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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Z (Adoption: Scottish Child Placed in England: Convention Compliance), Re [2012] EWHC 2404 (Fam) (30 August 2012) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2012/2404.html Cite as: [2013] 1 FLR 618, [2012] EWHC 2404 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Applicant |
Applicant |
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- and - |
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The mother |
1st Respondent |
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- and - |
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The father |
2nd Respondent |
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- and - The child (by her Children's Guardian) |
3rd Respondent |
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- and - The Lord Advocate |
Intervenor |
____________________
Ms Neelim Sultan (instructed by Wainwright & Cummins Solicitors) for the 1st Respondent
The 2nd Respondent in Person
Ms Sharon Sawyerr (instructed by Osbornes Solicitors) for the 3rd Respondent
Mr Steven Kovats QC (instructed by the office of the Advocate General) for the Lord Advocate (as Intervenor)
Hearing dates: 18, 19, 20, 22 June & 25, 26 July 2012
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Crown Copyright ©
Judgment (Anonymised Version)
Mr Justice Mostyn :
"There have been fundamental breaches of the M's Article 6 and 8 Convention rights in the sequence of events leading to the placement of the child with the Applicants on 20.4.11"
And, among a number of other complaints, she states:
"There has not been a recognisable 'trial' of the issues between the M and the LA culminating in a determination by a court of competent standing and on the basis of evidence obtained and called on behalf of all parties including the M, that the M should be excluded as a carer for Z"
And:
"It is submitted that the weight of the evidence tends to suggest that the 'placement for adoption' was not lawful and not Convention compliant"
"The parties shall have permission to instruct a suitably qualified expert to advise the Court as to the validity of the child's placement by the Local Authority with the Applicant on 20th April 2011, and any other relevant matters concerning the actions of the Local Authority and the proceedings in Scotland insofar as they have any impact on these proceedings."
Child protection law in Scotland
"The Children's Hearing is a statutory and quasi-judicial body, independent of the local authority, responsible for safeguarding the interests of children who are subject to the intervention of the local authority social work department."
"Next, it must be shown that a public authority has interfered with the right to respect for this family life. This too is not in dispute. Any court order which regulates or restricts the "mutual enjoyment of each other's company" which "constitutes a fundamental element of family life" will amount to an interference: see, for example, Johansen v Norway (1997) 23 EHRR 33, para 52; L v Finland, above, para 101. The decision of a children's hearing to impose a supervision requirement empowering a public authority to intervene in the child's life will constitute an interference with the family life of the child and the parent with whom she lives and is likely also to interfere with the family life of the child and her other parent. Manifestly an order that they were not to have contact with one another did so."
The facts in this case
i) M failed to accept medical advice that Z was at very high risk of major haemoglobinopathy and did not allow Z to be screened;ii) M failed to agree to Z receiving her primary immunisations;
iii) M allowed herself to be evicted from her property in circumstances where she was unable to recover clothing and equipment for the proper care of Z; and left the home without making proper arrangements for Z's care, by delegating Z's care to her half-siblings LK and OK:
iv) M's failure to make proper arrangements caused Z distress and suffering and exposed her to risk of harm.
Although M had been represented by a solicitor at all the preparatory hearings, including those which fixed the final proof hearing, she did not attend that final hearing. She stated in evidence that she knew nothing about it, which was obviously untrue. Thus it appears that the grounds were not proved after a contested hearing. Ms Sultan sought to argue that because there was no contest the findings should in some way be disregarded by me, but I pointed out that this would violate the principle of res judicata. It is noteworthy that M did not at any stage seek a rehearing or to appeal the findings.
"A Safeguarder is the independent voice of a young person/child within the Children's Hearing System and provides information that can be considered by panel members so that they may decide what is in the best interest of a young person at this moment in time.
I trust that the information provided in this report covers the questions that were posed by the previous panel members and provides this panel with information that can assist them in making a substantial decision on Z's behalf.
I acknowledge both parents claims that they feel that they can now provide a permanent life for Z, however in the intervening years since she was placed in care, almost 5 years ago, Z has grown up and is no longer a baby and any prospect of rehabilitation that would be in her best interests is not feasible nor practical.
Z deserves the right to have a safe and secure upbringing that will positively nurture and develop her through her childhood and into adulthood and I would recommend that adoption affords her the best opportunity to achieve this."
"The decision today of the Hearing was that Z still requires compulsory measures of care. She requires to be protected from the emotional impact of her situation at this time and needs to be afforded stability, security and continuity during this transition from her long term carers to her prospective adoptive carer."
"(1) an order ordaining the respondents to make reasonable efforts to undertake a parenting assessment of the petitioner and of [F], in respect of the child Z;
(2) an order ordaining the respondents to reconsider what long-term plan is appropriate for the child;
(3) declarator that the respondents have failed to fulfil their statutory duties in terms of sections 22 and 23 of the Children (Scotland) Act 1995 in respect of the petitioner and the child;
(4) declarator that the respondents have failed to fulfil their statutory duties in terms of section 14 the Adoption and Children (Scotland) Act 2007 in respect of the petitioner and the child;
(5) declarator that the respondents have acted unlawfully by breaching the petitioner's rights in terns of article 8 of the European Convention on Human Rights: and
(6) payment by the respondent to the petitioner of the sum of twenty thousand pounds (£20,000) sterling with interest thereon at the rate of eight percent (8%) per annum from the date of decree until payment."
This hearing
The positions of the parties
Appraisal of the evidence
"I was particularly concerned about her complete lack of insight into the impact on Z of her mother being introduced into her life and possibly being removed from A's care. M did not appear to be putting Z's welfare first and appeared to be more concerned about her grievances about how she has been treated by social services"
Conclusions