London Borough of E v J & Anor [2004] EWHC 2256 (Fam)

This judgment has been distributed in private. It consists of 51 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.[2004] EWHC 2256 (Fam)Case No FD03C00621
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 July 2004
Before
THE HONOURABLE MR JUSTICE CHARLES
Between
LONDON BOROUGH OF EApplicantJ and LRespondents
Mr O Jones (instructed by the local authority) for ApplicantMr N O’Brian (instructed by McMillen Hamilton McCarthy) for First Respondent mother (through her guardian ad litem the Official Solicitor)Ms K Sapnara (instructed by Levenes) for Second Respondent motherMr K Speller of Nash & Dowell for Third Respondent child (through her guardian)Hearing Hearing dates: 5 to 9 July 2004
JudgmentThe Hon. Mr Justice Charles:Brief introduction.
[1]This case concerns a young boy who I shall refer to as A who was born on 2 August 2001 and is, therefore, now nearly three. His parents are married. His mother is a Slovakian national who was born into a Christian family and converted to Islam in the late 1990s. She was born in 1976.[2]The parents entered into a religious ceremony of marriage in October 2000 and a civil ceremony of marriage at Wood Green Register Office on 2 January 2001.[3]The father is an Algerian national and was born in 1969. Prior to A’s birth he was arrested in connection with allegations against him relating to terrorist activities. He is held in prison at Belmarsh. His extradition is sought by France.[4]The parents met only a few days before their marriage in October 2000. When they met they did not have a common language. The father speaks French and Arabic. The mother speaks Slovakian and English. They only lived together as husband and wife for a few months (i.e. from October 2000 until the father’s arrest in early 2001). The parents and A have never lived together as a family, throughout A’s life the father has been in prison in this country.[5]The trigger event to these proceedings was the protective measures taken by the police in respect of A on 21 August 2003. An EPO was made on 22 August 2003 and an ICO on 3 September 2003. A has been the subject of an ICO since then. Since August 2003 he has been placed with the same foster carer.[6]The mother has had regular contact with A since the making of the first ICO. The father has had contact with A both before the making of the ICO and after it (I return to the nature and extent of that contact). The representation of the mother.[7]In these proceedings the mother is represented by her guardian ad litem, the Official Solicitor. This is because she does not have the capacity to instruct solicitors or to represent herself. The appointment of the Official Solicitor was made on 16 March 2004 and thus over six months after the trigger event in August 2003.[8]The diagnosis of mental illness which founded the appointment of the Official Solicitor is one of paranoid schizophrenia.[9]The mother attended most, if not all, of the directions hearings but she has not attended throughout the final hearing although she has been provided with travel warrants to enable her to do so. The essential issue.[10]It is, in my judgment, correctly, common ground that the threshold conditions are met in this case. The essential issue therefore concerns disposal.[11]The local authority and the mother, through her guardian ad litem, invite me to make a residence order in favour of the maternal grandmother and give permission for the maternal grandmother to take A to live with her in Slovakia. This result is supported and recommended by the guardian.[12]The father opposes this result. His primary case is that I should place A in the day-to-day care of a friend who I shall refer to as Ms EH. Ms EH is English and of Moroccan descent. She was present at A’s birth and has provided assistance to the mother and A from time to time thereafter.[13]I shall deal with the alternatives advanced by the father later in this judgment.[14]The maternal grandmother lives in Bratislava.[15]On the first day of the hearing I directed that the maternal grandmother and Ms EH may attend throughout the hearing if they so wished. Due to other commitments Ms EH was not able to attend on the last day which apart from the re-examination of the guardian was taken up by submissions. Otherwise both of them attended throughout the hearing.[16]The maternal grandmother was accompanied in court by an interpreter. The father was also assisted by an interpreter. I repeat my thanks to the two interpreters for their assistance. The position at the time of the marriage and up until August 2003.[17]As I have already mentioned the parents had only known each other for a very short time when they married in a religious ceremony in October 2000.[18]It emerged during the hearing that they were introduced by the husband of a Slovakian friend of the mother who had converted to Islam. The evidence was that that friend and her husband live in Slovakia. The mother and this lady had been friends since their schooldays and the father accepted in his oral evidence that it was this friend’s husband who had introduced him to the mother. That introduction took place in England.[19]The mother had been to England before in the late 1990s. She had worked as an au pair for about two years. She had then returned to Slovakia. It was on this return that her family in Slovakia first became aware that she had converted to Islam. On this return to Slovakia the mother wore the veil.[20]On this return the mother lived with the maternal grandmother for a short period but thereafter she left that home and her family lost contact with her.[21]The maternal grandmother believes (and this was not disputed during the case) that the mother left Slovakia in about March of 2000 and travelled initially to Germany where she lived within an Islamic community.[22]Understandably the mother’s family were worried concerning her lack of contact with them and these worries naturally increased when they were visited by Interpol who informed them that a woman who was suspected of terrorist involvement and who had been using the mother’s passport to enter and leave Germany had been arrested.[23]Following a request from the court the Home Office have confirmed that the mother entered the United Kingdom illegally in or around October 2000. The maternal grandmother believes (and this was not disputed during the case) that she entered the United Kingdom using a false Polish passport. The mother claimed asylum in April 2001 but this was refused on 26 November 2001. She appealed against that decision refusing asylum on 12 December 2001 and that appeal was not heard prior to the accession of Slovakia to the EEC.[24]The mother contacted the maternal grandmother on the day of her religious wedding to the father telling the maternal grandmother that she was due to be married on that day. Shortly after that the maternal grandmother received a telephone call from one of the mother’s Muslim friends in Slovakia and was told that the father had sent her a present. The father confirmed in his oral evidence that he had done this and the maternal grandmother collected the present (£400 and a bottle of perfume) by arrangement with a Muslim friend of the mother in Bratislava.[25]Following the wedding the mother had regular telephone contact with the maternal grandmother during the period prior to the father’s arrest. The father told me in his oral evidence, and I accept, that he encouraged the mother to have this contact.[26]During his oral evidence the father told me that he had left Algeria a number of years ago and since that time he had lived in and visited a number of European countries and Canada.[27]The information received from the Home Office is that the father entered the United Kingdom and claimed asylum in November 2000. The father has not given me a precise date of his entry into the United Kingdom but it was common ground between the parties that he and the mother had undergone a religious ceremony of marriage in October 2000 in this country at the home of Ms EH. It therefore seems that he arrived here before November 2000.[28]The Home Office have informed the court that the father’s claim for asylum was unsuccessful and that he is currently going through the appeal process. This information was provided by the Home Office in their letter dated 4 December 2003. This process understandably seems to have taken second place to the issues relating to his imprisonment and the request for his extradition by France.[29]At the time that the mother and father met and married, and when A was conceived, the accession of Slovakia to the EEC was a long way off and neither parent had a right to remain in this country.[30]I have only very limited evidence as to the lifestyle of the parents immediately following their marriage and in the few months that they lived together. However, it appears that although they had no common language they were both happy. As I have mentioned it is common ground that during this period the mother was again in regular telephone contact with her family and that this was encouraged by the father.[31]Also, as I have mentioned, Ms EH was present at A’s birth but I have no real information as to where the mother lived during the period following the father’s arrest up until that birth. It was, however, common ground that during this period the mother was moving around on a regular basis and was being supported by members of the Algerian/Moroccan/Islamic community in London.[32]After A’s birth the mother lived with Ms EH for some time and thereafter it appears that she and A returned to a life during which they moved around from place to place until she obtained a flat in February 2003.[33]Until February 2003 the mother took A to see the father in prison on a fairly regular basis. She stopped taking A for contact in or about February 2003 and contact between the father and A only resumed after the making of the ICO. That contact has been on approximately a monthly basis.[34]There is evidence that certainly from 2003 the mother was observed to be behaving oddly from time to time. This evidence comes from Ms EH and from the mother’s brother, Peter, who visited England in February 2003 with a view to seeking to persuade the mother to return to Slovakia with A. On this visit he was of the view that his sister was behaving oddly.[35]Ms EH had also observed the mother to behave strangely and in June 2003 she contacted Social Services because of the mother’s strange behaviour and, for example, because she was often dressing A as a girl and was agitated and not sleeping well.[36]On 20 June 2003 the mother was seen at the Parkside Clinic and in a note made by the therapist who saw her it is said that some of the disturbing things that came out were (and I quote) that:• She referred to her son as a she and when asked whether he was a boy or girl she said it did not matter, and that she often dresses him up as a girl – tried to explore this but she laughed and said “so what”.• She claimed she did not have intercourse with her husband. When I asked her whose baby was it, she said she did not know, except the fact that someone opened her stomach and put the baby there• She claimed as a child she was put in an acid tank to change the colour of her skin.• She goes out with the child in the middle of the night.[37]The therapist who saw her was concerned and accompanied the mother to St Charles’ Hospital with Ms EH where she saw a psychiatrist. His report includes the following under the heading ‘Mental State Examination’ “She [the mother] also spoke about the baby acting inappropriately at times, bumping his head against the floor, and she spoke about being baptised in acid in Slovakia in the past. She mentioned that ‘they’ did something inside of her and then her stomach grew bigger and the baby came out……. There was no clear sign of formal thought disorder, and though some of the abovementioned thoughts could be delusional I had no way of confirming that. She seemed quite guarded and her friend confirmed to me later that [the mother] manages to control her symptoms but when she is alone she tends to unravel. She was fully orientated to time, place and person but had no insight and did not feel she was ill in any way or needed any help.” That doctor ended his report in a letter dated 26 June 2003 with the following statement:
“I hope that my suspicions regarding this patient are not grounded and that she will not require any psychiatric treatment in the future.”
[38]On 21 June 2003 the mother was seen by a social worker in the company of a doctor. Ms EH had planned to be present but the notes of the social worker indicate that Ms EH was delayed in traffic and did not attend on this occasion. The notes of the social worker record that the mother had gone to the hospital the previous day because her friend, Ms EH, had advised her that a psychiatric report from a hospital would help to make a divorce easier. This comment corresponds with earlier notes of the social worker in which she records that she was told that the mother only knew Ms EH insofar as she was helping her to get an Islamic divorce from her husband. On 21 June 2003 the mother also told the social worker that she had left the hospital the previous day because she felt frightened.[39]The social worker records that the mother did not exhibit the symptoms seen at hospital the previous day and that the social worker had advised Ms EH that there was no need for steps to be taken to admit the mother to hospital.[40]Part of the purpose of these steps taken over 20 and 21 June was to consider whether mother should be sectioned. That process was not completed on 20 June when the mother saw a psychiatrist because she had left the hospital before a second doctor was available. On the follow-up on 21 June 2003 it was decided that further steps were not necessary. The social worker records that Ms EH was upset by this decision and was of the view that her friend and A were at risk and that the social worker needed to stay with the mother for a longer period to enable her to observe that the mother and child were at risk because the mother was ill.[41]This behaviour of the mother in 2003 is consistent with the diagnosis of paranoid schizophrenia made in March 2004.[42]I also add that in his oral evidence the father gave some evidence to the effect that there was some decline in the mother’s behaviour prior to 2003 and indeed that this began shortly after A’s birth. The father was not clear in his oral evidence whether this was something he observed, or something he was being told. However in his position statement dated 2 October 2003 he refers to having observed such behaviour on visits by the mother and A to the prison and as having received information from others. The threshold criteria.[43]The threshold criteria or conditions set by section 31 Children Act 1989 are jurisdictional provisions.[44]As I have mentioned in this case it is common ground that they are met.[45]The date for considering whether or not the threshold criteria are met is 21 August 2003. At that date the father was not in a position to provide day-to-day care for A because he was in prison.[46]For the same reason, from his birth, A had been in the day-to-day care of his mother.[47]On 21 August 2003 the police were informed by someone describing himself as a neighbour that A had been left alone in the mother’s flat and was crying. The police visited the flat and found A alone there. He was left alone by the mother for at least 30 minutes. The mother has given differing accounts as to why she had left A alone in the flat.[48]On being taken into care and placed with his foster carer A demonstrated that he was a troubled child and, for example, was observed to bang his head on the floor and furniture. This is consistent with what was reported to the therapist the mother saw on 20 June 2003. As to this behaviour, in her evidence, the guardian told me and I accept that A’s foster carer cleared her sitting room of furniture except for a soft sofa to reduce the risk of A hurting himself by banging his head on furniture. Further on contact (and although a loving relationship has been observed between mother and child) social workers and the guardian have observed occasions when the mother has become detached from, and has not responded to, A. It is the guardian’s view, which I accept, that there are aspects of A’s behaviour which show that he has an anxious attachment. This view was also formed on an assessment carried out by the local authority.[49]The Official Solicitor as the guardian ad litem of the mother helpfully provided the following statement of the threshold criteria (which I have amended slightly). I quote:
“1. The mother suffers from mental illness, as described by Doctors Boast and Lucas, which, when in relapse, prevents her meeting the physical and emotional needs of A. At the commencement of protective measures it was likely that A would suffer significant harm as a consequence of his mother’s recurrent ill-health. Since the commencement of the proceedings the mother has, during periods of poor health required in-patient treatment under section 2 Mental Health Act 1983 and she has been unable to meet A’s needs during some contacts. 2 On 21 August 2003 the mother left A for a period of at least 30 minutes alone in her flat. A was heard to be crying and police were called and found him alone. A was placed at risk of significant physical harm and emotional distress/harm as a consequence of being left on his own.”
[50]The Official Solicitor in my judgment, correctly, accepted that such matters established the existence of the threshold criteria when taken together with the fact that the father was in prison in August 2001 and was thus unable to provide day-to-day care for his son.[51]In my judgment the observations I have referred to of A after he came into care, and the description I have set out earlier as to the lifestyle of mother and child, found the conclusion that not only was A likely to suffer significant harm because of the mother’s illness as at August 2003 but that he had already suffered significant harm as a result of her behaviour.[52]In my judgment his ‘head-banging’ and the frustrations and difficulties it exhibits, and his anxious attachment to his mother, indicate that through the period leading up to August 2003 the strange behaviour of the mother as described, for example by Ms EH, had had an impact upon, and had caused significant harm to, A’s emotional development. In my judgment this is an important aspect of the case when I turn to consider disposal.[53]In reaching this conclusion I have not forgotten, and indeed I acknowledge and accept, that: i) In August 2003 an assessment was made by the Mental Health team and the conclusion was reached by them that the mother was not mentally ill. ii) After that there was an assessment by the Edmonton Family Centre which did not conclude that the mother was mentally ill although it did recommend that both she and the child would benefit from some therapeutic work. iii) Further and importantly there were reports from Dr Boast, a consultant forensic psychiatrist who was instructed by solicitors representing the mother for the purposes of these proceedings dated 27 October 2003, 26 November 2003 and 2 February 2004 in which he did not conclude that the mother was mentally ill. His last report under the heading Opinion contained the following:
“In my last report I raised the possibility of [the mother] suffering with a psychotic mental illness. Having interviewed [the maternal grandmother] I think that the presentation to St Charles’ Hospital is consistent with a stress induced psychosis, but not a more severe and enduring mental illness such as schizophrenia [I comment that the presentation to St Charles’ Hospital was the presentation I have described earlier which took place on 20 June 2003]. The history given by her mother is consistent with [the mother] continuing to find her situation stressful since the child was taken into care but not a more severe form of mental illness. I note the concern in the report, however, regarding [the mother’s] health. It may be that associated with ongoing stress her mental health has deteriorated. I think that it is appropriate for her to be assessed again by the locality mental health team and I will be willing to see her again if thought useful. In summary the information I now have available indicates that [the mother] responds to stress by mental worry and that she can decompensate into psychosis, but that she is from a stable background, that she has been mentally healthy in the past and she has the support of her family in Slovakia. Regarding the possibility of [the mother] being mentally ill in Slovakia my current opinion suggests that while [the mother] has a vulnerability to stress, if she were in a stable social situation her mental condition should improve and the risk of a further psychotic relapse be significantly lowered. I formed the view that [the maternal grandmother] was a sensible woman who did not discount the possibility of her daughter continuing to have mental health problems and if necessary she would seek help from the Slovak health service (which is similarly structured to that in the United Kingdom, with good access to primary care and secondary specialist psychiatric care). [The maternal grandmother] told me that she is currently being assessed with regarding the possibility of her daughter coming back to Slovakia. My assessment is consistent with this option being the preferred one in respect of [the mother’s] mental health and stability. In respect of the idea of residential assessment I think a difficulty could be that [the mother] would find this stressful and under perform and even become more ill.”
[54]In February 2004 on a contact visit the mother abducted A and took him to her immigration solicitors. A recovery order was made and A was recovered. The mother was admitted to St Anne’s Hospital. There are two reports from Dr Lucas who was her responsible medical officer and who is a consultant psychiatrist of many years experience.[55]In his report dated 23 March 2004 Dr Lucas records that the mother was admitted to St Ann’s Hospital in a deluded psychotic state and that on admission she had no awareness of the inappropriateness of her action of having taken her child from the day care centre and that she was convinced that many people were involved with trying to rape her and her baby son. He records that with anti-psychotic medication the mother’s mental state had settled and that she was deemed fit for discharge from hospital for out-patient follow-up. He records that the paranoid delusions of rape receded over a few days with treatment and since then there had been a denial of ever experiencing them at all.[56]He records that at first a diagnosis was made of a reactive psychosis to stress linked to her marital problems, unresolved asylum status and her child being in care. He, however, goes on to say that she remained with poor insight into the seriousness of the situation and that her overall manner lacked a depth of emotion to her feelings. He describes her behaviour on week-end leave from hospital and that she had become increasingly socially isolated and in a paranoid defensive state, over the months since her child was placed in care. He continues:
“The history is suggestive of a paranoid psychosis, schizophreniform in character, with increasing social withdrawal, paranoia, denial and rationalisation of disturbed behaviour such as when she left her child unattended in the flat or took her child from the care centre. It is because of concern over her underlying mental state, that I supported the action for the appointment of the Official Solicitor to act on her behalf in the childcare proceedings.”
[57]Further, in answer to questions raised by solicitors Dr Lucas says (amongst other things) the following:
“As explained in the summary, my diagnosis would be of a paranoid psychosis, schizophreniform in character (F20.OICD10), with at times thought disorder, paranoid delusions, and denial with poor insight. At first, her state was assessed as a reactive psychosis to the stress linked around her admission, later it was reconsidered as a more long lasting disorder, accounting for her overall poor insight, and this would explain why professionals and friends at times found it difficult to maintain an in depth communication with her. She requires anti psychotic medication……… the validity of her remaining in the United Kingdom requires evaluation linked also to her best long term interests in terms of family social and medical supportive care……… I think that she has and will continue to have an underlying paranoid psychotic disorder which colours her judgements (eg her marriage, the concern over her past care of her child and recent impulsive removal of her child from the day care centre). She remains with a vulnerability to further acute breakdowns, if she finds herself under excess stress, without sufficient social and professional support around her. In this contrast, consideration will be needed as to the best place of domicile for her in her long term interest, for both her psychiatric care and for effective family/social support, as well as consideration of the interests of her child. Effective family/social support together with continued anti psychotic medication and professional psychiatric monitoring of her progress will reduce the vulnerability of a further acute relapse.”
[58]In his later report, dated 12 May 2004, Dr Lucas says that the mother needs continued out-patient psychiatric monitoring to endeavour to ensure that she complies with her anti psychotic medication and that in his opinion her underlying condition, with a diagnosis of paranoid schizophrenia, requires continuation of the Official Solicitor acting on her behalf throughout the child care proceedings.[59]Dr Lucas also says in that report that the report from the doctor who saw her on 20 June 2003 which he had not seen previously provides corroborative evidence for an underlying condition of paranoid schizophrenia and that this was giving rise for concern at the time over the mother’s handling and way of relating to her two year old child.[60]Further appointments have been made for the mother to be assessed again by Dr Boast but she has failed to attend any such appointments.[61]I accept the diagnosis of Dr Lucas and in my judgment the mother has been behaving consistently with that diagnosis from at least June 2003 and it is this behaviour that has caused the significant harm to A’s development that was demonstrated when he was placed in foster care in August 2003. Disposal.[62]Once jurisdiction has been established the task of the court is to determine what if any order it should make. At this stage section 1 of the Children Act applies. Thus the paramountcy principle, the no delay principle and the no order principle apply. Also the court has to have regard to the welfare check-list in section 1(4).[63]Convention rights also have to be considered and in particular in this case those under Articles 6 and 8, which were the only ones mentioned in argument and to my mind correctly the points so made that had a potential overlap with other Articles (e.g 9 and 14) were dealt with under the umbrella of Articles 6 and 8 .[64]The court also has regard to the principle or aim underlying the Children Act which accords with that in the jurisprudence of the ECHR, namely to try and keep families together or to rehabilitate families. However it is recognised, and indeed in my view it is axiomatic, that in some cases the balancing or judgmental exercise of weighing the competing factors will result in an order that has the effect that it parts a child from his or her family, or members of that family, or reduces the contact and family life between the child and a member, or members of his or her family.[65]This appears, for example, from Re C & B (Care[66]The approach of the ECHR in the P, C & S case (see paragraph 122) was to examine the measures taken in the particular case because there are circumstances which may be envisaged that the order in question there (adoption of a young baby) might be made in conformity with Article 8. The same can be said of all the alternative orders in this case.[67]In reaching my conclusion in applying the approach laid down in section 1 Children Act I have to have regard to the relevant Convention rights and thus, for example, the principle and approach of the ECHR as summarised in paragraphs 113 to 120 of the P, C & S case and thus, for example, to proportionality.[68]It seems to me that when that process and approach is undertaken any distinction between an approach based on an assessment of competing Convention rights (and in particular of those referred to in Article 8) and one based on section 1 of the Children Act in determining the order to be made is more imaginary or theoretical than real. This is because(a) in the comparison, balance or weighing of Convention rights the court under the ECHR jurisprudence attaches particular importance to the best interests of the child which, depending on their nature and seriousness, may over-ride those of the parent (see paragraph 117), and(b) often, and indeed here, the Convention rights of the parent will be mirrored in those of the child (e.g. the benefits of a child knowing and either being brought up by or having contact with both his parents) and the rights to family life of a parent and his or her child are a two way process. Naturally this applies in the case of both parents.[69]Thus where, as here, there are arguments in favour of more than one course being taken the judgmental exercise is one that has to have regard to the relevant competing factors which include Convention rights and the matters flagged up by section 1 (4) Children Act in applying the principles referred to in that section.[70]One of the options in this case is a placement of A abroad in Slovakia with his maternal grandmother. The recommendation is that this should be done pursuant to a residence order in favour of the maternal grandmother. In this context I have had regard to the approach taken in Payne v Payne [2001] 1FLR 1052 and Re B (Removal from jurisdiction) [2003] 2 FLR 1043. Further, in this context I have also had regard to the provisions of paragraph 19 of Schedule 2 to Children Act 1989 and in particular to paragraph 19 (5) thereof.[71]Further, it seems to me, that in this case the court should respect and pay particular regard to the wishes of the parents as to placement and the reasons or reasoning that underlie those wishes. In my view this is an aspect of the relevant Convention rights of the parents. Further in my view, in this respect the analogy to the respect given to the wishes of parents in respect of medical treatment can be made particularly because one of the points made by the father on placement relates to A’s religious upbringing.[72]As will already be apparent the background to this case includes immigration issues and issues relating to the father’s imprisonment and possible extradition. These are matters that Parliament has entrusted to public authorities other than the courts (subject to appeal to, or review by, the courts). In this context I gratefully adopt the summary and exposition of the law given by Munby J in Re A (Care Proceedings: Asylum Seekers) [2003] 2 FLR 921 at paragraphs 41 to 53 under the heading “the law” and paragraphs 54.and 66 under the heading “discussion”. In my judgment that exposition founds the conclusions that in exercising my powers under the Children Act in this case: i) I am not sitting in the Administrative Court nor am I reviewing a decision of a public authority, ii) I am not concerned to (or indeed entitled to) implement or have regard to immigration policy or the policy on imprisonment, extradition or prosecution relating to the father’s circumstances, but iii) I have to have regard to the underlying background realities relating to the position of the relevant adults and child. The father’s immigration/extradition position.[73]The reason why the father alone (or together with others) cannot put himself forward as a carer for his son is that he is in prison. If he were to be released issues would still arise as to his immigration status and the position concerning his extradition.[74]As I have mentioned on 3 November 2003 I made an order that the Home Office do provide information as to the immigration status of the parents and the child. Further on that date I made an order that the parents do file and serve details of(i) their immigration status including anticipated timescales for any decision by 28 November 2003, and(ii) their understanding of the child’s immigration status and nationality.[75]The father, through his advisers, has made considerable play of, and sought to place considerable weight on, his imprisonment, and the uncertainties it causes in support of an argument that it would be premature for the court to reach a decision placing his son outside the jurisdiction. But, to my mind unfortunately, he has failed to provide details of his immigration/extradition position. The explanation given is that the solicitors acting for him in these proceedings have had difficulties in obtaining such information from the father’s immigration solicitors. I have no reason to doubt that his solicitors in these proceedings have had such difficulties but the father has been in a position to solve them at a stroke by simply giving instructions to his immigration solicitors to provide a full and complete picture of his position or, if necessary, to instruct his solicitors in these proceedings to seek orders to that effect.[76]Again as I have mentioned, in response to my order the Home Office provided information by letter of 4 December 2003 as to the father’s immigration position. The letter goes on as follows: “As to the extradition position, we understand from colleagues in the Judicial Co-operation Unit of the Home Office that [the father] is sought by French authority on charges relating to terrorist activity. The brief chronology is that pursuant to a French request [the father] was provisionally arrested on 16 May 2001. Following receipt and consideration of the French extradition request the Secretary of State on 27 June 2001 issued an authority to proceed (ATP) against [the father]. The effect of an ATP is to place an extradition request before the courts in the first instance for a committal hearing. [The father] was committed on 12 April 2002 by a Bow Street District Judge sitting at HMP Belmarsh. He was committed on two charges, which were recited as follows:• That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued namely that forged passports would be used which course of conduct would necessarily involve the commission of using a false instrument.• That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued, namely for co-conspirators to have passports or forged passports in their possession in circumstances giving rise to a reasonable suspicion that they would be for a purpose connected with the commission, preparation or instigation of acts of terrorism. [The father] appealed against (applied for habeus corpus of) the committal judgment on 26 April 2002. On 21 October 2002, he withdrew his habeus corpus application, thus bringing to an end the judicial stages of the extradition proceedings. Under the Extradition Act 1989, it falls to the Secretary of State to take a decision as to surrender. As part of that process, a fugitive has a statutory opportunity to make written representation as to why he should not be surrendered. [The father’s] solicitors have made substantial such representations against his surrender to France. Those raise a number of complex issues requiring detailed consideration and, in all likelihood, a number of enquiries. We are unable to give a reliable forecast of when the Secretary of State will be in a position to reach his decision in the matter. We hope it may assist the Family Division, however, to say that French authorities attach considerable importance to the case The Secretary of State plays a quasi judicial role in matters of extradition and shares the concern to see that the case is brought to a conclusion as quickly as is consistent with dealing fairly and properly with all the representations which have been placed before him.”• That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued namely that forged passports would be used which course of conduct would necessarily involve the commission of using a false instrument.• That between 1 January 1996 and 5 November 1998 [the father] agreed with [LK] and others that a course of conduct would be pursued, namely for co-conspirators to have passports or forged passports in their possession in circumstances giving rise to a reasonable suspicion that they would be for a purpose connected with the commission, preparation or instigation of acts of terrorism.[77]The father has not provided me with any details of the process of representation and enquiry under the Extradition Act referred to in that letter. This is notwithstanding the leave I gave by order dated 24 May 2004 to the father to file further evidence, if so advised, as to the point raised in his position statement concerning the prospects of his release and his ability to care for the child and/or to have contact in the community.[78]Also on 24 May 2004 I gave the father leave to disclose to the solicitors representing him in criminal proceedings, for use at a bail application, an agreed case synopsis and chronology of the position in the family proceedings on the basis that such synopsis should not name or include the address of the maternal grandmother or other third parties.[79]In connection with that bail application the Treasury Solicitor made an application for further disclosure of information from the family proceedings which I granted with the consent of the other parties. In this connection I was shown a statement sworn by the solicitor acting for the father in the bail application which it seemed to me contained some material inaccuracies as to the position in the family proceedings. I therefore contacted the solicitors who represent the father in these proceedings and the upshot of that was that the father’s immigration solicitors wrote to me on 24 June 2004 in the following terms:
“…..the application for [the father’s] bail will now be dealt with in the Bow Street Magistrates’ Court. I confirm that the statement that I prepared for the hearing before the judge in chambers will not be put forward in those, or any other future proceedings. I wish to reassure Your Lordship there was no intention to mislead the court. I apologise for the inclusion of any inaccuracies and offer my assurance that, if any further statement is to be submitted, it will be clarified with Your Lordship in advance.”
No such new statement has been sent to me.[80]The position statement referred to in my order of 24 May 2004 had been filed pursuant to paragraph 7 of my order on 11 May 2004 which provided as follows:
“Father and mother do file and serve by 2 p.m. on 21 May 2004 a statement of their cases in respect of any Human Rights or fairness issues they wish to raise in these proceedings. The parents’ statements shall indicate their position as to whether A can and/or should go to Slovakia.”
[81]In paragraph 6 of that order I also directed as follows:
“If the father is seeking to invite the court to determine judicial review proceedings at the same time as or before the determination of these family proceedings he is to make this application for permission with all appropriate supporting documents as set down by CPR Part 54 by 18 May 2004. The father has permission to inform the Administrative Court listing that that application for permission should be allocated to Mr Justice Charles immediately upon receipt.”
[82]My concern at that time was to try to ensure that delay was avoided by the father mounting a challenge to a decision, or a failure to make a decision, relating to his extradition or imprisonment.[83]At the next directions hearing I was told that the father had taken advice. Indeed I was shown an advice from counsel. That advice was to the effect that no judicial review proceedings to challenge the decision to refuse the father’s bail could be brought. This advice did not relate expressly to decisions in respect of the extradition process but I was told that the father did not intend to bring any proceedings for judicial review.[84]However the following paragraphs in the father’s position statement were not amended or withdrawn, namely:
“Of more importance however is the effect that [the father’s] continued detention and the uncertainty of its duration has had, and will continue to have, on these proceedings. As the court will be aware the court has no way of knowing when the Secretary of State is likely to make a decision with regard to his extradition. All legal procedures prior to that decision have been gone through and all that is awaited is a decision from the Secretary of State himself. Thus far, that has not been forthcoming. In addition, it is within the power of the Secretary of State, should he so wish, to end [the father’s] detention at any point either by releasing him on bail or by refusing the application to extradition and/or by discontinuing the certificate of internment issued under the authority of SIAC. (The certificate currently authorises [the father’s] detention on the basis that he is suspected of terrorist activities (on what evidence one does not know) but clearly it is a matter for SIAC and the Secretary of State to rescind/discontinue that certificate if they so wish). The problem for [the father] and for those representing him is that these are all unknowns and without the direct involvement within these proceedings of the Secretary of State and SIAC they will remain unknowns. It is therefore impossible to predict when and if [the father] might be released. It is contended on his behalf that his current detention has the appearance of extreme unfairness, if only on the basis that mature democracies really should not be detaining individuals without charge within the jurisdiction or a fair trial. Given the political vagaries of the situation, it is contended that [the father] might find himself released at any point without explanation. Other similarly detained persons have, to [the father’s] knowledge, either, at the very least, had the benefit of receiving a Home Secretary’s decision on extradition and then go through the subsequent procedure of being released, either without charge or on bail. He remains one of, if not the longest serving, detainee under the current provisions. He is, furthermore, detained on the possibility of being charged with offences, sentences for which, were he to be extradited, charged, tried and found guilty, would be highly unlikely to give custodial sentences equal to or longer than the amount of time he has already spent in prison. In all the circumstances, the second respondent father’s position is that he does not see how the court can arrive at a fair determination of the outcome which would be in A’s best interest without full and proper investigation as to the likely duration of his current detention. He therefore considers that either of the outcomes described above would be so prejudicial to his ability to put forward a plan to either care for A or, in the absence of being able to care for A, to maintain a proper relationship with his son but they would be inherently unfair and would breach both his and A’s convention rights.”
[85]I seemed to me that parts of these paragraphs were at odds with the stance taken by the father and his advisers that they did not intend to issue any proceedings for judicial review. Further it seemed to me that the absence of the Secretary of State or any other relevant public decision maker in these proceedings (or any proceedings held at the same time) arose from the decision of the father not to seek judicial review of any decision or failure to make a decision by such a public body in respect of his extradition/imprisonment, or to seek to join such a decision maker as a party to these proceedings.[86]Early in the hearing I explained to counsel for the father that it seemed to me that it was for the father to raise points and challenges as to any alleged delay by public authorities in the decision making process relating to his imprisonment, extradition and release. In doing so I mentioned that a point that might be of relevance was whether the delay on behalf of such decision maker was, or could be, the subject of challenge and I was concerned as to whether it would be appropriate for the court having regard to the investigatory aspect of its role to raise questions as to this when the father had not done so.[87]I was then told that the guardian through her solicitors had been in contact with the section of the Home Office dealing with extradition and that someone in that department had promised to write giving the up-to-date position. A letter was received from this department at the Home Office dated 7 July 2004 (the third day of the hearing) and it enclosed correspondence with the father’s immigration solicitors.[88]The timetable relating to the representations made in respect of the extradition request and the decision of the Secretary of State relating thereto shown by that correspondence reveals why no question of judicial review of the Secretary of State in respect of that process has been advanced. For example, that timetable shows that in respect of the process the Secretary of State is awaiting a reply from the father’s immigration solicitors to a letter dated 11 March 2003. Further, that timetable indicates that the father has not been pressing the Secretary of State for a decision on the question of his extradition.[89]Additionally, it is not easy to square that timetable with some of the assertions that I have quoted from the father’s position statement relating to the decision making process. This is because there is no hint in those paragraphs that the father has not been pressing the Secretary of State for a decision and indeed that his immigration solicitors have failed to reply to a relevant letter dated 11 March 2003 in respect of the extradition process. Also those paragraphs do not indicate, as is shown by the correspondence sent by the Home Office, that the Secretary of State is seeking to press on with the decision relating to extradition.[90]It is difficult to see in the light of this correspondence(i) how the last sentence of the first paragraph I have quoted from the father’s position statement gives a fair representation of the position, or(ii) the basis upon which the father asserted that he might find himself released at any point without explanation.[91]Further, to my mind, this correspondence shows that in making the assertions he has relating to whether or not a fair determination of these proceedings can be reached having regard to the likely duration of his current detention the father has signally failed to make full and proper disclosure.[92]The evidence and submissions in this case show that the father was very concerned that if he was returned to France he would be sent to Algeria and that he was very anxious to avoid this. The father also mentioned in his oral evidence a point made in the position statement as to the period of his sentence should he be convicted in France.[93]In her closing submissions counsel for the father told me, and I accept, that by chance she had met the father’s immigration solicitor and had asked her what the position was relating to the father’s extradition and detention. Counsel passed on some general remarks as to this but was unable to answer points of detail thereon. I therefore specifically asked counsel for the father whether she sought leave to put in a detailed statement with supporting material as to the father’s position concerning his detention and extradition and thus to clarify that position. Counsel told me that she did not. The father’s counsel submitted that the position relating to the father’s imprisonment and extradition was one of considerable uncertainty. I agree.[94]I add that in my judgment the father has done effectively nothing to try and clarify it in and for the purposes of these proceedings. It follows that he has done effectively nothing to contribute to or assist in the “full and proper investigation as to the likely duration of his current detention” which he has asserted should take place before a fair determination of the outcome that would be in A’s best interests can be made.[95]The judgment of the Designated District Judge dated 12 April 2002 which committed the father to await the decision of the Secretary of State with a view to his extradition to France shows that international arrest warrants were issued in France in August and October 2000, that the father was arrested on 13 February 2001 and charged with certain offences triable in England. On 16 February 2001 the French Government sent details to support a provisional warrant and on 16 May a notice of discontinuance was served in respect of the domestic charges against six people of which the father was one. He was therefore released but immediately re-arrested on the authority of the provisional warrant relating to the extradition request. The evidence of his solicitor before the Designated District Judge showed that there was at the very least a case to answer in respect of the original English charges.[96]As I understand the position: a) The father is currently held in prison under the warrant relating to the request for his extradition. b) His arrest pursuant to this warrant took place on 16 May 2001 when notice of discontinuance of the domestic charges was given. c) The challenge to the arrest and detention pursuant to such warrant related to the request for extradition failed and the father was therefore committed to await the decision of the Secretary of State concerning the request for his extradition to France. d) In respect of that decision a process of representation and enquiry is under way and the father has not replied to relevant correspondence concerning that process and has not been pressing for a decision. e) It is not possible to forecast with any accuracy when a decision on extradition will be made by the Secretary of State, albeit that the Secretary of State is expressing a wish to deal with the matter. f) If the Secretary of State decides to extradite the father it is very likely that he would challenge such decision by judicial review and those proceedings might well not stop at first instance. g) If the Secretary of State decides not to extradite the father (or the father’s challenge by way of judicial review to a decision to extradite him succeeds). The certificate that was issued in respect of him under section 21 ATCSA 2001 might be reactivated and on that basis the father might be kept in prison. h) Challenges to his continued imprisonment based on that certificate would probably be made and could well take some time, and i) if and when the father is released in this country his immigration status (and thus his claim for asylum) would have to be considered, but I was told that a pragmatic point as to that is that at present no deportations to Algeria are being made.[97]In his position statement and elsewhere the father has also raised assertions that these proceedings have been unfair to him because for example he has not attended the directions hearings. I accept that in accordance with the Rules parties generally attend at such hearings but the court can dispense with that attendance. I did so in this case because of the practical difficulties of providing a secure court. At the same time I put in train arrangements to ensure that the father attended throughout the hearing. He has done so. When I dispensed with his attendance at directions hearings the father was represented by his solicitor. Although she would have preferred him to attend she did not point to any actual prejudice or unfairness (as opposed to possible disappointment or inconvenience in giving instructions) that would be caused by his non-attendance.[98]During her closing submissions I asked counsel for the father to identify any point of actual prejudice or unfairness she relied on in the procedure adopted before, or at, trial or generally to support the general assertions of unfairness made. She took instructions but did not identify any. I do not criticise the legal representatives for the father for not identifying any such point of actual unfairness or prejudice because it seems to me that there are none that they could have sensibly advanced. The mother’s immigration position.[99]As a national of Slovakia she has from 1 May 2004 had a right to reside in this country.[100]The problem relating to her concerns the continuation of support. As to this I was referred to a circular from the Home Office dated 1 April 2004 and to the decision in M v Islington [2004] EWCA 235 (Civil).[101]At present the mother continues to receive support from NASS but this may come to an end. If and when it does she may then receive support to enable her to return to Slovakia under Schedule 3 of the Nationality Immigration and Asylum Act2002. Alternatively she may be able to claim continued support in this country under the National Assistance Act 1948 and/or in reliance on her convention rights.[102]Her ability to sustain herself in this country is therefore uncertain but there is a real prospect that she might continue to receive support from public funds. Further, and although this was not asserted by the father, I accept that there is a possibility that he might arrange for her to continue to receive some support. The mother’s position.[103]On her behalf the Official Solicitor does not oppose a placement of A pursuant to a residence order in favour of the maternal grandmother. This involves A moving to live in Slovakia. The Official Solicitor sees this as being the solution that best promotes the welfare of the child.[104]Analytically the Official Solicitor is not in an easy position because as the guardian ad litem of the mother he has to advance her case and consider her best interests. But as a party to proceedings under the Children Act he has to consider what would best promote the welfare of the child in all the circumstances off the case having regard to the investigatory and co-operative aspects of such proceedings in seeking to determine what order should be made in respect of the child.[105]One of the relevant circumstances of this case is the mother’s mental illness and although she does not recognise that this rules her out as a person to whom the care of the child can be given now the Official Solicitor as her guardian ad litem has to, and does, recognise this. This is also recognised by the father.[106]In my view the reports of both Dr Boast (which was written before the diagnosis of mental illness in respect of the mother) and of Dr Lucas provide strong support for the view that having regard to her mental illness the best interests of the mother would be best served by her returning to Slovakia particularly if A was living there with the maternal grandmother.[107]At the outset of these proceedings the mother was making some serious allegations against the Algerian/Islamic community (including the father’s brother) with which she was connected and her life in this country. However the mother was not making any specific allegations against Ms EH. Some of those allegations could found the view that the father is not A’s father. As a precaution I had authorised DNA testing but this has not taken place, as I understand it, because the mother has not provided a sample. I record that in my view, correctly, it was not asserted by anyone before me that A was not, or might not be, the father’s son. I have proceeded on the basis that he is.[108]The mother has also made some serious allegations to doctors and others concerning events in Slovakia.[109]Having regard to the mother’s mental illness and its effect on her, her allegations as to(a) her treatment by members of the Algerian/Islamic community in this country and(b) in respect of events in Slovakia have not been investigated. In my judgment, correctly, no one before me has argued that her serious allegations concerning misconduct of such people towards her and such events are correct.[110]As I have already explained it is the mother’s mental illness and the behaviour associated with it that has established the threshold criteria and given rise to these proceedings. On disposal it causes further problems because it creates uncertainties as to the mother’s position and future.[111]It was not asserted and indeed there is no evidence that the mother’s conversion to Islam, her departure from her mother’s home and Slovakia, her decision to live within or as a part of Islamic communities or groups in Germany and England, her decision to re-enter England illegally and her decision to marry the father were anything other than voluntary and properly informed decisions of a young adult. Thus there is no assertion or evidence that they were made at a time when she was ill or affected by the onset of her present illness.[112]In my judgment it is important to remember this when considering the order I should make because it founds the point, which I accept, that A was born to parents who were both Muslims and who were bringing him up as a Muslim in an Islamic community.[113]Because of the later diagnosis of mental illness and the mother’s behaviour in 2003 and during these proceedings uncertainties exist concerning the mother’s position as to(a) her continuing relationship with the father in the period leading up to, and during, these proceedings,(b) her divorcing the father and(c) her approach to bringing A up as a Muslim or in an Islamic household.[114]In her first statement in these proceedings dated 10 September 2003 and thus before she was diagnosed as being mentally ill by Dr Lucas but after she had been behaving in a manner consistent with that later diagnosis the mother asserted (amongst other things) that (and I quote) i) When I went back to Slovakia I felt persecuted on the grounds of my religious beliefs. However, I have now decided that I do not want to be a Muslim ii) I do not believe that I have mental health problems iii) I believe that I am able to care for my son properly ------------- I would like us to return to Slovakia to live with my family there. We could stay with my mother ------------- iv) I do not want any of my husband’s extended family or friends to care for A v) I do not trust either the 2nd Respondent [the father] or his extended family and friends. I do not feel that either I, or my son, are safe with them.[115]That statement is therefore an example of the position of the mother since the start of the proceedings that she does not wish A to be placed with Ms EH or with other friends or family of the father. That has been a consistent position.[116]However the mother has made inconsistent statements to social workers, the representative of the Official Solicitor and the Guardian which they have recorded in their statements and reports as to(a) her remaining a practising Muslim,(b) A being placed in the care of her mother and(c) A or them both returning to Slovakia. Her position on these matters is therefore unclear and has been changeable. This in understandable having regard to her mental illness and wish to look after A herself. Against this uncertain background the maternal grandmother’s approach has been that his parents would like A to be brought up as a Muslim and she has not raised the point that the mother may have changed her mind about this, or may do so in the future or may vacillate about it.[117]I acknowledge that a problem with the mother’s consistent opposition to A being placed with the father’s friends or family is that at least in part this view is based on and associated with serious allegations made against friends and associates of the father (not including Ms EH) that I have referred to earlier and which have not been pursued. These allegations could be based on delusions or misunderstandings or reactions associated with the mother’s illness. I accept and proceed on the basis that these allegations are unfounded and that there is uncertainty as to what the mother would assert as to a placement with the father’s family or friends if she was well.[118]In one sense this is an academic question because if she was well the overwhelming likelihood is that she would be caring for A as she thought fit and the uncertainties, which form part of the present reality, are as to how she would have wanted to live and bring A up both as to place, community and religion.[119]Another aspect of the present reality is that although her consistent position in these proceedings has been that if she cannot look after A she does not want him placed with family, friends or associates of the father. It follows that although I have accepted and proceeded on the basis that the mother’s expressed wishes as to that are based on unfounded allegations and assertions they are her consistently expressed wishes and are thus likely to affect her future behaviour.[120]For example they could well affect her approach to and behaviour at contact. For understandable, and in my view sensible, reasons related to the mother’s behaviour Ms EH has said that she would not wish the mother to have contact with A at her home.[121]Additionally in my view if A was placed with Ms EH on the basis that he was to be brought up as part of her family it seems to me that the purpose and thus the frequency and nature of contact with the mother would have to change. It is unlikely that the mother would be happy with such contact and it would not accord with her expressed wishes to look after A herself. In my view it follows that although the mother has attended regularly at contact since the issue of these proceedings there is a real risk that problems in respect of such contact and knock on problems as to the stability of a placement of A with Ms EH would arise.[122]Similar and additional questions also arise in respect of the mother’s attitude to contact if A was placed with the maternal grandmother. An additional question is whether she would go to Slovakia If she did similar problems could, and in my view would be likely to, arise based on her objections to contact against the background that A’s home was with his grandmother and thus that the basis of the placement would not be that the mother and A lived with the maternal grandmother. Indeed this is recognised in the final care plan which refers to the mother not wishing A to be placed in Slovakia with her maternal grandmother because it was not planned that she would live in the same house.

The father’s position

[123]Understandably, and although he has never lived with his son, the father is very keen that A should stay in England so that as and when his hopes of being released are fulfilled he can build a relationship with his son. His hopes include a hope that he will be able to do this in England following his release, and thus that they could then both live in England.[124]The father also asserts that A should remain in England to promote contact between him and his son whilst the father remains in prison here.[125]Given his predicament, background and temperament (as demonstrated in the witness box) to my mind understandably the father gave emotional evidence which focused on his own wishes and feelings and the desire to promote the result he wanted. A classic example was when he asserted that if A was placed with Ms EH he would fund the travel costs of the maternal grandmother so that she could maintain regular contact with A, but when asked if he would fund that travel so that the maternal grandmother could bring A for contact with the father in England he was not prepared to say that he would. His response was that he wished to speak to his advisers before replying. He never made this offer.[126]At the start of the hearing it was unclear whether the father was proposing that placement with Ms EH would be on a temporary or holding basis until he was released from prison. The father through his counsel indicated that his position was that A should be placed with Ms EH on the basis that he would be brought up as a member of her family and thus on a medium to long term basis pursuant to any public or private law order that the court thought appropriate. The father made it clear in his evidence, and I accept, that as and when he was released from prison and was in this country he would not seek to remove A other than pursuant to an order of the court.[127]However in my judgment an aspect of the inability of the father to see things from A’s perspective was that he clearly demonstrated in his evidence that if and when released he would expect to play a very active role in A’s day to day life and that he would be highly likely to put considerable pressure on Ms EH (or any other carer of A) to do what he wanted and to seek orders for A to be placed with the father or others if Ms EH (or any other carer of A) did not comply with his wishes. To my mind that approach of the father is very understandable but he failed to demonstrate any understanding(a) of A’s need to have a home and stability for his childhood, or(b) that there would be difficulties in the building of as relationship between himself and his son if and when he was released from prison in circumstances that would permit him extensive contact with his son or to look after him in this country or elsewhere, or(c) that A gets very distressed going through the security procedures at Belmarsh and has had nightmares after visiting the father there.[128]I indicated during final submissions that although in my view understandably the father had looked at the issues from his own perspective I had not identified any part of his evidence when he had stood back and looked at the issues from A’s perspective, or tried to consider A’s needs and wishes when they conflicted with his own. Counsel did not point out any parts of the father’s evidence that were to this effect.[129]Additionally in his oral evidence the father did not refer to the mother’s problems or seek to assert that what he was proposing would promote her wishes and interests. This is in contrast to his reaction to the mother’s first statement in these proceedings which I have quoted from earlier.[130]That reaction is also relevant in respect of major points in the father’s argument relating to A’s upbringing if he was to be placed with his maternal grandmother. These were that he would not be brought up as a Muslim, that he would not be brought up in an Islamic household and that he would not be brought up speaking either of the father’s languages. I accept that these are all important points. The father placed very great weight on them.[131]In his position statement dated 2 October 2003 which was written in French and English and which was prepared after advice the father says that (and I quote): i) The second respondent [the father] wishes A to be brought up if possible by his mother with he, as A’s father, playing an active and involved role. He is currently, however extremely concerned about the First Respondent’s [the mother’s] mental health and would only wish A to be returned to her care should the court be fully satisfied that she is(a) mentally well and is likely to remain so and(b) that she takes no step to remove A from the jurisdiction of this court. As such a step would undoubtedly have a highly prejudicial effect on any possibility of the second Respondent being able to continue any meaningful relationship with his son. ii) In the event that A’s mother is not able to resume his care in such a manner, the second Respondent’s position is that he would wish his extended friends and family to be explored as possible alternative carers……………. The second Respondent understands that Ms EH is prepared to put herself forward as a carer for A both in the short and long term. The second Respondent’s position is that he would wish, if possible, A to be placed with Ms EH on an interim basis whilst these court proceedings are continuing. He is aware of the first Respondent’s opposition to this but believes that the placement could, nevertheless, be successful and beneficial to A. The second Respondent points out that A has known Ms EH from birth and is familiar with her and her family. He also points out that she is from his culture and would, therefore, be able to ensure that A’s cultural and religious needs will be fully met. The second Respondent is aware that the first Respondent no longer wishes to practice Islam and regards this a matter of personal choice as far as the first Respondent is concerned. He does, however, consider that his son should be allowed to take full advantage of his religious and cultural background and that he should not be prevented from living in an Islamic environment during the course of these proceedings. The second Respondent wishes to make it clear that he puts forward this view not out of any desire to contradict the first Respondent’s viewpoint nor indeed from any religious sentiments he may himself feel but simply because he wishes to ensure that A is able to take full advantage of the support and help which is available from within his own community. iii) The second Respondent wishes the court to be aware that, notwithstanding his current concerns about the first Respondent’s mental health, he hopes that she regains full health and can remain stable on a permanent basis in order to enable her to care properly for A. In the absence of such a situation and given his very difficult circumstances, he wishes to put forward friends and family members as alternative short and long term carers for A and until such time as he is able to secure his release from prison. iv) In brief, therefore, the second Respondent’s position is that his main concern is for the safety of his son, A. He would wish A to be placed with friends or family while the matter is being resolved and in the event that A’s mother is not able to safely resume his care he would wish such a placement to continue as necessary until he is able to resume care of A himself.[132]In many respects this represents his position at the hearing but this response of the father does not place anything like the weight he did in his oral evidence on the importance of A being brought up as a Muslim and in a Muslim household. This is because in this response I consider that he recognises(a) that it is a matter of personal choice for the mother as to whether she wished to continue to practice the Muslim faith (and thus in my view live as a Muslim and/or in a Muslim household) and(b) that A should live with her if she was well (and thus even if she no longer wished to practice the Muslim faith and live in a Muslim household).[133]No mention is made in that statement of language but the father’s opposition therein to A being removed from this country and his wish to take an active part with the mother in his upbringing could account for that. Additionally I accept that no mention is made in this position statement of divorce and it may be that the father was then contemplating that the mother would still live with him but not practice the Muslim faith.[134]I of course accept that this position statement was made early in the proceedings and in it the father refers to religious and cultural matters, to him taking an active part in A’s upbringing and to A remaining in this country. From that I also accept that it would be unfair to seek to make too much of differences between it and the father’s oral evidence. However I point out that in my judgment anyone listening to the father’s oral evidence would have been surprised to learn that he had taken the open minded attitude he did in this statement to the mother’s change of view on the practice of the Muslim faith and the potential it might have on the upbringing of their son as a Muslim and in a Muslim household or community. In his oral evidence he vehemently opposed a placement with the maternal grandmother on the grounds that hers was not a Muslim household and A would not be brought up there as a Muslim.[135]It is also the case that at no stage in his evidence did the father give any detail of his practice of the Muslim faith or that of the mother. For example his attendance at Mosque when he was at liberty. Further I note that when the guardian helpfully visited the father’s mother in Algeria (when she was there on another matter) she expressed the view that the father was not particularly religious. However I accept that this was not gone into in any detail between the guardian and the paternal grandmother and might have been said by the paternal grandmother to avoid any suggestion that the father was a fundamentalist.[136]In my view the points made above found the conclusion, and I so find, that the father exaggerated and over emphasised the importance to him of A being brought up in the Muslim faith and in a Muslim household. That is not to say that I do not accept that these are issues that are important to the father, I accept that they are having regard to his religion and background.[137]Also it was obviously common ground that all aspects of A’s cultural and religious heritage were relevant and important. The father’s other proposals.[138]As I have said the father’s primary proposal is that A should be placed with Ms EH. However as appears from his early position statement he has also put forward his brother as a carer for A.[139]On the first day of the hearing the father’s brother made an application to be joined as a party to these proceedings for the purposes of making an application under section 38 (6) Children Act that his parenting ability should be assessed.[140]Having regard to the recital to my order dated 11 May 2004 which was in the following terms: “Upon the parents agreeing that the maternal grandmother and Ms EH are the only alternative carers being put forward.” this was a surprising application. Further it was apparent from the correspondence exhibited to the statement in support of the application that issues arose as to why an earlier response to a letter dated 23 April 2004 from the local authority informing the uncle’s solicitor that they had been informed that the uncle no longer put himself forward as a carer needed investigation. It was also unclear whether the uncle was seeking to advance a different position to that advanced by the father. The indications were, and indeed the understanding of the uncle’s counsel at that stage was, that the uncle was not seeking to advance a different case to that of the father. Counsel very properly recognised that that was a strong factor against joining the uncle as a party to these proceedings. On the first day of the hearing I adjourned the uncle’s application and requested him to put in an additional statement and the local authority to provide a chronology relating to their contact with the uncle and the possibility of him being assessed as a carer. These documents were provided and the uncle did not seek to renew his application to be joined as a party.[141]No doubt in large measure that decision of the uncle was based upon the final paragraph of the uncle’s additional statement which was as follows:
“I support Ms EH’s application to have A placed in her permanent care. If the court is not minded to place A in her care, then I would ask that they consider me as a permanent carer. I am also willing to put myself forward as a joint carer with Ms EH sharing the care of A. I would argue that A should be brought up as Muslim boy in this country. To send him to Slovakia with his maternal grandmother would in effect mean A being permanently separated from his father, uncle and paternal family. This paragraph mirrors the father’s position as by then clarified that he was putting Ms EH forward as a permanent carer.”
[142]Part of the reason for asking for an additional statement from the uncle was so that he could clarify his immigration status. In his additional statement he points out that he is an asylum seeker and therefore cannot work and if he had the full-time care of A he would not be able to work. He says that for income he would rely on NASS benefit, child benefit and the local authority could also provide him with a care allowance as he asserts often happens in cases where carers of children in care proceedings do not have indefinite leave. He also refers to a friend who was willing to provide him with financial support.[143]In his additional statement the uncle refers to and exhibits a letter from his immigration solicitors. This is the same firm as acts for the father in respect of matters relating to his extradition. In that letter it is stated as follows:
“[The uncle] is an asylum seeker. His application for asylum was refused and he lodged an appeal. His appeal was dismissed by an Immigration Adjudicator and he has made an application for permission to appeal to the Immigration Appeal Tribunal. A decision has not yet, to our knowledge, been made on that application.”
[144]It is difficult to square this letter with the assertions made by the uncle in his additional statement where immediately after exhibiting the letter because in that passage he does not indicate that the Adjudicator has made a decision and implies that the matter may still be before an Adjudicator. He says:
“I attended an Immigration hearing a few months ago and explained my situation to the Adjudicator in relation to A. I was told by the Adjudicator that this was a relevant fact in my application. I believed that if A was placed in my care then I could strongly argue that I should be granted indefinite leave on Human Rights grounds and Article 8 the right to family life. I do believe this would greatly strengthen my Application for asylum.”
[145]As appears from the quotations no dates are given by the solicitors for the uncle.[146]He also says that since his first statement he had changed his place of residence and had signed a tenancy agreement in respect of a two bedroomed flat on two floors which is fully furnished.[147]The closing position of the father was that if I was against a placement of A with Ms EH that I should order an assessment of his brother’s ability to care for A and failing that I should make an order which resulted in A remaining in this country. As to this last resort the father through his counsel did not identify who the carer should be.[148]The chronology produced by the local authority shows that the local authority were informed by Ms EH on 20 April 2004 that she thought that the uncle no longer wished to put himself forward as a carer. The letter of 23 April 2004 follows which stated:
“I understand that your client had initially said that he wanted to be assessed as a carer for A. However two meetings have been set up between your client and the social worker, neither of which your client has attended. The social worker has also heard from a family friend [Ms EH] that your client does not now wish to be considered as a carer. I would be grateful if you would clarify your client’s position.”
[149]The uncle’s solicitors replied on 29 April 2004 saying that they were seeking their client’s instructions. On 10 May 2004 a meeting that had been arranged with the uncle did not take place. On the next day (11 May 2004) my order contained the preamble I have referred to above. On 13 May 2004 an interview took place with the uncle at the offices of the local authority at which the uncle stated that he wished to care for A. However the local authority decided that as he did not have(a) leave to remain in the country and or(b) any definitive time-frame for the resolution of his immigration status and as he was in temporary accommodation they should not pursue such an assessment. On 9 June 2004 the uncle’s solicitors wrote to the parties stating that he did wish to be considered as a carer for A. As far as I am aware nothing further happened until the uncle’s solicitors wrote again to the parties on 16 June 2004 stating that he was applying for emergency legal aid which was granted on 30 June 2004 and led to his application on the first day of the hearing.

Ms EH

[150]As I have said she is English and of Moroccan descent. She is a practising Muslim and wears the veil. She was present at A’s birth. She hosted the religious wedding ceremony of the mother and father (which took place shortly before her own second marriage) and she was concerned about the mother in June 2003. History has shown that these concerns were justified.[151]She has put herself forward as a carer of A and in doing so wrote a letter dated 17 May 2004 addressed to “To whom it may concern”. In that letter she said and I quote:
“I know that I am not a blood relative of A but he means a lot to me. I know that I can offer him a suitable home with love, care and attention that he needs. He has been through so much distress in his life, if he stayed with me I could offer him the stability that he needs. He would also grow up knowing both of his parents, family and friends, all of whom have been a part of his life. It would upset me greatly if A was to leave this country. He would not only be missed but he would also lose all contact of all the people who love him greatly (i.e. his mother, father, uncle and me). I do understand this is a very delicate situation and not an easy case. I therefore call upon your good nature when deciding upon the matter.”
[152]In my view Ms EH deserves considerable credit for putting herself forward as a carer of A. Also in my view she deserves considerable credit for the help she gave and tried to give to the mother in 2003, which I have referred to and which she refers to in her letter.[153]She has indicated that if A is placed in her care she would be happy for this to be pursuant to either a public law or a private law order.[154]One of her referees has described her as a patient mother who is able to cope in adversity and who would have the ability to ensure that A’s needs are paramount. This referee also said that she is someone who would not hand over A’s care to either of his parents without taking appropriate advice.[155]Ms EH was born and educated in England. When she was in the sixth form she felt she needed to explore her religion more fully. She attended Arabic classes and embraced Islam more actively. She has said that her parents were not happy about this. However she and her parents remain close. Indeed they live in separate self-contained flats in the same building.[156]She married when she was 18. That marriage lasted for 6 years and ended in divorce. There are two children of the marriage. They are both boys. The papers relating to Ms EH assessment contain differing information as to the dates of birth of these children. In the first report their dates of birth are given as 22 May 1994 and 5 May 1995 making them 10 and 9 respectively. Other parts of the reports indicate that they might be a little younger.[157]The older boys remember A and have spoken fondly about him during the assessment of Ms EH. The older boys have some, albeit sporadic, contact with their father. Ms EH met her second husband in 1997. He is of Algerian origin and had been married to an English woman. He comes from a large family (4 sisters and 2 brothers) but only one of his sisters lives in the United Kingdom. He divorced his first wife in 1995; they had no children.[158]Ms EH’s second marriage took place on 4 November 2000. It was a small wedding. Ms EH is quoted as saying that her parent’s view was that “Algerians are not to be trusted”. However when her father met her husband he “warmed towards him”.[159]Ms EH became pregnant with her third son on her honeymoon and this son was born in June 2001. He is therefore very close in age to A (who is about six weeks younger).[160]As was the case with the mother and father at the time of A’s birth, Ms EH’s husband was in prison at the time of the birth of her third son.[161]A difference is however that Ms EH’s husband has been tried and convicted in Germany on charges relating to terrorism. I understand that he was arrested with others in circumstances when bomb making materials were found at their place of residence.[162]Ms EH believes that her husband was in the wrong place at the wrong time and believes that he is innocent. However, as I have said, he was convicted and therefore he will be treated by public authorities in this country and elsewhere as someone convicted of offences relating to terrorism.[163]Ms EH has made it clear that she does not agree with terrorism and would not have married her second husband if she had thought that he was connected with terrorism.[164]Ms EH told the persons who were assessing her that her second husband told her that he was going to Germany to visit some friends for a month and asked her to go too but as she was pregnant and had the responsibility for her two children she decided not to accompany him. She said that at the end of December she received a telephone call from somebody in Germany who told her that he was a solicitor. That person asked her numerous questions and informed her that her husband had been arrested. She said that she did not know what he had been arrested for. She said that she was worried and attempted to contact her husband but to no avail and heard nothing further for 6 months apart from in February 2001 when she said that the Anti-terrorist squad searched her home. Ms EH claimed that she had no idea what her husband had been arrested for, or charged with, until he was sentenced for 12 years for possession of bomb making materials. He is currently serving his sentence in Germany and Ms EH understands that he is due to be released in 2006.[165]Ms EH also told the people who were assessing her that the reason A’s father is imprisoned is because of the link between him and her husband and the alleged link between her husband and Islamic terrorist organisations.[166]I am unclear as to the extent of that connection (if any) and note that Ms EH’s husband is not mentioned in the charges against the father upon which his extradition his sought. The decision of the designated Distict Judge relating to the father’s extradition refers to the forged passports (which form part of the first charge against the father) being used by a named terrorist organisation. I do not know if Ms EH’s husband is said to be linked to that organisation.[167]Ms EH said that she felt she was in a position to offer support and solace to the mother because the mother was going through a similar situation to herself in that the father was in prison and the mother was pregnant.[168]The assessment of Ms EH was not completed in the sense that more work would be necessary before she could be recommended as a long-term carer to the permanency panel.[169]However, Ms EH was observed and assessed as being a caring mother who had a close and loving relationship with her three children and who had addressed, and was addressing, problems in connection with her parenting well.[170]I assume and proceed on the basis that apart from the problems already identified (and mentioned below) no further problems would be discovered on a further assessment for the purposes of a recommendation to the permanency panel. I therefore proceed on the basis that in accordance with the present assessment that Ms EH is, and has been, a good and caring mother for her three children and is someone who would make a suitable permanent carer for A.[171]The problems already identified are in my view nothing to do with Ms EH’s personal day-to-day abilities as a mother and a carer.[172]Firstly they relate to the uncertainties and problems that will inevitably arise in her life and the lives of her children (including A if he is placed with her) when her husband is released from prison. There will also be problems and difficulties when the father is released from prison if Ms EH then has the care of A.[173]As to the position relating to her husband it is not clear from the assessment, or the other information before me, whether or not on his release he would be allowed to return to England. There must be some doubt about this and indeed Ms EH expressed that doubt during her assessment. Having done so she said that she would remain in this country as she had to prioritise her children’s needs. However, and understandably she told the guardian that ideally she would like to be reunited with her husband.[174]Whether or not Ms EH’s husband returns to England on his release, that release will be accompanied by pressures and uncertainties on Ms EH’s household. For example, it was in my judgment correctly accepted that if A was placed with Ms EH under a public law order that placement would have to be reassessed on that release.[175]In this connection, I mention that I understand that Ms EH’s husband is content that A should be placed with Ms EH and supports her decision to put herself forward as a carer of A. However to my mind it is clear that if and when he rejoins his wife he will have a number of adjustments to make not only from prison life but also in parenting four boys (if A was with Ms EH) only one of whom is his son and getting to know his son and the other boys.[176]The second problem is a linked but more general problem. In my view it is that the uncertainties relating to(a) the fact that Ms EH’s husband has been convicted of offences relating to terrorism, and(b) the predicament of the father and the outcome of the request for extradition and other outstanding matters relating to his alleged activities relating to terrorism, and thus the connection of Ms EH to allegations of terrorist activity may well give rise to problems in the day to day lives of Ms EH and the children she is looking after that could undermine the stability of her household. For example it could well affect the attitude of both adults and children to Ms EH and the boys at school.[177]The third problem relates to the fact that Ms EH already has three sons and the fact that she will have to divide her time between them and A if he is placed with her.[178]In the letter from Ms EH that I have quoted Ms EH refers to her being able to offer A the stability he needs. In so asserting she clearly had knowledge as to his troubled past but would not have had any, or any detailed, knowledge of the observations that have been made of A’s behaviour since he was placed with his foster carer.[179]The guardian, particularly in her oral evidence, stressed that in her view A’s needs pointed strongly against him being placed in a household with other children and in particular one with the composition of Ms EH’s household. Namely three boys, two of whom were older than and one of whom was very close in age to A. These problems had not been discussed during Ms EH’s assessment, or in any detail between her and the guardian. Indeed they only met very shortly before the proceedings began.[180]I accept and proceed on the basis that if and when these matters were discussed with Ms EH she would recognise the problems arising from them but conclude that she could deal with them. However in my judgment this is not an answer to these problems which do not involve any criticism of Ms EH or of her abilities. Rather they look at the reality of the situation and the difficulties it would cause to Ms EH and contrasts it with the position in the household of the maternal grandmother if A was to be placed with her. If that happened A would be the only child in the household and the guardian places considerable weight on this point. The maternal grandmother.[181]As soon as she became aware that someone might be needed to care for A she put herself forward. During the course of these proceedings she has travelled to England and has had contact with A. She also visited the father in prison.[182]The father in my view to his credit was at pains to point out more than once that he had nothing against the maternal grandmother and is grateful for her offer to care for A. He accepts that she would care for him properly on a day-to-day basis and that she would do her best for him. As I have already mentioned I proceed on the basis that the same can be said about Ms EH.[183]The maternal grandmother has been visited in Bratislava by a social worker and by the guardian. She is a widow. Her husband (the maternal grandfather) was killed in road accident when the mother was 9 years old. By the time of his death the relationship between the maternal grandmother and her husband had deteriorated badly and the maternal grandmother asserts that he was frequently verbally and physically aggressive towards her. She describes the circumstances of her husband’s death as follows. Her husband returned home heavily under the influence of alcohol when the maternal grandmother was there with the mother. Her husband started an argument during which he became violent and took a knife from the kitchen which he used to attack her. A struggle ensued which the mother witnessed. The maternal grandmother managed to escape to obtain support from neighbours who called the police. Before the police arrived the father left the family home whilst still under the influence of alcohol and got into his car. Whilst driving he was involved in a head-on collision with a bus and this led to his death.[184]To my mind, understandably, the social worker comments that this incident may have had a lasting effect on the mother.[185]The family composition is that the maternal great grandparents live in Bratislava close to the maternal grandmother. I understand that the great grandmother is not very well. The maternal grandmother has two brothers one of whom (the older) defected to Australia in the late 1960s. The other brother lives with his parents (the maternal great grandparents).[186]The maternal grandmother has two other children. A daughter who is three years older than the mother and a son who is a year younger than the mother. They both live at home with the maternal grandmother who sees them as being very supportive.[187]Both the social worker and the guardian were impressed by the supportiveness of the family group and were of the view that they had a genuine desire to provide a home for A with the maternal grandmother which all members of the maternal family in Slovakia would support.[188]The family would like the mother to return to Slovakia to receive family support but are aware that this might not happen. In particular her brother has expressed the view that it is unlikely that she will return. As I have mentioned he came to this country in 2003 with a view to persuading her to return; but she did not.[189]The mother took a very different path to her siblings and other members of her family when she converted to Islam.[190]Following her conversion and return to Slovakia the maternal grandmother was of the view that her daughter’s whole approach to socialising and relating to her family changed dramatically because she withdrew to her room to pray and did not spend as much time as she had previously on family activities. It was also the case that she was spending a lot of time associating with the Algerian Muslim community in Slovakia. The maternal grandmother said that her daughter had returned to Slovakia with the intention of remaining there because her visa for the United Kingdom had expired. Primarily she wanted to get into university to study medicine but was unable to do so. Subsequently she decided to try and find employment but the maternal grandmother reported that she found it very hard to find work because she wore a veil which marked her out as a Muslim.[191]It is difficult to assess the attitude of the mother towards her family and the fact that they are not Muslims. As I have mentioned earlier she has expressed different views at different times.[192]To my mind, understandably, the maternal family have been worried and concerned about the mother, her conversion to Islam and the allegations of terrorist activity in connection with the father. Further to my mind, understandably, the family expressed the view to the social worker that they felt that the mother was forced into an arranged Muslim marriage. Further the visit from the police that I have referred to earlier concerning the use by another woman who had been arrested on charges relating to terrorism of the mother’s passport must have been very worrying for the mother’s family.[193]The family have found a number of news items by searching the internet that link the father with terrorism and they have found this concerning. Additionally when the mother was in Slovakia members of her family became aware from newspaper cuttings of an Algerian Muslim group operating in Slovakia which the press reported was being monitored by the authorities on suspicion of terrorist involvement.[194]There is also an indication in the papers that the girlfriend of the mother’s brother was not sympathetic to the mother because of (and I quote from the social worker’s statement) “her Muslim connections”. It is not clear whether this was a reference to her faith or to the allegations of terrorism or to both.[195]Both the mother’s siblings expressed concerns to the social worker that the mother may be in greater danger than she cares to believe. Additionally they confirmed to the social worker that they were both willing and able to offer support to their mother in her care of A if A came to live with her.[196]The possible hostility of the maternal family to him and to Muslims more generally, is a cause of concern to the father. As is the fact that if A is placed with his maternal grandmother he will not be brought up in a Muslim household or one in which his Algerian/Muslim background will be appropriately recognised and promoted.[197]In my view these concerns are justified and are matters which are relevant and important.[198]To my mind the existence of such hostility flows naturally from what has happened in this case. However this does not mean that it cannot be overcome with goodwill and by reference to the family’s love of, and concern for, A.[199]It is of course an indisputable fact that if A moves to Slovakia to live with his maternal grandmother he will not be brought up in a Muslim household or one which has an Algerian/Muslim background. Rather he will be brought up in a household which represents the background, religion and culture of his mother before her conversion to Islam.[200]Both the guardian and the social workers who have assessed the maternal grandmother and her family have naturally had regard to these points. Their assessment of the maternal grandmother and her family is that they are all very impressed with the commitment of the maternal grandmother to giving A a home. Also, as I have mentioned, the maternal grandmother has accepted that A should be brought up as a Muslim boy and neither she (nor any member of her family) have asserted that A’s Slovakian/Christian heritage should be given priority because, for example, of the changing and uncertain stance of the mother. Additionally, and although the mother has referred to feeling persecuted in Slovakia on the grounds of her religious beliefs, she has not, so far as I am aware, directed that allegation at any member of her family.[201]I accept the view of those who have assessed and met the maternal grandmother and her family that they have a genuine commitment to looking after A, to bringing him up as a Muslim boy and to bringing him up in a manner which promotes the Algerian/Islamic side of his heritage and culture. To my mind this is greatly to their credit. Further, the father recognises to his credit, having met the maternal grandmother, that she will do her best.[202]A point was made that further investigation of the assistance available in Bratislava to the maternal family to bring A up in this way should be carried out before a decision is made. I return to this under the heading “conclusions”. I add that it is clear that the mother has at least one old school friend who converted to Islam and married a Muslim and who lives in Bratislava. They were responsible for the introduction of the parents and clearly form a point of contact and information for both the maternal family and the father. The mother also had wider contacts with the Algerian/Islamic community in Slovakia.[203]In my view the willingness of the maternal grandmother to visit the father in Belmarsh is a demonstration of her commitment to promoting contact between A and his father and his father’s family and close friends. I am satisfied that this is something the maternal grandmother will do whilst the father is in prison and following his release if this is then practicable having regard to the father’s whereabouts.[204]I am also satisfied that the maternal grandmother will promote contact between the mother and A. I have already indicated that if the mother moves to Slovakia such contact may cause difficulty and added tensions between the maternal grandmother and the mother. This is because at least initially the contact would be supervised and would not be on the basis that the mother was taking a major role in the day to day care of A. The maternal grandmother recognises this.[205]Naturally the nature and extent of the mother’s contact would have to be regularly reviewed having regard to her mental health.[206]If the mother remains in England for some time I am satisfied that the maternal grandmother has a commitment to promoting contact between A and his mother in this country. Necessarily (as with the father) that contact would be less than it would be if the mother was in Slovakia.[207]Another material and important concern of the father if A moves to live with his maternal grandmother in Slovakia is that he would be brought up in a household which does not speak either of the father’s languages (Arabic and French). Again this is an indisputable fact. The mother speaks Slovakian and English. A is described by the social worker as an English speaking child who has understanding of some Slovakian. This was not disputed. For example, he reacts appropriately to comments or instructions in Slovakian. If A moves to Slovakia his maternal grandmother has indicated that she would seek to promote his English and enquiries have been made at a local primary school that there are English speaking members of the staff. As I understand it there would be no classes in English but until A’s Slovakian improves those members of staff would be able to converse with him in English.[208]This language problem in part stems from the fact that A’s parents did not have a common language.[209]In this context I note that the father did not express any willingness to seek to improve his English, which is perhaps a little surprising given his clear desire to remain in this country. If the father does not take steps to learn a language in which he and A can converse in my view the assessment of the maternal grandmother founds the conclusion (which I reach) that she will make efforts to ensure that A learns a language in which he can converse with his father.[210]The fact that the maternal grandmother speaks Slovakian (and has little or no English) is also relevant because it impacts her ability to communicate with, and to care for, A. This is particularly the case in the early months after a move to Slovakia. After that time given his age and his present, albeit limited, understanding of Slovakian A will learn that language very quickly.[211]As to this both the guardian and the social workers have observed that the maternal grandmother has been able to communicate well with A during contact and, for example, during contact she has been able to deal well with A when his mother becomes distracted and does not pay him proper attention. The approach of the maternal grandmother has been observed as being very child centred and one in which she is able to anticipate the needs of A and to react to them. In short, all who have observed contact between the maternal grandmother and A have been impressed by her abilities and approach and have concluded that she is someone who will be able to provide A with excellent day to day care. I accept this.[212]If A moves to Slovakia those who have assessed the maternal grandmother have also satisfied themselves that whilst for example, the maternal grandmother is at work she will be able to arrange primarily through family and school that A is appropriately cared for. I accept this.[213]Given the clear concerns of the guardian relating to A’s anxious attachment and the harm I have found to exist to his development I raised with the guardian, and the parties, the problems or difficulties that might be said to arise from the lack of a common language between the maternal grandmother and A. Also in this context I raised the point that a placement of A in a family with other children and thus as part of an effective sibling group might address the harm to his development caused by his mother’s care as a result of her mental illness.[214]The guardian’s view was that the language problem would be quickly overcome and in any event that it had not presented any real difficulty at contact. The guardian was confident that the parenting skills of the maternal grandmother would enable her to overcome difficulties of communication based on their lack of a common main language during the period of improvement in A’s Slovakian. Further the guardian pointed out that A’s difficulties and frustrations do not flow from a difficulty of communication based on language but from a lack of attention.[215]The guardian was also of the view that the placement of A in effectively a sibling group with one brother very close in age to him and two older brothers would not assist to address the problems flowing from the harm that has been caused to his development. Indeed she was clearly of the view that it would be likely to be detrimental. She was of this opinion because she considered that what A desperately needs is close and consistent care from his primary carer and the stability which flows from it and that this would not be available if he was part of a sibling group which would also be a change for him.[216]The guardian’s reasoning behind these views was not effectively challenged. I accept it. I add that it seems to me that her reasoning and conclusion were also supported by the Official Solicitor and the local authority by their support of a placement with the maternal grandmother.[217]In particular, I accept the point that the developmental harm that has been caused to A by his mother’s behaviour would be best addressed by him being placed as a single child with a primary carer who can, as such, give him her (or his) full attention.[218]To my mind if the harm that A has so far suffered to his development is to be properly addressed and overcome so that he is given the best available chance to develop into a well adjusted and emotionally secure older child and adult he now needs the stability of such care to repair and put in place foundations for his development.[219]On the assessments that have been made the maternal grandmother can provide such care.[220]Additionally I accept the view of the guardian, and find, that having regard to the harm A has suffered that he also now needs as stable a placement as is practicable and that the uncertainties I have referred to earlier that form part of the background to Ms EH’s household render her household a less stable and secure home for A than that of the maternal grandmother. Slovakian law.[221]There have been difficulties in obtaining information as to this. The position as ascertained is that: a) A is a Slovakian national by operation of Slovakian law, because his mother is Slovakian. b) The Slovakian courts would have jurisdiction over A’s care (custody) and contact if he is habitually resident in Slovakia. c) A decision of this court as to care (custody) and contact can be recognised in Slovakia and therefore the maternal grandmother (and as I understand it the father or the mother) could seek the recognition of such an order in Slovakia. But this could be a slow process because, for example, all relevant adults would have to be served with the relevant applications and, as I understand it, could object. But the maternal grandmother could seek provisional measures in Slovakia which would give her equivalent rights and protection to those that would flow from a recognition of the English order. d) A recognised foreign decision would have the same effect as a Slovakian decision on care (custody) and contact and would provide the same protection. The result of this is that if a residence order in favour of the maternal grandmother was so recognised A could, effectively live with his grandmother in Slovakia who would be considered his legal representative with parental rights and responsibilities. e) An alternative route would be to seek an order from the Slovakian courts who can if the interests of a child so requires place the child in the care of a person other than his parents. In doing so the court determines the scope of such person’s rights and responsibilities in respect of the child. Such a person is then protected by the law to the same extent as a holder of parental rights and responsibilities against any other person. However, in view of the fact that under Slovakian law both parents have by operation of law joint custody of their child the placement of a child with a third person in lieu of the mother or the father does not prejudice either of their rights unless they are specifically regulated by the court. As I understand it that regulation would flow from recognition of a foreign order or from an order made by the Slovakian court. f) It is a criminal offence to take a child away from a person in whose care the child has been placed by a court decision. If a child is unlawfully removed from the territory of Slovakia free legal assistance is provided in respect of countries which are parties to the Hague Convention to secure the return of the child. g) Following a move of A to Slovakia in the care of his maternal grandmother upon the motion of either parent or upon the court’s own motion the Slovakian court could decide on access and contact rights (and as I understand it A’s care and control). The decision could prohibit or limit contact rights or provide for a change of residence. h) A decision relating to a child in Slovakia is one for the discretion of the court and the only rule applicable is the child’s best interests. It follows that there is a considerable overlap of approach between the courts in this country and Slovakia. Conclusions.[222]I have not found this to be an easy case and I have considerable sympathy for all those involved and in particular for A’s parents having regard to the predicaments they find themselves in concerning the care of their son. However, I am clear that the balance between, or weighing of, the competing factors and rights comes down reasonably clearly in favour of the making of a residence order in favour of the maternal grandmother and permission being given to her to take A to live in Slovakia.[223]As to contact in my view the order should provide for a) reasonable supervised contact at the discretion (both as to time and place) of the maternal grandmother to the mother, and b) so long as the father remains imprisoned in this country for supervised contact between him and A on two occasions each year (and such additional occasions as the maternal grandmother may agree) and following his release from prison in this country for reasonable supervised, or other, contact at the discretion (both as to time and place) of the maternal grandmother.[224]Subject possibly to the Luxembourg Convention this court would retain jurisdiction on the application of either parent or the maternal grandmother to vary or discharge those orders. Further as appears above a similar application could be made in Slovakia in respect of the English order (when recognised or provisionally recognised) or for a free-standing Slovakian order. I do not rule out that in the future arguments may arise as to which court is the appropriate court to make decisions relating to the upbringing of A following his move to Slovakia but it is apparent that even if they do such orders could be made in another country on the application of either parent or the maternal grandmother. It follows that the order that I propose to make is not ‘writ in stone’. However, for reasons contained in this judgment, in my view it is the order that now best promotes his welfare.

Delay / postponement

[225]The father argues that it is premature for me to make such an order. I do not agree. As I have pointed out on the information he has provided to this court he has done very little, if anything, to speed up the decision making process concerning his imprisonment and extradition and as his counsel (in my view, correctly) accepted this is uncertain and such uncertainty could continue for some time. For example, the father’s imprisonment could continue for some time and the possibility remains that he might be extradited.[226]It follows that the father has put no time upon the period of delay he suggests and thus when(a) he suggests he would, or might, be in a position to offer himself alone or with others as a carer for his son, or(b) he suggests a fair determination (and in particular one which results in an order he does not support) could be made. In my judgment although it is possible that the uncertainties relating to his imprisonment and extradition might be brought to an end or reduced quickly, on the existing information it is unlikely that this will be so or that this will happen in a timescale that has proper regard to A’s needs.[227]The no delay principle is relevant to those needs. A is now nearly three and has been in foster care for nearly a year. He now clearly has an attachment to his foster carer and in my judgment the longer he stays there the more difficult it will be for him to cope with a move.[228]I accept that two moves would be disruptive but in my judgment the uncertainties that exist in respect of the father’s position and their likely duration mean that to best promote A’s welfare he should move as soon as is practicable on the basis that his carer is to be his medium to long term carer.[229]This is a point that was urged by the guardian and was accepted and recognised by both the local authority and the Official Solicitor. I agree with it. To my mind the fact that in the uncertain circumstances of this case further applications might be made in changed circumstances, possibly in the reasonably near future (and more likely) later, does not detract from this point, or found an argument that a decision should be delayed or only a holding order should be made now.

Miscellaneous

[230]In the above context and generally, in my view the uncertainties that form a part of the background to Ms EH’s household (which I have referred to under the heading “Ms EH”) and their potential impact on the stability of A’s placement are of a different character to those that flow from the ability of either the mother, the father or the maternal grandmother to apply for a change. This is not least because such an application would be dealt with by a court.[231]Further and although I have sympathy for the father’s arguments that his chance to offer himself as A’s long term carer are important and should be preserved, in my view it should not be forgotten that if he was in a position to do so now it is not clear that a placement with him (or in his care) would be supported by the mother. Further the detail of the package of care he was offering would have to be carefully considered. In saying that I acknowledge that the fact that he is A’s father is an important and weighty factor, but accepting that my point is that it is not a foregone conclusion that the mother (and her guardian ad litem) or the court would conclude that A should be placed with, or in the care of, his father.

Approach

[232]I shall consider the primary contentions of both sides namely a placement with the maternal grandmother or a placement with Ms EH. Then I shall consider the father’s alternatives.

Contact

[233]In my view the competing arguments and problems as to contact are fairly evenly balanced and therefore they do not clearly support either contention.[234]Naturally I accept that it would be easier to arrange contact between the father and A in Belmarsh if A remained in this country and that subject to A’s reaction to visiting the prison it is likely that he would have more frequent contact if A remained in this country. However the position is that whilst the father remains in Belmarsh his contact is necessarily limited and would take place in very difficult circumstances. Those difficulties would be likely to increase as A gets older. Further, if as seemed to become accepted, a placement with Ms EH was to be on a medium to long term basis the purpose of that contact would not be to seek to provide a basis for a move to the father’s care on his release and thus would probably not be at a frequency that the father emotionally would like. This reduces the force of part of his argument which envisaged regular contact between him and A in prison. Also such regular contact could well place considerable burdens on Ms EH and therefore cause problems in respect of the stability of the placement of A with her if, as has occurred, A demonstrates distress on visiting the prison and going through the security arrangements.[235]The local authority have agreed to provide a fund of £5,000 to be held for the purposes of enabling the maternal grandmother to bring A to this country for contact with the father and (if she thinks it is appropriate) the uncle and friends and associates of the father (which would include Ms EH). That funding for travel is therefore available. Whether it would be supplemented by the father seems to be something that would be open to him given his assertion that he would fund travel costs to enable the maternal grandmother to come to this country if A was placed with Ms EH.[236]The maternal grandmother has made a commitment to bring A to this country for contact with the father on at least two occasions a year. To his credit the father has not questioned this commitment of the maternal grandmother. The guardian and the social workers who have talked to, and assessed, the maternal grandmother are confident that she will perform that commitment. I accept their opinions. I have not qualified the contact order I propose as to a minimum of two contacts per year. Thus if, for example, A displays distress on visiting the prison I have not given the maternal grandmother a discretion to end such contact on that basis. If he does display such distress this might found a variation of my order by agreement or the court. I considered leaving the number of contacts entirely to the discretion of the maternal grandmother but have concluded that the minimum of two visits a year should be included in the order to provide that framework and starting point.[237]As I have already indicated there are a number of difficulties and uncertainties relating to contact between A and his mother. Not least among them is the problem whether the mother will go to Slovakia. If she did, contact between her and A could be arranged there. I accept that the supervision and frequency of that contact will probably not accord with the mother’s wishes and may cause difficulties or added difficulties in the relationship between the maternal grandmother and the mother.[238]However if the mother remains here there would be “mirror difficulties” relating to her contact if A was placed with Ms EH. These difficulties are in my view likely to be exacerbated by the mother’s consistent assertion that she does not wish A to be placed with Ms EH. This is because, if he was so placed not only would the mother be likely to object to the frequency and supervision of the contact but also to the placement. This would be likely to have a “knock on” effect on the stability of the placement with Ms EH, which would be no fault of hers, but would present her with problems.[239]If the mother does not go to Slovakia I am satisfied from the assessments made of the maternal grandmother that she would have a commitment to promoting contact between A and his mother and would do so by utilising the funds provided by the local authority (and any additional funds provided by the father). No doubt on visits she could arrange for contact between A and both his parents (and others).[240]I deal with the language problems relating to future contact with his father if A goes to Slovakia below. This leads me to what in my view are the most important competing factors in this case (which could be put under a number of the headings in the welfare checklist).

The most important competing factors

[241]In short, in my judgment they are:(1) The points advanced by the father as to A being brought up as a Muslim boy, in a Muslim household and community and speaking a common language with his father (Arabic) and English. In addition on such a placement A would remain subject to the jurisdiction of this court (unless, for example, Ms EH had been given permission to remove him to another country where she wished to live with her husband) and would promote the father’s wish to take an active part in his son’s life if and when he is released from prison and allowed to stay in this country, and(2) the significant harm that A has suffered to his development and the best way of dealing with that.[242]As to point (2) having regard to the points I have made earlier under the headings “Ms EH” and “the maternal grandmother” relating to the placement of A as the only child in a household and the uncertainties that exist as part to the background to Ms EH’s household I am firmly of the view, in agreement with the guardian, that a comparison between the circumstances of, and relating to, the households of the maternal grandmother and Ms EH leads to the conclusion that a placement with the maternal grandmother is the result that would best promote A’s welfare having regard to this harm.[243]I accept that this conclusion recognises the abilities of the maternal grandmother. But I would like to repeat that it is not dependent on any criticism of Ms EH, her abilities as a parent. Indeed I have proceeded on the basis that she has parented her own children well in difficult circumstances and has considerable skills and abilities as a parent. Rather this conclusion is a reflection of the differences in the circumstances of the two households and the problems I have referred to in respect of Ms EH’s household which, as I have said, having nothing to do with her personal day to day abilities as a mother or carer.[244]I turn to the matters referred to in point (1).[245]To some extent these are tempered by the fact that a placement of A in Slovakia with his maternal grandmother would be a family placement which would reflect and promote the Slovakian/Christian part of his background. However I accept, as has the maternal grandmother, that given the mother’s conversion to Islam, her marriage and her choice of lifestyle at the time he was born A was born into a Muslim household and lived in an Islamic community. This reflected the choice and wishes of his parents at that time and notwithstanding the conflicting assertions of the mother since, the maternal family have accepted that A should be brought up as a boy born to a Muslim family and as a Muslim. It follows in my view that if the argument was between whether A should be brought up in a Muslim household and community or in his maternal grandmother’s household and community the answer now would clearly be that he should be brought up in a Muslim household and community that also sought to promote his Slovakian heritage.[246]As I have said in view the father exaggerated and over emphasised the importance to him of A being brought up in the Muslim faith and in a Muslim household. But I nonetheless accept that these are issues that are important to the father having regard to his religion and background. Further I accept that they are important issues. The same goes for the father’s points based on the difficulties that would be caused to him of language, distance, accessibility to A if he is living in Slovakia. Within “accessibility” I include the father’s points on his likely ability to travel to Slovakia and to access the Slovakian courts. I accept that he might well not be able to do the first, or do the second effectively.[247]It would be possible to seek to assess the degrees to which the maternal grandmother and her family would be able to address or ameliorate these problems. But that would be a difficult and inexact exercise.[248]I accept that although the maternal grandmother and her family will do their best to bring A up as a Muslim and to promote his Algerian/Islamic background it is clear that they will not do so in an Islamic home or community and to my mind there is a substantial risk that A would choose not to practice as a Muslim, or for some other reason (including peer pressure) would not do so. To my mind the risk that he will not be brought up in Slovakia with knowledge of and respect for his Algerian/Islamic heritage is however small.[249]Equally I accept that there is force in the father’s points, and thus that there is a substantial risk, that if A is placed in Slovakia the position following the father’s release, and him being in a position to seek to establish a real and continuing father/son relationship with A, will be that the father is prevented from doing so. It follows that I accept that as asserted on behalf of the father a fair (but not complete) analogy can be drawn between that placement and an open adoption.[250]It is clear that a placement with Ms EH would mean that these problems and their effects on A’s upbringing would be avoided and his Slovakian heritage could be promoted, albeit that problems would exist as to A developing a relationship with his mother.[251]In those circumstances, and on those assessments of risk, I have asked myself the question whether the balance and comparison of the effect, and potential effect, of points(1) and(2) favour a placement with Ms EH.[252]As appears above I have reached the clear view that it does not. In doing so I accept that there is force in the matters encompassed by point (1), that they relate to important aspects of A’s upbringing and development and that they will cause some harm to, or have the potential to cause some harm to, his development. But in my view the significant harm that has very sadly been caused to A’s development by reason of his mother’s behaviour linked to her mental illness is such that the need to address it in the best way now available is fundamental to promoting the prospects that A will mature into a well balanced and emotionally secure adult and thus to the promotion of his welfare taken as a whole.[253]It follows that in my view(a) insofar as a placement with the maternal grandmother adversely affects the Convention rights of the father or the mother the interests of the parents are overridden by those of the child, and(b) a placement with the maternal grandmother is the result that best promotes the welfare of A, which is my paramount concern. Permission to the maternal grandmother to remove A from this country to live with her in Slovakia[254]In my view correctly no separate argument was addressed to this point. It follows from the decision to make a residence order in her favour.

Further assessment / information

[255]I have made assumptions favourable to the father and Ms EH in respect of the further assessment of Ms EH that would be carried out before she could be put to the permanency panel.[256]In closing submissions, counsel for the father argued that by analogy to the approach in applications to permanently remove a child from the jurisdiction the plans of the maternal grandmother had not been sufficiently thought out, defined and investigated as to the manner in which A would be brought up as a Muslim and a knowledge of Arabic or French. As with other submissions made on behalf of the father this was made in general terms. For example it was not asserted what in particular should be ascertained relating to the availability of an Imam, or teacher, or concerning other aspects of A’s religious upbringing. As to that I repeat that the father has some knowledge of, or access to knowledge of, the position in Bratislava from the couple who introduced him to his wife. However I accept that the maternal grandmother and the local authority could have made further investigations in respect of such matters. But I do not agree that this means that by analogy to the permission cases, or by reference to section 38(6) Children Act, should delay making a decision to seek further information.[257]My main reasons for this are that(a) that information is unlikely to assist having regard to the bases upon which I have approached the essential balancing or judgmental exercise, and(b) the possibility that it might does not warrant delay for equivalent reasons to those which I have given in rejecting the father’s argument that the decision should be delayed, or only a holding decision should be made now,

Nature of the order in favour of the maternal grandmother

[258]Information was not before the court as to the comparable position in Slovakia as to care orders, supervision orders or the role of comparable bodies to local authorities, and thus as to whether such orders or bodies could assist.[259]However I agree that the order should be a residence order and orders for contact rather than either of the public orders. Firstly in my view this is because neither public order would have been appropriate if the maternal grandmother was resident in this country but such private law orders would. So for example a public law order would not have been necessary to give the local authority parental responsibility or to assist or oversee contact or the care given by the maternal grandmother. A supervision order would have been more likely but in my view on the assessment of the maternal grandmother unnecessary. Secondly I accept that in practical terms the making of a care or supervision order would not have added any realistic ability of the local authority to themselves check that things were going well in Slovakia and to implement a back up plan. The practical reality is that at reviews they would have been reporting back views of the maternal family unless a public authority in Slovakia was taking an active role in the life of the family.[260]It follows that I accept that the order I propose places trust in and considerable responsibility on the maternal grandmother and her family and does not have a monitoring or back up plan that this court or the local authority can implement. However, as I have said in my view in this country such monitoring or back up under a public law order would not have been necessary or appropriate and therefore it seems to me that it would be an unwarranted imposition on the basis that the maternal grandmother lives in Slovakia unless it could be shown to add a real benefit. None was suggested. A possibility might be that such an order would enable the local authority to report back the views of a public body in Slovakia but it seems to me that the assessment of the maternal grandmother warrants the placing of responsibility on her to keep the father aware of relevant developments.

A right or ability of the father to refuse consent to A being placed abroad

[261]In my judgment correctly it was not argued that he had a right to prevent a removal of A from this jurisdiction on the basis that his consent to that removal could only be dispensed with if it was being unreasonably refused on an objective standard, by analogy to paragraph 19 of Schedule 2 of the Children Act, the present approach on adoption or otherwise. In my view this was correct because any such argument would only be by analogy, and I have not selected a residence order to avoid the provisions of paragraph 19. Further in my view the overriding statutory test to be applied in selecting the order to be made is that set by section 1 Children Act.

The father’s alternatives

[262]The first is that his brother should be assessed and should care for A. As appears earlier it seems that after it had been recited in the order of 11 May 2004 that only the maternal grandmother and Ms EH were being put forward as alternative carers the uncle asked to be assessed and the local authority decided not to assess him.[263]I do not rule out the uncle on the basis either(a) that he did not make it clear that he still wanted to be assessed until after 11 May 2004, or(b) that he and the father did not bring back to court the issue that the uncle should be assessed following the refusal of the local authority to pursue an assessment of him until the first day of the hearing. Rather I have posed myself the question whether there is any reasonable prospect that an assessment of the uncle would lead to information being put before the court that would found a different conclusion to the one I have reached in my consideration of the primary contentions of the parties. I have concluded that there is not.[264]I shall assume that if A was placed with, or under the care of, the uncle he would not be placed with other children. Also of course that placement would be with a member of the paternal family. However on the information the uncle has provided it is clear that his immigration position is uncertain and this would create uncertainties as to the length and stability of a placement of A with him. Further nothing the uncle or the father has said has caused me to think that there is any real prospect that the uncle is or will be able to, or is or will be in a position to, provide care that would now best address the harm that A has sadly suffered to his development and thus that an assessment of him would alter my conclusion on the most important competing factors (or my overall conclusion).[265]The father does not identify a further alternative carer and thus it seems to me his last resort involves a continuation of interim care orders and A’s placement with foster carers. I have already effectively dealt with this under the heading “delay / postponement”

Orders

[266]I will hear counsel on the timing and terms of the orders to be made to give effect to my conclusions.

Miscellaneous

[267]I agree, and record that in my view, the local authority should take all steps practically open to them to ensure that a Mental Health Social Worker is appointed for the mother as soon as possible.

order

Future Harm) [2001] 1FLR 611 (in particular at paragraphs 33 and 34 of the judgment of Hale LJ) and from P,C & S v United Kingdom [2002] 2FLR 631 (in particular at paragraphs 113 to 122 of the judgment of the ECHR).