’s care. I have already set out P’s ASD and the psychological and emotional disturbances affecting each child.

The children have suffered significant harm in their Mother’s care and before that in care of her and the Father. Mr V’s involvement by way of “support” for the Mother has not improved the children’s welfare. The emotional and psychological harm to the children has been very serious. P and Q are very troubled children who are likely to present significant challenges for whoever cares for them for years to come. R and S have also suffered harm due to abuse in the home, abduction, conflict, and poor parenting.

The role of Mr V is currently uncertain but the children are energetic boys who have been robbed of their main male role model, their father. It might well be said that he was a poor role model due to his appalling abuse of the Mother, but the evidence is that the boys enjoyed family time with him at the family contact centre in Austria.

The Court could exercise powers to mitigate risks to the children from the involvement of Mr V and to mitigate the risk of flight, but even with such measures, those risks would be significantly greater were the children returned to the Mother’s care than were they to be in long term foster care.

I have considered the evidence as to the dates of birth of the children. To preserve anonymity I shall set out my conclusions in schedule not to be published with the judgment but the Local Authority suggest that the weight of the evidence is that their dates of birth are as I have set out in that schedule.

The Mother changed the children’s surnames to her own in order to conceal their history in Austria, including their connection with the Father. Their surnames have not formally been changed and there is no application to change their names to or from the Father’s surname. However, for three years now they have been known by their Mother’s surname, including at schools, in foster or residential care, at their GPs and so forth. They appear content to be known by that surname. The Local Authority are content that whilst their formal surname is that of the Father, their surname by usage is their Mother’s and that that situation can continue. In the absence of any application I agree.

The parents concede that the threshold for making care orders or supervision orders in respect of each child is met. I am so satisfied.

I am satisfied that it is in the best interests of S to allow the Local Authority to withdraw its application for a placement order. The Guardian supports that withdrawal. Whilst S is still only six years old and adoption would be a possibility for him, the attempt to find adoptive parents would be likely to be prolonged and very difficult. He needs stability now and is doing well in his current foster placement. Whilst there are dysfunctional sibling relationships, I am sure that he will benefit from sibling contact. Provided the Mother takes steps to abide by expectations of her conduct during family time, and precautions are taken to exclude the risk of flight, he will benefit from family time with her which would be significantly curtailed if not extinguished with adoption. The Local Authority does not wish to pursue adoption. Its position is supported by all parties. I permit the withdrawal of the placement application.

I reject placement of any of the children with the paternal uncles as unrealistic. The risks, obstacles, and disadvantages of that proposal are far too great to justify its contemplation. Assessment of the paternal uncles is unnecessary and would cause unwarranted delay for these children.

I have come to the firm conclusion that none of the children can safely be returned to the Mother’s care. She has taken actions including abduction of the children which have caused them serious, avoidable harm and placed them at grave risk. Indeed, she placed their very lives at risk as she has done on other occasions by her neglect and lack of supervision of R and S as described earlier in this judgment. She cannot safeguard the children, and instead repeatedly places them at risk. She has caused them emotional and psychological harm as described by the Austrian Court. Her conduct has not changed since that Court’s decision. Indeed, she has added layers of further harm to the children by the abduction and by her parenting and conduct in England.

I am sure that if the children were returned to her care she would fail, as she has done in the past, to ensure that they had access to therapy and other interventions they badly need. She is distrustful of professionals and sees no need for their assistance for her or the children, even when their vulnerabilities and need for professional assistance are so obvious to everyone else.

The Mother has not only indulged in deceit, manipulation of others, concealment from authorities, and subterfuge, but she has co-opted the children into all of that. She co-opted them into arranging the abduction, and changing their names on arrival in England, for example. Q’s response to P reporting that the Mother had hit him with a pan, namely to tell him to be quiet because he would get the Mother into trouble, speaks to a culture of secrecy within the family, the aim being to protect the Mother.

I have no doubt that the Mother loves her children but she has no insight into her own inadequacies and the consequences to the children of her dishonesty and her actions. She does what she wants irrespective of the consequences for others, including her children. She cannot see that any other person’s view about how to meet the children’s best interests has any validity. Hence, she repeats conduct which is harmful to them. She will continue to do so in the future if they were placed again in their care. Under her care the children have lived in a family characterised by lack of supervision and stimulation, violence, secrecy and deception, Her children have twice been removed from her care for their protection and it would be wishful thinking to believe that they would not be removed again if they were now returned to her. That would pile even further harm onto these already disturbed and vulnerable children. In short, the risks of serious harm to the children from return to the Mother would be due to:

Not all the children have suffered all of these harms and risks, and the Mother is not directly responsible for all the harm they have each suffered, but the Mother has caused, contributed to or failed to protect the children from nearly all the harm they have suffered since their flight from Country Z.

In my judgement, long term foster care is in each child’s best interests. I have no doubt that in the short term P and Q will react negatively to that decision. The Local Authority and those caring for all the children will need to prepare for a difficult few weeks and be on guard to protect against absconsion and abduction. However, foster care is the only realistic available option that gives these children a chance to develop to become emotionally healthy adults, to recover from the emotional and psychological harm they have suffered, to enjoy some stability and a nurturing environment, to access therapeutic help.

I approve the care plans, as amended, which will provide for:

I am satisfied that the children’s dates of births are as set out in the confidential schedule attached to this judgment but not to be published. In that respect I accept the closing submissions on behalf of the Local Authority. The Mother has given different dates of birth at different times including the same day and month for P and Q, as recorded by the Austrian Court. I do not accept her evidence as reliable and look at other evidence, including from the Father as to the years of birth.

Although the children’s surnames remain that of the Father, it is permitted for them to be known by the surname of their Mother unless or until an application is determined otherwise by the Court.

I urge the Mother to engage with the Angelou Centre and/or other support offered to her. She needs to gain some understanding of the children’s difficulties and the harm she has caused to them, and how she can affect their welfare positively in the future.

I promised P and Q that I would write to them when I gave my judgment and I shall write to all four children. These letters will not be easy for them to receive but I shall set out, in terms I hope they will be able to understand, some of the key reasons for the decisions I have taken. On the advice of the Guardian the letters will be shared with each parent and the Local Authority. Although the letters are from me to each child, I have decided to publish one of the letters, suitably anonymised, in an Annexe to this Judgment. The reasons are:

As a coda to this judgment I address an issue that arose during the hearing regarding the taking of evidence by video link from witnesses abroad.

The Father only fleetingly engaged with these proceedings although he has been represented since being joined as a party. He failed to attend a number of case management hearings and only provided a witness statement at the start of the final hearing. In that statement he proposed that P and Q should live with one of his brothers, G, and R and S should live with another of his brothers, H, both brothers living with their wives and children in Austria. A video link and interpreter for the Father had been pre-arranged and so he was able to attend and participate at the hearing. I expected to hear evidence from him via video link from Austria on the fourth day of evidence. FPR r22.3 provides that the Court may receive evidence remotely. FPR PD 22A annexe 3 paragraph 5 provides :

“It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.”

I could have been confident that there was no doubt about the Austrian government allowing their nationals or others within their jurisdiction to be examined before this Court. It has been done in other cases without objection. Judgments have been published recording the giving of evidence remotely from Austria - UG v NN [2022] EWHC 8, and A Mother and A Father v Local Authority A and Ors [2021] EWCA1174 with no mention that objection was taken. Day after day parties participate and give evidence in cases before the Family Division of the High Court and the Family Court by remote video link from abroad. Accordingly, since no party had raised an issue about taking evidence from the Father and from G and H by video link from Austria, I expected evidence to be given without the need to make any enquiries of what is now the Foreign, Commonwealth and Development Office (“FCDO”).

The Father has asylum in Austria and could not readily travel to England for the purpose of giving evidence. Although his brothers were each proposing to care for two of the four children, the decision for me at this hearing is whether full assessment of them as potential carers is warranted. It would have been wholly disproportionate to insist on their travelling to England for the purpose of giving evidence that might last less than one hour each. The Father and one of his brothers do not work and it would have been costly for them to travel to and stay in England for the purpose of giving evidence. Insistence on the Father and his brothers attending in person would also have inevitably caused delay.

Hence, I would have had no hesitation in proceeding to hear the evidence of the Father and paternal uncles by video link from Austria. However, and unexpected development was brought to my attention shortly before the Father’s evidence was due to be heard. The Father’s solicitor had written to the FCDO as follows:

“I have been asked to make you aware that [LM] will be giving evidence tomorrow and his brothers [G and H] are expected to give evidence on Monday.

 [LM] and his brothers will give evidence by way of video link given that they are in Austria.

We understand that we need to make the Austrian Authorities aware of the fact that [LM] and his brothers will be giving evidence.”

This had elicited the following response from an officer of Overseas Public Services at the FCDO:

“We have not been able to obtain the agreement of the Government ofAustriato our request to allow citizens or residents of Austriato voluntarily give evidence from Austriaby video link for UK tribunals (either as a witness or when appealing a case). In these situations requests can be submitted on a case by case basis. 

However, your request mentions that that [LM] will be giving evidence on 20^th June 2025. The FCDO requires at least 20 working days' notice in order to submit the request and give the Government of Austriasufficient time to take the necessary action.

Given this, we are unable to process the request on this occasion and recommend that the taking of evidence does not take place at this time.

Should the hearing date change please let us know and we can advise you on next steps.”

This correspondence took place part way through a final hearing. Waiting twenty days for a request to be made to, and response to be received from, the Austrian Government would have been inconsistent with the no delay principle (Children Act 1989 s1(2)) and the statutory obligation to resolve proceedings within 26 weeks. The Court would not have been able to resume in twenty days in any event and the delay would have been much longer, probably to October 2025. Apart from the overall delay in resolving proceedings, it would have been unsatisfactory to go part heard for several weeks.

The Court has had regard to the Upper Tribunal decision in Agbabiaka (Evidence from Abroad: Nare Guidance) [2021] UKUT 00286 (IAC). Following that case, Presidential Guidance has been given about taking evidence from abroad in the Upper Tribunal and the Employment Tribunal. In that case the Upper Tribunal held that

“1)

There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's relationship with other States with which it has diplomatic relations and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice.

(2)

The position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is accordingly necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. Such permission is not considered necessary in the case of written evidence or oral submissions.

(3)

Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory.”

Those conclusions are drawn in wide terms and reference is made to the process within civil and commercial courts, but the Upper Tribunal gave guidance that expressly applied to an “administrative tribunal”. The decision is not binding on the Family Court or the Family Division of the High Court nor did it purport to be. Different considerations apply to family proceedings than to an administrative tribunal and in that respect, and more generally, I take into account the following factors:

In the present case Austrian children services in the relevant state have previously participated in these proceedings, but not the final hearing, remotely from Austria. They have provided written evidence but have also attended hearings and spoken to the Court at those hearings. They knew that attempts were being made to contact the Father to secure his participation – indeed they assisted in that process. At no point was any concern raised about the participation of the Father and, given it was known that the proceedings concerned the welfare of his children and that the Father was not free to come and go from Austria to England, it can be assumed that the Austrian authority knew that if he were to participate he would be likely to seek to give evidence from abroad.

I note that the FCDO has only recommended that the taking of evidence does not take place at this time and has not sought to insist upon it. Further, the FCDO did not raise any specific diplomatic concerns about taking LM’s evidence by video link from abroad.

I also note the approach taken by Cobb J in Re L (Article 13: Protective Measures)(No.1) [2022] EWHC 3427 (Fam):

“[4] A preliminary issue had been raised at a pre-trial review: namely whether I could or should hear oral evidence from the Applicant father and/or supporting witnesses (on both sides) by video-link from Belgium. Counsel referred me to the decision of Lane J sitting in UTIAC of Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), and to FPR 2010, PD22A Annex 3 §5. I was also referred to the Presidential Guidance for the Employment Tribunal judiciary prepared by the Chamber Presidents of that Tribunal in Scotland and England & Wales, respectively Judge Shona Simon and Judge Barry Clarke (27 April 2022).

[5] In relation to this application, I was provided (unsolicited) on the first morning of the hearing with a helpful witness statement from the Applicant's solicitor which revealed the following:

i)

Enquiries had been made of the 'Taking of Evidence Unit' at the Foreign & Commonwealth Office; the solicitor had received an automated response which had advised her to expect a "minimum of 8 weeks" before a response could be assured from a host country;

ii)

The Belgian Embassy in London had been contacted, but the official at the |Embassy had confirmed that there was no one who could answer a query on what were essentially 'judicial matters';

iii)

The case worker at the Belgian Central Authority, who had been responsible for this case initially, informed the solicitor that she was unaware of any prohibition on Belgian citizens giving evidence by video-link across borders, and "we can see no particular difficulty" in them doing so; she added "…indeed child abduction cases should be hindered by formalities as little as possible, in the interests of the minor and in order to obtain a swift decision";

iv)

A representative from the Slovak Embassy (the maternal family is Slovakian) confirmed that the Slovakian authorities would not have any difficulty with a Slovak national giving evidence from abroad;

v)

A representative of the Foreign Process Department at the Royal Courts of Justice had indicated that the range of response times to requests for permission for evidence to be taken by video from abroad varies enormously; reference was made to one country (neither Belgium nor Slovakia) from which the officials took approximately 9 months to respond to a simple enquiry.

[6] Neither counsel could point me to any provision in Belgian law which would prohibit the giving of evidence from that country by video-link either under their criminal law, or as a violation of any civil code.

[7] In the absence of any evidence which would contra-indicate the giving of evidence from Belgium, and having regard to the overriding objective contained within rule 1.1(2) of the FPR 2010 and the duty to manage cases (rule 1.4), together with the expectation that Hague Convention cases are heard "expeditiously" and within 6 weeks (see Article 11 of the 1980 Hague Convention and PD12F para.2.14) I did not consider it appropriate to delay the hearing of this case for further enquiries to be undertaken in this regard.”

I would have allowed the Father and paternal uncles to give evidence by video link from Austria in any event but I also came upon a decision on point by Joanna Smith J in Dana UK Axle Ltd v Freudenberk FST GMBH [2021] EWHC 1751 (TCC) upon which I can also rely, albeit somewhat tentatively since I have not seen the legal advice to which she refers:

“[27] On the evening of the first day of the trial, I was provided with a legal opinion on the taking of evidence in Austria by a foreign court (via video conference) by Daniela Karollus-Bruner of CMS Reich-Rohrwig Hainz Rechstsanwälte GmbH dated 5 May 2021, which expressed the view that, post Brexit, the bilateral treaty of 31 March 1931 between Austria and the United Kingdom (the Austro-British Convention on Mutual Legal Assistance BGBI 1932/45 (the "Convention")) governs the taking of evidence abroad by the courts of the respective other state. Article 8 of the Convention allows for evidence to be taken on Austrian territory without the intervention of state authorities, provided that a "Commissioner" in charge of the taking of evidence is appointed as a person authorised by the Court. Doctrine confirms that the Court can "commission" the presiding Judge herself. Accordingly, on 6 May 2021, I made an order pursuant to which I was commissioned to take evidence to be given in these proceedings from within the territory of the Republic of Austria.”

I have examined that Convention which applies to commercial and civil cases. Family proceedings fall under the broad umbrella of civil proceedings. Article 8a of the Convention provides that evidence may be taken:

“without any request to or intervention of the authorities of the country in which it is to be taken, by a person in that country directly appointed for the purpose by the court by whom the evidence is required. A diplomatic or Consular Officer of the High Contracting Party whose court requires the evidence or any other suitable person may be so appointed.”

As Joanna Smith J noted, the trial judge in England or Wales can be the “other suitable person”. Accordingly, it seems to me that in the present case, the Convention allows me to take the Father’s and paternal uncles’ evidence remotely from that country as a suitable person so appointed.

Accordingly, I ruled at the hearing that I would receive evidence by video link from Austria from the Father and the Paternal Uncles notwithstanding the correspondence from the FCDO.