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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: [2012] EWHC 2404 (Fam), [2013] 1 FLR 618 |
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FAMILY
DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Applicant |
Applicant |
|
- and - |
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The mother |
1st ![]() | |
- and - |
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The father |
2nd ![]() | |
- and - The ![]() (by ![]() ![]() ![]() |
3rd ![]() | |
- 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
____________________
Crown Copyright ©
Judgment (Anonymised Version)
Mr Justice Mostyn :
"There have been fundamental breaches of the M's Article 6 and 8Convention
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 arecognisable
'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"
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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 thechild'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
"TheChildren'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 torespect
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 thatZ
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 thisreport
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 forZ,
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 thatZ
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 therespondents
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 therespondents
to
reconsider
what long-term plan is appropriate for the
child;
(3) declarator that therespondents
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 therespondents
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 therespondents
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 therespondent
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 onZ
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