R (Adoption of Foreign National Child), Re

This case concerns a young boy R who was born in 2022 so he is now 3 years old. His mother is M and she is aged 41. His father is F and he aged 36. Both parents are Brazilian Nationals, and their first language is Brazilian Portuguese. R is M’s first child. F has two older children living in Brazil.

At the time of R’s birth the parents were living with the F’s mother (‘PGM’) in England. R’s maternal grandmother is MGM. She is aged 65 (almost 66). She lives in Brazil and arrived in England for a visit on the day that R was born. She has remained here ever since. She is also a Brazilian National and her first language is Brazilian Portuguese.

The local authority commenced proceedings on 22^nd November 2022 under Part IV Children Act 1989. At this hearing they seek public law care and placement orders. Their care plan is for R to be placed with an adoptive family, yet to be identified. This plan is opposed by M, F and MGM. M and MGM seek for R to be returned to their care. In that event they intend to return to live in Brazil. R’s Children’s Guardian is unable to make a recommendation as she considers the arguments either way to be very finely balanced.

The decision I have reached is to refuse the local authority’s applications for care and placement orders. The consequence of this is that R will return to live with M and MGM. In this judgment I will set out my reasons for reaching that decision.

R lived with M and F at PGM’s home for only a very short time following his birth and discharge from hospital. In November 2022 he was seen in hospital where he was found to have multiple fractures and some bruising. In February / March 2024 I conducted a 4 week fact finding hearing to determine the cause of those injuries. The LA alleged that they were caused non accidentally by one or more of M, F, PGM and / or MGM. The parents and grandmothers all denied the allegations. I concluded, as set out in my judgment dated 16 April 2024, that R had sustained 14 separate injuries: 13 fractures and a bruise to his right groin / lower abdomen. Those injuries were the result of at least 9 separate applications of force and occurred within at least 2 timing windows. I determined that the injuries were caused non accidentally and by F.

During that fact-finding hearing I read and heard a considerable volume of evidence, as reflected in my judgment. I noted that M’s intellectual ability had been assessed to be within the low average range. I found her to present as younger than her chronological age and that she was naïve and vulnerable. I noted that she did not complete her education in Brazil (in part because of the need to care for her father) and that she had obtained no qualifications. She had not secured any employment in Brazil outside of the family business and had not lived away from the family home until she arrived in the UK. She had not lived with a partner until she fell pregnant with R. She had arrived in the UK (initially to see her brother who lives here with his partner and their family) and decided to stay without any clear plan how she was going to secure her immigration status or find employment. Within the UK she was entirely dependent on family support, initially from her family and then from F and his family. I noted her difficulties in asserting herself within her relationship with F. I also noted her difficulties when asked to draw (seemingly obvious) connections between events, such as her decision to have unprotected sexual intercourse with F and her subsequent pregnancy. I noted her “rather childlike approach to the importance of telling the truth”. However, I was not left with the impression that she was a generally unreliable or untruthful witness, I said “Overall, I was concerned more about her vulnerability and limitations than I was about any overt dishonesty or manipulation”.

The LA had alleged at that hearing that M had failed to protect R from injury by F. Specifically, they had argued that M knew that F had caused injury to R and that she should have taken R to hospital sooner. I rejected those allegations for the reasons set out in the judgment. I found, however, that “M’s cognitive limitations, naivety and vulnerability mean she would not have made any connection between any cries or increased distress from R and the possibility that F might have caused injury to him”. I said that, “Notwithstanding the absence of any direct threshold findings against M, there will need to be a robust welfare assessment of her to take into account some of the matters I have set out above including her naivety and vulnerability, the decisions which led to her forming a relationship with and becoming dependent upon a man she barely knew, and her inability to assert herself within that relationship so she became sidelined in the care of R and unable to convince F to stop smoking cannabis”.

At the close of the evidence the LA withdrew all the allegations it had made against MGM. I noted in my judgment that her cognitive assessment had placed her within the extremely low range, representing a significant impairment of her intellectual functioning. She has been assisted throughout these proceedings by an intermediary. I made participation directions to assist her on 19 February 2024 and those directions continued to apply at this hearing. I said in my judgment that my impression of MGM had been a positive one. I found her evidence to be thoughtful and straightforward. I noted that she had almost no opportunity to have caused injury to R.

The local authority’s applications for care orders are brought pursuant to s.31 of the Children Act 1989. Section 31 provides as follows:

Where the statutory threshold is crossed (as it is here), in deciding, then, what orders, if any, to make the Court must apply s.1 Children Act 1989, which provides as follows:

Where, as here, the Court is being asked to make care orders, the Court is required to consider the permanence provisions of the care plan, pursuant to s.31(3A) and (3B), which provide that:

“(3A) A court deciding whether to make a care order—

(a)

is required to consider the permanence provisions of the section 31A plan for the child concerned, but

(b)

is not required to consider the remainder of the section 31A plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are—

(a)

such of the plan's provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following—

(i)

the child to live with any parent of the child's or with any other member of, or any friend of, the child's family;

(ii)

adoption;

(iii)

long-term care not within sub-paragraph (i) or (ii);

(b)

such of the plan's provisions as set out any of the following—

(i)

the impact on the child concerned of any harm that he or she suffered or was likely to suffer;

(ii)

the current and future needs of the child (including needs arising out of that impact);

(iii)

the way in which the long-term plan for the upbringing of the child would meet those current and future needs.”

The local authority also seeks placement orders under s.21 of the Adoption and Children Act 2002 which provides as follows:

S.52(1) states that:

“The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that (a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005), or (b) the welfare of the child requires the consent to be dispensed with.”

In deciding whether to make a placement order and whether to dispense with a parent’s consent to adoption the Court must apply s.1 of the Adoption and Children Act 2002. This provides as follows:

The welfare provisions under the 2002 Act are somewhat different to those set out within the 1989 Act. In particular, under the 2002 Act, there is a requirement that the court should consider the child’s welfare “throughout his life” and the court must consider the likely effect on the child, throughout his life, of ceasing to be a member of his natural family and becoming an adopted person.

For the purpose of ACA 2002 s.52(1)(b), ‘requires’ has a connotation of the imperative, rather than the merely optional, reasonable or desirable. What has to be shown is the child’s welfare throughout his life ‘requires’ adoption as opposed to something short of adoption – Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625, CA.

In Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075, the Supreme Court emphasised the need for proportionality when the court examines whether or not to sanction the placement of a child for adoption:

The language used by the Supreme Court in Re B to describe orders contemplating non-consensual adoption emphasises the stringency of the test - such a course should only be approved: “As a last resort – when all else fails” (paragraphs 77, 104); where the court is satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support (paragraph 105); where the child’s welfare dictates that nothing else will do (paragraph 130).

In Re B-S (Adoption: Application s.47(5)) [2014] 1 FLR 1035, the Court of Appeal held that, when considering whether to approve a care plan for adoption, and to make a placement order where the parents do not consent:

In Re M (A Child; Long-Term Foster Care) [2014] EWCA Civ 1406, the Court of Appeal stated that:

In Re R (A Child) [2014] EWCA Civ 1625, Munby P. addressed the "Uncertainty, misunderstanding and confusion" of the post-BS landscape, at paragraph 40. He described as, "myths and misconceptions" the notion that:

The court must at all times have at the forefront of its mind Article 8 of the European Convention on Human Rights and that any interference by the State in private family life is only appropriate if it is necessary and proportionate. In considering whether removal of a child from their family is proportionate, the court must consider what support could be provided by the local authority, even if the local authority does not advocate that outcome (Re W [2013] EWCA Civ 1227).

In Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761, [2019] 1 FLR 779 Peter Jackson LJ set out the questions the court should ask itself “when assessing risk of future harm and setting it in context: when assessing risk of future harm and setting it in context:

Peter Jackson LJ went on to say, in Re F, at paras 24 and 25:

“24.

In these circumstances, close attention needed to be paid to the nature and extent of the risks. As foreshadowed at the start of this judgment, there must be (to borrow a phrase from a different context) an intense focus on the type of risk that is involved, how likely it is to happen, and what the likely consequences might then be. Only by carrying out this exercise is it possible to know what weight to give to the risks before setting them alongside other relevant factors. So, for example, the risk of further physical harm to a child who has been severely injured by a denying parent is likely to be a factor of predominant weight. By contrast, to borrow from the evidence in this case, where a mother who untruthfully denies drinking goes to a park at night to drink alone, leaving her baby with its grandmother, the court will view that risk with a sense of proportion.

25.

Similarly, close attention must be paid to the true significance of lies and lack of insight in the context of assessing welfare. Lies, however deplorable, are significant only to the extent that they affect the welfare of the child, and in particular to the extent that they undermine systems of protection designed to keep the child safe. However, as noted by Macur LJ in Re Y (A Child) [2013] EWCA Civ 1337, they cannot be allowed to hijack the case. See also Sir James Munby P in Re A (A Child) [2015] EWFC 11 at [12]:

“The second fundamentally important point is the need to link the facts relied upon by the local authority with its case on threshold, the need to demonstrate why, as the local authority asserts, facts A + B + C justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of types X, Y or Z. Sometimes the linkage will be obvious, as where the facts proved establish physical harm. But the linkage may be very much less obvious where the allegation is only that the child is at risk of suffering emotional harm or, as in the present case, at risk of suffering neglect. In the present case, as we shall see, an important element of the local authority's case was that the father "lacks honesty with professionals", "minimises matters of importance" and "is immature and lacks insight of issues of importance". Maybe. But how does this feed through into a conclusion that A is at risk of neglect? The conclusion does not follow naturally from the premise. The local authority's evidence and submissions must set out the argument and explain explicitly why it is said that, in the particular case, the conclusion indeed follows from the facts.”

Although these observations about lies and lack of insight are directed to proof of the threshold, they can equally be applied to the welfare evaluation.”

Peter Jackson LJ returned to these themes in Re K (above) when he said, at para 28 in relation to the welfare checklist under s.1(4) of the 2002 Act:

“This list provides structure for decisions and ensures that all welfare elements are taken into account. So in the present case the children’s particular needs under (b) include the need to stay together if at all possible, while their background under (d) includes their Ghanaian/black British heritage. In issue were the questions of harm and risk of harm under (e) and the ability of the parents to provide a secure environment and otherwise meet their needs under (f)(ii).”

And then at para 29:

“29.

The next general matter concerns the significance of lies. The correct approach to lies in relation to fact-finding is well known and the Judge appropriately gave himself a Lucas direction in that context. Here the more pertinent matter for our purpose concerns lies in the context of welfare. Lies, however disgraceful and dispiriting, must be strictly assessed for their likely effect on the child, and the same can be said for disobedience to authority. In some cases, the conclusion will simply be that the child unfortunately has dishonest or disobedient parents. In others, parental dishonesty and inability to co-operate with authority may decisively affect the welfare assessment. But in all cases the link between lies and welfare must be spelled out.”

In the recent case of Re T (Children: Risk Assessment) [2025] EWCA Civ 163 Peter Jackson LJ added this:

“30.

The separation of a child from a family can only be approved after a process of rigorous reasoning. That is essential where there is a plan for adoption, but it is also necessary for any significant decision where the outcome is not obvious. A structured process is of real benefit for these important and often difficult decisions, as without it there is a greater chance of error, leading to children living unsafely at home or being kept unnecessarily in care. The fact that the underlying principles are well-known to specialist judges does not relieve the court of its duty to the child, to the family and to society, to explain and justify its decision.

31.

This court’s recent decision in Re L-G (Children: Risk Assessment) [2025] EWCA Civ 60, reiterates the guidance given in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, [2018] All ER (D) 94 (Dec). The risk of harm, important as it is, is one of a number of factors in the welfare checklist and it has to be carefully assessed, particularly where it may be decisive.”

The differences between these two potential outcomes were identified by Black LJ (as she then was) in Re V [2013] EWCA Civ 913 at paragraphs 95-6 as follows:

Various disadvantages and advantages of a placement order were identified by Pauffley J in Re LRP (Care Proceedings: Placement Order) [2013] EWHC 3974 (Fam) at paragraphs 41-43:

“41.

The disadvantage of making a placement order is that LRP will be deprived of an upbringing within her natural family. LRP will not be brought up by a mother who is obviously able to demonstrate pleasing emotional warmth and affection for her child or by a father who, similarly, can be appropriately tender when minded to show that side of himself. It may be… in future [the child] will need some professional assistance so as to deal with issues of loss and identity if she is not to be brought up within her natural family. But experience suggests that so long as the adoptive family deals openly and sensitively with those matters – and age appropriately as the child grows – the potential for problems is markedly reduced, even eliminated...

43.

The advantages of a placement order are many and obvious. Prospective adopters are required to submit themselves to a rigorous and very thorough assessment process over many months. Those who satisfy the selection criteria are ordinarily of the highest calibre. They may be confidently expected to provide extremely good parenting to any child who is matched with them in all areas of his / her development. They will protect LRP from harm of whatever kind. The overwhelming probability is that they will be able to provide her with the priceless gift of a happy, secure and stable childhood from which she will derive life-long advantages.”

It is common ground between the parties that the leading authorities on this issue are summarised in the judgment of Munby P sitting in the Court of Appeal in the case of Re N (Adoption: Jurisdiction) [2016] EWCA Civ 1112, [2016] 1 FLR 621. Although the outcome of that case was subject to a successful appeal to the Supreme Court ([2016] UKSC 16), at paragraph 27 of her judgment in the Supreme Court Lady Hale said:

“A great deal of the President's leading judgment is devoted to some very important questions relating to jurisdiction in adoption generally, which are not before this court on this appeal. In summary, these are (para [63]):

(i)

Does an English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national, and (b) to dispense with the consent of a parent who is a foreign national? This was a difficult question, given that the Brussels IIA Regulation does not cover adoption or measures preparatory to adoption, nor is there any other international instrument covering the matter. The Court of Appeal answered both (a) and (b) in the affirmative and this issue is not before this court.

(ii)

If the English court does have such jurisdiction, how should that be exercised? The President gave guidance on this issue (paras [104]–[111]). Once again, this guidance is not before this court on this appeal…”

At paragraph 8 of his judgment in the Court of Appeal Munby P said as follows:

“8.

I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’ but which I prefer, and I think more accurately, to refer to as non-consensual adoption. There is no shirking the fact that our approach in these matters has given rise to controversy abroad and particularly in Europe. I make no apology for repeating what I said, sitting at first instance, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151, paras 13-15, a case involving a child from Slovakia:

“13.

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and thatpublic authorities do not pay adequate heed to the ViennaConvention [on Consular Relations of 24 April 1963].

However, at paragraphs 13 to 19 he drew attention to the following “four important matters to be born in mind”:

In considering, then, how the court should exercise its discretion in cases where adoption is being considered of foreign national children, Munby P said, by reference to the adoption welfare checklist at s.1(4) ACA 2002:

“105.

It cannot be emphasised too much that the court in such a case must give the most careful consideration, as must the children’s guardian and all the other professional witnesses, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background. Moreover, it must always be remembered that, in the context of such factors, the checklist demands consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family. Mere lip service to such matters is not enough. The approach, both of the witnesses and of the judge, must be rigorous, analytical and properly reasoned, never forgetting that adoption is permissible only as a “last resort” and only if a comprehensive analysis of the child’s circumstances in every aspect – including the child’s national, cultural, linguistic, ethnic and religious background – leads the court to the conclusion that the overriding requirements of the child’s welfare justify adoption”.

He quoted from his previous observations in Re CB (A Child) [2015] EWCA Civ 888 at para 84:

“84.

The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:

(i)

local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;

(ii)

the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam),

[2014] 1 WLR 2670, [2014] 2 FLR 151, paras 31, 35-36;

(iii)

if there is no transfer in accordance with Article 15, the court, if the local authority’s plan is for adoption, must rigorously apply the principle that adoption is ‘the last resort’ and only permissible ‘if nothing else will do’ and in doing so must make sure that its process is appropriately rigorous: see In re BS (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625.

(iv)

in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the ‘welfare checklist’ in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national cultural, linguistic, ethnic and religious background and which in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.”

At paragraph 85 of Re CB he had said, in addition:

“In this connection, everyone concerned with such a case needs always to remember the powerful point made by Mostyn J in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 1:

"If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance."

That is not, I wish to make clear, a reason for not making an adoption order where the circumstances demand and where nothing else will do. But it does serve to underscore the gravity of the decision which the court has to make in such cases and the pressing need for care and rigour in the process”

Returning to Re N, Munby P also made to reference at paragraph 108 to his judgment in Re J and S (Children) [2014] EWFC 4, paragraph 36 where he had said:

“Of course, any judge should have a decent respect to the opinions of those who come here from a foreign land, particularly if they have come from another country within the European Union. As I said in Re K; A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 26:“the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family.” But the fact is, the law is, that, at the end of the day, I have to judge matters according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative. They have made their life in this country and cannot impose their own views either on the local authority or on the court.”

Finally, Munby P said that the court could not shut its eyes to the possibility of creating a ‘limping infant’ as referred to in Cheshire’s Private International Law, 7^th ed (1965) p382. In Re B(S) (An Infant) [1968] Ch 204 Goff J had described the domiciliary law as an important factor to be taken into account in considering whether the proposed order will be for the welfare of the infant. He said at 212:

“The court cannot shut its eyes to the possibility of creating the “limping infant” referred to in Cheshire's Private International Law, 7th ed (1965), p382, and if the child is domiciled in a country where the English order would not be recognised, he may “limp” not only there but in other places, and may find himself faced with a dispute in other countries whether the English order should be recognised or not.”

He continued:

“In my judgment therefore, where the child is or may be domiciled abroad or is a foreign national or was until recently ordinarily resident there, the court should consider whether its order will be recognised elsewhere unless the case is one in which it is clearly for the welfare of the infant that an order should be made irrespective of its consequences elsewhere, as in refugee cases… With that exception, in my judgment in all cases where there is such a foreign element as I have described, evidence should be furnished to show that the order, if made, will be recognised by the foreign court and, if so, then the English court is free to proceed regardless of any question of foreign law or procedure, but if not, then the court will have to weigh the disadvantages of the child having one status here and another in other countries, or even a doubtful one, against the other considerations there may be in favour of adoption. The disadvantages may of course be serious in such matters as liability for military service, taxation (including death duties) and succession to property.

It is not necessary, however, to prove what the child's domicile actually is, or to go into the adoption laws of the relevant foreign country, for in my judgment, as I have said, the problem is not one of jurisdiction or of applying the foreign law, substantive or procedural, but of considering factually whether, having regard to the foreign element, the English order will have general recognition, and if not whether the order would still be for the welfare of the infant.”

Munby P added “I agree with Goff J's analysis and conclusion. Unless the foreign country is one which, under international Convention, is bound to recognise an English adoption order, the English court will need to address the issues identified by Goff J, having ensured that it has the necessary evidence to enable it to do so.”

The more recent cases of Re LC (A Child) (Placement Order) [2020] EWCA Civ 787 and Re T and R (Refusal of Placement Order) [2021] EWCA Civ 71 simply emphasise how fact specific these decisions are, and the wide margin of discretion available to the trial judge who will have heard all the evidence and pondered long and hard (as I have) over the important decisions to be made. As Baker LJ said in Re LC “it follows that before severing the relationships between the child and the birth family, a judge must look very carefully, amongst other things, at the quality of those relationships, the likelihood of the relationships continuing and the value to the child of their doing so.”

The principle of comity is well established within the Courts of England and Wales. In its modern context that principle includes according respect to the laws and practices of different legal and child welfare systems. The best interests of the child will usually work in partnership with comity as recognised by Baroness Hale and Lord Toulson in Re B (A Child) [2016] UKSC 4, para 61.

In Warrington Borough Council v TN (Care Proceedings: Comity) [2020] EWFC 79, MacDonald J said, at para 26:

“Comity is an established common law principle based on courtesy, respect and reciprocity (see Buck v Att-Gen [1965] Ch 745 at 770). Whilst it has been noted, not always favourably, that the principle of comity is of “very elastic content” (see Dicey and Morris on Conflict of Laws 15 th Ed. at [1-008]), it has been accepted that, in the context of family law cases with an international element, the principle of comity encompasses administrative, judicial and social services. Within this context, and by way of example, in cases involving the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction it is well established the court should accept that, unless the contrary is proved, the administrative, judicial and social services in another jurisdiction are as adept at protecting children as they are in this jurisdiction (see Re H (Abduction: Grave Risk) [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433).”

A central question for the Court in deciding public law care proceedings will be whether the parent(s) or other proposed carers can provide ‘good enough’ care for the subject child.

In the well known passage from Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 Hedley J said, at paragraph 50, that:

“… society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the province of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.”

In Re D [2016] EWFC 1 the former President of the Family Division, Sir James Munby, noted (alongside the observations above from Hedley J):

“In a case such as this it is vitally important always to bear in mind two well-

established principles. The first is encapsulated in what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134: “family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained (emphasis added).”

He added:

“142.

Finally, the question of whether D needs ‘good enough’ parenting or ‘better than good enough’ parenting. There is, I think, a risk of this becoming mired in semantics. The reality is clear and simple. As Ms Randall put it, D has complex special needs (paragraph 76). The guardian expressed the same view when she said that D’s care needs are over and above those of other children of his age (paragraph 95) and said that, because of his own difficulties, D will need additional support both through childhood and as a young adult (paragraph 100). I agree with those assessments.

143.

Ms Randall went on to express the view that in these circumstances D will require ‘better than good enough’ parenting in order to achieve his potential (paragraphs 76, 82). Although this is a conventional way of expressing it, the real point surely is this. What is required is parenting which is ‘good enough’, not for some hypothetical average, typical or ‘normal’ child, whatever that means, but for the particular child and having regard to that child’s needs and requirements. Where, as with D, the child has needs over and above those of other children of his age, then what is ‘good enough’ for him may well require a greater level of input. D, in my judgment, plainly will. That is the point, and that is what is relevant, and in this case highly relevant. The descriptive label is merely that, a convenient form of professional shorthand.”

R’s treating paediatrician is Dr H. R has a genetic condition – TP63 mutation, but he “does not present with clinical features associated with this genetic mutation”. As such, this has been classified as a “cold variant of uncertain clinical significance”. He has subtle dysmorphic features as does M. His growth is in the healthy range. He has some delay in his speech and language skills, which is the main area needing intervention and monitoring. His motor, visual and self-care social skills are slightly delayed. He is under ophthalmology review for nasolacrimal duct obstruction, allergic eye disease and myopia for which he wears glasses. He has occasional sticky or watery eyes. He is showing some inconsistency in identifying established caregivers at nursery and in public which means that he will approach strangers and unfamiliar adults for comfort.

On 4 March 2025 R had two febrile convulsions about 2 hours apart, lasting 20 to 30 seconds each. He had a high temperature associated with a respiratory illness. He was treated for sepsis with IV antibiotics. There had been a previous episode as reported by the foster carer when aged 4 to 5 months again associated with a fever. In light of these, and the general background, including speech delay, Dr H referred R for an MRI head scan. The scan showed normal brain development but abnormal signals were returned from the right inner ear. He has been referred for audiology review and a dedicated MRI of the right inner ear structures has been recommended. These investigations are ongoing.

The local authority has obtained expert evidence from Dr. Onyoja Momoh about the recognition and enforcement of English Court orders in Brazil. Dr Momoh advised that there are no specific multilateral treaties between the UK and Brazil for the mutual recognition of family law orders, although both jurisdictions recognise the UN Convention on the Rights of the Child 1989. There is no direct equivalent of a Special Guardianship Order under Brazilian law. Orders made by foreign courts are not automatically recognised or enforceable in Brazil. Such orders must therefore be reviewed and decided by a competent Brazilian Judge. Brazilian law treats parental authority as a constitutional and civil right of both parents which cannot be relinquished, transferred or diminished without clear judicial determination based on legally specified grounds.

It is clear, therefore, that any decisions that I might reach as to the role that M, MGM and, indeed, F might play in R’s future life will have limited, at best persuasive, effect if R returns to Brazil. Once there, R’s welfare will be safeguarded by the Brazilian Court which will make decisions based on established rights and principles within that jurisdiction.

Mr Ozbek was instructed to undertake parenting assessments of M and MGM. This was a joint instruction by all parties, but funded by the local authority. Mr Ozbek is an experienced social worker. Although he had worked with families where some members were based abroad, it is important to note that he does not have any experience in assessing such families and has no particular expert knowledge about Brazil. Most of his expertise is in assessing Pakistani or Turkish families within this jurisdiction. In assessing M and MGM he used the ParentAssess model.

In his written evidence he noted that both M and MGM had cooperated fully with his assessment. For both, the “golden thread” in their lives is their family. R’s absence from the family unit has impacted not just on them but on the wider family.

He considers MGM to be a “genuine woman who is caring, kind and who holds herself to strong moral values”. She had raised M to hold these important values although he considered that M “can fall into patterns of dishonesty / disingenuity at times”. MGM was the more emotional of the two and M finds it harder to express herself being more closed off at times.

He spent about 30 hours observing R with his foster care, with M, MGM and with M and MGM together. He describes R as “a beautiful little boy who has the most contagious smile and giggle”. He is “fun” with a “cheeky personality”. He pushes boundaries and thrives off attention. He has a lot of energy and needs close supervision. He requires patience and perseverance due to his difficulties with food. Mr Ozbek notes the significant injuries R sustained in his early life and the long term impact of these from an emotional and psychological perspective “must not be underestimated and can manifest itself in many ways”. M and MGM have attended family time with him consistently and have “showered [him] with love”. R’s carer is Portuguese speaking (although not Brazilian), which has allowed him to preserve some of his language whilst in care.

Mr Ozbek notes that R’s medical presentation and delayed development mean that he requires a standard of care that is above and beyond that of an average child of his age if he is to make continued developmental progress.

He helpfully summarises his view of the strengths and vulnerabilities / risks in M and MGM caring for R. For their strengths, he notes their commitment to R and that they are “desperate” for him to remain within the family. Their love for him is “vehemently clear”. That love is reciprocated by R. Both M and MGM present as kind, caring and generous people. Although that is a strength it is also a vulnerability. In M’s case that has led to her experiencing control / abuse in her intimate relationships. Both can provide R with good enough emotional care and meet his emotional needs within supervised family time, with support and guidance. M has separated from F and both M and MGM recognised that he poses a risk to R. M states that she will not find herself in a risky relationship again. Both M and MGM are in relatively good health and would be able to provide R with a healthy balanced diet and plenty of exercise. They share a respectful relationship and demonstrate adequate knowledge in most areas about the need for R to be safe. They have kept their home in the UK to a very good standard and he believes their home in Brazil, once renovated, will be clean and tidy. MGM has raised her own children into adulthood, with the support of her husband, without any apparent social services or police involvement. They have a good support network in Brazil with people who can provide them with emotional, practical and financial support with R.

In terms of vulnerabilities, he notes that MGM has had a hard life with poor education and little exposure to life outside of her village in Brazil. M also experienced instability with her education and led a sheltered life with protective parents. This is likely to have made her vulnerable / unworldly. Her partners have either been unfaithful or have betrayed her trust. She took a passive approach with F despite “very clear early warning ‘indicators’ of risk”. M struggles, in his view, to understand the complex dynamics in their relationship and does not consider herself to have been the victim of his domestic abuse. He found “her assertions that she will not enter into any future risky relationships” to be “unpersuasive and I consider the risk of the same relatively static”. Both M and MGM require significant prompt, guidance and support to complete tasks and to articulate for themselves, and rely on others heavily to help them. They have relied on family members to make enquiries about R’s education, private health insurance and state benefits should he return to Brazil. He says, “The above does not bode well with regard to [M] and [MGM’s] ability to navigate the issues that may arise with [R] now and in the future relating to his health and development”. The Court would need to be satisfied that they have the knowledge, skills and resilience to be able to meet R’s welfare and safety needs long term. M’s ability to live and function as an independent and autonomous adult is untested, she has never lived independently. Both M and MGM do not believe that they would have any difficulty in meeting R’s needs or keeping him safe, and this lack of insight is a worry and does not bode well, in his view. They both significantly underestimate R’s needs now and his potential needs in the future. MGM’s cognitive difficulties and M’s naivety make it difficult for them to think ahead and consider R’s longer-term needs. During family time R can be demanding at times and both M and MGM adopt quite passive approaches to dealing with such behaviour. Both required prompting to slow down / stop trying to feed R when he was refusing to eat.

In relation to the prospect of R living in Brazil, Mr Ozbek was concerned that child poverty and child protection issues remain widespread. He is not persuaded that support for the family would be effectively implemented in Brazil and he notes the legal uncertainty as to how R’s placement in Brazil could be regulated. He says that “where a clear and comprehensive support plan would be expected in the UK for a plan of rehabilitation for [R] I remain unpersuaded that the identified support from the assessment would / will be implemented in Brazil”. He found it difficult to identify online what individual services would be available to M, MGM and R.

On balance Mr Ozbek concludes that “the weight of the evidence, in my view tips towards me being unable to recommend that [R] be placed with [M] and [MGM] as sole or joint carers”. If R is to be placed away from them, he recommends the continuation of direct / indirect contact with M and MGM. He has observed a respectful relationship between them and R’s foster carer which “is extremely positive and a testament to” M and MGM. In the event that R is to be placed with M and MGM in Brazil then “there would need to be a comprehensive package of support that mitigates the vulnerabilities and risk issues”.

Mr Ozbek attended a remote Family Group Conference on 31 August 2024. Present at the conference, with M and MGM, were MGM’s sister, L, M’s brother, G, M’s sister in law, M’s cousin P, and M’s cousin W. He was surprised when L said during the meeting that she was not aware who had caused R’s injuries. He saw the close family network as both a source of strength but also vulnerability for R, due to the potential instability of R being passed between family members. He noted that MGM owns her own 3 bedroom property in Brazilian City A. The plan is for M, MGM and R to have their own bedrooms. The property also has a joint living /dining space, a bathroom with a shower, a separate toilet, a separate utility room and a garden / BBQ area. The property was undergoing renovations as arranged by W at the time of his reports. Having undertaken some research about City A online, he notes it is a busy and dense city with a large, diverse population. There are parks, swimming baths, schools and nurseries. MGM has income from her own and her husband’s pensions and some savings.

Mr Ozbek was asked to comment on the outcome of a further FGC in January 2025 in an addendum report. He noted that whilst it was positive that family members were putting forward proposals to support R in the care of his M and MGM, significant vulnerabilities remained. These included the untested nature of the plans, the understanding by the family of the risk issues, the nature of R’s health and developmental challenges, the legal issues and whether professional support will be available in Brazil. He notes that there is no established relationship between R and extended family members and no plan for anyone to travel to the UK to meet him before the planned relocation to Brazil. He felt there was a sense of over optimism in the plans for R and the ability of family members to bridge the identified vulnerabilities of M and MGM. He considers this to be “a high risk plan”.

In this addendum Mr Ozbek notes the significant loss that R would experience from a plan of adoption, the loss not just of his birth family but also of his rich Brazilian heritage. His additional needs are likely to reduce the number of prospective adopters available to him. He acknowledges that this might lead to R remaining in long term foster care throughout his minority. He said “the court has a very difficult task at hand, in my view”.

In his oral evidence, Mr Ozbek noted that his primary assessment was now 9 months old. The relationship between R and his M and MGM will have grown stronger and they have had that opportunity to develop greater knowledge about him. The supervised contact sessions now last for 4 hours. Both M and MGM are entirely committed to R, they have not missed a single session. He has not observed either directly or in the contact notes any evidence of conflict between M and MGM. He acknowledged that there was a significant cultural component to the balancing exercise, what is seen as acceptable in a Brazilian context for a child may not be acceptable in a British context. Where does ‘good enough’ sit within each context? His worry is less about the immediate but more whether the level of care and family support is sustainable throughout R’s minority. In addition, he has attached significant weight to the limitations – as he sees them – to the welfare system in Brazil. He accepted it is a challenge to weigh up a family against a concept (of adoption).

The feeding issue with R has improved, perhaps because he is now eating better. Feeding is a way for the family to demonstrate emotional warmth. M can learn but requires a prompt to develop her parenting skills. Historically, MGM struggled with M’s needs and to advocate for her. He acknowledged there has been a significant improvement in the family home. He has seen pictures of the work undertaken. His concern is that the trajectory for R may follow the same path as for M if there is no acceptance of his needs. He remains concerned about M’s past relationships. She can recognise some red flags but may have difficulty translating this into a relationship. All three of her relationships have been problematic. It is good that she has attended the Freedom Project programme but it is untested territory. M accepts F poses a risk and would not allow him unsupervised contact with R. His worry is more about future relationships. It is positive that the family recognises the importance of education. His concern is whether suitable provision will be available in Brazil both because of whether M and MGM will recognise his needs and whether there is such provision in their education system. If they were staying in the UK the argument would be more persuasive, but even then he would not support placement with them. He does not dispute that services are available in Brazil, but it is not consistent and his needs there would have to be assessed. He is not convinced they will be assessed to the same level as here. Again, with health, provision in Brazil may be more unequal. Those from a lower socio-economic background face greater hurdles there. M and MGM will require a significant level of support, and long-term support.

He acknowledged the loss of M and MGM would certainly cause R harm, but that has to be measured against the long-term gains. Identity needs are very important but there are other strands that the court will need to consider. There are pros and cons. He acknowledged that D (another of M’s cousins) is a teacher and therefore an important resource for the family. The family commitment is there, although it has come late in the day. He is not convinced the family fully appreciates the vulnerabilities of M and MGM and the risks to R. The support may dwindle away. The family members have their own lives and commitments. It is the ‘drip drip’ impact of neglect that concerns him. There is no immediate risk of harm, but a cumulative risk. Ethically he found this all very challenging. There is nothing anyone can do if R goes to Brazil and everything falls apart. Equally, any match in the UK is unlikely to be a cultural match.

Ms Da Silva and Ms Fagundes undertook a special guardianship assessment of MGM’s sister L and her husband in September 2023. That assessment was positive of them as potential carers for R in Brazil. Ms Fagundes is a Brazilian social worker based in Brazil. She undertook the face-to-face visits with the family. Ms Da Silva is also a Brazilian qualified social worker but she is based in the UK. Ms Fagundes’ employment experience includes being a manager in the Secretary of Social Services in Area D, Brazil between 2022 and 2023. City A is the capital city of Area D and thus she has some first-hand experience of the services available within that area.

In their joint report they highlight that there is a special bond between MGM and her sister L. There is 2 years in age between them. They speak daily. L has also always had a close and nurturing relationship with her niece M, playing an integral role in her life from birth. L and her husband J live in Town N, which is about 45 minutes (36km) away from City A. They have been married for almost 50 years. Their eldest child lives at home with them and their two younger children have moved to live in the US. Their home had a welcoming family atmosphere. They had been concerned when M had become pregnant and little was known about F or his family. They had supported MGM in travelling to London to assist with R. They set out, in general terms, the support available to the family through public health and social assistance programmes which include education, nutritional support and psychological counselling.

In their view L and J “demonstrated a comprehensive understanding of the local authority’s concerns” re R. They would offer a secure and nurturing environment for him to thrive. L and J are resolutely committed to R. They say, “Brazil, renowned for its rich tapestry of cultures, has long been a bastion of diversity, warmth, and affection. [L] and her family are dedicated to immersing [R] in this cultural mosaic, ensuring he grows up with a deep appreciation for his Brazilian roots. They understand the importance of nurturing his sense of identity, language, and traditions... Through shared experiences, cultural traditions, and language exposure, they aim to foster an environment where [R] feels cherished and connected to his roots.”

To ensure a smooth transition for R they say it is essential that his case is officially referred within the Brazilian child protection framework. The authorities will collaborate to assess and supervise his placement to ensure that his well-being, health and educational needs are being met effectively.

Both Ms Da Silva and Ms Fagundes were available to give oral evidence, but in the event only Ms Fagundes was asked any questions. She emphasised both that her assessment was now somewhat dated and that if M and MGM were going to live in Brazil to care for R then that was a different scenario from the one she had assessed. She was asked about L (and J’s) age and that they would need family support if they were to be primary carers for R. They were a committed couple who felt strongly about the importance of education. Extended family was very important to them.

Ms Fagundes was asked some general questions about the Brazilian social services system. She described how CREAS (Specialised Social Assistance Reference Centres) are public facilities that offer specialised services to individuals and families experiencing rights violations, violence, or neglect. This would be a resource where R and his family could obtain services and support. This would be medical, social and psychological services and would include the possibility of home visits. Any registered professional can make a referral to this service. Medical treatment is readily available in Area D. She accepted that there are challenges in Brazil and health care can sometimes be more difficult to access. CRAS (Social Assistance Reference Centres), handle basic social protection, and work together within Brazil's Unified Social Assistance System (SUAS). They provide a less complex service of support. Assistance from the Consulate would be of the utmost importance in ensuring R was properly referred for and obtained access to support.

I heard evidence from CG, an adoption social worker. When she conducted an anonymous nationwide search last year she was able to identify 13 families who would potentially consider R for an adoptive placement. An updated search conducted just before she gave evidence identified 9 families. Contact plans within adoption are becoming more creative, she said, and adopters are more open to direct contact but the pool of adopters for R is quite small and may narrow further considerably if there is a contact requirement.

She recommended that any search be capped at a year. None of the families she had been able to identify had indicated a Brazilian or mixed Brazilian heritage. None indicated that they spoke Portuguese. However, availability constantly changes. She is aware of there having been Portuguese and Brazilian families in the past, but Brazilian families are very rare.

R’s care plan and the local authority’s final statement were drawn up by DC, a local authority employed social worker. He had been allocated the case in October 2024, so only a matter of 6 weeks before the final evidence was completed. His final evidence set out the local authority’s plan for adoption saying that this is the only “adequate proposed care plan” as “there are no options that are viable or safe and that would meet [R’s] needs, within his birth family”.

DC set out the LA’s view about the evidence given by M (and F) at the fact-finding hearing. He says, “It is the view of the Local Authority that much of the evidence given during the trial, by [M] and [F], may still not have been true and it was apparent that they did not do all they could, to try to find the truth or help the court.” He places reliance on the conclusions reached by Mr Ozbek. As M is “unable to provide good enough care or parenting to [R], either now or in the future”“The Local Authority view is that is therefore necessary and proportionate that Care and Placement Orders are granted by the court…”. Should R return to Brazil, “there are significant risks his various needs will not be adequately met or understood effectively, either now or in the future”. In respect of the assessment conducted by Ms Da Silva and Ms Fagundes he says that “the Local Authority considers that this assessment is flawed, it contained little to no analysis, it was not detailed enough and did not address the necessary factors…The assessment appeared to take on face value the responses given by the family members and lacks crucial information about their understanding of the risks and history for [R] and about their plan look after him. To some extent this was understandable as it was completed prior to the fact-finding hearing”. The LA’s position is that the assessment cannot be relied upon or given significant weight.

DC observes that the FGC in October 2024 had not been successful. It quickly became apparent that the list of questions that the social workers had planned to ask the family were too challenging. None of the family members had read the key documents from the court proceedings (sent to them the day before the meeting). L said that in her view R should be with his M and MGM. He went on to express wider concerns about “social and economic issues in Brazil”, saying:

“There is a lack of adequate healthcare, very little social support and the child protection organisation appears to be general and not like the social care system in this jurisdiction. Education is not compulsory and of a poor standard, life chances are limited and poverty is widespread”.

The family had not provided evidence that R’s health care needs could be met adequately through private health care.

R’s current foster placement is a good match, he says, with “many cultural familiarities”. He has progressed well and has a secure attachment with his foster carer. However, the LA’s view is that an adoptive placement would best meet his needs throughout his minority and would offer him long term permanency and attachment with his new family. He is currently assessed as developmentally delayed and requires ongoing support. He continues to receive speech therapy which is considered to be the most urgent of his needs for support. Despite M and MGM’s strong emotional connection to R and their desire to care for them, there are significant gaps in their understanding and capacity to provide the care he requires. There are risks to R from M permitting F to have unsupervised contact with him. It is unclear whether M and MGM have the ability to stand up to F and protect R from him. His reaction during contact, particularly to F, indicates ongoing emotional distress and a need for a “stable, trauma-informed environment”. F’s commitment to contact has been very inconsistent with a considerable number of missed contact sessions and a lack of communication with professionals.

DC was not available to give oral evidence at the final hearing and so the team manager, AB, was called. She has been involved in the proceedings from their commencement and had oversight of and approved the final statement and care plans. The LA’s view is that R’s current foster carer is able to meet his needs and R will remain there whilst there is a 12 month search for an adoptive placement. If a placement order is made then there will be yearly indirect contact between R and his birth family. R is being investigated for his febrile seizures and also being seen in ophthalmology for the congenital obstruction of his tear ducts. He is currently attending nursery twice a week but it has been recommended that this should increase to four times a week.

AB was taken by Ms Farrington KC to the comments in the written evidence about much of M’s evidence at the fact-finding hearing not having been true. She said that the LA did accept the court’s findings but the position of the LA remained that M had not been honest in much of her evidence, and about important facts. She said, “we were possibly disappointed that more findings were not made” but that this had not affected their decision-making. They remain concerned about M’s ability to protect L from harm. She has a lot of vulnerabilities. She remains worried that the injuries occurred whilst M was in the household and said “there has been no real explanation of what happened, she has not really come forward to say what happened and how R came to harm”. The LA’s view is that “M did fail to protect R, even though that is not what the court found”.

She agreed that the contact notes show that M can meet R’s basic care needs but she does need support, prompting and reminding. She said that sometimes this is not recorded in the notes. She accepted that MGM had parented M and her brother without issue. She agreed that there was no risk of M reconciling with F. She agreed it is positive that there is a close-knit family in Brazil who are willing to help, but it would have to be led by M and MGM who would have to initiate what was to happen for R. She accepted that until recently M had not been invited to R’s medical appointments so did not have the opportunity to gain day to day knowledge of his needs and medical issues.

The LA had placed considerable reliance upon Mr Ozbek’s assessment of M and MGM. She felt his research into the resources available in Brazil was quite thorough, although there were some gaps. He had looked at general websites about services in Brazil to see whether they were similar to those in the UK. The LA did try to research matters on the internet, but it was quite unclear. She could not explain why no attempt had been made to contact CREAS in Brazil and was unclear about the healthcare system and how it works. She accepted that the assessment of Brazilian services set out in their final evidence was unfair from the information provided by Ms Fagundes, but she was still unclear what services can be accessed.

Ms Farrington took her to the LA’s analysis as set out in their written evidence. She said that the basis of their analysis was Mr Ozbek’s assessment. She accepted there is no Re BS balanced analysis of the factors in favour and against placement with M and MGM. The four options the LA had considered were adoption, long term fostering, SGO to R’s current foster carer and SGO to L and J. This was because, following the negative assessment of Mr Ozbek, “there were no other options”. There was only one section (C302) where there was any reference to the factors against adoption, which AB accepted looked to have been ‘cut and pasted’ from another document. This refers to the severance of ties with R’s birth family creating potential ‘identity conflict’, the transition to adoption could be traumatic and he may struggle with feelings of curiosity and unresolved emotions about his birth parents, the process “has limitations” due to his health needs and it may take some time with therefore “a longer period without permanence”. She accepted that adoption would be “a big change in anyone’s life” but there will be support and a transition plan. Post adoption contact to M and the maternal family was something they could “look into” and “consider” as is video contact. In the event of an adoptive placement they would propose indirect contact only for F. However, if R was to remain in foster care they would promote direct contact with F three times a year. She accepted this meant that, if F was the only family member in the UK, he would be the link between R and his birth family.

AB said that M’s contact with R has “improved significantly” but the prompting and modelling has continued. M has been receptive to advice and deserves credit for that. The issue is whether she can continue this progress independently. She is not convinced by the family plan because this support will need to continue for some time, it will need to be reviewed and monitored. They will need someone who can advocate for them, ask questions and explain what has been said by professionals and ensure recommendations are implemented. There is a cultural component because the elders are respected and she is not convinced family members will override MGM because she is very well respected. If R’s needs are not met he will be delayed in his development and could miss appointments. His cultural needs in an adoptive placement could be covered by links to communities in the UK and abroad and indirect contact so this is “not a concern”. She accepted that it would be challenging to find an adoptive placement for him because of his particular characteristics, there are more children available than adopters. He will be harder to place. His foster carer is willing to continue as his foster carer but has said no to special guardianship.

M has filed four statements since the fact-finding hearing. She says she accepts my fact-finding conclusions and analysis. She feels guilty for not appreciating what was happening to R. She regrets having lied about F’s cannabis use, explaining that she felt embarrassed as this is a taboo topic in her culture. Going forward, she is determined to be more cautious and not to trust people so easily, particularly around R. She will ask for her family’s views about any new relationship and will not allow any new people to be introduced to R without knowing they are trustworthy and have good intentions. She is keen to improve her parenting skills with R and has benefited from the parenting advice she has received during contact. The contact notes are all positive about her care of R. She seeks R’s return to her care with the support of MGM. She has decided that she wants to return to Brazil because she has a larger and better support network there, she can live with MGM rent free, and she will have a good lifestyle. Her immigration status in the UK is insecure and uncertain (she is an overstayer). She describes the family home in City A as well located with good transport links, good schools and medical centres nearby. The renovations have been completed, so the property is now ready for occupation (she has provided photographs). If R goes with her to Brazil he would be enrolled in a nursery which is 10 minutes walk from the family home. This has a good reputation and a place would be available. She would drop R there in the mornings and he would be picked up by MGM, or by her if MGM was not available. She would register R with the local health centre and she would make sure there are specialist referrals to meet his needs. She has identified a particular hospital, about 40 minutes away by car, which she believes would be able to provide R with the necessary medical assessment and treatment. She will also purchase private health insurance, with financial assistance from G. L and J live 25 minutes away by car and P and W live 15 minutes away. K lives 5 minutes away by car. G will be able to provide her with financial support, if needed, from the UK. She has good relationships with her neighbours. Both M and MGM plan to work part time. R will not face any immigration issues as long as his birth is registered in the Brazilian Consulate before travelling. He will be entitled to Brazilian citizenship. Any contact with F could be facilitated through the Guardianship Council of City A which can co-ordinate supervised visits, provide recommendations and monitor compliance with existing court orders. She asks that the LA should make contact with them and that any costs should be met by F.

She is concerned that the LA appears not to have considered fully the option of R being placed with her and MGM. The Court papers for the FGC in October 2024 were only sent out to family members the day before which did not give them a proper opportunity to consider them. Following that, she and MGM met with family members to discuss the support that would be available. A plan for this was drawn up (and is exhibited) alongside a WhatsApp group to allow the sharing of information about R. The plan identifies the specific help that each family member can provide and the times they will be available. A further FGC took place in January 2025 which reflected the support her family could provide. She says she loves R more than she could ever put into words, “he is my everything. I would give my life for him”. Being separated from him has been very hard.

In her oral evidence, M confirmed that she is not currently in a relationship but does not know what will happen in the future, “the priority at the moment is my son”. She will take time to get to know a person better and his family. She found the Freedom Project helpful and it made her reflect. F had been abusive to her in that he did not allow her to look after R. He was taking drugs and consuming alcohol. She did not see him as a risk to R at the time, a father should protect his son and he did the opposite. She has also found the advice given in contact helpful. If she noticed something wrong with R in the future she would take him to the doctor immediately and would inform her family. If R is crying and she cannot see a reason for this she would take him immediately to the hospital to be checked. She has learned a lot since November 2022. She should have got to know F and his family better. She should have asked him more about his previous relationships and his children. She should have asked him about his drug and alcohol use. The drinking and drugs changed his behaviour. He was rude to his mother. She finds it difficult thinking about the pain R must have suffered and that someone he had trusted had hurt him. It will be difficult for him to understand as he grows up that his father could do that to him. She will talk to him about that and, if necessary, seek professional help. She does worry it will affect his behaviour when older. She has no intention of reconciling with F, “he is the person who hurt my son”. If she met someone and fell in love with him she would want R to live with them, “but I would need to know this person very well”.

The hospital is 30 to 35 mins drive away. She does not drive and MGM does not (but other family members do). She will talk to the doctors about R’s speech difficulties, the problems with one of his testicles, that he has suffered fits and the difficulties with his eyesight. She will explain that he needs to see a psychologist to explore how he feels. It is horrific that a father can do to this to his son. If he seems troubled, she will talk to R and seek psychological assistance. She has not had the opportunity to discuss R’s medical issues with his foster carer, but would like to be able to. She recognises the bond that R has formed with the foster carer and can see the relationship between them when she brings him for contact. She has done a good job with him and she has no complaints. R is very attached to her and R will find it difficult to be separated from her. This may well impact on R’s behaviour. He will be sad to leave her, but also happy to be with his M. She had asked her cousin to fill in the nursery forms for R on her behalf because she was not there.

She was taken to various contact notes looking at her parenting of R. She did not agree with some of the observations made, for example, “do you think I would not pick him up if he was crying?”. She agreed he had resisted her putting his shoes on. She had found the guidance she was given helpful, for example the recommendations about his eating. She agreed it would be helpful for R to meet family members from Brazil before returning there but explained the practical difficulties with this. She does not think she and MGM would need help with R on the flight to Brazil although “it is always helpful to have another pair of hands”. She was asked questions about the support that family members could provide according to the written plan, for example with attending medical appointments and shopping. She would need particular help with transport to appointments. They normally spend family occasions together so, for example, at Christmas or birthdays she might well stay over with R with L and J. K would help her understand medical issues. Fundamentally, however, she believed she could provide the main care for R. She was willing to facilitate contact between F and R in Brazil but “to be honest with you I think his father should have no contact at all… further down the line maybe, but it will have to be safe”. If F turned up seeking contact she would, if necessary, call the police. She cannot see any benefit at the present time to virtual contact if F is not seeing R in person.

My impression of M’s evidence was somewhat different from that recorded in my fact-finding judgment. She was appropriately engaging, and I formed a greater sense of her personality. Her love for and devotion to R was clear. Her commitment to him throughout these proceedings has been unquestionable. My impression was that she has grown and matured during the last year. She has developed greater confidence both with R and in her ability to express and assert herself. I consider that she dealt with difficult topics, such as R’s relationship with his foster carer, with clarity and confidence. There was no hesitation in her acceptance of the bond between them or that R will find separation challenging. She felt able to assert her view that F should have no contact with R, explaining the dangers this would pose. She was able to articulate the benefits she has gained from the Freedom Project and from guidance given during contact. She is able to reflect upon what went wrong in her relationship with F and the warning signs that she had missed. I accept her explanation of why she had lied previously about F’s drug use, and maintain the view that this is not indicative of any wider dishonesty.

F has filed three statements since the fact-finding hearing. In his first statement, filed shortly after my judgment, he said he would wish ideally to care for R on a shared care basis. He would not support R moving to Brazil because this would impact on his relationship with R. He maintains his denial that he caused any injury to R and, essentially, maintains the truth of the evidence he gave at the previous hearing. He accepts that the Court’s findings contradict that evidence and that “there is nothing much I can say to change that”. He says he intends to remain living in the UK for the foreseeable future and that this would mean he would not be able to see R very often if he went to Brazil.

In his second statement F says that he strongly opposes any plan for adoption for R. Ideally, he would wish for R to live with M and MGM in the UK but, recognising that this is not their plan, he would support them moving with R to Brazil. In that event he would seek virtual contact weekly, and in person contact when he visits Brazil approximately once a year. He would not oppose supervised contact. He would like R to get to know his paternal family in Brazil. If R is to remain living with his foster carer in the UK then he would seek weekly direct contact with him, again supervised. He accepts his attendance at contact has been “sporadic”,“but I have often had work commitments that have prevented me from attending”. He has recently been granted indefinite leave to remain in the UK and views this as his permanent home.

In his third statement he says that he plans to visit Brazil every 18 to 24 months. He would wish to visit R when there and take paternal family members with him. His family lives in City S (the distance to City A appears to be over 500km). He would wish to receive weekly updates about R by email or WhatsApp and also weekly video calls.

F only attended the first day of this hearing. I was provided with no forewarning of his non-attendance and interpreters attended for him each day in anticipation that he might attend. The only explanation given was that he was working but no evidence was provided of this and no plan was put in place to manage it so that, for example, he might have attended selected days of the hearing. This pattern matches his non-attendance at contact, which again happens without any prior warning. It evidences a gross lack of attachment and commitment to R. Given his previous refusal to co-operate with any drug testing, his current use of drugs and alcohol remains unknown.

MGM has filed four statements since the fact-finding hearing. As with M she says her intention is to return to live in Brazil and would wish to take R with them. Her role would be to assist M by preparing meals, managing R’s routine and providing emotional support. She would look to work once R is at school. She set out in her evidence her health and education plans for R (mirroring what is said by M). She will need to ensure her property is furnished for their return. She dearly loves her grandson and opposes any plan for him to be adopted.

In her oral evidence MGM said she wants to keep her home address confidential from F because she would not want him to turn up to the house uninvited. She is very happy to see R and he is happy to see them. She will work well with M to parent R, “R is our life, god gave him to me and M. He needs his family… we love him very much”. Bringing him up in Brazil will be easier because she will have her house and her family to support them. The house is now finished and furnished; there are only some small things to complete. If there is a medical emergency they can call an ambulance or get an Uber or W can take them to hospital. She is happy for them to be supported by social workers in Brazil. There are speech therapists there and M has a cousin who is a speech therapist she could speak to for advice. It will be difficult for R to learn that his father hurt him and he may need to see a psychologist. She does not see value in R seeing his father because of what he did. She wouldn’t open the door if F came to her house and would call for help from her family and from the police. He will miss his foster carer in the UK, she has told her that “the day you want to come and visit the doors will be wide open to you”. “She is part of R’s history”. M has changed because she can now reflect and think more. She is very upset about what happened. She will be much more careful about who she gets involved with. She will be a more experienced mother. If they do not agree about R they will have to try and talk through to resolve the problem. If they still do not agree, “she will have to listen to me”. M knows how to give R medicine, to keep him clean, sing to him and tell him bedtime stories. She would want to know where R is and wouldn’t agree to M taking him out late. It does concern her that M did not realise R was injured but she will now be more experienced and attentive. She is not going to allow M to bring any new man to her house until she knows them well and has met the family. G owns a house next door and has offered to give them the rent from that to add to their income.

She was surprised that M lied when telling the court what she knew about F’s cannabis use. She lied because she was ashamed and embarrassed. When she lied she was not putting R first. It was a big mistake and she will not do that again. M would tell her, she thought, if she was struggling to care for R and would seek help. M had put together the family plan setting out the roles everyone would carry out. MGM would be in charge of education with K’s help. She knows education comes first. R will settle with them because he is charismatic. He will meet new people. He will be sad about losing his foster carer but he will adapt. There would be a benefit to family members coming to England to meet R but it is not essential. He already knows M and her. When she arrived in the UK she had planned to stay for 2 months, but this has now been over 2 years. Brazil remains her home and she really wants to go back. She was asked about R’s medical needs and said his eyes have improved but still get watery. If he gets a high temperature he can have a fit. They would give him paracetamol and take him to the doctor. She will not feel embarrassed or ashamed to talk to her family about what happened to R. W and P can help her with his medical appointments and K with schooling. She is not worried about her age, she has no health worries.

My impression of MGM was much as before. Despite her cognitive difficulties she is an impressive witness. Her face lit up when she spoke about R. He is clearly the centre of her world. She has shown undoubted commitment to him, remaining in the UK to support her daughter and to see these proceedings through to a conclusion, away from her home, her family members who she plainly loves and her friends. Her evidence was thoughtful and clear.

L has filed two statements. She is 68. She and J have been married for over 50 years and have 3 children. They both still work although they are of retirement age. She ensured her children had a good education. One is a journalist and one is an accountant. All her children live successful lives. Her eldest no longer lives with them. She is close to MGM, her sister, and they brought up their children together. They live 25 minutes from MGM’s home or an hour by public transport. She would assist M and MGM with domestic tasks, with medical appointments and advice and with parenting guidance. She has met R by video, “he is so lovely”, and cannot wait to meet him in person. She understands the concerns about M’s naivety and vulnerability and would advise her to put R first and that she needs to be careful before bringing any third parties into R’s life. If she is not being listened to she would be confident about reporting her concerns to social services or the police. Although she would want to travel to England to see R she and J both have a strong fear of flying.

L attended court remotely to give oral evidence and was accompanied by her husband J. She would trust M and MGM to care for R. MGM is the older and more experienced. She was aware that F had caused the injuries to R. She is available weekends to prove practical help and is willing to do so for an indeterminate time. At the end of her evidence she expressed her thanks to all involved with R for looking after him so well and for dealing with the issues that had arisen.

W is aged 46 and is M’s cousin. He is married and they have two young children, the youngest is a similar age to R. He works as a gas canister merchant with his own business. He understands the background to be that F caused the injuries to R. He was horrified to read this. He can provide practical support to M and MGM during the day on Mondays and Tuesdays and will also be able to take other time off work if needed. He has a car and will assist with journeys to medical appointments. If these are not on Mondays or Tuesdays he can make arrangements to be there. He emphasises how close knit the family is and that they all support each other. He and his wife are happy to be considered as contingency carers for R if needed. They have a 3 bedroom house in City A. His children attend a private school as his business is successful.

W attended court remotely to give evidence. He lives a 10 to 15 minute drive from MGM. It is 7 minutes by motorbike. His commitment to R will be for as long as is needed, until he is an adult. He is concerned that M did not realise that R had fractures but believes that lessons have been learned. If there is any disagreement about what is best for R it will be resolved by dialogue. He was able to identify R’s medical issues from the papers he had read. He was aware, for example, that R needed to have an MRI scan. He knows R will need special care. M is sharing information about R in the WhatsApp group. He is happy to go into medical appointments alongside providing the transport. He will monitor whether the advice given is being followed by M and MGM.

K is aged 47 and was close to M when they grew up as they were of a similar age. Their families would spend Christmas together every year. She has worked as a teacher and as co-ordinator of the education programme in a school. She is currently an administrative assistant at the Secretary of Education in City A. She has a son and is separated from her former partner. She is with a new partner and they plan to marry next year. She lives about 20 minutes drive from MGM’s house, but she has a second property where they spend weekends and this is only 5 minutes from the MGM.

She said that as a teacher she has experience of child protection. She has a legal background so was able to make sense of the documents she has been sent from these proceedings, but she only received these in November 2024. She is aware that the court has found that F caused the injuries to R. It is hard for her to understand how a father could do that. She has had many discussions about the situation with M and about her vulnerabilities. She is comfortable about having difficult and honest discussions with M and MGM should this be necessary. If M were to enter into a new relationship she believes she should introduce him to the family first and take her time in getting to know him. She is able to visit M and MGM early evenings on Fridays, Saturdays and Sundays and is able to provide practical support with R’s education. She could help secure nursery places including one that has resources for children with special needs. She is willing to help R with his homework for a few hours each week.

K attended court remotely to give evidence. She said she found the FGCs useful in helping her to understand R’s needs. They have agreed that her responsibility for R will mainly be in relation to education. She believes the family does need a support plan given the seriousness of the situation. She was surprised that M did not mention to her the difficulties in the relationship with F or that he was using cannabis. Everyone will need to be open and honest for the plan to work. R will miss his foster carer but he will have a lot of new family members to meet. She had made the enquiries of the proposed nurseries. She has only met R by video and when she meets him in person she will be better able to assess what educational provision he needs. Her job involves liaison with other government departments so she is used to communicating with agencies. She would be happy to help with communicating with hospitals and schools or to help with understanding letters or completing forms. She would be happy to attend meetings at schools / nurseries and to advocate for R to make sure his needs are met.

P is aged 56 and is another of M’s cousins. Aged 12 she moved in to live with MGM as there were more schools available in City A. She lived there until she was 16. MGM treated her like a daughter. She was married for 25 years and has two sons. Her husband died in 2013. M, MGM and L provided her with significant financial and emotional support. She works full time as a chef. She understands the findings that the court has made about the injuries to R and the concerns expressed about M’s vulnerability and R’s additional needs. She is available to provide practical support to M and MGM after work on Thursdays and Fridays and can be flexible if they need help on other days. She owns a car so can assist in bringing R to medical appointments. She only lives 15 minutes from MGM’s house. She is available as an emergency contact.

P attended court remotely to give evidence. She is willing to provide whatever support is required. It may be better to contact W in an emergency because he is nearer.

My impression of L and J were that they are genuine people desperate to meet R and integrate him as part of their family. The help they can give, as older family members living a drive away and who still work, is limited, but real. I do not consider that their interest in R is likely to wane and, should he move to live in Brazil, they will form an important part of his wider family network. W and K were also impressive witnesses and showed genuine commitment to R, M and MGM. W came across as someone prepared to address practical issues, provide transport and to engage with medical issues that will arise with R. He had arranged the refurbishment of MGM’s property whilst she was in Brazil. K has significant knowledge about the local education system because of her work and will be able to assist R in accessing appropriate nursery and then school provision. She will be able to provide practical support liaising with agencies and assisting with accessing services. Again, both W and K were offering a long-term commitment to R, borne of their lifelong family connection to M and MGM. P was less impressive, she did not appear to have thought through what was needed and what she could contribute. That said, however, she was at work when she gave evidence and appeared distracted, so may not have given her best evidence.

I record here my thanks to the Brazilian Consulate for their attendance throughout this hearing and at most hearings during these proceedings. The assistance that they have provided to the parties and to the Court has been invaluable. In their letter of January 2025, they highlighted the CREAS services available to families in City A, with contact details and information about the Brazilian public healthcare system (SUS).

At the conclusion of the hearing I invited the Consulate to set out any further information they wished to provide to the court or any opinions they wished to express on the matters raised. I had in mind, in particular, providing an opportunity to respond to the criticisms made about the social care, health and education systems in Brazil raised by the LA. I was told that the observations made by the LA had caused upset and were viewed as discriminatory. The letter they sent had been approved by the Ambassador and I set out the contents of this in full:

“Dear Honourable Judge,

I extend our sincere gratitude to the High Court - Family Division - for allowing our representatives to attend and observe the hearings in the matter concerning the welfare of Brazilian national [R], currently under your consideration.

The Consulate recognises and deeply respects the vital role the Family Court plays in safeguarding the welfare and rights of children within the United Kingdom. ln cases such as this, which involve parties from another jurisdiction, we firmly believe that active cooperation between the UK Family Court and the Brazilian Consulate is not only appropriate but essential. Such collaboration can enrich the Court's understanding of the cultural, familial, and legal context of the child's background and contribute meaningfully to the pursuit of a just and informed resolution.

While we fully appreciate and support the paramount importance of safeguarding every child from harm, we respectfully highlight that at the core of our concern for [R's] best interest lies the fundamental right of every child to experience the love, presence, and care of their family. ln line with this, the Brazilian Statute of the Child and Adolescent highlights in its Article 4 that the effective implementation of the rights to Family and community living, alongside health, nutrition, education, sports, leisure, vocational training, culture, dignity, respect and freedom are absolute priorities. ln this particular case, the mother… and the grandmother… have been working hard to overcome their social disadvantage in the UK and personal difficulties to be allowed to stay in [R's] life. Their resilience demonstrates the transformative power of love. Furthermore, [R's] extended family have also shown their willingness to support the mother and grandmother to provide both immediate and long-term care for [R]. We believe that a nurturing and stable family environment, in which a child feels safe, valued, and unconditionally loved, is central to their emotional, psychological, and social well-being.

ln addition, as stated in our previous letter, the Consulate is committed to referring the case to the attention of social and health services in Brazil, and to provide our authorities with all the available information regarding the case. ln this regard, it seems pertinent to point out that recently, Brazil's healthcare system - SUS - has exported its Family Health Strategy Program (ESF) to the NHS. Laura Donnely, writing for The Telegraph about the program, highlighted that the ESF has been linked to significant improvements in health outcomes. The article also called attention to one of the tenets of the program, which is to help the vulnerable navigate the health system, for example, by making appointments with specialists, general practitioners, and dentists. lt concludes that the Brazilian approach "takes advantage of a strong community spirit" within the country. The ESF is one of the many health programs implemented throughout the country that Brazilians can benefit from, free of charge.

With regards to the educational system, Brazil has embraced solid legislation based on an inclusive approach to ensure access, as well as permanence, and success for all students - including those with disabilities, global developmental disorders, high abilities, and specific learning needs. lt is supported by federal laws such as the Federal Law 13.L46/20t and the Decree 7.6LL/2Ott, among others. Our educational system is not without flaws but the current legislation ensures that the right path is in place to fulfil the educational needs of Brazilian families and reach the full potential of Brazilian children.

We remain hopeful that through continued respectful dialogue and a holistic

appreciation of all aspects of the case - social, cultural, emotional, legal, and relational - this Court will arrive at a decision that honours the family's dignity and provides a foundation for a life filled with love, connection, and opportunity, be it in the UK or Brazil.

Thank you once again for this opportunity and for the care with which this matter is being considered. We look forward to continuing to support and contribute constructively to this process in any way that may be helpful.”

Ravinder Ghale has been R’s Children’s Guardian throughout these proceedings. Her substantive report was filed in December 2024, but by the time she came to give her oral evidence her position had changed significantly.

In her written report she supported the LA’s applications for care and placement orders. She noted that L is loved and wanted by M, MGM and his whole maternal family. M is polite and respectful and attends all her contacts with R, “She is observed to be loving, affectionate and a caring mother who tries to follow and implement professional advice in relation to understanding and meeting R’s care needs during contact.” MGM handles R confidently and has a warm ‘motherly’ disposition about her. However, the view set out in her written report was that both M and MGM underestimate the extent of R’s needs now and his potential needs in the future. She says, “I have no reason to depart from Mr Ozbek’s conclusion that [M] or [MGM] on their own or jointly with each other could [not] safely care for [R] now or in the future even with a robust package of support in Brazil or in the UK”. When she has observed M she notes she has made some progress in her parenting, she talks and sings to him in an animated way, but she tends to overwhelm R (taken from a contact in May 2024). She did not seem to have the authority to change the dynamic of the interaction with him or to understand why it needed changing. As a result of this, she asked the LA to provide M with guidance and advice during family time.

She said that R requires attuned, skilled, insightful care supported by a structured home environment. His carers need to be able to understand, anticipate and meet his evolving care needs to ensure he continues to thrive and make progress. He requires proactive care which ensures that his emotional, health and medical needs and attendance at appointments are prioritised and advice given is closely followed. He may have further health needs as he matures and his speech and language delay may be indicative of other underlying learning needs. The progress he has made to date is attributable to the health and medical care he has received and also the high level of care from his foster carer. Any move to Brazil would represent a huge change and challenge for him as he has only ever lived in the UK and whilst he has a relationship with his M and MGM he has not met other family members. Adoption in the UK would offer him a family capable of meeting all of his needs as well as a security of placement and stability. She recognises that it may not be possible to match his Brazilian identity and heritage or his Portuguese language. He will also lose his birth family which will represent a lifelong loss. In the event an adoptive placement cannot be found, he would remain with his foster carer who is committed to caring for him long term and sees him as part of her family.

The Guardian comments in her report on the assessments of other family members. Like the LA she concludes that the assessment of L and J is flawed, contains little to no analysis and does not address the issues which support the conclusion reached. She comments that, as at October 2024, the family did not seem to have a plan as to who would do what to support M and MGM or any understanding of what was required. The extended family do not see any reason why R is not with M and MGM.

Placement with his current foster carer remains an option, she said, and would mean no change for R. She has cared for him to a high standard. However, this would mean that R would not be raised by a family member and would be subject to a care order throughout his minority. There is, she says, an inherent vulnerability with foster placements and if it was to break down it might be difficult to place R in an alternative permanent family with the result that he might drift through the care system.

She concluded her report as follows:

By the time she came to give her oral evidence, the Guardian’s position was somewhat different. She acknowledged that there are three very different options for R: adoption, a care order (remaining with his current foster carer) and placement in Brazil with M and MGM. She said, “I am finding this very difficult to determine, each option has its advantages and disadvantages”. Adoption would bring finality to R, with parents who can make all the decisions for him, with access in the UK to all appointments and services and a lifelong commitment. However, from the local authority’s evidence only 9 families would potentially be available to R and none would be a match for ethnicity or language. A further disadvantage would be this would sever his ties with his natural family and particularly his M and MGM. There is also the legacy that comes with an adoptive status. He will grow up having to try to understand what decisions were made about him and why. Why he could not live with his family in Brazil who could promote his rich cultural heritage. He has a large family in Brazil who want him to be part of their family. The absence of these potential relationships would be “a tremendous loss for him.”

Foster care is only being considered because his current carer has looked after him since shortly after his birth. She has been his primary carer and understands all of his needs. He would not need to move or experience any change to his routine. She speaks Portuguese. She is willing to look after R throughout his minority and will promote contact with M, MGM and the extended family. The problem is that they may well not be in the country to take up direct contact. There is then the significant disadvantage to R of being in foster care and on a care order. He would not have a sense of permanency. The placement can break down. The foster carer can decide, for whatever reason, that she no longer wishes to care for him. She may become unwell, decide to leave the country or just retire. It is not as secure as adoption. The LA, as a corporate body, will make decisions for R. He will be a child in care with a social work team around him. He may not want that intrusion in his life. He may be embarrassed about his ‘looked after’ status as he gets older. He will not have a parent, he cannot call the foster carer “mummy”, she is his foster carer so he is deprived of those relationships.

The advantage of a family placement is that M and MGM love R unreservedly and have been devoted to him throughout these proceedings. They desperately want him in their care in Brazil and they have a home ready and waiting and an extended family who have really come on board since October 2024. R would have his language, heritage and cultural needs met. He would not feel isolated. All three options carry risks and disadvantages. M and MGM do not fully know R, you have to meet him and see him regularly to understand fully how his needs impact on his functioning. What we have now, since Mr Ozbek’s assessment, is a plan from the family as to what they would be willing to do. As they do not know R it has been difficult for them to encapsulate and embrace what his limitations and developmental needs are and how they need to be anticipated and understood to enable them to be met consistently. He needs people around him who are proactive and not passive. He needs carers who will pick up his emotional cues and understand where he is not doing well in terms of his level of development relative to his age and recognising when he needs professional help. He will be loved and wanted, his emotional needs will be met and to some extent his social needs will be met. However, what may deteriorate for R may be in relation to his health and development such as his speech and language. To look at him, he is a charming smiley little boy. It may take a while to notice he has few words or limited expressive language. M and MGM would have to be proactive in understanding and knowing his development and how it needs to improve so as not to let this stagnate and deteriorate. The difficulty with the family’s evidence is that they have listened to professionals and read the medical reports setting out R’s difficulties but they have been consistent in their views and belief that MGM is an excellent parent. She has successfully parented two children, so they do not understand why they need to monitor her care. They are more accepting of the fact that M has limitations and has made poor choices in her relationships. The family regard living with MGM as a safe and sensible plan. Each has offered help and support but this depends upon them being proactive, asking pertinent questions about R’s health, development and social needs. Perhaps not taking M or MGM’s word for it and assessing for themselves to see if he is falling behind or deteriorating.

In her view all three options are really finely balanced. The family option appears the most appealing because R will be in a natural environment with a family who love and want him. That has never waivered. ‘Is that enough?’ is the question she is struggling with. He has the right to have his needs met to a high standard. There are services in Brazil and the embassy are clear they can make referrals on R’s behalf. This is a positive safeguarding factor. If R is at nursery professionals should pick up and raise with M, MGM and family members any persistent signs of delay. Adoption caries the least risk in terms of his care needs, but does not fulfil his emotional needs in relation to his family, his heritage and his identity. He may lose his language. He would receive love and good care and wouldn’t need anyone to keep an eye on him. However, this is an extreme option when he has family who are really determined to look after him. Can they truly appreciate and understand what professionals are saying and why and step in to make sure R is being looked after in the way he needs to be? This will require courage from the extended family, MGM is an elder to them and they would have to be prepared to tread on her toes, challenge and contradict her and have difficult discussions if R is not getting the care he should. It is not just, or really, about shopping or keeping an eye on him, it is about getting to know him and understanding how and where he is behind. W has a three year old child so would need to see for himself how R is progressing.

If adoption is the outcome then direct contact will be limited. There could be videos / letter box contact. If he is in long term care and M and MGM were in the country then M would be involved in reviews and could continue to have contact. This could be 12 times a year or more. However, if they left then contact would not look that different to adoption. It will carry tremendous losses for R. F has been responsible for causing significant injury to R. This is a legacy R and his family have to live with. F only attended contact 5 times last year. At several meetings he asked for contact to be restored. He promised to attend and then did not. The Guardian does not consider F should have any direct contact with R, whatever the outcome of these proceedings. He has never admitted or taken any responsibility for his actions. No work has been undertaken with him to understand what happened to R and why. R would ask why he has to see a parent who has hurt him and not admitted it or taken any responsibility. It was an error for her to recommend direct contact to F in her report. If R is going to live in Brazil it is unrealistic to expect family members to come over.

When questioned by Ms Bradley, the Guardian accepted that Mr Ozbek’s assessment was robust and that M and MGM will struggle to provide good enough care for R. M had not made the connection between cause and effect in relation to R’s presentation. She was naïve and had a degree of intellectual limitations. However, since those events M has got to know R and he parenting has improved with a lot of support, guidance and teaching. She was a first time parent and F presented as the more experienced parent. She had health issues. F took over and dominated R’s care. A lot happened very quickly and M became overwhelmed and bewildered. With hindsight, M agrees she could have done things differently. The Guardian agreed that M may want a future relationship. She is quite dependant on her family for support. There is a risk of her wanting to move on and that she would take R with her. She thinks she is a better parent than she is. She does not fully grasp his health and developmental needs and how this will impact on him as he matures. She sees a sweet cuddly boy who loves her. She misses or does not understand the more serious aspects of his developmental issues. M and MGM have different strengths and levels of understanding. Together they provide a high level of love, attention and play but they do not make up for each other’s deficiencies. It is possible that R’s long-term trajectory will be the same as M’s, or worse. He is only likely to improve with the right therapeutic help. MGM will take a hard line with M, but M is an adult. She came to the UK and became pregnant quickly. She knew F was drinking and smoking cannabis. It is difficult for any parent to exert control in a meaningful way over a 41 year old child. Any work M undertakes is reliant on her wanting to understand. She remains vulnerable in any new relationship. The family has been told R needs a higher level of care, but whether they genuinely understand is unclear. It would depend on W, P and K saying they were going to step up and take charge. To pick up when R is not on target. It is a huge responsibility for them when they have full time jobs and family commitments. The sense is that they may leave it to M and MGM. Professionals are asking for R to receive a high level of care because that is what he has received.

The Guardian confirmed that she had skilfully avoided Ms Roberts’ question in chief as to which of the options was her recommendation. In some ways R is lucky to have three options but each of them is problematic. What had changed since her report was that the information about Brazil and from the family had evolved. It has been helpful to her to hear directly from the family members in Brazil. Their plan has been consolidated. The current foster carer is not putting herself forward as a special guardian because of the discrepancy between the fostering rate and what she would receive as a special guardian. She cannot afford to lose her fostering allowance and would therefore need to work. Another difficulty is that she will require a larger property once R reaches 3 as he would need his own room. She does not want to relinquish her current tenancy. If R remained in her care one advantage is that she knows the family and the LA would be on hand to arrange and support contact.

She agreed that MGM does not pose any risk to R. There may be a tension in the relationship between M and MGM as M is his mother and would want to impose her views. MGM accepts that M cannot parent R on her own but will M listen? The Court could make a prohibited steps order to say that R must remain living in the home with MGM. That would be a positive message for M, MGM and the whole family. The hope is that over time the extended family will come to understand more clearly R’s needs and will provide the necessary support. It is not daily supervision he needs, it is the more subtle care and monitoring of his development. Information will need to be shared with them. M has shown she can act on advice, which is a good sign. She is more reassured to hear about the services in Brazil and the role the Consulate can play in accessing these. MGM did not identify whether M needed special assistance at school. R’s needs are significantly higher than M’s would have been; his needs are apparent now. One of her concerns is that the family does not think his needs are as significant as they are. However, they mean well and want to assist. K understood about the need to assist with education, but loyalty may get in the way of being able to say anything negative about MGM. It is still academic for the family but hopefully the penny will drop when they meet him. They would need to check whether M and MGM understand the information they have been given, for example at medical appointments. They will say they understand when they do not.

In terms of the search for an adoptive placement, the Guardian accepted that the pool may be reduced because of R’s health needs. The evidence about the availability of Brazilian adopters was not reassuring. His language could be promoted outside the family. He would need adopters who are not easily phased. It would be concerning to think of R being in the care system for 15 years.

I received extensive written submissions on behalf of all parties, and some oral submissions, which I have considered carefully. I do not intend to attempt to provide a complete summary of these

I note that the LA invites me to disregard the oral evidence of AB where it departed, on the issue of the Court’s fact-finding judgment, from the written evidence. I was provided with an email from the Service Manager confirming that the LA accepts the conclusions that I reached and that no finding of failure to protect was made against M. It was said that the observations made by AB had not impacted on the decisions made by the LA which were based upon Mr Ozbek’s assessment and his analysis of risk.

Ms Bradley and Ms Watkins remind me of R’s health and learning needs. As a result of these he needs better than ‘good enough’ care and carers capable of identifying and seeking support for those needs. The expectation being placed on family members to support M and MGM is onerous and unrealistic, and they do not see the need to provide M and MGM with that support. The information provided to date about support services in Brazil is vague without any specific resources having been identified or timescales. R’s identity needs can be met through family contact, certainly if he remains in foster care. He has an uncle and aunt and cousins in the UK.

Ms Farrington KC and Mr Pugh, on behalf of M, raise criticisms of the way that information about Brazil has been obtained and presented by Mr Ozbek and the LA. Generalised web searches (in English) do not amount to sufficient research when such important issues are at stake. Nonetheless, both have made sweeping assertions about issues such as exploitation and crime, poverty, education and health. Information provided on these issues by the Consulate and Ms Fagundes have been sidelined, and the opportunity to contact services directly in Brazil has not been taken up. Mr Ozbek did not undertake a holistic evaluation of the welfare options available to the court so for the LA to accept his analysis, as they have, misses entirely the need for a rounded, as opposed to a linear, evaluation. They also draw my attention to the evidence presented by AB as to the LA’s view about M, which cannot be separated from their overall analysis. There was no application to adduce fresh evidence on this issue.

Mr Nuvoloni KC and Ms Baruah, on behalf of MGM, join with M in opposing the care plan of adoption. They submit that of all the professional witnesses, only the Guardian has undertaken a proper holistic balancing exercise. They invite me to make a child arrangements order in favour of M and MGM with a prohibited steps order to prevent contact by F.

On behalf of F, Ms Lewis KC and Mr Potter reiterate that whatever the welfare outcome for R, he seeks direct contact with R. They explain F’s lack of engagement with contact as due to “work commitments”. There is, they say, no sufficient evidential basis for the court to direct that F should have no contact with R. He would submit to supervision of contact by a professional or family member. He also seeks video contact on a weekly basis. He offers reassurance that he would not seek to disrupt R’s placement with his M and MGM.

Ms Roberts and Ms Haberfield on behalf of the Guardian acknowledge that this case is exceptionally finely balanced. The Guardian does not now support any ongoing direct contact between R and his father. F inflicted significant harm upon R, he does not accept the court’s findings, he has failed to engage with any work to address the issues that gave rise to his actions, so any future contact would be high risk. Even closely supervised contact would be emotionally harmful to R, being exposed to a parent who has never accepted what he did and does not, therefore, accept R’s life story. F has shown little commitment to R and the quality of his contact is variable / poor. He has attended 7 contact sessions in the last 18 months. He has caused R to be brought to the contact centre, and then failed to attend. He has no established relationship with R. Recommendations are helpfully set out as to a transition plan, should the Court’s decision be that R should live with M and MGM. The Guardian does not assert that the services available to R in Brazil would be of a lower quality than those available to him in England. The support in accessing services offered by the Consulate provides considerable reassurance. The question for the Guardian is whether M and MGM, with the support of family members, can provide ‘good enough’ parenting for R given his needs and requirements. The risk with the family support being offered is complacency and deference.

From all that I have read and heard, R is a delightful, happy, cheeky little boy who is now 3 years old. He has formed a strong relationship with his foster carer who meets all his needs to a high standard.

In the earliest weeks of his life R sustained multiple injuries;13 fractures and a bruise. These injuries were caused by F. They were the result of at least 9 separate applications of force during at least 2 timing windows. F has consistently denied causing these injuries so has provided no explanation for his actions.

R is loved and claimed by M and MGM. He has maintained a good relationship with them in contact. Their commitment to R has been exemplary. The photographs and evidence demonstrate that he is very much a part of the maternal family in the UK. His maternal family members in Brazil very much want to meet with him and be a part of his life.

The LA seeks care and placement orders for R, so it is necessary to analyse the welfare factors set out in s.1(1)(4) of the Adoption and Children Act 2002.

R is 3 years of age. It is not appropriate to ask him directly for his wishes and feelings about the placement options. He has lived with his foster carer for almost his whole life and so his primary bond will be with her. He would be likely to feel apprehensive about any move to adopters, who will currently be strangers to him and apprehensive about any move to Brazil. He has a positive bond with his mother and grandmother and is likely to want to retain that relationship. As the Guardian says, “I do not doubt that he would love to be raised by his mother and / or MGM”. His relationship with his father is less positive. As the Guardian notes, contact is of variable quality and inconsistent. F has not prioritised R within these proceedings, most notably by not attending contact or the majority of this final hearing.

R has a genetic mutation, TP63, although he does not present with any clinical features associated with it. The clinical significance of this mutation remains uncertain. He presents with delayed speech and language skills and also some delay to his motor, visual and self care skills. He has ongoing ophthalmological issues which require review. His recent MRI scan shows potential concerns about his right inner ear structures which require further investigation. He therefore requires access to good quality medical care and to be with carers who can understand and advocate for his needs.

There are understood to be no likely physical consequences arising from his injuries, although the emotional impact of these is unknown. R will not have any information from F to help him understand why his father caused these injuries to him. He is likely to need support to understand his complex life history, including why he was removed from his parents’ care.

R’s future learning needs are likely to be significant. His delayed speech and language is said by Dr H to be the main area where he requires intervention and monitoring. He will require access to good quality educational provision and, again, to be with carers who can understand and advocate for his needs.

R is a boy born in the UK of Brazilian parents and grandparents. There is no doubt he would qualify for Brazilian citizenship. The language of both sides of his family is Brazilian Portuguese. He is loved and claimed by his maternal family, as I have said. No member of that family has caused him harm. The loss of that family would be highly significant to him. He would be permanently separated from a mother who loves and wants him. He would be separated from a family who can provide him with a high level of emotional warmth, who can meet his basic physical needs and can provide him with a full sense of his own identity and belonging. He would lose his family’s culture and language. He would be brought up as a British boy. The expert evidence about Brazil suggests that an English adoption order would not be recognised there. On the evidence that I have heard it is highly unlikely that there would be any form of cultural match found for him in the UK. As R gets older it may be very difficult for him to understand why he has lost the legal connection to his birth family.

This is largely set out above. R has a rich Brazilian heritage. His family is Roman Catholic. He has a number of health and educational needs and professionals have questioned whether those needs can be met by his family and in Brazil.

The harm which R has suffered is clearly established. He was injured by his father causing 13 fractures and some bruising. There were at least 9 separate applications of force to R across at least 2 timing windows. R would have been frightened and in pain. His injuries required hospital treatment and resulted in R’s removal from the care of his family when only one month old.

Assessing the risk of future harm is more complex. It is necessary to set out this analysis with care and particularity given the guidance provided by Peter Jackson LJ in Re F, Re K and Re T.

The risk of future physical harm (i.e. causation of future injuries) is largely dependent upon the level of direct contact between R and F. R remains young and vulnerable. F has not explained how or why he caused injury to R and has not received any therapeutic assistance. He has refused to comply with court directed drug testing so his current level of drug and alcohol use remains unknown. I agree with the Guardian that the risk he poses to R therefore remains high should there be any ongoing contact.

Those assessing M accept that she does not intend to resume her relationship with F. I agree. The separation appears permanent. It is suggested that M may form another relationship and that relationship may again put R at risk of physical harm. In my view that risk is low for the following reasons:

The principal risk of future harm to R arises from the potential failure to meet his health and educational needs. As Mr Ozbek said, this is more a question of long-term neglect than short-term immediate harm.

Within these proceedings, two separate questions have arisen. First, whether there is good quality health care and educational provision available to R in Brazil. Second, whether M and MGM will be able to access that provision and then be able to support R / advocate for him to have his needs assessed and met.

It is surprising that the LA delegated to Mr Ozbek, a UK based social worker with no experience of Brazil, the task of identifying what provision would be available to R in Brazil. It is also surprising that they (and he) relied principally on the information available on the internet, and in English. The Consulate, Ms Da Silva and Ms Fagundes are more reliable sources of information.

I have heard a great deal of evidence about the Brazilian healthcare system, from the Consulate, Ms Fagundes and also from family members. City A is a large city (population 1.5m) with a well-developed public health care system. There are hospitals able to provide specialist care. One is just over half an hour’s drive from MGM’s home. M and MGM will, in addition, obtain private health insurance for R, funded by G. The Consulate are rightly proud of the steps that have been taken to improve health outcomes in Brazil, including their Family Health Strategy Program. I accept that it was a simplistic over-generalisation for the LA to describe health care provision in Brazil as ‘inadequate’.

Equally, the information provided by the Consulate demonstrates that the authorities are committed to ensuring that all have access to education, including those with specific learning needs, so that each child reaches their full potential. There are schools and nurseries within easy reach of MGM’s home. I accept it is difficult for M and MGM to decide which will best meet R’s needs, and evidence how those needs will be met, when they are in England. The LA’s description that education is not compulsory and is of a poor standard in Brazil, again represents a simplistic over-generalisation.

I accept, of course, that provision and / or standards of both health and educational care may be patchy. The same observation could be made in respect of a number of countries and / or areas, including within the United Kingdom. Navigating within such systems can require skill and persistence. For R, it is essential that his health and educational needs are assessed, and re assessed regularly. It is essential that services are available to meet those assessed needs, whether medical, learning or speech and language. He will require carers who can navigate the system so as to access resources, and who can support R to obtain services and advocate for him.

M and MGM are well meaning, but they have not had the full-time care of R so may not appreciate the extent of his needs. They can articulate many of his needs but I accept that is not the same as a deeper understanding. They will undoubtedly require support from family members, particularly W and K. Both were impressive witnesses and are capable of supporting M and MGM to access necessary health and educational help for R. What is important going forward is that W and K are able to put their words into actions: to appreciate the nature of the support and monitoring that is required, to put R at the centre of their considerations and not be sidelined through respect for, or deference to, MGM. They need to appreciate MGM’s cognitive limitations and that she may not be best placed to support R with his specialist needs.

From all that I have heard, support from CREAS will also be essential. They will be able to assist in accessing health and educational services and also should issues arise, including with F. An initial referral from CREAS will be an important early step in preparation for any return by R to Brazil. W and K will need to be strong and determined to contact CREAS should they have concerns about R.

Returning then to the factors in Re F:

The balance of harm in this case is not one sided. Removing R permanently from his family and placing him for adoption in a placement which is not a cultural match creates a significant likelihood of long-term emotional harm as he attempts to come to terms with his background and identity. Whilst steps can be taken by adoptive parents to attempt to mitigate that loss (e.g. helping him learn Portuguese or attending cultural events in the UK), they are unlikely to be wholly or even partially successful. There is also a real likelihood that no adoptive placement will be found. In that event R will remain in foster care and at risk of disruption, placement breakdown and the instability that comes with being a ‘looked after’ child.

R has maintained a strong relationship with M and MGM. Both want to do their best to look after him. They love him unreservedly. The relationship with a parent is a pivotal relationship for most children. That relationship will almost certainly be curtailed or lost should R be adopted. The LA have said they will “consider” searching for a placement that will accommodate direct contact, but the pool of potential adopters is already small. In any event, M and MGM are likely to return to Brazil and facilitating any direct contact in those circumstances will be difficult. If no adoptive placement can be found then, theoretically, it may be possible to maintain some relationship between R and M and MGM, but the practical arrangements will again be difficult. This will represent a significant loss for R. A potential relationship with G, his wife and children would be no substitute.

R’s relationship with F is much less important to him. In part this is because F caused him significant injury and in part because F has not been committed to contact or this court process. It is unlikely that, in the event of an adoptive placement, prospective adopters or the LA would support direct contact with F. In the event that R remains in foster care subject to a care order, his closest relative in the UK will be F. F will have the greatest opportunity for ongoing involvement in R’s life, through the review processes and by way of direct contact. There is some irony in this, given F was responsible for the events leading to R’s removal into care.

M, MGM and the whole maternal family desperately wish for R to be a central part of their family. In many ways their ability to provide him with a secure environment and to meet his needs is clearly established. They have a suitable home waiting for him in Brazil. He will be M and MGM’s sole or primary focus upon their return. They will shower him with love and care and will meet his basic needs. As I have analysed above, the more difficult question is their ability to meet his health, educational and developmental needs and the support that will be available to assist them with that.

S.1(1)(3)(c) Children Act 1989 requires the court to consider the likely effect on R of any change in circumstances. No party advocates, as their first-choice option, for R to remain with his current carer. Both adoption and a move to Brazil with M and MGM will represent a change of primary carer and a significant change in circumstances for him. Any move to Brazil would be to a new country and a change of primary language, but would be with M and MGM with whom he has an established relationship. An adoptive placement would represent a move to carers without an established relationship with R, but would represent some continuity in terms of country and primary language.

The Guardian considers this case to be very finely balanced, so finely balanced that she is unable to make a recommendation. Mr Ozbek commented on the very difficult task facing the court and observed that this case is ‘ethically challenging’. As Pauffley J. noted in Re LRP prospective adopters will have been through a rigorous and thorough assessment process and will be of the “highest calibre”. They can confidently be expected to provide extremely good parenting to any child matched with them, and to provide that child with “the priceless gift of a happy, secure and stable childhood”. This will include, in R’s case, ensuring he has access to the best medical care and educational provision.

On the other hand, as set out by the Supreme Court in Re B, adoption represents an interference with the Article 8 rights of R and of his family. It is not enough to show that a child could be placed in a more beneficial environment. Children should be brought up by their natural family unless the overriding requirement of that child’s welfare makes that not possible. Adoption is a last resort, where the court is satisfied that, even with assistance and support, nothing else will do. As explained by Munby P in Re N, all parties and the Court must focus attention on the child’s national, cultural, linguistic and religious background. The welfare checklist demands consideration of the likely effect throughout R’s life on having ceased to be a member of his original family. Adoption, or long term care, will mean that R will lose the opportunity to be brought up by his mother, and grandmother, who love him unreservedly and have never caused him harm. He will lose the opportunity to be brought up by those that share his heritage, culture, language and religion.

In many ways I was impressed by the assessment undertaken by Mr Ozbek. He spent a considerable time with R and with M and MGM. He undertook an in-depth assessment of R’s needs and vulnerabilities. He undertook equally detailed assessments of M and MGM’s strengths and weaknesses. He was not, however, equipped to undertake an assessment of the support and services available in Brazil, and such assessment as he did make was superficial. He was not instructed to, and did not, undertake a holistic balancing exercise weighing up the potential advantages and disadvantages to R of each potential option.

I acknowledge that the LA has been hampered by a number of factors, not least the change of social worker very shortly before decisions had to be taken as to the care plan for R. That said, the LA’s analysis of the options for R was deficient in the following respects.

First, the LA has been guided by its own analysis of the circumstances in which R sustained injury, rather than by the Court’s findings. AB’s evidence that M failed to protect R, “even though that is not what the court found”, was not an aberration (or mis-speak), but accurately represented the LA’s thinking as set out in its written evidence. JC wrote that much of M’s evidence (as given during the fact-finding hearing) was not true and M had not done all she could to assist the court in determining the truth of what occurred. As AB explained, the LA had been “disappointed” that more findings were not made (against M).

Second, and more significantly, the LA has undertaken no proper holistic analysis of the realistic options for R. It is striking that the option of placement with M and MGM did not feature in the LA’s balancing analysis. Consideration of the potential risk of harm to R from adoption was scant, formulaic and ‘cut and pasted’ from another document. There was no analysis by the LA of R’s identity or cultural needs. There was no reference to the potential loss of his Brazilian nationality, his Brazilian Portuguese language or his Roman Catholic Religion.

The LA’s explanation for this was that, following Mr Ozbek’s negative assessment of M and MGM, “there were no other options”. This misunderstands both the limited role of Mr Ozbek and the significant obligations placed upon a LA when seeking orders for the permanent removal of a child from his family. It was misguided for the LA to consider R’s potential return to his family as “unrealistic” and therefore not to be included in the holistic balancing exercise. It represented a linear thought process which was that as Mr Ozbek had ‘ruled out’ placement of R with his family, adoption was the most viable option ‘left on the table’. It is very difficult to understand how any LA in these circumstances could decide that placement of a child with his mother did not represent a realistic option worthy of proper analysis.

In my view the LA were far too quick to dismiss the option of placement in Brazil, the services which would be available there to R and the assessment undertaken by Ms Da Silva and Ms Fagundes. It is not surprising that the Consulate found the LA’s description of the services available in Brazil upsetting and discriminatory. It is equally unsurprising that they have raised this case with the Ambassador. Comity requires a much more measured and analytical approach when considering services available to families within a foreign jurisdiction. By contrast, the Consulate have throughout shown nothing but courtesy and respect for this court’s process and towards the LA and other agencies.

Equally, it was unfair to describe the assessment undertaken by Ms Da Silva and Ms Fagundes as “flawed” with “little to no analysis”. Their assessment was detailed and helpful. They represented a potential resource for the LA to find out more about the services available in Area D.

To state the obvious, Mr Ozbek’s role was to conduct parenting assessments of M and MGM. His negative assessment represented the start of any holistic evaluation by the LA of the realistic options, not an end point. That holistic evaluation was never undertaken by the LA.

The Guardian has undertaken an appropriate balanced analysis of the options before the court in her oral evidence. I agree with her that information about the family support available to M and MGM from family members only crystalised at the conclusion of their oral evidence. This had been part of a process including the three FGCs, whereupon it had gradually become clearer what their understanding was of the risks and vulnerabilities in this case, what each family member could offer, and what the composite support plan would look like.

As the Guardian rightly recognises, a care plan for adoption for R does not mean that this is what will happen. On the evidence presented only 9 potential families would be available to R, and none would be a match for culture, ethnicity and / or language. The LA plans a 12 month time limited search for a placement for R. During that time, there will be considerable uncertainty as to his future. I acknowledge that families come into and drop out of consideration all the time, but it is difficult to be confident that an appropriate placement will be found. If not, then the plan for R is to remain in foster care for the balance of his minority. The difficulty with this, as identified by the Guardian, is that R will have no permanency. The placement may break down for many foreseeable and unforeseeable reasons. It will be the LA that will make decisions for R as his corporate parent. He will be a ‘child in care’ which will represent a significant intrusion in his life in terms of meetings, assessments and the fact that parental responsibility for him rests with the LA. He will not live with a parent.

In my fact-finding judgment I commented upon M’s naivety and vulnerability. I found that she had lied about F’s cannabis use, but that, overall, I was not concerned about any overt dishonesty or manipulation. She did not harm R or fail to protect him from harm. My impression of M has developed. Her personality came through to a greater extent in her evidence on this occasion. She is an engaging person and a gentle and loving mother to R. She has shown courtesy and respect to the foster carer and to professionals involved with R. She has been fully committed to R, attending every contact session and meeting. She has started to attend health appointments with R and the foster carer and this has assisted her in developing a greater understanding of R’s needs. M has grown and matured over the last year and she gave evidence with clarity and confidence. She was able to reflect upon her relationship with F and the warning signs that she missed. She has no substance issues of her own. She was clear about the need to protect R from F in the future and what she has gained from attending the Freedom Project. She asserted her view that R should have no contact with F. The risk of her forming another relationship with someone inappropriate is no more than a theoretical possibility.

MGM remains an impressive witness. R continues to be the centre of her world. Like M she has shown undoubted commitment to R, remaining in this country for almost three years whilst these proceedings continue. Her evidence was thoughtful and clear. L, J, W and K were also impressive. They are committed to R and to including him as part of their family. Their commitment to R is long term, in my judgment. W and K, in particular, can provide practical support with health and education but need guidance in understanding what is needed. A simple letter from the court could provide that guidance.

F represents the most immediate risk to R of all family members. He caused significant physical injury to R in circumstances that remain unexplained. He has refused to accept responsibility for those injuries. His drug and alcohol use remain unknown. He has not prioritised contact with R or attendance at court. His attendance is inconsistent and it is unknown when he will and will not attend. It is significant, in my view, that the Court had no forewarning that he would not be attending the majority of this hearing and, more importantly, that R has been brought to contact only for F not to attend.

In these circumstances it has been difficult to understand why the LA (and until her oral evidence) the Guardian, had recommended direct contact between R and F in the event that R is not adopted. The Guardian now accepts that was an error of judgment. At the present time F is not able to offer anything of value to R. He seems to consider he can drop into and out of R’s life at will, but that is not the way that parenting works. At best he would be seeing R every 18 months or 2 years. His approach to these proceedings has focussed on his own ‘rights’ as opposed to what is in R’s best interests. He has provided no assistance to the Court in understanding the circumstances in which R sustained injury or any reassurance that such circumstances would not occur again should R spend time with him in an unsupervised environment. I agree with the Guardian that even supervised contact would be emotionally harmful to R. It would be infrequent, at best, and F could not be relied upon to meet any prearranged date or time. It would raise questions for R that are not capable of being answered.

I have considered whether the potential involvement of F in R’s life creates a significant risk of harm to R should he be placed with M and MGM in Brazil. It seems to me that the following factors provide mitigation against that risk:

In those circumstances I can see no welfare advantage to R to video contact between F and R at the present time. F seeks weekly contact which was unrealistic in any event. Regular video contact would be destabilising for R and for family members. It would raise questions about why R cannot have a more developed relationship with F and what caused these proceedings. Other forms of indirect contact such as the exchange of letters and photographs would be more appropriate, if F can commit to that. F can of course seek to change the arrangements in the Brazilian Courts, as he could in the UK. In those circumstances the Brazilian Court will have the benefit of this judgment and my fact-finding judgment.

I acknowledge, as I have said, the difficult and complex welfare balance in this case. Adoption would enable R to benefit from health care and educational provision in this country and would provide him with a parent or parents likely to be of the highest calibre. He would have a safe, secure home with a family committed to his wellbeing. However, this would remove R from a mother and maternal family who love him dearly and will shower him with love and affection. A family that would be able to give him a sense of belonging and identity, and would be an exact cultural, linguistic and religious match.

There is no option that is free of risk. I acknowledge the potential harm to R if his health, educational or emotional needs are unmet in Brazil either through an absence of provision or because his family are unable to access this for him or do not appreciate fully what his needs are. His family are impressive and have pulled together to formulate a plan, but what actually happens when R returns is to some extent unknown. Everyone in Brazil engaged with R will need to develop and maintain a deep understanding of his needs and the risks to him if those needs are not met. W and K, in particular, need to be prepared to support and advocate for R and to monitor his progress. I am confident they can do this if they maintain their motivation and commitment.

There is no guarantee that an adoptive placement will be found for R, and it is unlikely that one will be found that will match any of his characteristics. It is simply unknown how R would come to terms with such a situation, particularly as he becomes older. It is unclear how he could make sense of his separation from a mother and family who love him, have fought for him and have never caused him harm. If no adoptive placement is found then he would spend the rest of his minority as a child in care. The unanimous professional view is that this would be undesirable for R, but there is a significant risk that this will be the outcome should the court rule against a return to M and MGM.

In all those circumstances, I have decided to refuse the LA’s applications. R will therefore return to the care of M and MGM, in due course, and they will be free to take R to Brazil.

It is agreed by M and MGM that R’s return to their care, and his journey to Brazil, must take place in a planned way. It seems to me that this will include:

That is my judgment.