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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> E (A Child), Re  EWHC B11 (Fam) (23 February 2017)
Cite as:  4 WLR 99,  EWHC B11 (Fam),  WLR(D) 340
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WREXHAM DISTRICT REGISTRY
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE SOCIAL SERVICES AND WELLBEING (WALES) ACT 2014
AND IN THE MATTER OF E (A CHILD)
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
| A LOCAL AUTHORITY (1)
THE MATERNAL AUNT (2)
|- and –
|THE FATHER (1)
E (the child) (2)
by his Guardian
Posib Ltd, St Mary's Chambers, 87 High Street, Mold, Flintshire, CH7 1BQ
Official Transcribers to Her Majesty's Courts and Tribunals Service
Tel: 01352 757273
Miss Morris of Counsel for the Second Applicant
The First Respondent appeared in person and was not represented
Mr Sellars of Counsel, and Mr Morris-Jones, Solicitor, for the Children's Guardian
Hearing dates: 1st, 2nd and 5th December 2016 and 23rd February 2017
Crown Copyright ©
23rd February 2017
HIS HONOUR JUDGE GARETH JONES:
(i) an application by the Local Authority for permission to place E outside the jurisdiction of England and Wales, more particularly in the Republic of Ireland with his maternal aunt. This application is made pursuant to section 124 of the Social Services and Well-being (Wales) Act 2014, which came into force on 6th April 2016; and
(ii) an application made by E's maternal aunt for a Special Guardianship Order under the Children Act 1989.
(i) The Local Authority is represented by Miss Bettie;
(ii) E's father (who is present today) represents himself, and he has been produced from custody during this hearing;
(iii) E's maternal aunt is represented by Miss Morris;
(iv) E's Guardian, Miss Lisa Hills, was represented at the hearing by Mr Sellars, and is represented today by Mr Morris-Jones;
(v) with my permission, E's step-mother (who has attended Court today) has been permitted to come into the courtroom to hear this judgment.
(i) the key social worker, Miss Halley;
(ii) the father;
(iii) the maternal aunt; and
(iv) the Children's Guardian.
The background to these applications
"She would care for him like her own child"
"I don't know where I will be living next November on my release".
(i) It is unlikely that E's step-mother could manage the care for four children, where her sole parenting capability remains untested. Managing three children together is not an easy task, and there have been concerns about home conditions, and support has been provided;
(ii) E and the older child living with E's step-mother had a previously poor relationship historically;
(iii) E required therapeutic assistance and thrives when he receives one-to-one attention. A stable and secure placement for him is required;
(iv) E's step-mother agreed to these split arrangements in June 2016, and wished to give priority to the care of her birth children. She did not actively seek E's rehabilitation to her care during those earlier Care Proceedings; and
(v) If E's step-mother lost her accommodation, or became overwhelmed with her responsibilities, her additional care for E could jeopardise not only his care, but the care of her other children as well.
"It would not be fair as I would not have settled in. It wouldn't get to be my choice. I might not be happy living there, the Court won't have full information about how I think and feel".
The course of these proceedings
"If Ireland is where E wants to live then he [the father] would drop his objections to it".
(i) a placement for E in Ireland with his maternal aunt; or
(ii) a continuation of local authority foster care.
"I believe it is in his best interests to be with his auntie".
He indicated that his wife's views about E's return to Care were similar to his own, however, on the options presented he would favour E's aunt.
(i) that E's Guardian should visit him after the first day of the hearing, to inform E of his father's wishes;
(ii) that I would see E myself (as previously arranged) on the second day of the hearing (2nd December 2016); and
(iii) that as E's father appeared to be giving his consent to E's placement in Ireland he could reflect on this over the weekend, and return to Court on the third day of the hearing (5th December 2016) to confirm to me his concluded view as a litigant in person.
(i) the nature of E's Final Care Plan approved by the Court;
(ii) the serious threshold findings made by the Court;
(iii) the absence of any appeal from those decisions; and
(iv) the absence of any participation by E's step-mother over approximately five months.
(i) E's father and step-mother had been given ample opportunity for engagement in these proceedings;
(ii) E's father had every opportunity to obtain legal representation, and his status as a litigant in person was not unusual, indeed this has become the norm in Family Proceedings;
(iii) E's timetable was pressing, and the consequence of delay was not in E's best interests;
(iv) E's step-mother had not made any application to be adjourned, and an adjournment at the father's request at the eleventh hour (part heard in his evidence) to seek legal representation was entirely without merit, where he had not done so over the previous five months, and his prospect of obtaining such representation in the light of his own evidence was so uncertain; and
(v) there was a risk of manipulation of these proceedings by the father for his own ends, to exert pressure on his son, to undermine/frustrate the aunt's application, and to unintentionally harm E in the process. E's Guardian, having already explained to E his father's position (as initially modified) would potentially have to convey a further and a contradictory development of his father's views to E.
The legal provisions
"The Court must not give its approval under (1) unless satisfied that:
(a) living outside England and Wales would be in the child's best interests;
(b) suitable arrangements have been, or will be made, for the child's reception and well-being in the country in which he or she will live;
(c) the child has consented to living in that country, and;
(d) every person who has parental responsibility for the child has consented to the child living in that country".
"… does not have sufficient understanding to give or withhold consent" [the Court may] "disregard subsection (3)(c) and give its consent if the child is to live in the country concerned with a … suitable person".
In this instance E's aunt is proposed as the suitable person.
"… the Court may dispense with that person's consent if it is satisfied that …
… (b) the well-being of the child requires the content to be dispensed with."
"(a) physical and mental health and emotional well-being;
(b) protection from abuse and neglect;
(c) education, training and recreation;
(d) domestic, family and personal relationships;
(e) contribution made to society;
(f) securing rights and entitlements;
(g) social and economic well-being;
(h) suitability of living accommodation."
"Where a Court having jurisdiction … contemplates the placement of a child … with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement."
"The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement…"
"Where the authority having jurisdiction under Articles 8 … decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State."
"… the responsible authority must take steps to ensure that, so far as is reasonably practicable, requirements corresponding with the requirements which would have applied under these Regulations had the child been placed in Wales, are complied with."
(i) for the domestic (i.e. Wales) assessment, and approval of a familial carer as a foster carer by a Welsh Local Authority, and the provision of the Care and Support Plan confirming the relevant details of the placement; and
(ii) the notification and approval by the relevant foreign (i.e. Republic of Ireland) Authority for the placement proposed.
"… A placement should only be agreed where the stay overseas is for a definite and limited period".
(i) invalidate that local authority's agreement to this placement; or
(ii) to impeach in any way this Court's approval of the placement under section 124 Social Services and Well-being (Wales) Act 2014.
"… it has the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable".
(see Re P  2 FLR 625 at paragraph 125, and Re B-S  1 FLR 1035 at paragraph 34).
The position of the Guardian
"To take E away from his siblings is the wrong decision".
E was still, in his father's view "a child" unable to provide his consent.
(i) that suitable arrangements are in place in Ireland for E's reception and well-being there with his aunt, and in her care. Confirmation has been obtained from the relevant Authorities in the Republic of Ireland;
(ii) E does have sufficient understanding to give his consent to this move, both to the Guardian consistently and to me, when I saw him on 2nd December 2016. I conclude from that meeting that E had properly weighed up the "pros and cons", and his decision was mature and reflected his best interests. E has, therefore, provided his consent for this move to the Republic of Ireland;
(iii) Living with his aunt in Ireland would, in the circumstances of this case be in E's best interests. The evidence produced at the hearing in June 2016, and the assessments undertaken since then confirm this position. The professional opinion is favourable to this move, and it is universally maintained;
(iv) E's father does not consent, but his opposition cannot prevail where E's well-being points in a different direction.
End of judgment