‘The child clearly has a connection with Hungary. Her parents are from Hungary and she is a Hungarian national. The child has family in Hungary. It would be in her interests to be cared for in Hungary if this is possible. The Hungarian Authorities I find are now in a better position to deal with the welfare aspects of this case. I transfer the case now in the knowledge that the Hungarian authorities and the court there will have the benefit of the assessments completed of the parents, the assessment of the paternal aunt and her partner and all the other relevant documents. The most significant reason to transfer the proceedings is that this little girl has relatives in Hungary who have been positively assessed as carers for her and are ready able and willing to care for her. If she stayed in the UK the plan of the Local Authority would likely be permanence through adoption and it is clear this child should be cared for by her family in Hungary where her carers can provide care, knowing the Hungarian culture and her family and, if it is felt safe, for her to have contact with her mother and her father at the determination of the Hungarian courts. Therefore applying the law to this case it is clear that the case should be transferred to Hungary and the Hungarian Authorities have the opportunity to accept that invitation.’
‘[…][A]lthough a final welfare determination does not seem formally to have been made, the Art. 15 decision explicitly relies on the judge’s finding that ‘it is clear that this child should be cared for by her family in Hungary’ and […], reading the judgment and assessing the state of the proceedings as a whole, that can only have meant that the judge had decided – the parties all agreeing the same – that placement, in Hungary, and with the aunt, was at that stage the appropriate welfare outcome for Y.’
‘On14th July 2021 , however, the local authority applied in Form C2 (in the Family Court) for a ‘Declaration of the court as to best interests of [Y]’
‘It is important to consider that at the time of the planned move in March 2020 [Y] was 19 months old. She is now nearly three and half years old. It is always best where possible to place a child within their own family, and as part of this assessment I have weighed up the importance of [Y] being placed with a family member in her own culture. However, in light of the above I do not feel that it is in [Y]’s best interests to be placed with [the aunt]. Whilst there are strengths within the assessment and [the aunt]’s intentions to care for [Y] need to be commended, I do not feel that there is strong enough evidence to support [the aunt]’s ability to protect [Y] or meet her needs in the way she requires.’
‘I know that [Y] is settled and doing well, and it could be seen that moving her to Hungary could cause her. However, I am of the view that it remains in [Y]’s best interests for her to live with her family, and that I can offer her a safe and stable home, where all her needs will be met, including her cultural needs. [Y] is a Hungarian girl and should have the right to live with her birth family, if it is deemed safe enough to do so. I think that [Y] will suffer emotional harm and will struggle with her cultural identity should the Court decide that she is to remain with [the foster carers].’
‘[27] When I consider the totality of professional assessments where it relates and identifies [the aunt]’s strengths as a potential carer, there is no doubt that she is a good parent to her own two children and that she puts their needs first. Further she offers a valuable link to Y’s birth family, and to her Hungarian heritage. There are multiple difficulties however with respect to her assessment to care for [Y] specifically, and most pertinently not being able to understand the significance of [Y]’s overall welfare needs. Furthermore, there is doubt about her protective capacity and her motivation to care. Despite attempts, [the aunt] continues to have a limited relationship with [Y] and therefore a recommendation of [the aunt] to care for [Y] would mean transitioning [Y] from an established foster placement with secure attachments to a relative stranger in an entirely new and unfamiliar country.’
‘[34] The detrimental impact of poor engagement with contact and transition work cannot be underestimated. Like any relationship, positive development relies on regularity and consistency, in this case to give [Y] the best chance of establishing a familiar and meaningful relationship with her aunt and wider family. Unsurprisingly, to the best of my knowledge, there is little evidence to suggest [Y] has any familiar relationship with [the aunt] or any of her wider family; essentially, they remain virtual strangers. [35] In the absence of meeting with [the aunt] and not having sight of her final statement, it’s difficult if not impossible as [Y]’s Guardian to provide an objective and balanced opinion about a plan that [Y] relocates to Hungary. Indeed, [the aunt]’s disengagement with professionals including with me and her own legal team is striking, especially if she still pursues full- time care, which for [Y] is a complex and life-changing proposition. [36] Based on the available information, I echo the comments expressed by the social worker and Independent Reviewing Officer, that whilst placement with [the aunt] would meet [Y]’s familial and cultural needs by virtue of being a birth family relative, I question [the aunt]’s present motivation and overall have little confidence in her ability to care for and meet [Y]’s holistic needs as a sole carer and to work reliably to protect her now and in the long term. [37] I have no understanding as to why [the aunt] has been so absent and unavailable to [Y]. If there have been problems such as connectivity issues, as she has previously suggested, or problems with how to provide or send items, I query why at the very least she has not been proactive in resolving this with her own solicitor or subsequently responded to the missed calls/messages from the interpreter following the missed contacts given how critically important it is to [Y]’s welfare, irrespective of who is caring for her. [38] I do not doubt the sincerity of [the aunt]’s commitment to care for [Y] as previously assessed alongside her husband […], however her commitment since March 2021, has proven unreliable and could go some way to evidence that caring for [Y] is no longer a legitimate pursuit that the Court can rely upon.’
‘[The foster carers] clearly love and adore [Y] and are more than capable of meeting her needs. They are visibly committed to caring for her through to adulthood, helping [Y] understand and accept what has happened in her young life.’
‘[51] It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in any case will inevitably be determined by the underlying evidence. In any event, for reasons to which I have already adverted, it is not necessary to do so in this case as, unfortunately, the judge does not appear to have engaged in any real way with the effect on the children of moving them from the care of their primary, and only, attachment figure or with the value to them of maintaining that relationship.’
‘[54] Conversely, when the judge came to list the positive features with respect to Y, the fact that the children had established a strong and entirely beneficial primary attachment to her is not mentioned when it should surely have been at the top of the list; the fact that they were attached to her and she was not simply their current foster carer was, on her side of the case, what the case was all about, yet it does not feature as a factor. The judge’s reference to the establishment of ‘a family life together’ which is entitled to ‘proper and full weight’ has the ring of an argument based upon rights rather than, more importantly in the context of the children’s welfare, their emotional reality.’
‘[55] […] [T]his, at bottom, was a choice between the life that the children had firmly established with an individual who was not related to them, on the one hand, and future placement with a close family member who had only met them on one occasion and who lived in circumstances very different from those with which they were familiar.’
‘... it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so. Where, as in this case, a child of two years of age has been brought up without interruption by the mother (or a mother substitute) it should not be removed from her care unless there are strong countervailing reasons for doing so. This is not only the professional view, it is commonly accepted in all walks of life. Factors in any particular case relating to the status quo will fall to be considered in a case to which CA 1989, s 1 applies under s 1(3)(c) where the court must have regard to ‘the likely effect on [the child] of any change in his circumstances.’
‘[…] (e) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) criteria. (f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way. (g) The relevant considerations should include factors which may arise in the future as well as the present situation. (h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight; (i) The reasons for an earlier unilateral decision to change a child’s name may be relevant. (j) Any changes of circumstances of the child since the original registration may be relevant. (k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered. (l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.’
‘I cannot stress too strongly that these are only guidelines which do not purport to be exhaustive. Each case has to be decided on its own facts with the welfare of the child the paramount consideration and all the relevant factors weighed in the balance by the court at the time of the hearing.’
‘40. One of the first questions asked by friends and relatives following the birth of a child is ‘what is the baby’s name?’
‘149. As Lady Justice King acknowledged in Re C, the name given to a baby by his or her mother is an important aspect of the exercise of her parental responsibility. As here, in circumstances where GC cannot be brought up by her natural parents, it forms an important part of her identity and it has the potential to remain a lasting link to her birth family. Any attempt to change her forename or surname represents a significant step in GC’s life and an obvious interference in her own and her mother’s Article 8 rights. Before the court can interfere in those rights, it must be satisfied that there are good reasons for doing so.’
‘36. The judge refused to permit any change of name. Her reasons were these: “In a case where there is as much anxiety as there is here about the way in which [E’s] identity is dealt with, it would be completely contrary to her interests, in my view, for her now to be known by a different surname. Her welfare is most likely to be secured, it seems to me, by keeping her circumstances as faithful to reality and the truth of her situation as possible. Whilst I accept that some explanation of names will be required, for instance, doctors and schools, I do not consider that that will be an insuperable problem in the context of a special guardianship order. A simple explanation that [E’s] parents are unable to care for her so we, her maternal grandparents, are looking after her with an SGO should be sufficient.”’ 37. Thus the crucial element in the judge’s findings is that vexing problem of identity. This, it will be recollected, was at the forefront of the guardian’s concerns and the social workers’ concerns as they reported at first in the adoption proceedings and then in these proceedings. The judge made several findings about this: ‘59 There is no doubt that the question of identity is a serious one which has the potential to be harmful for [E] if it is not resolved and possibly disruptive of her relationship with her grandparents as she grows older. … [E] will have at least two major added issues to cope with as she grows up in that she will be a mixed race child and, rather than living with her parents, she will be living with her white grandparents. Each step must therefore be taken at every stage to ensure that her upbringing puts her and the adults in her life in a position to deal with this in the best possible way. … 61 The guardian said in her March 2006 report that she had ‘major concerns’ in the area of [E’s] identity needs. She considered, quite rightly that [E’s] emotional needs can never be fully met if she is to be cut off completely from any knowledge of her paternal family. … 63 GM’s oral evidence about the whole issue of fathers and mothers was disturbing … 64 The overall thrust of the grandparents’ evidence was that they agreed in principle that [E] needed to know who her mother and father were but they were not proposing to raise the issue of parents with [E] until she raised it with them. The sense I got was that they remained unpersuaded that [E] should be given a normal basic child’s understanding of mother and father but thought that she should have the concepts put over to her in a way which recognised that her parents were not actually acting in the capacity of parents to her, hence the use of terms such as “birth mother” and “birth father”. … GM disagrees forcefully with the normal social services’ practice of starting a life story book with the child’s parents and says, “I hope the [social services] are not going to force me to do it in that way”.’
‘39. Sympathetic though I am to their [the grandparents’] predicament and their hurt, their concerns overlook the value of the lesson we are all taught at our mother’s knee: honesty is the best policy. This family must honestly face up to its fractured constitution. E must learn to live with the fact that she is being brought up by her grandparents not her parents. It should not be difficult to say to E, “Darling, your surname is L, not S, because L is the name you were born with, it is your parents’ surname.” That is a fact she will soon absorb and with which she will soon be comfortable. It avoids the much more difficult questions that will be asked when she wishes to know “why am I S if my parents are L?”. 40. Although I would allow permission to appeal this issue, I would dismiss the appeal because I am satisfied that the judge’s order was rightly made in the best interests of E. I wish to add, as emphatically as I can, that the rejection of this appeal should NOT be seen as any denigration at all of the stupendous effort [the grandparents] have made to bring order and normality into their granddaughter’s life. I commend them for that. I urge them, however, not to exaggerate the importance they attach to this issue. In the scale of things in this child’s life, her surname is a fact of little real significance. Far more important is the knowledge E will have that she has been much loved by her grandparents who have brought her up. 41. I have deliberately refrained from addressing the argument that because the Court is given the reminder to consider a change of name when making a SGO, there is some bias in favour of such an order being made. It could be argued that the degree of permanence inherent in this arrangement has a change of name as a concomitant, just as in adoption. This argument has not been fully addressed in this appeal. Miss Boyd’s answer on F’s behalf is that if adoption is not appropriate and if maintenance of some link with the parents is to be achieved, then the natural corollary is to preserve the parents’ name. This is not the case where that dispute needs to be resolved. Ultimately the welfare of the child concerned is the litmus test and here the welfare of the child so overwhelmingly justifies the judge’s decision that no presumption or starting point one way or the other makes any material difference.’
‘[33] A surname defines, and is defined by, familial heritage and genealogy. A person’s forename invariably identifies gender, and often personifies culture, religion, ethnicity, class, social or political ideology. A forename and surname together represent a person’s essential identity. From very earliest childhood, one’s name is an intrinsic part of who you are and who you become. Thus, the naming of a child ‘is not a trivial matter but an important matter’, and any change in the name ‘is not a question to be resolved without regard to the child’s welfare’ (Dawson v Wearmouth[1999] UKHL 18 ,[1999] 2 AC 308 ,[1999] 2 WLR 960 ,[1999] 1 FLR 1167 , per Lord MacKay of Clashfern). […]’
‘[36] There is a growing recognition that a forename or given name is no less significant. In Re C (Children) (Child in Care: Choice of Forename)[2016] EWCA Civ 374 ,[2017] Fam 137 ,[2016] 3 WLR 1557 , sub nom Re C (Children: Power to Choose Forenames)[2017] 1 FLR 487 , at para [40], contrasting the position taken by Thorpe LJ in Re H (Child’s Name: First Name)[2002] EWCA Civ 190 ,[2002] 1 FLR 973 . King LJ described it thus: ‘The forename finally chosen forms a critical part of his or her evolving identity. The sharing of a forename with a parent or grandparent or bearing a forename which readily identifies a child as belonging to his or her particular religious or cultural background, can be a source of great pride to a child and give him or her an important sense of ‘belonging’ which will be invaluable throughout his or her life.’
‘... given the fact that in the twenty-first century a child will predominantly use his or her forenames for most purposes throughout his or her life, that forename is now every bit as important to that child, and his or her identity, as is his or her surname.’ [37] In Re D, L and LA (Care: Change of Forename)[2003] 1 FLR 339 , Butler Sloss LJ said (at 346) that: ‘To change a child’s name is to take a significant step in a child’s life. Forename or surname, it seems to me, the principles are the same, in general. A child has roots. A child has names given to him or her by parents. The child has a right to those names and retains that right, as indeed, the parents have rights to retention of the name of the child which they chose. Those rights should not be set to one side, other than for good reasons ... Having said that, one has to recognise, in reality, that names do change. Children acquire nicknames and even nicknames sometimes take over from the name that they were given as their chosen name. Children do have diminutives and they may themselves, as they get older, prefer their third name to their first name and choose to be called by it.’
“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence.”
“In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly H explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified.”
‘[41] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence,and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.’
‘[39]In Re O (Care Proceedings: Evidence)[2003] EWHC 2011 (Fam) ,[2004] 1 FLR 161 Johnson J was very clear. He said, at para [13], that: ‘As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.’
‘From this line of authority, I derive the following principles in the context of the present case: (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.’ [43] I consider that the approach outlined by Brooke LJ more fully reflects the proper approach. These are inquisitorial proceedings rather than adversarial, where the welfare of the children is at stake and where the authorities on fact-finding require the court to survey all the evidence and to avoid compartmentalisation. The legislative framework allows for the admission of hearsay evidence. The approach to lies in Lucas requires a more measured approach. At one end of the spectrum, there will no doubt be cases where the court is satisfied that a person has deliberately refused to come to court to support their written statement and where there is no excuse or explanation. In that scenario, the court might take a bright line approach and refuse to place any weight on any of their evidence and draw inferences against them that any allegations are true. In other cases, the court will need to consider the circumstances of their failure to give evidence, any explanations offered or which present themselves and the evidence itself and the issues it goes to. Where there is compelling evidence explaining an inability to attend full weight might be given and no inferences drawn. In between will be cases where the court might determine it is appropriate to rely on and give weight (even full weight) to some evidence but not to other evidence and to draw some but not necessarily all possible inferences.’
‘5.3 It would not be unreasonable to say that given how strong [Y]’s attachment is to her carers that she would be resilient to a move to [the aunt]. However, the magnitude of the change must be considered, along with how able [Y] would be able to understand such a change. 5.4 It would be very hard to explain to [Y] what was happening and why it was happening. In addition [Y] may be too young to articulate how she is feeling about a move – which would be compounded by the language barrier that exists. When I consider a move from her perspective – she would be moved to a stranger without understanding why and would be unable to communicate effectively. 5.5 In addition to the confusion that she will inevitably feel she will have lost the care givers who have afforded her unconditional love and support her entire life. I consider that the circumstances would be traumatic and such a move could potentially lead to development delays and the trauma itself impact on any further attachments to care givers. Research from the N.C Division of Social Services and the Family and Children’s Resource Programme, Vol 2, No. 4, 1997, suggests “research indicates that removing children from their homes interferes with their development. The more traumatic the separation, the more likely there will be significant negative developmental consequences”.’
‘A move to Hungary would demand a disruption to the secure attachment relationship [Y] has with [the foster carers], the only carers and primary and secure attachment figures she has ever known. Indeed, the longer- term impacts of this could well be profound. I am therefore concerned about the emotional trauma [Y] will almost definitely experience, especially if decisions favour a placement where her holistic needs are unlikely to be met, by a virtual stranger/family member with whom she has no familiar or meaningful relationship, and where Hungarian is the only spoken language.’