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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Harrow v Rasul & Ors [2014] EWHC 3837 (Fam) (18 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/3837.html Cite as: [2014] EWHC 3837 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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LONDON BOROUGH OF HARROW |
Applicant |
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and – |
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(1) ZAINAB RASUL (2) MOHAMMED AFZAL (3) FARAH AFZAL (Through her Children's Guardian) (4 & 5) NAZMA RASUL AND ALI RASUL |
Respondents |
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Miss Louise MacLynn (instructed by Turbervilles) for the First Respondent
Miss Amanda Meusz (instructed by IBB Solicitors ) for the Second Respondent
Miss Alison Easton (instructed by Creighton & Partners ) for the Third Respondent
Mr Rex Howling QC (instructed by Direct Access) for the Fourth and Fifth Respondents
Hearing dates: 18,19,20,21 and 26 August 2014
15 and 16 September 2014
10 October 2014
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Crown Copyright ©
Mr Justice Keehan:
Introduction
Law
7. The 'correct test' that must be applied in any case in which a court is asked to dispense with a parent's consent to their child being placed for adoption is that statutorily provided by the sections 52 (1) (b) and 1 (4) of the Adoption and Children Act 2002 interpreted in the light of the admonitions of the President in Re B-S (Children) [2013] EWCA Civ 1146 which drew upon the judgments of the Supreme Court in In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and rehearsed previous jurisprudence on the point. The "message" is clearly laid out in paragraph 22 of Re B-S and needs no repetition here.
8. However, I note that the terminology frequently deployed in arguments to this court and, no doubt to those at first instance, omit a significant element of the test as framed by both the Supreme Court and this court, which qualifies the literal interpretation of "nothing else will do". That is, the orders are to be made "only in exceptional circumstances and where motivated by the overriding requirements pertaining to the child's best interests." (See In Re B, paragraph 215). In doing so I make clear that this latter comment is not to seek to undermine the fundamental principle expressed in the judgment, merely to redress the difficulty created by the isolation and oft subsequently suggested interpretation of the words "nothing else will do" to the exclusion of any "overriding" welfare considerations in the particular child's case.
9. It stands to reason that in any contested application there will always be another option to that being sought. In some cases the alternative option will be so imperfect as to merit summary dismissal. In others, the options will be more finely balanced and will call for critical and often anxious scrutiny. However, the fact that there is another credible option worthy of examination will not mean that the test of "nothing else will do" automatically bites.
10. It couldn't possibly. Placement orders are made more often in anticipation of finding adoptive parents than with ones in mind. Plans go awry. Some adoption plans are over ambitious. Inevitably there will be a contingency plan, often for long term fostering. The fact of a contingency plan suggests that 'something else would do at a push', the exact counterpoint of a literal interpretation of "nothing else will do", and it would follow that the application would therefore fail at the outset.
11. The "holistic" balancing exercise of the available options that must be deployed in applications concerning adoption is not so as to undertake a direct comparison of what probably would be best but in order to ascertain whether or not the particular child's welfare demands adoption. In doing so it may well be that some features of one or other option taken in isolation would produce a better outcome in one particular area for the child throughout minority and beyond. It would be intellectually dishonest not to acknowledge the benefits. But this is not to say that finding one or more benefits trumps all and means that it cannot be said that "nothing else will do". All will depend upon the judge's assessment of the whole picture determined by the particular characteristics and needs of the child in question no doubt often informed by the harm which s/he has suffered or been exposed to.
Background
Findings of Fact Sought
1. The subject child is Farah Afzal, a girl born on 2.10.2013
2. The mother is Mrs Zainab Rasul and the father is Mr Mohammed Afzal. The parents are married and therefore Mr Afzal has parental responsibility for Farah.
3. The relevant date for consideration of the threshold criteria is 2 October 2013 when Farah was made subject to police protection and safeguarding measures were put in place.
4. That Farah at the relevant date had suffered or likely to suffer significant harm attributable to the care given or likely to be given if an order had not been made not being what it would be reasonable to expect a parent to give her, for the following reasons:
Parent's misuse of drugs
5. Mr Afzal and Mrs Rasul have been known to Children Services since 8 August 2013, after a referral was made by Compass. Ms Rasul was at the time 26 weeks pregnant, was a former heroin user and was being prescribed 15 mg a day Methadone in tablet form.
6. Mr Afzal was on a drug replacement programme. However, he had discharged himself from the service.
7. On 25.11.2010 Mrs Rasul [Zainab] admitted that he has been addicted to heroin for 8 years.
Incident and attempts to remove Farah from hospital.
8. On 2.10.2013 Mr Afzal and his brother Nadeem Butt tried to leave the neo-natal unit with Farah. Mr Afzal walked into the unit, whilst his brother held the doors of the neo natal unit open. He went to see Farah, who had inserted into her a feeding tube (through the nose). Mr Afzal picked up Farah and attempted to leave with her. Mrs [Zainab] Rasul asserts that she had packed some belongings with a view to her and her daughter moving to another hospital in view of her concerns about the care Farah was receiving at NPH. Nadeem Butt, the father's brother, was also present waiting for them. Police were called, Mr Afzal was arrested and Mrs [Zainab] Rasul taken back to the ward, and baby taken back to the unit. This was potentially dangerous for Farah as the removal was contrary to medical advice. Mrs. [Zainab] Rasul accepts she should have intervened earlier to retrieve Farah from Mr Afzal and return her to medical staff at the neo-natal unit.
9. On 2.10.2013, Farah was made subject to police protection and remained in hospital.
10. On 19.10.2013 Mr Afzal telephoned the hospital and threatened to arrive with family members and do whatever was necessary to take his child from the unit. He had been banned from the unit having tried to remove Farah previously.
11. 0n 20.10.2013 Mr Afzal attempted to enter the hospital. Mr Afzal was stopped by security staff. Farah was made subject to further police protection and remained in hospital.
12. On 22.10.2013 the local authority obtained an emergency protection order which expires on 30.10.2013.
Parent's failure to engage with the local authority and prioritise Farah's needs
13. The local authority attempted to work with the parents and the extended family in agreeing a discharge plan that would meet Farah's need for safety and security. This arrangement was initially agreed by the parents but was conditional on them agreeing to undertake hair strand testing and agreeing to further assessments. Following a meeting with both parents on 17 October 2013, the family refused to engage with Children Services.
1. The local authority are entitled to rely upon: -
a. Zainab Rasul plea of guilty in relation to the offence of abducting Farah on 16 January 2014 jointly with Mohammed Afzal contrary to section 1 (1) of the Child Abduction Act 1984
b. Zainab Rasul plea of guilty in relation to the offence of failing without good cause to provide a non-intimate sample for the purposes of ascertaining whether she had a Class A drug on 2 March 2014 contrary to section 63B (8) and 63C (1) of the Police and Criminal Evidence Act 1984
c. As a consequence of the 2 charges she received a 2 year suspended sentence order with two requirements: 2 year supervision and 9 months drug rehabilitation requirement
d. Mohammed Afzal plea of guilty in relation to the offence of abducting Farah on 16 January 2014 jointly with Zainab Rasul contrary to section 1 (1) of the Child Abduction Act 1984
e. Mohammed Afzal plea of guilty in relation to the offence of failing without good cause to provide a non-intimate sample for the purposes of ascertaining whether he had a Class A drug on 2 March 2014 contrary to section 63 (B) (8) and 63 C (1) of the Police and Criminal Evidence Act 1984
f. As a consequence of which he received a 2 year suspended sentence order with 2 requirements: 2 year supervision and 9 months drug rehabilitation requirement
2. The mother and father failed to return Farah to this jurisdiction following her abduction, despite the court orders made by the High Court Family Division and their knowledge of the court orders to return her forthwith.
3. The mother and father's continued use of street drugs and their failed to adequately address the long standing issues regarding their drug use since 2 October 2013.
4. the Local authority is entitled to rely upon the material contained in the Aylesbury social services files suggesting that the account given to Dr Lucja Kolkiewicz Consultant Forensic Rehabilitation Psychiatrist on Saturday, 14 June 2014 in relation to the quality of the relationship with his former partner Becky, the frequency he saw/sees his son Khalid and the quality of relationship with his son Khalid was false.
5. The local authority is entitled to rely upon Dr Lucja Kolkiewicz conclusion in her report dated 8 July 2014 that the:-
a. father suffers from a mental and behavioural disorder namely Dependence Syndrome due to the use of Opioids
b. father suffers from a Dissocial Personality Disorder
c. his current prognosis is poor.
1. Prior to the child's wrongful removal on 16 January 2014 from the jurisdiction of England and Wales Mr and Mrs Rasul provided practical assistance and encouragement as follows:-
a. On or before 13 January 2014 caused Farah to leave their home for the purposes of obtaining a passport photograph in that one or other of them attended with Farah or failed to comply with paragraphs 2 & 3 of the written agreement signed by them on 24 December 2013 in permitting the child to leave unsupervised.
b. Between 24 of December 2013 and 16 January 2014, failed to take any or any adequate steps to prevent the parents arranging Farah's removal from their home , (in breach of the written agreement signed by them on 24 December 2013), having become aware that their daughter was planning to do so and/or may do so [watching as a family the panorama programme, telephone call from mother solicitors confirming grandparents assessment was negative, arrival of Farah's passport at their address arrangements for the collection of the car seat by Mrs Rasul.
c. Permitting the mother to use Mrs Rasul's credit card to book 3 easy jet's flights from Gatwick to Barcelona on the Internet.
d. Failing to inform the Social Services Department and/or any other professionals that the parents were planning to and/or may remove Farah from their home.
e. At about 02.00 on 16 January 2014 Mr Rasul and Mrs Rasul were awake during the preparations being made for Farah's removal from their home but failed to take any steps to prevent this.
f. In relation to 16 January 2014 the local authority rely upon the following matters arising from the committal proceedings before The Honourable Mr Justice Keehan on 31 January 2014:-
i. the court's finding that; Ali Rasul (paternal grandfather) knew that Farah was in the taxi
ii. Ali Rasul (paternal grandfather) during his evidence confirmed that the mother told him "Everything has been sorted out and we are going"
iii. Ali Rasul (paternal grandfather) confirmed that he helped his daughter fold the buggy before placing it in the taxi
g. In all the circumstances Mr and Mrs Rasul were aware that Farah was being removed by the mother and the father from her home in flagrant breach of the written agreement.
2. After Farah's removal from the Mr & Mrs Rasul's home the local authority will seek to rely upon the following:-
a. Mrs Rasul deliberately misled the social services Department at or about 14.00 on 16 January 2014 by contacting them claiming that she had been asleep for a few hours and had awoken to realise that her daughter had left their home with Farah as certain items were now missing.
b. Mr and Mrs Rasul failed immediately after service of the order of Russell J made 24 January 2014 at or about 20.18 on 24.1.14 and thereafter until Monday 24 of February 2014 to assist the local authority adequately or at all by:-
i. taking any steps within their control to ensure that Farah was immediately returned to the jurisdiction of England and Wales pursuant to paragraph 1 of the order of Russell J made 24 January 2014
ii. providing them with all information relating to the whereabouts of Farah pursuant to paragraph 3 (A) of the order of Russell J made 24 January 2014
c. Mr and Mrs Rasul failed immediately after service of the order of Russell J made 24 January 2014 at or about 20.18 on 24.1.14 and thereafter until approximately 12.00 on 29 January 2014 to assist the local authority and or the court adequately or at all by:-
i. providing them with a recent photograph of Farah or the mother pursuant to paragraph 3 (b) (I) & (III) of the order of Russell J made 24 January 2014
d. Mr and Mrs Rasul failed after service of the order of Russell J made 24 January 2014 at or about 20.18 on 24.1.14 and thereafter until Monday 24 of February 2014 to fully assist the court in relation to:-
i. taking any steps within their control to ensure that Farah was immediately returned to the jurisdiction of England and Wales pursuant to paragraph 1 of the order of Russell J made 24 January 2014
ii. providing them with all information relating to the whereabouts of Farah pursuant to paragraph 3 (A) of the order of Russell J made 24 January 2014
3. The local authority rely upon the findings made by the Honourable Mr Justice Keehan on 31 January 2014 that on 24 January 2014 Ali Rasul (paternal grandfather) arranged by Western Union Money Transfer to send the sum of £500 to his daughter in Barcelona.
4. The local authority rely upon the findings made by the Honourable Mr Justice Keehan on 31 January 2014 that on 30 January 2014 Ali Rasul (paternal grandfather) arranged by Western Union Money Transfer to send the sum of £500 to his daughter in Barcelona.
5. The local authority rely upon the findings made by the Honourable Mr Justice Keehan on 31 January 2014 that:-
i. Mr and Mrs Rasul were taking steps positively to support their daughter and son-in-law and granddaughter (to) live in Barcelona
ii. There is, in my judgement, only one reason why he (Ali Rasul) is lying, and that is to protect his daughter and prevent their whereabouts being discovered and, most importantly of all, the baby, Farah, being returned to this jurisdiction. I'm satisfied so that I am sure that the grandfather is lying. I'm satisfied so that I am sure that he knows the location of the mother, the father and the child. I'm satisfied so that I am sure that he is withholding highly material evidence from this court.
Findings of Fact
Welfare Evidence
"In my opinion these [circusmtances] are sufficient to reach the threshold necessary to make a diagnosis of mental and behavioural disorder due to the use of opiate dependence syndrome currently abstinent."
A little later she said:
"Taking into account Mr. Afzal's difficulties achieving abstinence from APH during his wife's pregnancy, despite the concerns of the Child and Family Social Services for the wellbeing of his unborn child, and the co-dependent relationship between Mr. Afzal and his wife, Mrs. Rasul, who also misuses opiates, his prognosis is poor unless both Mr. Afzal and Mrs. Rasul work together to make a sustained and joint commitment to their current substance misuse treatment programme, which is being delivered through the Probation Service as part of a drug rehabilitation requirement."
And then she said:
"In my opinion, when reviewing his history, and taking into account the evidence contained in the background information provided to me, Mr. Afzal displays many of the psychopathic traits associated with dissocial personality disorder as reflected in the high factor one score on the PCLSV. These include superficial interactional style, grandiosity, deceitfulness to achieve his own personal goals, a lack of remorse with little capacity for guilt, an avoidance of taking personal responsibility for his harmful actions by rationalising his behaviour and minimising the consequences of his behaviour for others."
Then, finally, she concluded:
"In my opinion, as a result of disinhibition related to continued substance abuse Mr. Afzal is likely to suffer a decompensation in his dissocial personality disorder, especially impulsivity and a lower threshold for frustration and the discharge of aggression. In my opinion, as a result of continued substance misuse Mr. Afzal will be more likely to neglect his relationship with his partner, or to influence her to relapse into elicit substance misuse, further jeopardising the safety of their daughter, Farah. In my opinion, his relationship and ability to attend to his daughter's practical and emotional needs will be increasingly impaired as he becomes more psychologically and physically unavailable as a result of intoxication with elicit substances and/or substance dependence."
"Mr. Afzal is currently assessed as posing a high degree of risk of serious harm to children, namely his daughter, Farah Afzal. He has also been assessed as posing a medium risk of harm to staff, in particular hospital and social care personnel, and his wife. The risks to the staff are likely to be threatening and intimidating behaviour, and the risk to his wife at this time are thought to be in the context of controlling behaviours. The risk of serious harm to Farah at this time is assessed as high. Although Mr. Afzal appears to be complying with the High Court's directions, there are a number of factors that remain unaddressed. Mr. Afzal has tested positive for heroin on one occasion since the commencement of the suspended sentence order, and his engagement with WDP is limited and tests have been sporadic. He has attempted to abduct Farah on two prior occasions. There are varying accounts with regard to his mental health, and he appears to use deception as a means to allay any fears held by the authorities. Added to this, this couple have experienced transient accommodation issues, and Mr. Afzal displays a distinct lack of responsibility for his behaviour, using a number of justifications and minimisation of potential harm."
"Mr and Mrs Rasul are able to meet Farah's basic and overall developmental needs on the interim and in the future. They are determined to keep Farah safe and are mindful of the challenges that they are likely to face. They appeared quite adamant that their only interest at present is to keep Farah safe and would not appreciate interference from anyone, referring to Farah's parents".
and she concluded:
"Mr and Mrs Rasul are very much able to parent Farah. They have displayed insight into her needs both now and in the future. They are more than willing to accept help and support from the Local Authority and are open to be monitored by them on a regular basis.
It is my professional view that Farah could be safely parented by Mr and Mrs Rasul."
"5. The concerns of the Local Authority and other professionals involved in their case is that although Ms Rasul and Mr Afzal have demonstrated that they can meet Farah's basic care needs, their long-term ability to refrain from substance misuse and engagement with professionals has been inconsistent. The recent update provided by Ms Kristine Brown (Probation Officer) and their lack of commitment to Contact proves Ms Rasul and Mr Afzal's inability to prioritise appointments to demonstrate their long-term commitment to Farah.
6. The Local Authority have met with, and assessed all family members who have put themselves forward to care for Farah but for various reasons, none could be identified as her permanent carer.
7. The Agency Decision Maker made a decision of Adoption in Farah's Best Interest on 12th September 2014, and the Local Authority proposes Adoption as Farah's long-term care."
" Weighing up the merits and demerits of placement options, it has to be taken into account whether any identified risk is manageable, and in this case have Mr and Mrs Rasul shown evidence they have the capacity to work with professionals who would be required to monitor and supervise the situation were an SGO and supervision order in place. They would have to provide a home safe from any potential encroachment, overt or insidious, by Mr Afzal and Ms Rasul.
I cannot escape from the thought that there is a danger Mr Afzal may attempt to remove Farah from the jurisdiction once more, with the co-operation of his wife. This is not a situation where the placement address can be kept confidential.
Mr and Mrs Rasul have many qualities. It is however questionable if despite their good intentions, they could keep Farah safe and the child's mother and father, in check., especially in the face of Mr Afzal's personality difficulties. Putting it bluntly, I am not confident they would call the police, or the social services department for instance. And risk a potential termination of the placement, conscious of how they may be viewed by social workers of having failed the child."
Welfare Analysis
a. brought home to them the very real prospect that they may lose their granddaughter and;
b. has strengthened and empowered them to be able to put Farah to the fore and to be able to resist any approaches or interference by the parents in the care of Farah.
Conclusion