Lincolnshire County Council v M & Ors, Court of Appeal - Family Division, November 01, 2018, [2018] EWHC 3279 (Fam)

Resolution Date:November 01, 2018
Issuing Organization:Family Division
Actores:Lincolnshire County Council v M & Ors
 
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: LN18C00055

Neutral Citation Number: [2018] EWHC 3279 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/11/2018

Before :

MR JUSTICE WILLIAMS

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Between :

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Edward Kirkwood instructed for the Applicant

Anne Williams (instructed by Ringrose Law) for the 1st Respondent

Steven Ashworth (instructed by Sills & Betteridge Solicitors) for the 2nd Respondent

Alison Hunt (instructed by Cafcass) for the 3rd Respondent

Hearing dates: 29th October - 1st November 2018

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JudgmentMr Justice Williams :

Introduction

  1. I am concerned with a little girl AB who was born on 23 January 2018. Lincolnshire County Council seek care and placement orders in respect of AB with the intention that she should be adopted. AB is represented by her Guardian, Katya Mitchell and Ms Hunt, counsel. AB's mother, MM, has been present at court supported by a friend throughout this hearing and is represented by Ms Williams, counsel. AB's father, F, has not been present during these proceedings he having travelled to Australia on or about 6 August of this year. He has been represented by Mr Ashworth, counsel. The local authority are represented by Mr Kirkwood, counsel.

    Background

  2. AB has six older siblings. Following care proceedings in 2015/16 her five oldest siblings went to live with their paternal grandparents. Following care proceedings, in July 2017 AB's older brother CD was taken into care and has been placed for adoption. The decisions in both of those cases were essentially based on the risk posed by the father to the children either directly or indirectly by exposure to abuse of the mother or violence to third parties and the mother's inability to prioritise her children and to separate from him. By that time the mother was about three months pregnant with AB. In response to the removal of CD the mother was still not able to separate from the father and through the autumn pre-birth child protection procedures were followed with the intention of seeking to remove the unborn child from the mother were she to remain in a relationship with the father. The mother's and father's response to this was to decide to decamp to Europe in order to fight to keep AB through the European courts. So in late December 2017 they travelled to Ireland and then in early 2018 they travelled on to France, Holland, Germany and Belgium. AB was born in a hospital in Holland on 23 January. On 24 January 2018 a call was made to the local authority notifying them that AB had been born. On 25 January I made AB a Ward of court and ordered that she be returned to England. Lincolnshire social workers and police travelled to Belgium and in a paradigm example of the co-operation between the justice systems of EU member states and the child protection authorities of EU member states brought about by EC regulation 2201/2003 the Belgian courts by 31 January 2018 had delivered a judgment which supported my order and required that AB be placed in the care of Lincolnshire social services. Later that day AB, the mother, social workers and police officers returned to England. What might have occurred had that level of cooperation between the judicial and child welfare systems not been possible does not bear thinking about given the risks to AB and the mother. The father had returned before the mother and AB. On their return the mother and father's passports were surrendered to police.

    Litigation history

  3. Following their return proceedings were transferred to the Family Court at Lincoln and Nottingham and from 1 February through to September matters were progressed there.

  4. At various hearings throughout the proceedings indications were given to the court that either the mother wished to separate or that the parents recognised that they should separate. However no separation was effected and assessments were commissioned from an independent social worker on the basis that the mother and father intended to seek to remain together and to bring AB up in their joint care.

  5. Given the history, the local authority made a part 25 application to instruct a psychologist to carry out assessments of the mother and father. However both the mother and father opposed the instruction of a psychologist (the guardian understood they refused to engage with one) and so the application was not pursued. The absence of a psychological assessment of the father and of the mother is unfortunate; particularly from the mother's perspective given the situation that developed.

  6. On 8 June the report of the independent social worker was provided. The contents of those reports contained only bad news for the mother and father. The father was assessed as continuing to provide a medium risk of violence to the mother and AB. The mother was assessed as remaining unable to accept the father posed a risk and unable to separate from him. On 18 June 2018 the mother approached social services saying she wished to separate and was placed in a refuge. However she left the refuge and returned to the family home within three days. Within those three days a court hearing took place on 20 June and the independent social worker was tasked with providing an addendum report addressing the question of whether following the separation of the parties the mother's protective abilities had changed. The addendum was provided on 28 June 2018.

  7. At the issues resolution hearing on 13 July 2018 both the father and the mother said they were separated and that the father was not seeking care but supported the mother as a sole carer for AB. The father said he wished to travel abroad for the summer in order to seek employment in Spain and to demonstrate that he and the mother had truly separated. His Honour Judge Rogers refused the father's application for the return of his passport and adjourned that to the final hearing. However the father's passport was returned to him by mistake and on 6 August 2018 the father left the UK. He is now in Australia.

  8. The final hearing was listed before me commencing 29th of October 2018. At some point during the week of 22 October 2018 the court received a communication from the father's lawyers asking whether the court was content for the father not to attend. That also indicated that the father had lost his passport since his arrival in Australia but would need an emergency travel document if necessary. Due to a communication breakdown a message was sent indicating that the court was so content. That was unfortunate. The father has not been present for this hearing.

  9. The mother has been in attendance throughout this hearing. She is currently about 30 weeks pregnant with her third child with the father. She has been supported by a friend. She gave evidence extensively on 30 October. She has conducted herself with dignity and say for one brief emotional outburst when she thought the Guardian was criticising the attachment between herself and AB has remained calm and focused and provided instructions to her counsel. During the hearing I have also heard from the social worker, the independent social worker who carried out risk assessments on the mother and the father and from the Guardian.

  10. I have been provided with six lever arch files of documents and have read the list of essential reading together with various other documents. I have been provided with position statements or skeletons from each of the parties which have been of considerable assistance and on 31 October I was provided with a chronology by Mr Kirkwood.

  11. I'd like to express my thanks to all involved in the preparation of this case and to the witnesses for the assistance they have given me.

    The issues and the parties' positions

  12. The threshold document relied on by the local authority is dated 6th of July 2018 and is found at A39 of the bundle. It is a very lengthy and detailed document. The father's response is dated 13 July 2018. The mother's response is dated 26 October 2018. The composite of those three documents is as follows. In the course of closing submissions I was referred to an amended threshold document. In the time that has been available to me I have not been able to contrast the two documents to any detailed extent. I shall refer to the differences which have been highlighted to me that when I refer to the parties submissions.

    PREVIOUS FINDINGS MADE AGAINST THE FIRST AND SECOND RESPONDENTS

  13. The First Respondent was the Respondent in public law proceedings in Peterborough in 2015 - 2016, case number PE15C01318 in respect of her 5 children (``The G children''). The First Respondent accepted that the threshold was satisfied for the purposes of s31 CA1989 on the following basis

    (a) That the Second Respondent has been convicted of the offences as per his PNC as recorded

    (b) That the Second Respondent poses a risk of significant harm to the children

    (c) That the First Respondent put the children at risk of significant harm by continuing her relationship with the Second Respondent until 6th May 2016 (the date she says they separated)

    (d) That the First Respondent has prioritised the Second Respondent over the children

    (e) That the children reported to professionals that they are scared of the Second Respondent

    (f) That the First Respondent should not have left a named 14 year old in charge of children on a night in November 2015 at 11.30pm

    (g) That the children were the subject of Child Protection Plans since October 2014 under the category...

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