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Cite as: [2014] EWHC 3837 (Fam)

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Neutral Citation Number: [2014] EWHC 3837 (Fam)
Case No: FD14P00078

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
18/11/2014

B e f o r e :

THE HONOURABLE MR JUSTICE KEEHAN
____________________

Between:
LONDON BOROUGH OF HARROW
Applicant
and


(1) ZAINAB RASUL
(2)
MOHAMMED AFZAL
(3) FARAH AFZAL
(Through her Children's Guardian)
(4 & 5) NAZMA RASUL AND ALI RASUL



Respondents

____________________

Mr Alistair Perkins (instructed by London Borough of Harrow) for the Applicant
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Keehan:

    Introduction

  1. In this matter I am concerned with one child, Farah Afzal, who was born on 2 October 2013, and is just one year of age. Her mother is Zainab Rasul, who is 30 years of age, and her father is Mohammed Afzal, he is 32 years of age. The other parties to this matter are the maternal grandfather, Aliunnaki Rasul, who is 61 years of age, and the maternal grandmother, Nazma Rasul, who is also 61 years of age. This matter is before the court as a result of the London Borough of Harrow's application for a care order in respect of Farah, and, latterly, an application for a placement order.
  2. Two dramatic events have occurred during this case. First, when this hearing commenced on 18 August this year the Local Authority, supported by the guardian and the maternal grandparents, proposed a special guardianship order should be made in favour of the maternal grandfather's brother and his wife, Mr. and Dr. Rasul. The Local Authority paid for them to receive independent legal advice and to be represented in the early days of the hearing. Unfortunately, having sat and listened to some of the evidence, and having reflected upon their position and that of their family, they withdrew their proposal to care for Farah on 26 August. In light of that, there was a substantial change in the care plan of the Local Authority, which became one for adoption.
  3. The second dramatic and deeply tragic event was that on the evening of 20 August the father's brother was fatally stabbed in an attack on the street. The father and mother spent the whole of that night and the early hours of 21 August at the father's brother's bedside, and the father had to suffer the enormous burden of watching his brother die whilst at the same time he tried to give a description of his assailants. It was for those reasons that the court, save for hearing briefly from an independent social worker, Miss Bhogal, on 21 August, did not receive further evidence on that day or the following day.
  4. Law

  5. This matter is listed as a combined fact finding and welfare hearing. In relation to the fact finding, I remind myself that the burden of proof is upon the Local Authority. The standard of proof is the simple balance of probabilities, as explained by the Supreme Court in Re B [2013] UKSC 33. When considering the welfare aspects of this case I bear in mind s.1 (1) of the Children Act 1989, that Farah's welfare and best interests are my paramount consideration. I take account of all those matters set out in the welfare checklist of s.1(3). In relation to the placement application, I bear in mind all those matters set out in s.1(2) to (4) of the Adoption and Children Act 2002. I have well in mind the Article 6 and the Article 8 rights of Farah, her parents, and her maternal grandparents. But I bear in mind, where there is a tension between the Article 8 rights of the child on the one hand and the Article 8 of a parent or other adult on the other, the rights of the child prevail, Yousef v Netherlands [2003] 1 FLR 210.
  6. In relation to the placement application I take full account of the decision of the Supreme Court in Re B (A child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and of the Court of Appeal in Re B-S (Children) 2013 EWCA Civ 1146.
  7. The import and application of those cases was considered by the Court of Appeal in the case of Re M-H (A Child) [2014] EWCA Civ 1396, Macur LJ said at paragraphs 7 11:
  8. 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

  9. The background can be stated fairly briefly. The parents commenced a relationship in August 2012. They underwent a cultural marriage on 15 February 2013 and a civil marriage on 20 March 2013. On 2 October 2013 Farah was born. On 2 October there was an episode at the hospital where Farah was receiving treatment after birth, when the father sought to remove her from the hospital in a wholly inappropriate manner. On 22 October 2013 Farah was discharged from the hospital and went with her mother to a mother and baby foster care placement.
  10. On 11 November that placement changed and Farah and the mother moved to live with the maternal grandparents. There Farah remained until the early hours of 16 January 2014, when the mother and father abducted Farah to Spain. There were proceedings to secure Farah's return to this jurisdiction, which involved contempt hearings, at which the maternal grandparents and the paternal grandmother were present. I found the maternal grandfather to be in contempt of court and sentenced him to a term of imprisonment. On 24 February 2014 Farah was recovered by the Spanish police. On 27 February she returned to this jurisdiction where she was placed in foster care, and where she remains to date. On 9 May 2014 the mother and father pleaded guilty in the Crown Court to abduction offences, for which they were each sentenced to 18 months imprisonment suspended for two years, with a nine months drug rehabilitation order and a two year supervision order.
  11. Findings of Fact Sought

  12. The local authority seek the following findings of satisfaction of the threshold criteria of s31(2) of the 1989 Act:
  13. 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.

  14. The local authority seeks the additional findings of fact against the parents, namely:
  15. 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.

  16. The local authority seeks the following findings of fact against the maternal grandfather and/or grandmother:
  17. 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.

  18. This hearing has occupied some five days in August, two days in September, and the 10 October. I have read all of the written material I was invited to read by the parties in statements, reports and notes. I was very grateful to receive from all counsel written closing submissions, which I have read and which very helpfully encapsulated the evidence and the issues in this case.
  19. Findings of Fact

  20. I heard evidence from the parents, and the maternal grandparents, on two occasions each, first limited to issues pertinent to the fact finding hearing, and then, secondly, in relation to matters relating to welfare.
  21. In relation to the fact finding aspect of the case, I found the father to be a singularly unimpressive witness. He demonstrated during the course of his oral evidence many of the characteristics identified by the psychiatrist Dr Kolkiewicz [see paragraph 21 below]. I found his account of the events of 16 January, frankly, incredible. I, similarly, found the mother to be less than frank and honest in her account of what happened in the early hours of 16 January, and I reject her evidence.
  22. The parents are both drug abusers of longstanding. I was told by Miss Chahal, a Service Manager, that when she spoke to the parents in Spain after Farah had been found, the parents told her that they had been using drugs when in Spain. This is contested by the parents. In light of their evidence generally, I reject that denial and I accept the evidence of Miss Chahal. Notwithstanding being on a drug rehabilitation order, notwithstanding having the benefits and support of drug workers, both of the parents, even in the currency of these proceedings, have tested positive for the use of drugs. I found the explanations given by the mother to be weak in the extreme. The idea that one accepts a cigarette from a fellow drug user outside a drug rehabilitation unit without giving a thought as to whether it may have contained drugs is, I have to say, incredible. The idea that some medication that the mother was taking might account for the presence of these opiates is not supported by expert evidence and I reject it. Whilst it may be that the parents have made some efforts to be abstinent from drugs, they are a very long way, in my judgment, from being able to abstain from the abuse of illegal substances.
  23. Accordingly, in relation to the findings sought, set out in the threshold criteria, which in large part is accepted by the parents, I make all of the findings sought by the Local Authority in the threshold document [See paragraph 9 above]. In relation to the further findings of fact in relation to the parents, much of that, in particular paragraph 1, is accepted by the parents, as is paragraph 2. I find paragraph 3 proved, notwithstanding the issues taken by the parents upon that, in light of my overall findings about their credibility [see paragraph 10 above].
  24. In relation to paragraph 4, which concerns material obtained from Aylesbury Social Services and gives an account of the father's relationship with his former partner and his son, Khalib, which is wholly at variance with that asserted by the father. Given my other findings against the father, and his unreliability, I have no hesitation in preferring the account set out in the local authority's files, and make the findings as sought at paragraph 4. The opinions of Dr Kolkiewicz, albeit not accepted by the father, were not formally challenged on his behalf during this hearing. Accordingly I accept her opinions and conclusions and I make the findings at paragraph 5 [see paragraph 10 above].
  25. I am satisfied that the maternal grandfather and grandmother, are perfectly decent people. I accept that they have found their daughter's longstanding drug abuse extremely difficult to cope with. They have tried from time to time to be supportive. They have, not surprisingly, at times been exasperated by her inability, or her failure, to abstain from drug taking. I have no doubt that they love their daughter very deeply, and they have struggled in their relationship with her, not only because of her drug taking but also because of the events concerning Farah.
  26. I am not satisfied that the grandparents have told me everything about the events of 16 January 2014, when the parents abducted Farah. They accepted the mother's account that she and Farah, with the father, were going to meet the social workers in readiness the maternal grandparents' assumed, to a move to a new mother and baby joint placement. I am not satisfied, however, that they were complicit in the planning of the abduction. I bear in mind that at that time neither the maternal grandmother nor, particularly, the maternal grandfather believed that their daughter posed a risk to Farah. It seems to me that they did not, to any great degree, appreciate or accept the concerns then held by the local authority, and, in my judgment, it is more likely than not that neither the grandmother nor the grandfather saw any harm or risk to Farah in the mother and/or the father removing Farah from the home at about 3 o'clock in the morning on 16 January 2014. Even if I am wrong about that, they, by their own admission, accept that they made a grave mistake in not stopping the mother and the father removing Farah from their home, and that they were naive to a degree which beggars credibility. Either finding is a serious one.
  27. In light of that, I will not make the finding sought at paragraph 1(a) of the findings of fact document prepared by the local authority. I make the finding at paragraph 1(b). I do not make the finding at paragraph 1(c). I do not make the finding at paragraph 1(d). I do make the findings at paragraphs 1(e), 1(f) and 1(g). I make the findings at paragraphs 2(a), 2(b) and 2(c). I make the findings at paragraphs 3, 4, 5, and in paragraph 6, which follows on, effectively, from my judgment in the contempt proceedings [see paragraph 11 above].
  28. Welfare Evidence

  29. The father was assessed by a consultant psychiatrist, Dr. Kolkiewicz. In Dr. Kolkiewicz's report she said:
  30. "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."

  31. Mr. Afzal was also the subject of an assessment in the currency of criminal proceedings by a probation officer. The probation officer reported on 7 August 2014:
  32. "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."

  33. I also received a substantive report from an independent social worker, Miss Bhogal, in that report she was positive in her assessment of the maternal grandparents and their abilities to care for Farah. However, when she came to court she was provided with additional material, in particular notes of discussions that had taken place between the social workers, from time to time, and the maternal grandparents. In her oral evidence she said that, as a result of reading those materials, she had changed her recommendation and would not support the placement of Farah with her maternal grandparents, because it appeared that they, in her view, had not been frank about what they had been told of the risks presented by the father and/or the mother. She said the maternal grandparents had told her they were unaware of the mother's drug abuse when it was clear from the documents that they did know. Furthermore Ms Bhogal expressed the view that the maternal grandparents would not be able to 'stand up' to the father. At that stage, Mr. Howling, on behalf of the maternal grandparents, did not challenge that evidence, not least because the grandparents were supporting the case being advanced by the Local Authority, namely, a placement with the grandfather's brother and his wife.
  34. In her independent social work assessment report Ms Bhogal said:
  35. "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."

  36. Ms Bhogal told me that the new information caused her to conclude that the maternal grandparents had not been honest with her. That is a conclusion with which I do not agree [see paragraph 38 below] but I understand why she came to that view. Given, however, the very many positives she found in the maternal grandparents and in their ability to care for Farah, I do not understand why that conclusion should lead to a complete reversal of her recommendation. In my judgment that was neither a proportionate or necessary response.
  37. Sandra Steele, the current social worker, was crossed examined about her failure to undertake a thorough and complete Re: B-S analysis of the various options before the court. In her statement of 5 September 2014 the advantages and disadvantages of various familial placements are considered but (a) there is no consideration of the advantages and disadvantages of adoption and (b) there is no evidence that the social worker or the social work team, still less the Agency Decision maker, stood back and undertook a global and holistic evaluation of all the options. After considering the familial placements the statement continues:
  38. "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."

  39. I regret to conclude that the exercise undertaken by the local authority appears to me to be a wholly linear approach. They have excluded all family placements and only adoption is left on the table. There is no reference to the disadvantages of adoption at all. That is a serious lacuna in the decision making process of the local authority and is wholly inadequate when the plan proposed is one as draconian and final as adoption.
  40. Nevertheless, I accept that Miss Steele, who gave her evidence in a calm and effective manner, has approached this case with a considerable degree of professionalism. During the course of her evidence she accepted that the issue of whether Farah should be placed with her grandparents, or whether she should be placed for adoption, was a very difficult one, and the essential issue was the extent to which one could be satisfied that the maternal grandparents would be able to manage the risk posed by the mother, but, principally, by the father.
  41. On 10 October I heard evidence from the children's guardian, Mr. Wheway. He has considered the case carefully both in what was to be his final report dated 22 August and an addendum reported dated 15 September 2014. In that latter report, having balanced various matters, he concluded that adoption was the appropriate route, and that such placement was in the best interests of Farah. In his conclusions he said:
  42. " 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."

  43. There was some issue in closing submissions about the import of Mr. Wheway's evidence in terms of his assessment of risk. It was submitted on his behalf that it was likely and probable that a placement with the maternal grandparents would be disrupted. However, that was not the language that Mr. Wheway himself used. He observed that he thought it was "too risky" to place Farah with the maternal grandparents, that he had "concerns" about the maternal grandparents' abilities to deal with Mr. Afzal. He was "not sure" that the maternal grandparents would be able to keep Farah safe. He "wondered" whether, if Farah were placed with the maternal grandparents, they would alert the Local Authority, or the police, if something went wrong. He said a little later: "I am not sure they have got it". He had no confidence in the maternal grandparents. He did "not believe" the maternal grandparents could stand up to the risk of further abduction presented by the parents. It is right that eventually, after matters had been put on a number of occasions by Mr. Perkins for the Local Authority, Mr. Wheway expressed himself in more definitive and clearer terms.
  44. Neither the social worker nor the guardian assessed the degree of risk of the parent's seeking to abduct Farah or disrupt a placement with the grandparents. The risk was not obviously or clearly balanced against the disadvantages of adoption. The risk was not balanced emphatically enough, in my judgment, against the ability (a) of the grandparents to thwart the parents' attempts to abduct Farah or disrupt the placement and (b) against their ability and readiness to seek help and support to safeguard Farah's placement.
  45. Welfare Analysis

  46. It is plain, on the basis of Dr. Kolkiewicz's evidence, and the probation officer, the assessments of the social worker, Miss Steele and of the guardian, and my own conclusions about the father, that he poses a real risk of harm to Farah. He is volatile, he is controlling, he is impulsive, and he is, and will remain for the foreseeable future, I fear, a drug abuser.
  47. It is perhaps to his credit that he does not put himself now forward as a carer for Farah but supports the mother caring for Farah, and/or the mother caring for Farah at the home of the maternal grandparents. But it is plain, in my judgment, that he sees that as only a very, very short term measure. It is plain from what he has said to professionals, as recently as earlier this month, and what he said in his evidence to me, that within six, eight, ten, twelve months, he would want to resume care for his daughter. The prospects of him undertaking the work that Dr. Kolkiewicz has advised he needs to in order to ameliorate the risks that he presents, not only to himself but to Farah and to others, is, in my judgment, remote. Accordingly, the prospect of him being able to take any active role in the day-to-day care of Farah for the foreseeable future is, similarly, remote.
  48. In relation to the mother, I do not accept for one minute that she and the father have separated. They may have, for the last few weeks, and for the purposes of these proceedings, lived physically apart, but they are certainly not emotionally or psychologically separated, nor will they be. In the course of her evidence, save and except for saying, (1) she accepted the report of Dr. Kolkiewicz, and (2) that the father needs to think before he acts, which were the only criticisms she made of the father, she did not see that he presented any risk at all to Farah, to herself, or to any other person. She did not see why she should remain separated from her husband. She plainly wanted to be with him, and he with her. On the last day of the hearing, he, the father, was at the hospital with the mother, and had been throughout the whole of the day. I regret to find that I am entirely satisfied that the purported separation between the parents is a mere ploy and for the purpose of this hearing. It has not been the fact on the ground, nor will it be. The father is controlling of the mother, which she does not acknowledge. She is, in my judgment, a vulnerable individual, and the likelihood is that for now and the foreseeable future the father will be controlling of the mother.
  49. The mother, I accept, has made some attempts to abstain from drug taking, but, as I have indicated earlier, the excuses that she makes for those positive test results are incredible. I have no confidence that with the rigors and stresses of life, both in a relationship with the father and with continued separation from Farah, she will maintain abstinence from drug taking, and it is more likely that she will continue for the foreseeable future, from time to time, to abuse drugs. I am afraid the position was very graphically described by the maternal grandmother in her evidence when she told me that her daughter had had a choice between Farah or drugs and, in light of the most recent positive drug test, she had plainly chosen drugs. I agree.
  50. In all of those circumstances, against the background of all that evidence, I am satisfied that the mother would not protect Farah from the father, not least because she would not see that there was any risk to protect her from. She will, I find, continue to abuse drugs. She has not, I remind myself, ever cared for Farah alone. She has not, and she will not, in the current circumstances, consistently put Farah's needs first, and in particular above her own needs or those of the father.
  51. Whilst making those criticisms, and making those findings, against both the mother and the father, I do bear in mind that I have no doubt the two of them deeply love Farah. I take account of the wholly positive contacts that have taken place between them. I take account of what Mr. Wheway said to me of his observed contact, namely it was plain that Farah enjoyed being with her parents, enjoyed interacting with them, and she plainly had an attachment to her mother. The advantages to Farah of being cared for by her mother are so obvious and evident I do not need to recite them. Being brought up by your mother should be of an immense benefit to a young child. But the disadvantages are, in light of my findings, that Farah would be at a serious and real risk of significant harm now and in the future.
  52. The grandparents, deeply love their first and only grandchild. They accept, both in their most recent statements and in their oral evidence to me, that they have made mistakes. They have found it difficult to take on board the concerns the local authority had, and have, about their daughter. Over these last eight months they have been on an immensely difficult journey. They have always in the past sought, quite properly, to support their daughter, whom they, of course, love. In large part, because of that close relationship and love, they have found it very difficult to accept criticism of her. When they have given different accounts to social workers, or independent social workers, about what they have been told in the past, I do not accept that they were setting out to lie or to in any way fail to co-operate with those professionals. I am satisfied that they are both honest, hardworking people, and, especially latterly, I do not accept that they have deliberately sought, in colloquial terms, to pull the wool over the eyes of the professionals and the social workers.
  53. They came to court ready to concede and agree that their beloved granddaughter should be cared for by the grandfather's brother and his wife and with them having fairly limited contact. They then faced, which must have caused them great pain and anguish, a massive change in the plan that contemplated their beloved granddaughter being adopted and being separated from them, certainly for the whole of her childhood, and possibly the rest of her life; that has brought both grandparents up very short. In my judgment the impact of that change of care plan on the grandparents cannot be underestimated. I fear the professionals in this case have not given sufficient consideration to nor properly taken account of the same. I am satisfied, having listened carefully to the grandparents' evidence that it has:
  54. 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.

  55. I thought both of the grandparents, especially the grandfather, gave particularly moving evidence before me. The depth of their passion to do the best for their granddaughter was clear. Their desire to protect her and put her first was evident. I found the maternal grandmother, and this is no criticism of her, was more readily able to contemplate putting Farah first and their daughter, the mother, very much second. I entirely accept that that was a much more difficult step for the maternal grandfather to take. I do not doubt his sincerity, nor that of the grandmother, when they say, faced with the situation that they are in now, they want to do the best for their granddaughter, however painful and difficult that will be because of the consequential adverse impact upon their relationship with their daughter and their son-in-law.
  56. There was an issue about the maternal grandfather's health. He has a growth in his stomach which is likely to require an operative procedure to remove. It was submitted that there was a lack of detail and clarity about this condition and the potential consequences for the grandfather. To a large extent I agree. The issue does not vex me greatly, however, because I am satisfied that even if the worst happened and he became incapacitated or sadly, died, the grandmother would be more than capable of caring for Farah. In this context the guardian said in evidence that he had 'no doubt' that the grandmother could care for Farah as a single carer.
  57. I entirely accept that a placement with the grandparents carries risks, and real risks. There is a risk that despite their best endeavours the father and/or the mother will succeed in abducting Farah again, and this time taking her not to a European and/or Hague Convention country but elsewhere. I accept there is a very real risk that the father, in particular, and possibly the mother, will seek to disrupt the placement, either by calling at the grandparents' home or in later time going to Farah's school. I accept that there is a risk that they will seek to interfere and to seek the return of Farah to their care by fair means or foul, and those risks, and those events, could lead to a breakdown of the placement with the grandparents, and that would, of course, be damaging for Farah. The issue is whether they can manage those risks.
  58. I entirely respect the views and opinions of the independent social worker, of Ms Bhogal and of the children's guardian, that in their professional judgment they could not. If I agreed with that assessment then the answer in this case would be relatively easy, but if I do not it is much more difficult. In my judgment, and my assessment of all of the evidence, but in particular having had the benefit of sitting and watching and listening to the grandparents, not only when they gave evidence but also sitting and watching them and their reactions as they heard the evidence in court, there is a chance that they could manage the risks posed by the father and the mother, but there is a chance that they might not.
  59. I stand back and consider the options, taking a global and holistic view, and making the necessary evaluations on proportionality of each option. I readily recognise the advantages of adoption and the stability and security such an order would bring for Farah. But I also take into account that every child throughout childhood necessarily has to suffer and endure the knocks and troubles that come with life, wherever they are placed and live. Adoption does not always offer a risk free solution.
  60. A placement for adoption would remove the risks posed to Farah by her parents; that is a significant and substantial advantage in support of an adoptive placement. I am also acutely conscious of the need, if Farah is to be adopted, to place her as soon as ever possible. Time is of the essence; the older a child becomes so the prospects of finding an adoptive placement diminish.
  61. The disadvantages of adoption for Farah throughout the whole of her life are immense. Her parents adhere to different sects of Islam, one a Sunni Muslim, the other a Shiite Muslim. There is no certainty that Farah would be placed with a family of Pakistani origin or of the Muslim faith. Thus Farah risks losing crucial aspects of her cultural heritage. She would lose the love and knowledge of and her close relationship with her parents, her maternal grandparents and of her wider maternal and paternal family. Those are very real and substantial disadvantages.
  62. I am satisfied that the risks in a placement of Farah with the mother are simply too great.
  63. If Farah were placed in her maternal grandparents' care and the placement broke down because of the actions of the mother or the father, that would have an adverse impact on her emotional and psychological well being. It is an important factor which I must weigh in the balance.
  64. Conclusion

  65. It will have been apparent to all that I have found this a very difficult case and a very difficult decision to make. I do not resile from my comments made early on in this hearing that I would take a great deal of persuasion before I would sanction this little girl being placed outside of her natural family. I have had the opportunity, during the adjournments there have been in the case, to reflect very carefully on the totality of the evidence. I am satisfied that the real prospect that they could lose their granddaughter to adoption has had a very significant impact on the maternal grandparents' understanding of the issues in this case. They now recognise that if they were not to withstand the advances of the father and/or the mother that the placement would break down, that Farah would be removed and in all probability adopted. In my judgment, there is a good chance, but only just a good chance, that they will manage the risks posed by the father and by the mother.
  66. In my judgment, given my assessment of the grandparents, there is a risk that the placement could breakdown and the consequences of the same would be significant. In light of that risk is it a proportionate response to favour a placement for adoption?
  67. In the final analysis, in my judgment, the answer is no. Farah deserves the opportunity and the chance to be raised in her natural family. Given my assessment of the maternal grandparents, I am not satisfied that the balance falls in favour of adoption. I am not satisfied that, in her interests, nothing less than Farah being placed for adoption will do. In this case, there are no perfect solutions. I have very firmly come to the conclusion that it is in Farah's welfare best interests that she should be placed in the care of her maternal grandparents, to be raised by them during her minority. Accordingly I will decline to make a final care order and I will dismiss the application for a placement order.
  68. In order to provide protection for Farah, for the reasons set out above, I am minded to make orders injuncting both the mother and the father from attending at any place where the grandparents live, or going within 500 metres of the same. I propose to make an injunction preventing the mother and/or the father approaching, or harassing, or having contact with Farah, the grandmother, or the grandfather, save in regards to the latter two, that is the grandparents, as may be agreed in writing. I will make an injunction preventing the parents attending any school or nursery that Farah may in due course attend. Subject to further argument on the legality of any such order, I would also intend, with or without the consent of the parents, that their passports be held by the Tipstaff. I will determine the precise terms of the injunctive orders and their duration after receiving further submissions.
  69. On 10 October having announced my decision I adjourned off the issue of the legal framework under which Farah would be placed in the care of her grandparents. At a directions hearing on 27 October the local authority indicated it would not and could not agree to Farah being so placed under the auspices of a care order. I entirely understand and accept the local authority's reasons for adopting that stance.
  70. Accordingly an interim care order will be made to last until the day and time that Farah is placed with her grandparents. Immediately thereafter she will be a ward of court and care and control of her will be granted to the maternal grandparents.
  71. Thereupon there will be a supervision order made in favour of the local authority for, in the first instance, a period of 12 months. This will enable the local authority to monitor the placement of Farah with the maternal grandparents. Further it will be available to offer advice and support to them. I am grateful to the local authority, despite it's opposition to the course I propose, for agreeing to the making of a supervision order.
  72. At that directions hearing I was told that, having reflected on my decision, the mother and the father now supported the placement of Farah with the grandparents.
  73. The local authority sought permission to appeal and a stay. I refused both applications on the ground that I did not consider the proposed appeal to have a real prospect of success.


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URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/3837.html