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Cite as: [2013] EWHC 734 (Fam)

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This judgment is being handed down in private on 1st February 2013. It consists of 21 pages and has been signed and dated by the judge. The judgment is being distributed on the strict understanding that in any report no person other than the advocates and their solicitor may be identified by name or location and that in particular the anonymity of the Respondents and members of their family must be strictly preserved.

Neutral Citation Number: [2013] EWHC 734 (Fam)
Case No: MW11C00060


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


- and -

1st Respondent
2nd Respondent
6children, X, Y, Z, A, B and C,
the Children's Guardian,

3rd – 8th Respondents


Mr Steven Ashworth (instructed by A Local Authority) for the Applicant
Mr Mark Batchelor (instructed by Thackray Williams) for the 1st Respondent
Miss Eleanor Platt QC & Ms Joanne Porter (instructed by Pearsons Solicitors) for the 2nd Respondent
Mr Giles Bain (instructed by Reeves & Co) for the 3rd – 8th Respondents
Hearing dates: 28th January – 1st February 2013



Crown Copyright ©

    Mrs Justice Theis DBE:

  1. This case concerns six children X born 26.9.04, now 8 years, Y born 19.9.05, now 7 years, Z born 26.2.07, now 5 years, A born 29.9.08, now 4 years, B born 12.9.09, now 3 years and C born 10.11.10, now 2 years. They are the children of DG and JT, hereafter referred to as the mother and father respectively.
  2. All the children were removed from the care of the parents on 5 August 2011 due to the Local Authority ("LA") concerns regarding chronic neglect. The reason it has taken so long to reach the final hearing is due to the complexity of the background and the fact that the parents left the jurisdiction for a period in excess of five months.
  3. Save for a brief 11 day period for Y and B the children have remained in the same placements; X and Z are placed together, as are Y and, B and A and C are in separate placements. There is considerable inter-sibling contact; the three older children attend the same school, B and A attend the same nursery and two of the foster carers have been on holiday together with four of the children.
  4. The position of the parties can be summarised as follows:
  5. (1) The LA initially sought care and placement orders for all the children, with care plans to place them in adoptive placements. That position changed during the hearing when the LA revised their care plan to long term foster placements for the older three children and adoptive placements for the younger three. Save for Y all the children's current carers are being assessed as permanent placements; the younger three children as adoptive placements and Z and X's carers as long term foster carers. The LA plan is for Y to move from her current placement to a long term foster placement. The LA would ideally like there to be inter-sibling contact for all the children and direct parental contact for the older three children although they accept this may depend, to some extent, on whether the current carers are positively assessed. They would wish for there to be contact between the older children and their parents, although this will depend on a number of factors, including whether the parents remain here and the impact that would have on the viability of full inter sibling contact. If there has to be a choice their view is sibling contact should take priority.
    (2) The parents seek the return of all of the children to their care. If that is not possible they seek the return of the older two children and possibly Z too. They have also canvassed the return of Y alone. Their fall back position is they would want all the children to remain in long term foster placements rather than the younger three in adoptive placements. The mother is clear that she wishes the children should remain in this jurisdiction, whether in their care or in the care of the LA. The father was less clear, his oral evidence is that if he could seek the return of the children to Slovakia he would, as he sees the regime for parental contact to children in care there being more generous than here. However, he accepts that the children cannot go to Slovakia and in the closing submissions submitted on his behalf he expressly stated that if the children were not returned to their parents' care they should remain here.
    (3) The Guardian supports the LA in relation to placement and future contact. There is an issue about the profile of the long term foster family for Y.

  6. Before dealing with the background, evidence and my conclusions there are a few general points I would wish to make.
  7. No one who has been involved in this case could avoid being affected by the plight of these parents and their children. The descriptions by them and others of the extent of the poverty and social deprivation this family have experienced were graphic and compelling. Their living conditions in Slovakia were bleak in the extreme. The father, followed by the mother and children, moved to this country to improve their living and social conditions. They faced hurdles in establishing their family life here, not only the language barrier, as neither of the parents spoke English, but also the difficulties in getting work and their ineligibility to full state benefits until they had been here for a number of months. This meant they had to live in difficult conditions here, albeit much improved than those they had left behind. In considering this case it is as much a case of neglect by omission rather than commission but there were many things the parents could and should have done (e.g. attend medical appointments, take the children to school, provide the children with stimulation). I have to bear in mind the cultural background of the parents when considering the evidence, in particular the mistrust of 'authority' and the extent of the social deprivation suffered by this family.
  8. The involvement in this case of the Slovak Republic's Central Authority, the Centre for International Legal Protections of Children and Youth as the Central Authority ("Slovak Central Authority"), has been very useful, as it has in other similar cases. The exchange of information between the LA in this case with statutory responsibility for child protection in this jurisdiction and the Slovak Central Authority has provided the LA, the parties and this court with important information to assist this court in making decisions relating to these children, where the children's welfare is the court's paramount consideration. It is very helpful that such a responsive and constructive dialogue has been established between the two jurisdictions as an increasing number of cases, such as this one, cross national borders.
  9. One of the issues that has been raised in this case is the shortage of Roma interpreters. Ms Fremlova, who has expertise in the Roma Community both here and in Slovakia, stated she hoped that this may improve in the future. I would endorse any steps that can be taken to encourage more Roma interpreters to assist the growing number of families here of Roma origin. Connected to this is the clear need for community based organisations to help support these families.
  10. The court is enormously grateful to the Legal Services Commission (LSC) who constructively considered the practical suggestion presented to it thereby enabling the parents to attend in person to engage in this hearing. The parents returned to Slovakia in July 2012 and were not in a financial position to return for this hearing. The LSC accepted that it was considerably more cost effective to fund the parents travelling here compared to the cost (and uncertainties) associated with a video link connection. This enabled the parents to participate fully in this hearing with the benefit of experienced legal representation.
  11. The Law

  12. There is no dispute in this case about the relevant legal principles. The onus of proof is on the LA and the standard is the balance of probabilities in accordance with Re B [2008] UKHL 35. The State cannot intervene in family life as the LA seeks to in this case other than by establishing that it is more likely than not the threshold criteria is met under section 31 Children Act 1989 (CA 1989). If it is met the court then embarks on an evaluation of the evidence in order to decide what orders, if any, meet the welfare needs of the children. Each child's welfare is the courts paramount consideration and in reaching that conclusion the court is directed to have regard to the welfare checklist set out in section 1 (3) CA 1989. In considering what order to make the court must ensure that any intervention there is in this family life is proportionate.
  13. The decisions made by this court are guided by what will meet the welfare needs of the children and should guard against any form of social engineering. Miss Platt QC rightly reminds me of the words of Lord Templeman in Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806
  14. 'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature.'

  15. I also bear in mind the observations of Munby J (as he then was) in Re K A Local Authority v N and Others [2007] 1 FLR 399 at 406
  16. Background

  17. The family are Roma Slovakian. The parents were brought up in a segregated Roma housing estate ghetto called Lunik IX, on the outskirts of Kosice, located in the East of Slovakia, in conditions of extreme poverty. The five older children were born there. Prior to coming to this country the family lived in cramped accommodation with at least 13 (possibly 19) other people. The accommodation was very basic and only had running water and electricity during limited times in the day. The poor conditions on the estate, the extent of the overcrowding and pressure on the limited services are readily illustrated by the fact that the estate was built for 2,000, but now houses between 8 – 10,000 people.
  18. In June 2010 the father left Slovakia to seek work in England. The mother described the difficult position she was left in caring for five children and being pregnant with the sixth. The father obtained some casual work in England and secured a tenancy on a one bedroom flat. In August 2010 the mother and children joined him in England, the mother by then 8 months pregnant. Unfortunately the father lost his job after his family arrived in the country. Although he obtained some sporadic employment, he was unemployed for significant periods of time and as the family had no recourse to public funds, the family was financially supported by social services. This included purchasing food, shopping, paying for gas, electricity, rent, and council tax.
  19. The family came to the attention of social services following a referral from a midwife on 24th September 2010 which stated that the family was living in poor housing and had inadequate money to provide food and clothing for their unborn child and other children.
  20. On 29th September 2010 B was admitted to hospital. He was diagnosed with severe malnutrition and, in the professional opinion of the doctor, was one infection away from death. In October 2010 A was admitted to hospital and diagnosed with severe malnutrition and rickets which were described as the worst case of rickets that the paediatrician had seen. A's wrists were swollen due to the rickets.
  21. On 28th October 2010 the children were made subject to a child protection plan under the category of neglect. This plan included visits to the family home on a daily basis initially, financial support and assistance with providing care and stimulation to the children.
  22. C was born on 10 November 2010, which placed further pressure on the family.
  23. On 8th December 2010 the family was taken to the dentist as it was reported that, X, Y and Z have severe dental decay. The children had not had the dental treatment they should have.
  24. A Review Child Protection Conference was held on 19th January 2011 and the children remained subject to child protection plans under the category of neglect.
  25. In June 2011 Y was diagnosed with vitamin D deficiency, possibly as a consequence of chronic malnutrition. Dr Birch suggested that her vitamin D deficiency could be related to lack of sunshine and outdoor play, as well as dietary factors. She further observed that Y seems to have been kept indoors for long periods and had a paucity of exploratory experiences.
  26. On 4th July 2011 a further Review Child Protection Conference was held and the children continued to be subject to a child protection plan under the category of neglect and emotional abuse. The LA remained concerned about the take up by the parents of the available support, for example at the family centre and monies being spent on non-essential items.
  27. All the children were medically assessed and no organic cause was found for their poor growth and failure to thrive. Medical professionals were concerned regarding Cs poor weight gain following birth. The Local Authority was concerned that the parents were not properly meeting the children's health needs, including missing medical appointments. The parents have accepted that they were untruthful on occasions by saying that they had attended appointments with the children when they had not.
  28. Whilst there was some improvement in the physical health of the children during the course of the child protection plan, the LA concluded that the parents remained unable to meet the children's needs. Dr Birch (paediatrician) observed that, after the family came to England, the parents did not seem to have been coping with the children and they were not able to meet the children's needs. She thought that the children lacked sufficient care and attention from their parents.
  29. There were numerous occasions where concerns arose over the parents' failure to provide the children with adequate supervision and failed to implement effective boundaries to ensure their physical safety. The parents saw their difficulties as being only of a financial and housing nature and they had difficulty in acknowledging the concerns of professionals regarding their parenting capacity.
  30. Prior to the children being made subject to interim care orders the parents were supported in obtaining social housing and securing housing benefit. The LA directly approached the local housing authority and advocated assistance for the family. The local housing authority said they could provide the family with a three-bedroom ground floor maisonette. The family would remain overcrowded but it would be better accommodation than their first floor one bedroom flat where they had been residing since their arrival in the United Kingdom. On 2nd August 2011, the day the parents were due to move into their new property, their belongings were stolen from outside the new address, as none of the four adults present remained with them. It transpired that a neighbour had taken in a few belongings for the family, but it appeared that the rest had been stolen.
  31. On 3rd August 2011 the family moved into their new accommodation. The LA provided beds for the parents and five children and a cot for. C. Bedding was provided for all the beds. A surface top cooker and fridge freezer were provided, along with food and nappies, cutlery and crockery. On 4th August 2011 a child protection visit was undertaken. The children were running around the home naked as they had no clothes to wear. The Local Authority supplied clothing for the children.
  32. The application for care proceedings was issued on 28 July 2011. Interim care orders were made by the North Kent Family Proceedings Court on 5th August 2011. All six children were moved into LA care the same day.
  33. Paediatric evidence shows the development of all six children was limited whilst in their parents' care.
  34. All the children have experienced a very deprived emotional environment. Dr Birch considered that X was functioning at a 'considerable below average age for a child of his age' such that a definition of learning disability could be applied, although she accepted this could have been influenced by his deprivation and/or his early meningitis. She considered Y had experienced a very deprived emotional environment. She had to remain indoors with her mother and help with her younger siblings and appears to have had only limited experience of play. When Z first went to his foster carer in August 2011 he was described by the foster carer as being very withdrawn, pale and underweight. His language was delayed; this improved considerably after placement in foster care. When A went into foster care his foster carer described him as being very distressed, unable to speak at all and developmentally delayed. He had no speech and his play experiences were very limited. Dr Birch observed that he was also lacking in other 'experiences'; for example, his foster carer noted that he seemed amazed by the rain and when he went out into the garden in the rain for the first time, he did not know what it was and he appeared to be trying to push the raindrops back up to the sky. When B was admitted to hospital in September 2010 he was severely underweight. With hospital supervision and feeding he almost doubled his body weight in the next 12 weeks to 8.1kg and continued to gain weight over the following month. Dr Birch stated he had experienced a period of severe malnutrition resulting in stunting of his growth. When C went into foster care at the age of 9 months his foster carer described his demeanour as being "like a very young baby". He had to be held and cradled in the carer's arms and he could not sit up nor would he hold out his hands to be pulled up. He made few spontaneous movements. He did not push his feet against a surface when held upright. He had no play or awareness of toys. Dr Birch noted that C appears to have been 'held' still for long periods of time and he lacked locomotor and exploratory skills when he came into care. She considered C's weight level was of medical concern and would indicate a failure to thrive.
  35. The Local Authority submits the children's basic physical needs (as well as their emotional needs) were neglected in the care of their parents, as evidenced by their behaviour and demeanour after reception into foster care. When he was placed in foster care A was very afraid of being bathed and frightened of the water. It took him a week to get used to being bathed. He was not toilet trained when he arrived in foster care (and, Dr Birch reported, he was still not fully toilet trained when she wrote her report). On arrival A did not like to be fed and he seemed afraid that the spoon was going to be taken away from him. A would push food into his mouth and stuff it in ravenously. B was afraid of water and of being bathed when he was placed in foster care, and he was terrified of water over his head, for example in the shower. Similarly, when C arrived in foster care he was afraid of water and of the bath.
  36. Following their placement with foster carers the parents were afforded regular contact with the children (four times per week, one of which was with all the children) until 29th June 2012 when contact was suspended at the parent's request. The parents had an excellent attendance record, in particular the mother. There remained concerns about the parent's ability to control, manage and supervise the children at contact. This is illustrated by the detailed description given by Dr Birch of her observation of contact between the parents and all the children on 10 February 2012. However, she noted an improvement in the parent's ability to manage when she saw the parents with only the older three children
  37. On 23rd November 2011 a report was received from the Slovakian Central Authority, via the Slovakian Embassy. The report confirmed that some of the maternal and paternal family had been visited and records held on the respective families had been obtained. The report, as translated, concluded that it did not recommend placing the children in the care of the wider family but requested that consideration be given to placing the children in institutional care in Slovakia. The allocated social worker discussed this with the parents here. They confirmed some of the matters about the wider family referred to in the report provided by the Slovakian Embassy and that in the event that the children were not returned to their care they did not support them being placed with the wider family.
  38. A number of detailed assessments have been undertaken. The content of these assessments are summarised below.
  39. Dr Ursula Mazur, a Clinical Psychologist, undertook cognitive assessments of the parents. She concluded the mother did not meet the criteria and does not present as someone who has a learning disability. However, although it was not possible to undertake reliably a psychometric assessment of the mother's intellectual functioning, her presentation and developmental history suggest that she has limited abilities. Recommendations were given in order to aid the mother's ability to follow instructions and recommendations and to help her maintain new skills. The report in respect of the father concluded that he does not meet the criteria for a diagnosis of learning disability. Although it was not possible to undertake reliably a psychometric assessment of his intellectual functioning, his presentation, developmental history and daily living skills are not consistent with someone who is functioning in the learning disability range.
  40. Ms Lucie Fremlova, an expert with specialist knowledge of the Slovak Romany community prepared a report, on the joint instruction of the parties, advising the court and the parties about Roma culture and family life so that this can be taken into account when assessing the parents' parenting style and to ensure the cultural needs of the children are met if they cannot return to the care of their parents.
  41. Dr Diana Birch, a paediatrician, was instructed to undertake an assessment of the children. She was not specifically instructed to consider the issue of rehabilitation; an independent social worker had been instructed to undertake a parenting assessment. Her report is dated 24th February 2012. She concluded that all six children have suffered severe degrees of deprivation and malnutrition which have had significant effects on their physical, developmental and emotional development. She concluded the parents have shown a great deal of progress in handling and understanding the needs of the older three children and that it is likely that they could resume care of the older children with support and monitoring from social services. She recommended that, X, Y and Z should be returned to the care of the parents under an appropriate order which allows the Local Authority to maintain an overseeing and monitoring position.
  42. A number of Dr Birch's specific conclusions in respect of the harm suffered by each of the children were incorporated into the Local Authority's composite final threshold document, dated 19th December 2012., A, B and C have suffered particular delay in their development. Although C was born in the United Kingdom and was never subject to the deprivation that the other family members suffered in Slovakia, at age nine months, on reception into foster care his assessed developmental age was just 2.4 months. Dr Birch concluded that in foster care C acquired nearly 11 months of developmental progress in the space of just five months.
  43. Mr Simon Tapp, an independent social worker, was directed to undertake a parenting assessment. His report is dated 10th June 2012. He reported that X, Y, and Z all say that they do not want to go home, something that he regarded as unusual. His recommendation is that none of the six children should go home. On his last two visits to the parents they told him that they had literally no money and had no food in the house. Mr Tapp described them as being "in dire straits" and he considered that the parents were struggling to look after themselves.
  44. Mr Tapp acknowledged that some of the developmental delay in the children was rooted in the deprivation and poverty the family experienced in Slovakia. However, there was a further ten months here with considerable support from the LA without significant improvement in the children's wellbeing. The emotional responsiveness of the three younger children worsened. Furthermore C was never exposed to the deprivation of Slovakia, yet he too failed to thrive physically and emotionally. This suggests that the difficulties in the family go beyond their experiences in Slovakia and beyond financial and housing difficulties. Both parents had sad and difficult childhood experiences. Through no fault of their own they do not appear to have experienced innate positive parenting in their early years which they can draw on in parenting their children. Mr Tapp carried out an analysis of what has changed since the children were placed in foster care in August 2011. He concluded that not a lot has changed. He does not think that the parents could meet the substantial collective needs of all six children together or separately. In Mr Tapp's view, if any of the children were returned to the care of their parents, they would quickly slip back in their development and wellbeing. They are very vulnerable to rapid regression, given the extent of harm in the past. As he observed the children 'are not resilient in this respect'.
  45. The allocated social worker met with the parents, on 27 June 2012 to explain to them what the LA care plan was. She explained that the LA was proposing adoptive placements for all the children away from the family, but informing them the final decision will be a matter for the court. She denies the suggestion by the parents that at that meeting she suggested they went back to Slovakia. It is not disputed that the mother was upset at learning of the LA plans. The parents asked for contact to be suspended after that meeting.
  46. There was a professionals meeting the following week, on 2 July 2012, attended by, the allocated social worker, Dr Birch, Mr Tapp, the Children's Guardian chaired by the children's solicitor. The professionals agreed that the children have suffered very considerable harm by way of neglect. The harm has been by way of omission, not commission, and the parents have not deliberately harmed the children. The parents were informed of the outcome; the professionals were agreed that, A, B, C, and Y should not to be returned to the parent's care but there was a difference of opinion regarding X and Z. Dr Birch tentatively supported them being returned to the care of their parents, this was not the view of Mr Tapp, the LA or the Guardian.
  47. An Issues Resolution Hearing took place before District Judge Green on 3rd July 2012. The court gave directions for the Local Authority to file and serve its final evidence and care plans (by 21st September 2012), for final evidence from the parents (by 5th October 2012) and a Final Analysis and Recommendations from the Guardian (by 19th October 2012). Directions were given in the event of the Local Authority issuing placement applications. At that hearing the parents asked for contact to be re-instated the next day. On the existing timetable that would have involved A and C.
  48. The parents did not attend contact the following day, 4 July 2012. The father said it was because he was concerned the mother would get upset. He said he attended the contact venue to inform them they would not be attending. In fact, for reasons which are not clear, only A attended and the records indicate he was unaware of the parent's non-attendance. The parents turned up at the LA's offices without an appointment and asked for financial assistance for them and the children's maternal grandmother to return to Slovakia. No interpreter was present. The allocated social worker said that she would consult with her District Manager and told the parents that they should talk to their respective solicitors before doing anything. The social worker said that she would visit them at home with an interpreter so that they could talk more easily. She spoke to her District Manager who confirmed that the Local Authority would not meet the cost of the parents returning to Slovakia. The father telephoned the allocated social worker and she informed him that the LA would not finance their return to Slovakia. She also informed the parents that it was not in their best interests to leave the country until the care proceedings were concluded. The father informed her that he had spoken to his solicitors and advised them of his plans to leave the country. The allocated social worker informed them that if they wanted further advice they should contact the Slovakian Embassy. The parents said they left messages for their respective solicitors but did not speak to them. An email from the father's solicitor informed the parties that the parents were returning to Slovakia for '3 – 4 weeks'. They made arrangements to purchase tickets (using funds from savings, selling items and monies from the mother's brother) and left for Slovakia by coach on 6 July 2012.
  49. The father made clear in his oral evidence that he did this to try and enlist help from the authorities in Slovakia to get the children placed in care in Slovakia, as he said the arrangements for contact between children in institutional care and their parents in Slovakia is much more liberal. According to his evidence they would be able to take the children out regularly and they could spend weekends staying with the parents. The mother said they returned to Slovakia to try and get work.
  50. Neither parent contacted the LA until September. They had been unable to return to this country since then and have had no contact with the children.
  51. The harsh reality from the children's perspective is that they went from having regular and reliable contact with their parents to them disappearing from their lives with no explanation for their actions and no contact or communication from them or information as to when, if at all, they may return.
  52. On 10th July 2012 the allocated Social Worker visited the parents' home with an interpreter. The property appeared unoccupied and a neighbour confirmed that the parents moved out during the night on 6th July 2012.
  53. The children were presented to the Best Interests Panel on 21st August 2012. The recommendation was made that it is in the best interests of all six children to be offered permanency through adoption.
  54. On 18th September 2012 the Local Authority received a letter from the Ministry of Justice International Child Abduction and Contact Unit (ICACU), acting as the 'Central Authority' for England and Wales and thus responsible for administering the operation of Brussels II Revised (EC Council Regulation 2201/2003). Attached was a letter from the Central Authority for Slovakia, on behalf of the Slovakian Centre for the International Legal Protection of Children and Youth, seeking exchange of information in respect of the children and the current status of these proceedings pursuant to Article 55. The letter from the Slovakian Centre for the International Legal Protection of Children and Youth suggests that the children should be returned to Slovakia and "placed to institution or substitute care and in time [the] alternative family care should be provided to them." This request was made before the Slovakian authorities were furnished with any detailed information about these proceedings, the assessments undertaken or the children's expressed wishes and feelings.
  55. The LA notified the court and the other parties of this development. The parties agreed a list of documents to be disclosed to the Slovakian authorities pursuant to Article 55 Brussels II Revised.
  56. Following the allocated social worker's visit to the parents' home address on 10th July 2012 she had no further communication from them until on 24th September 2012 when she received a telephone call from the father. He said that he and the mother had left Slovakia as they had been badly treated on their return to the country. He said that they were now living in the Czech Republic. The allocated social worker contacted the KTT Interpreting Service and asked them to telephone the father in order to ask a number of questions. The parents explained that they were in the Czech Republic and that they were staying in a hostel when they had funds; otherwise they were sleeping on the streets. They were selling old iron to make ends meet. They would like to attend the Final Hearing but had no money to travel to back the United Kingdom. They still very much opposed adoption.
  57. The parents have had no contact with the children since 27th June 2012 and they did not say goodbye to the children or notify them that they would be leaving the country. The allocated social worker's final statement reports that, X, Z, A, and C do not appear to be unduly concerned about the absence of their parents. Y has asked why her parents have left her as she thought they loved her and they used to cuddle her in contact. B will sometimes ask about his parents and where they are. When he asks about his parents he does not appear distressed.
  58. The LA filed and served its final evidence and final care plans on 27th September 2012. The LA sought final care orders and placement orders in respect of all of the children and proposed that the children should be placed for adoption. Placement order applications were issued.
  59. Further to the request for information received from the Slovakian authorities, the court listed the matter before His Honour Judge Polden (Designated Family Judge) on 18th October 2012. The parents did not attend this hearing, it being understood that they were still in Europe. The father's counsel suggested that the matter should be transferred to the High Court. The mother's solicitors were without instructions. The Local Authority and the Children's Guardian submitted that the case should remain in the county court and that delay would be prejudicial to the children's welfare. The court considered the proposed list of documents to be disclosed to the Slovakian authorities, further documents were added to the list which was then endorsed by His Honour Judge Polden.
  60. The court decided not to transfer the matter to the High Court. The court directed that any application by the Slovakian authorities for party or intervener status must be made by 12th November 2012. In the event of such an application being made it was directed that the application should be placed before His Honour Judge Polden in order for him to give directions for the application to be heard and to consider whether to transfer to the High Court.
  61. The agreed documents were served on the Slovakian authorities, via the Central Authority here.
  62. The Children's Guardian completed his Final Analysis and Recommendations on 24th October 2012. In his view, the parenting inadequacies are not based on cultural factors, but upon an inability to implement new strategies and skills within a timetable suitable for the children. He concluded that support had been provided to the parents, and there has been sufficient time available for the parents to have demonstrated progression in some aspects of their parental care. The Guardian concluded the prognosis for the parents to make good enough change as poor and recommended the making of care and placement orders in respect of all six children.
  63. The Slovakian Central Authority sent written submissions to the court dated 6th November 2012, referring to Articles 55 and 56 of Brussels II Revised. No application was made for party or intervener status. The Slovakian authorities suggested that the children should be removed to the Slovak Republic and placed (all together) "to the care of the professional family providing care for children for 24 hours a day". The written submissions of the Slovakian authorities make it plain that they strongly disagree with the LA's final care plans for the children to be adopted in the United Kingdom. They propose their return to the Slovak Republic is in their best interests for the following reasons:
  64. i. The children are Slovak citizens;

    ii. Their relatives and family live in the Slovak Republic; and

    iii. The Slovak Republic is able to provide adequate social and medical care

    for the children.

  65. On 21 November 2012, the father's solicitors circulated an unsigned, but approved, statement on his behalf. At this point he was living in the Czech Republic. A further signed statement was served by the father's solicitors on 24 January 2013.
  66. On 23 November 2012 the Slovakian Central Authority faxed an application for party/intervener status to Medway County Court.
  67. The matter was listed for final hearing before Her Honour Judge Hammerton commencing on 26th November 2012, with a time estimate of four days.
  68. On 26th November 2012, the first day of the final hearing, nobody from the Slovakian Central Authority had attended court to pursue the application. Her Honour Judge Hammerton transferred the application to the High Court to be heard by me on 27th November 2012. Again, nobody attended from the Slovakian Central Authority to pursue the application, but the Slovakian Central Authority indicated in a telephone conversation made by the advocates who attended on 27 November 2012 that if intervener status was granted its role in the proceedings would be limited to providing written submissions. I refused the application but transferred the case to the High Court on the grounds of complexity and the international issues. The final hearing was re-listed before me on 28th January 2013 with a time estimate of five days.
  69. At Court on 27 November 2012 the advocates agreed a list of questions to be sent to the Slovakian Central Authority. Replies were duly received, prepared by the Department of Social Affairs and Families (Division for Social and Legal Protection of Children and Probation Offices), dated 20th December 2012. Those replies provided more details about what the options were regarding alternative care for the children in Slovakia, making it clear 'the actual return of the children to Slovakia must be preceded by a decision of a relevant British Court which would order the children's return to Slovakia, and also a decision of the relevant Slovak court to place the children in institutional care pending court order'. Due to the size of the sibling group they confirmed in terms of alternative care they would be placed in institutional care, which would consist of a crisis centre or a children's home.
  70. There was a Review Hearing on 17th December 2012 at which various directions were made and a witness template agreed.
  71. The evidence

  72. In addition to the voluminous documents in the court bundle I heard oral evidence from the allocated social worker, the senior practitioner in the County Adoption Team Dr Birch (paediatrician), Mr Tapp (independent social worker), Ms Fremlova (expert on the Roma community), the mother, the father and, the Children's Guardian.
  73. The allocated social worker has been in place since February 2011. In her statements she describes in detail the background to the involvement of social services with this family since October 2010, including the financial support given prior to the family being entitled to full state benefits in May 2011. The support included daily visits and financial assistance in getting the children to school. She acknowledged the daily support needed better organising which was done by a diary system and that interpreters were not always available. She acknowledged the difficulties the family had in the overcrowded accommodation; they were living in a one bedroom flat. However, despite the support given, her written and oral evidence outlines little improvement in the situation. When asked about the difficulties the mother had in getting the older children to school she said the father was not working and was available to assist and the children's centre for the younger children was near the flat. Although the flat was kept reasonably clean and tidy she saw little or no stimulation for the children, no evidence of toys despite the latter being provided. She gave some examples to highlight her concerns. For example, A had what she described as an 'obnoxious smell' in June 2011 but she could not identify from where it came. When he was placed in foster care it became apparent it was an untreated ear infection. Whilst with their parents both B and A had had ongoing ear infections, which were either untreated or if medication was prescribed was not completed. The dental decay for the children was chronic and acute. On placement with foster carers X and A were found to be in pain and had extreme dental decay and abscesses.
  74. The allocated social worker was closely questioned by both Mr Batchelor for the mother and Miss Platt Q.C. for the father about the meeting on 27 June 2012 when the parents were informed of the LA care plan for adoption. She accepted the mother was very upset on hearing of the LA plans. She denied that she had told the parents to go back to Slovakia and that the LA would fund them going back. She was clear that she kept reminding the parents to discuss matters with their solicitors. She did discuss with them the arrears on their tenancy; she explained to them they had an 'introductory tenancy' where they had to evidence that they could maintain a tenancy. She was emphasising to them the need to deal with the arrears. The parents requested contact to stop. Following that meeting there were court hearings and the professionals meeting 2 and 3 July and the parents asked for contact to be re-started. The parents contacted her on 4 July requesting financial assistance to return to Slovakia. She said she stressed to them the need to speak to their solicitors and her concern that they were not attending contact that day.
  75. After the children were removed she acknowledged the difficulties the LA had in finding a Roma speaking interpreter to use for parental contact with the children. This was to enable the social work assistant supervising the contact to understand the conversation and incidentally to help the older children maintain their Roma language as the children became more fluent in English and less able to speak Roma.
  76. In her evidence Dr Birch updated her opinion. In her report in February 2012 and at the professionals meeting in July 2012 she had maintained her opinion that she considered the parents could care for some of the older children. She agreed that this whole family had been tremendously deprived and that it was difficult to separate out the harm the children suffered that was due to the parents not parenting and that which was due to the deprivation the whole family had suffered. Her view in her report and at the professionals meeting was based on what she saw as a 'glimmer of hope' of some improvement in the parents which she had observed in the second contact with the older three children. She said the parents seem to cope better, the mother was able to give Y more attention and her behaviour was less disturbed. However by the time of the professionals meeting she was exhibiting more behaviour difficulties and Dr Birch's view then was that there was a possibility the parents could care for X and. Z.
  77. In her oral evidence she revised her opinion again. She concluded she could not recommend the return of any of the children to their parents care. Her position had changed on two grounds; first, the parents return to Slovakia in July 2012 with no further contact with the children and, second, the needs of the children. As she said '…it is the time, due to the fact not seen the parents for 7 months [has] caused that period parents not been able to demonstrate any positive moves at all, children had no explanation. The parents demonstrated a lack of understanding of children's needs….they have all been hurt. There is no mileage in trying rehabilitation' When asked to consider whether Y, as she wanted to see her parents and would need to move anyway, could be rehabilitated with her parents Dr Birch said 'Problem is going back 10 or 11 months Y disturbed but could have good relationship with her parents under the right circumstances (for example in contact) but still needed the stability of the foster carers. Since then she has had a period when she has been abandoned, didn't know where her parents were, she would be very insecure if she was placed with parents she didn't trust.'
  78. She recommended that all the children were placed away from their parents. The older three children by way of long term foster placements, she considered the two older children needed particular help with their personal identity and are likely to need on going therapeutic help which may require the assistance and support of the LA and contact with the parents. She regarded contact with the parents as important 'The [older] children need to understand how their parents dropped off the face of the earth'
  79. Mr Tapp's oral evidence accorded with his detailed written report. He did not support the return of any of the children to the parent's care. He considered the parents 'struggled with understanding what the concerns were regarding the physical and emotional development of the children'. In relation to contact he was more cautious than Dr Birch about re-starting it. He was concerned about the 'disastrous' effect on the children if it was started and then stopped again. He considered there were other ways of promoting their identity through life story work.
  80. Ms Fremlova's evidence was limited to her expertise regarding the Roma Community. She had not been asked to consider the papers in this case as part of her instruction. Her evidence confirmed the parent's descriptions of the level of poverty in Lunik IX and set out how difficult it can be for someone coming to this jurisdiction who does not speak the language and is illiterate to navigate the system here. She stressed the need to be aware of and support the Roma cultural heritage of these children. For example, by singing Roma songs.
  81. In the light of the LA re-considering their care plan during the hearing for the older three children and effectively abandoning their placement applications, the senior practitioner in the County Adoption Team's oral evidence was relatively brief. She said the assessment of the current carers would take between 4 – 6 months, she considered it was likely to take the shorter time as they already had information about these carers. She agreed the current attachment of the children to the carers seeking to be assessed as prospective adopters was a 'powerful factor'.
  82. The mother's oral evidence confirmed much of the history that is already in the papers. She denied some of the specific concerns of the LA (for example the social worker seeing Z using a scooter on the flat roof, the children having sufficient toys, the concern that she did not take up the support in the children's centre by using the drop in). She described the logistical difficulties she had in coping with the number of children (for example getting out of the flat down the stairs with the children before they had a double buggy). In relation to the return to Slovakia in July 2012 she said they returned as 'we were hoping to find a job, get a flat from the local authority, hoping to find some help [from] Slovak people to get children back'. She gave a rather confused account of the meetings with the social worker before their departure and her allegation that the social worker put pressure on the parents to return to Slovakia. Although always difficult to judge with evidence through an interpreter she seemed unable to empathise with the children following their departure to Slovakia, whilst acknowledging it was very difficult for the children asking questions as to where the parents went she continued '..but for me even harder because I had to leave my children behind'. However, she confirmed she would like to tell the children she was 'really sorry I left and I left without them. I went to Slovakia to try and check the situation and what available for us…I have learnt my lesson I don't want to leave my children again'. She was clearly upset about the situation she now finds herself and the children in.
  83. The father in his oral evidence described the difficulties the family had had but did not accept many of the LA concerns, for example he played down B's condition prior to his admission to hospital. He considered the difficulties the family had centred on lack of proper housing and financial resources and showed little acknowledgement or understanding of the difficulties he and the mother had in providing good enough parenting for the children. In relation to the conversations with the social worker in June and July he maintained his position that she had told them on 27 June 2012 to return to Slovakia and he attended her offices on 4 July as 'all we wanted to know was whether they would help us buy ticket back home'. He accepted that the allocated social worker advised him to speak to his solicitor which he did and left a message. In his oral evidence he said his motivation for returning to Slovakia was to see if they could get help to return the children there.
  84. The Children's Guardian supported the change in the LA position. He supported the older three children having direct contact and thought it would be helpful to have a written agreement with the parents around contact. He drew back from being specific about particular scenarios put to him about contact for example if the parents had to return to Slovakia would there be an extra contact. He considered this was best dealt with in the structure of the Independent Reviewing Officer, LAC reviews and general reviews to respond to any changing situation. The LA confirmed the last LAC was on 22 January 2013 and that there is an allocated Independent Review Officer. The Children's Guardian was clear that whilst he could not rule out that the older children's views about not wanting to return to live with their parents could relate to their experiences in the care of the parents in Slovakia, he considered it was due to the children's experiences of the care they received from their parents, and was not limited to Slovakia. He was also alert to the loyalties the children may have to their foster carers impacting on their wishes and feelings.
  85. One of the main factual disputes related to the circumstances surrounding the parents' decision to leave in July 2012. I am satisfied on the balance of probability that it was not suggested by or due to pressure from the allocated social worker. I have reached that conclusion for a number of reasons:
  86. (1) Even making all due allowance for the difficulties in evidence being given by an interpreter and the mothers limited intellectual functioning their account about what happened at the meeting on 27 June and 4 July was not consistent. For example the mother remained unclear whether she was alleging that the allocated Social Worker had said this on 27 June or 4 July. What I do accept is that the mother was clearly very upset about being told what the LA plans were.
    (2) The allegation that the social worker effectively told them to go back to Slovakia, said the LA would pay for that and according to the father said she did not care where they went or whether they were living on the street was a serious allegation. If true I find it very surprising that this was not mentioned to their legal teams on 2 or 3 July.
    (3) Their suggestion that the social worker said these things is wholly inconsistent with the social worker stressing the need for them to contact their legal teams before they made any decision.
    (4) The allocated social worker was an extremely impressive witness. She had a detailed knowledge of this case due to her involvement with this family going back to February 2011. She was fair and balanced in her evidence, was able to refer to case notes to support her position and I can see no possible motive for her behaving in the unprofessional way alleged; it was noteworthy none was suggested. I am afraid it was the parents who had the motive, seeking to justify their actions which in the cold light of day perhaps demonstrates vividly their inability to understand the basic needs of their children.

    In my judgment it is more likely than not that the parents had been contemplating a return to Slovakia, this is evidenced in the LA records. Their understandable distress at the news of the LA plans for the children turned those thoughts rapidly into a reality, without thinking about the consequences for the children or investigating what help there would be in a place where they had come from after experiencing such severe deprivation. The motivation appears to be to enlist the help of the authorities there without any consideration being given to what actually could be done and the consequences of going with no means to return. That is evidenced by the father's evidence that when they got there all the offices were closed for the summer holidays. From the children's perspective this step was disastrous as they moved from a position of having regular contact with their parents, particularly their mother, to no contact and no information as to when they would see their parents again. As one of the witnesses described it was for the children like falling off a cliff edge.


  87. I am very grateful to all counsel for the detailed written closing submissions, which I have carefully considered in reaching my decision.
  88. I am quite satisfied, when the court surveys the evidence as a whole, the threshold criteria was satisfied on the 5th August 2011 in relation to all these children both in relation to past and future significant harm.
  89. The two matters in the agreed threshold document that remain in issue are more likely than not established. I agree with Dr Birch's observation that after the family came to England they do not seem to have been coping and were not able to meet the children's needs and the children lacked sufficient care and attention from their parents on moving to the United Kingdom. The evidence demonstrates the children were given insufficient stimulation as the parents were simply unable to cope with all the children. I accept the examples given by the LA of the lack of supervision of the children. I also accept the evidence about the reports regarding A's behaviour when he was received into foster care, which is more likely than not to have been caused by the lack of stimulation and care given to him whilst he was living with his parents. The agreed matters set out in the threshold document in the papers, together with the findings I have made, more than amply supports the extent of the neglect suffered by each of these children which significantly harmed their emotional and physical development. My conclusion is supported by the professionals who attended the professionals meeting on 2 July 2012 who agreed 'Children have suffered very considerable harm by way of neglect. The harm has been by way of omission not commission and the parents have not deliberately harmed the children'. Sadly these parents, most probably due to their own difficult backgrounds, did not have the understanding or ability to provide good enough care for these children, even with the benefit of intensive support, in a way that did not cause each of these children significant harm to their emotional and physical development.
  90. I am also satisfied that the order that meets the paramount welfare needs of each of these children is a care order and I endorse the revised care plan of the LA. I have reached that conclusion, having regard to the welfare checklist, for the following reasons:
  91. (1) The younger three children are too young to have expressed their wishes. The older three children do not wish to return to their parents care as they may continue to experience neglectful parenting, as they did before. They have all expressed the wish to remain with their current carers. The court has to be alive to the fact that their wishes may be influenced by their experience of being cared for by the parents in Lunik IX and the attachment they have inevitably built up with their current carers. However, they lived in this country for 10 months, which they would all remember, and they continued to experience their parents care during the regular contact they had. I therefore consider that their views are more likely to be influenced by their more recent experiences of their parents care. Their wishes and feelings are only one of the relevant considerations.

    (2) Each of the children have differing physical, emotional and educational needs due to their ages and experiences. X suffered considerable emotional and physical deprivation. His hearing and eyesight will require monitoring and attendance at appointments. He is emotionally fragile and finds it difficult to talk about life when living with his parents. His academic progress has been slow and whilst not meeting the criteria for a statement of special educational needs he will require close monitoring and support. Y's behaviour has been very challenging and she too is emotionally vulnerable, she is demanding and will engage in difficult behaviour to secure the attention she requires. The descriptions in the papers demonstrate this goes beyond attention seeking behaviour. She expresses considerable anxiety about her parents and her future care. Her educational progress has been slow and requires considerable support. Z requires firm and consistent parenting. His health has improved and his dental decay been treated. He is making progress at school. A's health has improved, his glue ear successfully treated. His general health requires careful monitoring and he requires consistent and firm handling. B's health is good, he still requires medication for his Vitamin D deficiency and benefits from his nursery attendance. C is in good health and his development now all age appropriate.

    (3) Any change to the children's current circumstances is likely to be difficult for each of them. It will require careful planning and consistent and supported planning. All the children have thrived with consistent care and whilst the court has to be particularly careful not to place reliance on how children have improved when placed with foster carers who are in a better economic position than the parents, it is a remarkable feature of this case that all the children have made such significant progress in such a short period of time. This does, in my judgment, emphasise the extent of the neglect the children suffered in the care of their parents which the court cannot ignore. Care of course needs to be taken to ensure decisions not to restore children to the care of their parents are not made because they would be better off in foster care; that amounts to social engineering which is not the function of this court. What the court must consider is whether these parents are able to provide good enough parenting to all or any of these children. I have reached the conclusion they cannot as they would be unable to provide, even with support in place, the consistency of care that each of these children so desperately need. Obviously if the current carers are successful in the various assessments that will mean, other than Y, there will be no change in their carers. This would, on the information I have seen, have enormous benefits for these children as they will keep the stability of carer with whom they have strong attachments, the carers are known to each other, have established an effective way of ensuring sibling contact takes place and provide the best prospect of parental contact working. In relation to a change of carer for, Y that will obviously require careful planning and consistency which in my judgment the parents are unable to give.

    (4) The children's background is clearly relevant. They are all of Roma descent and at the moment associate their background with severe deprivation. Some of the foster carers, to their credit, have taken steps to keep some of the Roma customs alive for the children. It is unfortunate that has not been undertaken more coherently which I hope in the future it will be. Obviously if there was contact with the parents that would provide a tangible way of doing that. The children are at ages where decisions regarding their future placement cannot be further delayed. These proceedings have now being going on for 17 months and although that delay has in part been beneficial for the children to enable them to settle with their current carers, they now require some certainty about where they are going to live.

    (5) The children have all suffered harm as outlined above and, in my judgment, are at risk of future harm if any of them were returned to their parents care as in my judgment these parents are not capable of being able to meet the needs of any of these children within the timeframe of these children. They have not seen their parents for seven months and have had no information as to when they were likely to see them again. Their parents are in a very precarious position now having returned to Slovakia in the way that they did. They are having now to try and re-establish themselves here, where they wish to remain, but it remains very uncertain. Even when they did not have the responsibility of caring for the children they were unable to manage basic aspects of their day to day life to retain their accommodation or manage their finances. Even making all due allowance for the difficulties they obviously had it demonstrates that even with support the care they would provide for the children would be very uncertain and precarious. It is unlikely they would be able consistently to provide for the children's very basic emotional and physical needs.

    (6) The children's welfare requires certainty now as to their future placement. That is the view of the expert evidence, in particular Dr Birch and Mr Tapp, who each carried out detailed assessments and, in my judgment, kept their minds open at all times to looking at ways of restoring these children to their parents care. I accept their evidence. Each of them struggled with the impact of the historical difficulties this family have had, as have I. As Mr Tapp said 'I find this a difficult complex and sad case. The parents unquestionably love their children dearly. Their commitment at attending contact has been faultless.' Later in his report he states the children require 'parenting to sustain the improvements in their development. I do not think that the parents are able to provide the necessary quality of parenting, even with support, to any of the children. I believe that the children would quickly slip back in their development and well being were any of them to return [to their parents care]. In my opinion they are very vulnerable to rapid regression given the extent of the harm in the past. They are not resilient in this respect.' I agree.

    (7) I am quite satisfied on the evidence before me that no other order, other than a care order, will provide these children with the much needed stability their welfare so clearly needs.

  92. The care plan in relation to the younger three children requires the court to consider the placement applications made in respect of those children. I will give permission for the LA to withdraw the placement order applications made in respect of the older three children.
  93. In considering the placement applications the court needs to consider whether to dispense with the parental agreement to the making of a placement order. The parents have made it clear that they do not consent to such an order being made. In considering whether the court should dispense with the parents consent the child's welfare throughout his life is the paramount consideration pursuant to section 1 Adoption and Children Act 2002 (ACA 2002). As the cases have rightly set out adoption without parental consent is the most extreme interference with family life and cogent justification must exist if parental consent is going to be dispensed with (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535.
  94. In this case I am satisfied that the parents consent should be dispensed with pursuant to section 52 (1) (b) ACA 2002 for the following reasons. A, B and C each require the stability and security of placement that is life long which can only come though an adoptive placement. They are each still very young and will require consistent parenting throughout their minority and beyond. Bearing in mind their ages a placement short of an adoptive placement may breakdown and create further uncertainty for them which would be very detrimental to their welfare. They are part of a strong sibling group and any adoptive placement, whether their existing placement or an alternative placement will be sought that ensures such contact continues. For the reasons set out above the parents are not able to care for the children and there are no other members of the wider family who are in a position to do so. The LA plan, endorsed by the Children's Guardian, is that following an adoption order being made any contact with the parents should be indirect, by way of managed exchange of letters and photographs. I agree this would meet the children's welfare needs.
  95. Turning finally to the revised care plan submitted to the court during this hearing which I endorse. I would like to make a few observations:
  96. (1) Whilst for the reasons given above I have ruled out the parents as being able to care for the children in the future, that does not mean I do not regard them as a significant part of the children's lives. Providing it is consistent with the children's welfare I wholly endorse the plans to continue direct contact with the parents and the older three children in both the short and the long term. I am entirely satisfied on the evidence that this LA are wholly committed to such contact and the benefits for the children of supporting that contact continuing. I sincerely hope the parents are able to find the necessary support and assistance to enable them to remain in this jurisdiction so they can see the children. As one of the witnesses said it would be disastrous for the children if there was a repeat of what happened in July 2012. I accept the parents, in particular the mother, now understand the impact of them abandoning the children and do not wish that to happen again.

    (2) I also endorse the younger three children having direct contact with their parents pending the identification of their adoptive placement.

    (3) The profile of the placement for alternative carers for Y should remain as set out in the care plan. That is a matter for the LA to keep under active review.

    (4) Future direct contact with the parents needs to be closely monitored, supported and kept under review through the LAC reviews with the flexibility of reviewing the position in between the LAC reviews with the assistance of the IRO who is already familiar with the case. In addition I am informed that the allocated social worker will remain which will retain invaluable continuity for the children and the parents. It is in the interests of the parents and the children that steps are taken to restore trust between the parents and the LA, in particular with the allocated Social Worker.

    (5) It would be helpful if the parents could assist directly or indirectly in ensuring the children's Roma heritage is kept alive for them.

    (6) Obviously it will be a matter for the assessments that are about to be undertaken but the senior practitioner in the County Adoption Team was clear that the strong attachments the current carers have with the children will be a powerful factor. I agree.

  97. As neither the parents, or any party, invited the court to consider the return of the children to Slovakia I did not have to consider the details that were helpfully provided by the Slovakian Central Authority.

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