Tower Hamlets London Borough Council v MK [2012] EWHC 426 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
[2012] EWHC 426 (Fam)Case No Case No: FD10P02666Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
Tower Hamlets London Borough CouncilApplicantMK1stRespondentSK2ndRespondentKK3rdRespondentWK and AK (Minors, by their Children's Guardian, Toni Jolly)4th and 5thRespondents
Before
Mr Justice BakerMr. Brian Jubb (instructed by the local authority solicitor) for the Applicant Local AuthorityMr. Maurice Guyer (solicitor of Vickers and Co) for the 1st Respondent motherMr. Henry Cleaver (instructed by Fort & Co. Solicitors) for the 3rd Respondent KKMs. Gill Honeyman (instructed CAFCASS Legal) for the 4th and 5th Respondents by their Children's GuardianThe 2nd Respondent was neither present nor representedHearing dates: 16th, 17th, 18th, 19th, 20th and 27th January 2012
[1]Mr. Justice Baker : Introduction On 13th May 2010, British Transport Police discovered two girls, aged 8 and 6, in a disused hut by a railway line in East London in the company of two men. It transpired that all four were from Poland and that the girls were the subject of the Polish equivalent of care proceedings and had been abducted from Poland without the consent of the Polish authorities. The two men, SK and KK, were brothers. SK was married to the girls' mother and believed by the Polish authorities to be the father of the girls (along with their seven older siblings). Both SK and KK insisted, however, that the father of the girls was, in fact, KK.[2]The discovery of the girls by the Police set in train a long investigation by the local social services department of the London Borough of Tower Hamlets ("the local authority"). Through the invaluable assistance of the office of Lord Justice Thorpe, the Head of International Family Justice, and in particular his legal secretary Victoria Miller, contact was made with the Polish authorities. In the event, however, no application was made by those authorities for the return of the children to Poland, and their family, specifically KK and the girls' mother (when she was in due course located and contacted) indicated that they wished that the girls remain in England. The local authority therefore started care proceedings which were transferred to the High Court and eventually came before me in January 2012 for a final hearing. This reserved judgment is delivered following that hearing. Background History[3]The information concerning the girls' background in Poland is not as detailed as is normally the case in care proceedings, but in my judgment it is sufficient to enable me to get a clear picture for the purposes of making a decision as to their future.[4]The mother was born in 1963 and is therefore now aged 48. She lives Tarnow in south east Poland. She is married to SK but it is her case that their relationship broke down a number of years ago and that they no longer live together as man and wife, although they remain on cordial terms and SK regularly stays at her flat. The mother has had nine children, of whom W (born 17th January 2002 and therefore now aged ten) and A (born 13th May 2004 and therefore now aged 7 ¾) are the youngest. SK is registered as the father of all nine children but it is the mother's case that he is the father of only the older six and that the father of the three youngest (W, A and their older sister M, born in 2000 and now aged 11) is his brother KK with whom she has been involved in a relationship with for a number of years. The mother and KK state that all the family know that KK is the father of the three younger children, although not, it seems, the Polish authorities. On the mother's behalf it is submitted that Poland being a devout Catholic country she and the children would be stigmatised if the situation concerning their paternity (as she claims it to be) were widely known.[5]The paternity of the two girls has been an issue in these proceedings and the subject of DNA evidence which I shall consider below.[6]Both SK and KK work outside Poland. The precise movements of SK, who has not given evidence in these proceedings, are unclear but it seems that he spends some time in Poland but also times in other countries in Europe including Italy. In about 2004, KK moved to England to work in the building trade. Other members of his family live here, including an older brother, X, who lives in East London. K's evidence is that he returns to Poland for a few weeks every year.[7]For a number of years, the mother has suffered from alcoholism. The extent of her addiction, and the length of time she has been suffering from it, are issues in these proceedings which I shall also consider below. The local authority has information that concerns were first raised by the Polish authorities over twenty years ago. Suffice it to say that the problem became so serious that it lead the authorities to question the quality of care provided by the mother to the three younger children, M, W and A. Those concerns were compounded by the living conditions in which the family lived – a two-roomed flat, accommodating not only the mother and the three younger children but also the mother's two older daughters and four of her grand children. In addition both SK and KK stayed in the property on occasions. The mother slept in the kitchen.[8]The mother asserts that the Polish authorities took M in to emergency care and started court proceedings. The date on which these proceedings were started is not clear from the papers. The mother stated in evidence that this took place in 2009, but there are grounds for believing that it was at an earlier point, possibly in 2007. In those proceedings, SK was named as M's father. In her evidence, the mother said that she was not invited to attend the court hearings concerning M, at the conclusion of which an order was made that lead to M being placed in a children's home several hours away from Tarnow. The mother said that, when she visited the children's home, she was extremely concerned about the poor quality of the care that M received there and in particular about issues of safety. Meanwhile, the Polish authorities took further proceedings in respect of W and A. On 28th August 2009, an order was made by the Third Family and Minor's Division County Court in Tarnow (a translation of which is included in the court bundle) directing that W and A be placed with their older sister at the children's home. The mother stated in evidence that this order was again made at a hearing to which she was not invited and that, upon receiving notification of the decision, she sent a letter to the court stating that she wished to appeal. According to the mother, neither W nor A was in fact removed from her care at that stage. On 11th February 2010, the First Civil Division of the County Court in Tarnow dismissed the mother's appeal. The evidence given by the mother and KK is that, following that decision, they arranged for KK and SK to remove W and A from Poland and bring them to England to avoid the children being placed in the children's home. There is some confusion and conflicting evidence as to the exact date on which they left Poland, and also as to where they stayed during the next few weeks. I shall consider the events of those weeks in more detail below.[9]As stated above, on 13th May 2010 KK, SK and the two girls were discovered in London. The circumstances are described in a CRIS report produced by the Metropolitan Police "A member of the public contacted the Police as they had seen people around the Tower Hamlets area walking along the railway track. Police have attended the scene and found the suspects and subjects living in a shed at the side of the track. Suspects were arrested and subjects taken into Police protection. The arresting officers describe the living conditions being a brick built shed situated approximately ten feet away from live mainline tracks and in close vicinity of a twenty foot drop down to a canal. KK was outside the shed lighting a small fire and was shortly joined by SK and the two subjects from within the shed. Police describe the shed as being split into two rooms. The first room contained cooking utensils, food, water and various tools. The second room contained an old mattress, duvet, rubber mats, sleeping bags and clothing. The two windows within the shed had been covered in plastic sheeting as had the door."[10]The children were removed from the location (it seems by train) and KK and SK were arrested. Subsequently they were interviewed by the Police. I shall consider their respective accounts of events during those interviews later in the judgment. Ultimately, however, no charges were brought against either man in respect of this incident.[11]With the consent of SK, the children were accommodated by the local authority and placed with foster carers. Regrettably, it has been necessary to move the children on no fewer than three occasions so that they are now with their fourth set of foster carers. Initially, both SK and KK had supervised contact with the girls, but after a few weeks SK left the country and has not returned. KK has continued to have contact on a regular basis. At one point, contact was altered to take place without supervision although subsequently it has reverted to a supervised basis. The mother visited England in July 2010 and had contact with the girls on one occasion, but thereafter had no direct contact with the girls for over a year, although she has spoken to them occasionally over the telephone. The contact records demonstrate that KK and the girls have a relaxed and friendly relationship. The local authority made strenuous efforts to establish contact with the authorities in Poland. Persistent efforts were made to obtain information about the children and the intentions of the Tarnow social services, although little progress was made. The local authority also sought to raise the matter with the Polish embassy in London, whose staff initially indicated that they would make enquiries in Poland and then wrote asking when the children would be returned to Tarnow. The local authority had in fact already been seeking to make arrangements for the children to be repatriated but those arrangements came to nothing because the Tarnow social services indicated that they would not be willing to come to England to collect the children. In the light of the absence of any progress, the local authority raised the matter with Thorpe LJ's office but, despite the assistance of his staff, it was impossible to make arrangements to facilitate the return of the children to Poland. By the end of September 2010, the local authority was concerned that the children's position remained unclear and that there was no legal framework within which to secure their welfare. It was therefore decided to start proceedings under the inherent jurisdiction.[12]On 28th October 2010, the local authority's application under the inherent jurisdiction came before Holman J who made an order inter alia(1) that the local authority should prepare a report under Section 37 (1) of The Children Act 1989;(2) that the two children should be placed in the interim care of the local authority;(3) that the local authority's solicitor should arrange for the order to be translated into Polish and sent to the mother;(4) that the mother and father should file statements by 22nd November setting out all relevant matters relating to their views of the legal status of the children under Polish law and the future welfare of the children;(5) that the Tarnow social services department were respectfully requested to supply the same information to the local authority and(6) listing the matter for a further hearing on 26th November. The local authority complied with the directions but, in view of the persisting lack of information from the Polish authorities, decided to institute care proceedings. When the matter came before Mostyn J on 26th November 2010, directions were therefore given in anticipation of that application which was duly issued on 15th December 2010. Further directions were given at another hearing on 9th February 2011 and the matter listed again of 25th March, but in view of the continuing lack of progress that listing was adjourned to 19th April when the matter became before me for the first time.[13]At that hearing, as at all hearings hitherto, KK was represented but neither SK nor the mother were present nor represented. By that point the children had been in care for 11 months with no discernable progress and I expressed considerable concern about the drift in the case. I therefore made a series of directions including(1) allocating the case to myself;(2) listing the case for a series of issues resolution hearings/directions hearing and final hearing in January 2012;(3) requesting information from the Home Office concerning the immigration status of the children;(4) giving permission to KK's solicitors to arrange a psychiatric assessment of their client and giving directions for that assessment;(5) giving permission for a psychological assessment of the children and giving directions for that assessment;(6) directing the local authority to carry out a parenting assessment of KK and(7) directing the local authority to request disclosure of all relevant information from the Metropolitan Police.[14]I also directed the solicitor for the local authority to arrange for the order to be translated into Polish and a copy sent by recorded delivery to the last known address of the mother in Poland. It is the mother's case that no copy of this order, either in English or translated into Polish, was ever served on her, and the local authority is unable to prove that this direction was complied with.[15]On 10th May, samples were taken from KK and W and sent for analysis by Cellmark who in due course submitted a report stating that KK was not the father of W.[16]On 13th May, the UK Border Agency informed the parties and the court that, as Poland is a member of the European Union, W and A are no longer subject to immigration control and would not require leave to remain in this country.[17]Pursuant to my direction granting leave for a psychiatric assessment of the father, a report was obtained from Dr. Cosmo Hallström dated 15th August 2011 who reported inter alia that KK had no mental illness, that his current mental state was normal and there was no specific evidence of a personality disorder. Dr Hallström described KK as "a gentle giant". He stated that KK did not appear aware about the level of neglect the children had suffered in Poland, which he described as being a matter of concern. He concluded, however, that there was no psychiatric reason why KK would be unable to provide appropriate parenting.[18]Pursuant to my further direction authorising a psychological assessment of the children, a report was filed by Dr. Joshua Carritt-Baker on 28th August 2010 stating inter alia that, despite the children's chaotic recent history, they were possibly "normal or non-clinical children". He did not think it clear that the children required any specialised assessment at that stage. In was his firm advice that the children should be placed together. Dr. Carritt-Baker added :
"As far as KK is concerned, the children both regard him as their father, they are bonded to and close with him, there is evidence of considerable reciprocal affection and interaction, he is deeply and intimately involved and interested in their lives and treats them both equally as his children and finds it difficult to accept that one may not be."
He concluded:
"It is entirely uncertain to me what a return to Poland would mean at the current time. My impression and the understanding I have derived is that their needs would be best served and they will have by far the greatest life chances if they are able to reside in the UK at least partly in the care of their family and in particular and at least partly in the care of KK."
[19]Dr. Hallström and Dr. Carritt-Baker were then asked to consider another issue which had emerged during the course of the proceedings. On 7th September 2010, a tarot card reader reported to the Police that she had received text messages purporting to come from a woman unknown to her claiming that she was being held captive by some Polish men and that her thirteen-year-old daughter was being forced into sexual activity with animals which was being filmed. The men were said to be members of the Polish mafia who were moving the woman and her daughter between different addresses from time to time. A Police investigation discovered that the texts were being sent by KK. But after a further investigation no other evidence emerged to suggest that this incident was linked to any sexual or other offences. KK stated in interview that he had completely fabricated the texts and explained his behaviour as attributable to the fact that he was not sleeping, that he was depressed by the fact that he and his daughters were separated, and that he had sent the texts because he was bored. Other members of KK's family were arrested with him. All expressed shock at what had occurred. As a result of this incident KK received a Police caution.[20]Both Dr. Hallström and Dr. Carritt-Baker were asked to consider this issue. Having interviewed KK, neither of them concluded that this behaviour had been motivated by sexual deviancy. Dr. Hallström commented:
"Although his explanation is inadequate and rather clumsy, I didn't get the impression he was acting out any sexual fantasies, or that there was necessarily any link between what he wrote and what he might do to his own daughters. I though that he was a rather emotionally clumsy and unsophisticated man who had incorporated his own concerns about his daughter with popular taboos and was dealing with a difficult situation rather badly. I don't think he was projecting his own desires in relation to sexual exploitation of his daughters or other children into these texts although, of course, one has to consider where these fantasies come from."
Dr. Carritt-Baker reported:
"KK gave a genuinely somewhat confused and seemingly unrehearsed account of why he had sent the texts; there were a mixture of reasons, not all entirely coherent. This is actually rather consistent with him experiencing it as a genuine problem rather than as some expression of sexual deviancy as such. There was just no indication that this was somehow the tip of a larger problem relating to paedophilia or child abuse. It was much more readily explainable as odd and self-contained response to intense emotional conflict and intrusive thoughts."
[21]Meanwhile, pursuant to my earlier direction, a parenting assessment had been carried out by the Eva Armsby Centre in East London which prepared a final report dated 21st November reaching the following conclusions.(1) KK's ability to meet the children's needs outside the realms of contact is limited.(2) KK had not demonstrated a capacity to change, continually denying the concerns as to the children's past experiences.(3) KK's insight into, and understanding of, the children's needs are at a very basic level.(4) KK had not demonstrated an ability to plan for or accommodate the return of the children to his care.(5) His plans to resume co-habitation with the mother in this country without acknowledging her difficulties are likely to place the children at risk of significant harm.[22]The case came back for issues resolutions/directions hearings before me on 7th October and 25th November 2011 in accordance with my earlier order. I gave various directions for the final hearing which it is unnecessary to recite save to note that I inter alia(1) directed the mother to attend the final hearing with legal representation;(2) directed the local authority to translate the order and send a copy by recorded delivery to the mother's last known address in Poland;(3) ordered KK to use his best endeavours to deliver a copy of the order to the mother; and(4) gave the local authority permission to disclose the results of the DNA testing to the Polish court.[23]It was at this point that the mother engaged in the proceedings. She came to England in December 2011, had contact with the girls, instructed a solicitor to represent her, spoke to the social services and the children's guardian, and gave a sample to enable further DNA testing to take place. That testing, carried out again by Cellmark, disclosed that KK could not be the biological father of either child. The report (dated 11th January 2012) added that it was 6.7 more times more likely that KK was a close relative of W than if they are unrelated, and 25 times more likely that he is a close relative of A than if they are unrelated.[24]Until recently, the local authority had proposed that the children should be adopted, but after the Adoption and Fostering Panel refused to consent to adoption, the local authority amended its proposals and filed care plans proposing that the children be placed with long term foster parents under full care orders. The Parties' Positions, the Issues and the Hearing[25]It is not disputed that the threshold conditions for making care orders under Section 31 of the Children Act 1989 are satisfied, although the parties do not agree as to the basis upon which they are satisfied.[26]The mother and KK wish to look after the children in this country and propose that the court should adjourn the hearing to enable further assessments to be carried out, in particular psychological and parenting assessments of the mother, to establish whether or not the mother and KK could care for the children together.[27]The local authority, supported by the children's guardian, submit that there is clear evidence upon which the court can make a final decision and conclude that neither KK nor the mother can care for W or A and that a care order should therefore be made, on the basis that the children move to a long term foster placement, with continuing, albeit reduced, contact with the mother and KK.[28]To reach my decision I have had the benefit of a substantial bundle of papers including statements from the social workers, statements from the mother and KK, the reports of Dr. Hallström and Dr. Carritt-Baker, various reports from the Eva Armsby Centre, reports from the children's guardian, local authority care plans, material from the Metropolitan Police and British Transport Police, the DNA test results from Cellmark and records of contact visits between the children, KK and mother. As noted above, however, there is limited information available from Poland as to the detail of the children's background.[29]At the hearing, I heard oral evidence from a number of witnesses in the following[30]In reaching my decision, I shall analyse the issues under the following headings(1) the paternity of the girls;(2) the mother's history of drinking and its impact upon her capacity to care for the children;(3) the journey made by the children from Poland to London in 2010 and its relevance to the decision as to their future welfare;(4) the children's wishes and feelings;(5) the children's needs;(6) KK's capacity to care for the children;(7) the application by the mother and KK for an adjournment for further assessments;(8) the local authority's care plan and arrangements for contact between the children, KK and their mother.[31]Before doing so, however, I shall consider the various principles of law to be applied in this case. The Law[32]A number of points of law and legal principles arise in this case, namely(1) the basis of the court's jurisdiction to make orders under Part IV of the Children Act 1989 in this case;(2) the conduct of care proceedings;(3) the analysis of evidence in care proceedings;(4) the principles to be applied in deciding whether to order a further assessment before determining an application for a care order; and(5) the identification of the authority in whose favour a care order should be made (the "designated local authority"). As it is likely that this judgment may be considered by the court and lawyers in Poland, as well as the parties, it is appropriate to set out those principles in this judgment. In most respects, however, there is no issue between the parties about the principles, and where that is the case I propose to recite them briefly. Jurisdiction[33]In view of the history, involving the removal of the children from the only home they had known and bringing them across Europe to a foreign country, it seems to me to be necessary to identify the legal basis for the court's jurisdiction to entertain this application. Until the court raised the matter in the course of the hearing, however, no party had addressed the issue of jurisdiction.[34]The court's powers to make public law orders concerning children, such as an order placing a child in the care of a local authority, are set out in Part IV of the Children Act 1989 and in particular section 31. Curiously, the Act is silent as to the jurisdictional basis for making an application for orders under s.31. It is, however, clear from the decision of the European Court of Justice in Re C (Case C-335/06) [2008] 1 FLR 490 that the jurisdictional basis for making public law orders is now derived from the Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("Brussels II Revised") which came into force in all member States in the EU (excluding Denmark but including both Poland and the UK) in 1st March 2005. Recital (5) of the Regulation states:
"in order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding"
. Article 1(1)(b) provides that "this Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to … the attribution, exercise, delegation, restriction or termination of parental responsibility." Article 1(2) provides that the matters referred to in Article 1(1)(b) deal, inter alia, with "(a) rights of custody and rights of access" and "(d) the placement of the child in a foster family or in institutional care". Article 2(7) provides that the term "parental responsibility" under the Regulation means "all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect". The broad terms in which the provisions were drafted led the ECJ to the conclusion that they extend beyond disputes within families and include applications to remove children from their families. The decision of the ECJ has been followed and applied in subsequent English authorities – see for example Re S (Care: Jurisdiction) [2009] 2 FLR 550.[35]Accordingly, it is, in my judgment, clearly established that the principal jurisdictional basis for applications and orders under Part IV of the Children Act is now Brussels II Revised. Prior to the introduction of the Regulation, English courts had held that the jurisdiction to make public law orders under Part IV was the same as the jurisdiction to make private law orders in respect of children prior to the implementation of the Regulation: see Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711 per Singer J; Re B (Care Proceedings: Diplomatic Immunity) [2002] EWHC 1751 (Fam) [2003] 1FLR 241 per Butler-Sloss P; Lewisham LBC v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 per Bodey J. On behalf of the local authority, Mr. Jubb relied on these authorities as providing the basis of the jurisdiction. I find, however, that those authorities no longer apply and that the jurisdiction is derived from Brussels II Revised.[36]The jurisdictional rules in matters of parental responsibility in that Regulation are set out in section 2. For the purposes of this judgment it is only necessary to refer to articles 8 and 10.[37]The basic jurisdictional rule is set out in article 8(1):
"the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."
In Mercredi v Chaffe (Case C-497/10) [2011] 1 FLR 1293 , the ECJ held that "the concept of habitual residence, for the purposes of Articles 8 and 10 of the Regulation, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment.". The meaning of the phrase "at the time the court is seised" is explained in article 16, which provides (insofar as relevant to these proceedings):
"a court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent …"
[38]The relevant provisions of article 10, headed "Jurisdiction in cases of child abduction", are as follows:
"In cases of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution, or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained …. (ii) …. (iii) …. (iv) …."
[39]In the present case, no party sought to argue that this court did not have jurisdiction, but as stated above no party had addressed the question until prompted by the court. Even then, the submissions presented on this issue were relatively limited. Accordingly, the following analysis is based largely on the court's reflections rather than after extensive argument by the advocates.[40]Although no evidence was adduced on the point, it seems likely that the effect of the orders made by the Polish court were to vest parental responsibility, at least in part, in the Polish authorities. If so, the removal of the girls from Poland was executed without the consent of all parties with parental responsibility and therefore wrongful under article 3 of the Hague Convention on the Civil Aspects of International Child Abduction and the girls remained habitually resident in Poland at all material times up to and including the time the English court was "seised" when the application for care orders was lodged. Accordingly, under article 8 of Brussels II Revised, the Polish court retained jurisdiction in respect of matters of parental responsibility.[41]It is, however, a striking feature of the history of this case that the Polish authorities have neither sought the return of the children nor intervened in the English proceedings in any way. On the contrary, they have positively refrained from doing so in full knowledge of the circumstances. The children have now been in this country for twenty-one months. No one is seeking their return to Poland. I find that they have acquired a considerable degree of social integration and are now habitually resident in this country. In the circumstances, I conclude that this court has acquired jurisdiction under article 10(a) of Brussels II Revised as a result of the fact that all persons having rights of custody (including the mother and the Polish authorities) have acquiesced in the removal or retention of the children to or in this country. In the alternative, I find that all the requirements of article 10(b)(i) are satisfied, because(1) the mother has known about the children's whereabouts since May 2010;(2) the Polish authorities have known about the children's whereabouts since at least July 2010;(3) the girls have therefore resided in this country for over a year since the Polish authorities were informed about their whereabouts;(4) W and A are now settled in their new environment, and(5) no request for the return of the girls has been lodged either with the Central Authority of England and Wales or with this Court.[42]The Polish authorities had, of course, started child protection proceedings before W and A were removed from Poland by KK and SK. Article 19, headed "Lis pendens and dependent actions", sets out the rules to be followed where proceedings are started in two jurisdictions. For the purposes of this case, the relevant provisions of Article 19 are paragraphs (2) and (3):
"(2) Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. (3) Where the jurisdiction of the court first seised is established the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised."
[43]In my judgment, article 19(2) does not oblige this court to stay these proceedings under Part IV of the Children Act. The cause of action in the English proceedings is not the same as in the Polish proceedings (cf AvB [2011] EWHC 2752 (Fam) ). The English proceedings are brought by the English authorities whereas the Polish proceedings were brought by the Polish authorities. Admittedly, the causes of action are similar arising as they do out of the inadequate care provided to the children within their birth family, but they are not the same. Furthermore, for the reasons set out above, the Polish courts have lost jurisdiction under article 10. Accordingly, there is no lis pendens requiring this court to stay proceedings or decline jurisdiction.[44]This court therefore has jurisdiction to entertain this application for care orders under Article 10 of Brussels II Revised. In these circumstances, it is unnecessary to consider whether this court would have jurisdiction under any of the other articles under the Regulation. The conduct of care proceedings[45]As stated above, the court's powers to make public law orders concerning children are set out in Part IV of the Children Act 1989 and in particular section 31(1) and (2) which provides:
"(1) On the application of any local authority or authorised person, the court may make an order (a) placing the child … in the care of a designated local authority, or (b) putting him under the supervision of a designated authority. (2) A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it sould be reasonable to expect a parent to give to him, or (ii) the child's being beyond parental control."
[46]Thus an application for a care order involves a two-stage process. First, the local authority must prove that the so-called "threshold criteria" under s.31(2) are satisfied. Secondly, if those criteria are satisfied, the court must decide what order, if any, should be made. When deciding the latter question, the court must have regard to:(1) the child's welfare as the paramount consideration;(2) the specific factors concerning welfare set out in s.1(3) of the Act (the so-called "welfare checklist");(3) the principle that any delay in determining any question with respect to the child's upbringing is likely to prejudice his or her welfare (s.1(2)) although "planned and purposeful delay" may well be beneficial, for example to facilitate the completion of an assessment necessary for the determination of the question: see C v Solihull MBC [1993] 1FLR 290;(4) the relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular articles 6 and 8, as considered in a series of cases in the European Court of Human Rights, and(5) the principle that, wherever possible, children should be brought up within their natural family and, in particular, by their birth parents, and that, where families are separated by court orders, public authorities, including local authorities and the courts, are under an obligation to take measures to facilitate family reunification as soon as reasonably feasible: K and T v Finland [2001] 2 FLR 707 and Re C and B (Care[47]Care proceedings are now conducted in accordance with Public Law Proceedings Guide to Case Management April 2010 (commonly known as the Public Law Outline), now found as Practice Direction 12A supplementing Part 12 of the Family Procedure Rules 2010. Para 2.1 of the Practice Direction sets out the overriding objective of "enabling the court to deal with cases justly, having regard to the welfare issues involved. Dealing with a case justly includes, so far as practicable,(1) ensuring that it is dealt with expeditiously and fairly;(2) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;(3) ensuring that the parties are on an equal footing;(4) saving expense, and(5) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."[48]Para 3.1 sets out the main principles underlying court case management and the means of the court furthering the overriding objective in care proceedings. Of particular relevance to the present case are the "timetable for the child", to be fixed by the court in accordance with its statutory duties, including the duty in s.1(2) set out above, and "active case management" – the obligation on the court to manage the case actively with a view at all times of furthering the overriding objective. Analysis of Evidence[49]The approach to be adopted when analysing evidence in care proceedings has been developed in case law since the implementation of the Children Act. The following legal principles derived from reported cases are relevant here.(1) In family proceedings there is only one standard of proof, namely the simple balance of probabilities: Re B [2008] UKHL 35 .(2) "If a legal rule requires a fact to be proved … a judge … must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1" (per Lord Hoffman in Re B , supra, at paragraph 2).(3) In reaching its decision, the court takes into account all the evidence. Furthermore, "[e]vidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof": per Butler-Sloss P in Re T [2004] EWCA (Civ) 558 , [2004] 2 FLR 838 at para.33.(4) Hearsay evidence is admissible in family proceedings but a court weighing up such evidence has to take into account the fact that it was not subject to cross-examination.(5) It is "an elementary proposition that findings of fact must be based on evidence including inferences that can properly be drawn from the evidence and not on suspicion or speculation" (per Munby LJ in Re A (A Child) (Fact-finding: Speculation) [2011] EWCA Civ 12 2011 1 FCR 141).(6) Whilst appropriate attention must be paid to the opinions of medical and other experts, their opinions need to be considered in the context of all the circumstances. In A County Council vKD & L [2005] EWHC 144 Fam [2005] 1 FLR 851 at paragraphs 39 and 44, Charles J observed:
"It is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh up expert evidence against its findings on the other evidence…. The judge must always remember that he or she is the person who makes the final decision." (7) "
If a court concludes that a witness has lied about one matter, it does not follow that he has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure" - R v Lucas [1981] QB 720. (8) Because it is generally in the best interests of a child to be brought up with its natural family, "society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent …. [I]t is not the provenance of the state to spare children all the consequences of defective parenting …. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s.31 (2) [are] made out" (per Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 ). (9) However, "[t]he test under s.31 (2) is, and has to be, an objective one. If it were otherwise, and the 'care which it is reasonable to expect a parent to give' were to be judged by the standards of the parent with the characteristics of the particular parent in question, the protection afforded to children would be very limited indeed, if not entirely illusory. It would in effect then be limited to protection against the parent who was fully able to provide proper care but either chose not to do so or neglected through fault to do so. That is not the meaning of section 31(2). It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best" (per Hughes LJ in Re D [2010] EWCA Civ 1000 ) . Further assessments[50]S.38 of the Act gives the court power to make interim orders pending a final determination of the application. Under s.38(6), "where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical, or psychiatric examination or other assessment of the child …."[51]This provision has been considered in a number of reported cases, notably two in the House of Lords – Re C (A Minor) (Interim Care[52]S.31(8) provides:
"The local authority designated in a care order must be (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made."
The Court of Appeal has held that s.31(8)(b) should be construed as though the word "ordinarily" was inserted before "reside": Northamptonshire CC v Islington LBC [1999] 2 FLR 881 . Under s.105(6)(c), in determining the "ordinary residence" of a child for any purpose of the Act, "there shall be disregarded any period in which he lives in any place … while he is being provided with accommodation by or on behalf of a local authority". Accordingly, the period that W and A have been accommodated in foster care on behalf of Tower Hamlets must be disregarded. It follows therefore that W and A, who only arrived in this country a day or so before they were accommodated, are to be treated as not residing in the area of any local authority.

(b) Paternity

[53]The case advanced by the mother and KK is that KK is the father of both W and A and also M, notwithstanding the fact that SK is the mother's husband and registered in Poland as the father of all nine of the mother's children, including W, A and M. The mother and KK assert that they have been in an intimate relationship for about thirteen years, during which time, according to the mother, she has not had sexual intercourse with SK. In oral evidence, she said that she stopped living with him as husband and wife about fourteen years ago. The mother also said in oral evidence that she had not had sexual intercourse with anyone else except KK in the past ten years.[54]DNA testing carried out by Cellmark on samples taken from W on 29th November 2010 and from KK on 1st December 2010 were analysed by Cellmark who stated in a report dated 10th May 2011 that KK was not the W's father and that it was marginally (1.1 times) more likely that he was a close relation of W than if they were unrelated. An analysis of a sample taken from A on the same date and compared with that taken from KK was also the subject of a report at that stage which concluded that in the absence of samples from the mother it would not be possible to determine whether or not KK was A's father. When the mother returned to this country in December 2011 she provided a sample which led to a further analysis by Cellmark. The report following those further tests, dated 11th January 2012, states that KK is not the biological father of either W or A, because he lacks the genetic markers that had been inherited by the two children. According to Cellmark, it is 6.7 times more likely that KK is a close relative of W than if they are unrelated and 25 times more likely that he is a close relative of A than if they are unrelated.[55]In addition to these unequivocal DNA results, there is some additional circumstantial evidence which provides some support for the local authority's case that KK is not the girl's father. First, as stated above, SK has been named as their father and treated as such for all purposes in Poland. The mother contended in evidence that this was because of the stigma and embarrassment that would be attached to her and the girls were it to be known in Poland that KK was the father. I found her evidence on this point unconvincing. Second, KK's evidence is that he lived in the UK for the vast majority of the past seven years with only occasional visits to Poland, whereas SK has stayed in Poland for considerably longer and, on the evidence I have heard, has spent at least part of that time staying in the mother's flat.[56]The third point arises out of written evidence that was adduced by the local authority, without objection from the other parties, at the conclusion of the hearing after the mother and KK had given their evidence. In a short note, the allocated social worker reported that the foster carer had told her that she had spoken to each child separately during the week of the hearing, telling them that the case was being heard in court and that they would be seeing the mother and KK at the weekend. To this, W had responded:
"Who? Is that the one I call Dad?"
To this the foster carer had replied:
"Yes", whereupon W had said: "
Not the other Dad?" When the foster carer replied:
"No", W grinned and looked down. The foster carer then spoke to A, who stated: "
I've got two Dads, one here and one in Poland".[57]On behalf of the mother and KK, it is argued that the court should not make a finding as to paternity at this stage and that, in view of the seriousness of the consequences of such a finding, they should be permitted a further DNA test. This course is opposed by the local authority and the children's guardian who contend that the DNA results are unassailable.[58]I accept the DNA results as presenting the true picture as to the girl's paternity. No evidence has been adduced which gives rise to any concern that the test results were defective. I remind myself that the decisions on such issues are a matter for the court, not expert witnesses, and that the court must consider all the evidence in reaching its decision. In my judgment, there is no evidence that comes close to undermining the DNA results in this case. In particular, I have found the mother to be a wholly unconvincing witness on the issue of paternity. Even allowing for the fact that she gave evidence through an interpreter, I find that her evidence on this point was vague and implausible.[59]In view of my finding that KK is not the father of the girls, it follows that the mother has lied to the court when she has insisted that he is the father. At the very least, the mother must know that he may not be the father. But looking at all the evidence, however, I conclude that her deception has been far more extensive. I find that she knows that he is not the father and has deliberately pretended to the English authorities and this court that he is the father knowing that this is untrue whilst putting forward a wholly different account to the Polish court and authorities. This position was succinctly summarised by A in her comment to the foster carer as quoted above.[60]It does not follow from the fact that the mother has lied about this matter that she has therefore lied about everything else in this case. As the Court of Appeal emphasised in the Lucas case (supra), a witness may lie for many reasons. In this case, it is conceivable that the mother may have lied on the question of paternity for the simple reason of enabling the children to be accommodated in the UK. There may be other explanations. Making all allowances, however, I find that her dishonesty about this important issue seriously undermines her overall credibility as a witness. On the other hand, I am unable to reach a conclusion as to KK's state of mind as to the issue of paternity. He insists that he still believes that he is the father of the girls. Is this a genuine belief, or has he known all along that he is not the father and pretended that he is to facilitate their placement in this country? I am suspicious that he may know the truth, but I note that he has demonstrated commendable devotion to the girls in his regular attendance at contact, and in the warm relationship he has established with them as witnessed by a number of professionals in this case. I remind myself that I must avoid speculation and I am therefore unable to reach a conclusion as to his state of mind on this question. The mother's drinking[61]The mother accepts that she has suffered from a drink problem for a number of years and that it affected her capacity to care for her children. According to a note of a conversation held with a social worker when she visited this country in July 2010, the mother stated that she began drinking "heavily at the age of twenty", that her parents had been problem drinkers and that SK had also had an alcohol problem. In her oral evidence, the mother stated that she had not drunk at all until the age of twenty and denied that she had then started drinking "heavily" at that age. Papers produced from Poland revealed that the mother was admitted to hospital in Tarnow for about eight weeks in January 2011, where she was diagnosed as suffering from alcohol dependence syndrome and underwent a program of therapy and treatment. The report from the Polish hospital states that on discharge it was recommended to the mother that she should continue treatment at the alcohol dependency clinic and have further treatment at a rehabilitation clinic. The drinking of alcohol was said to be "strictly prohibited".[62]In her oral evidence, the mother admitted that she had only attended for two further sessions of treatment following discharge and otherwise had not followed the advice about attending the clinics. As for further drinking, she stated that she had refrained from drinking until Christmas and New Year 2011 when she had drunk beer, champagne and vodka. She also stated that she had drunk some beer on arrival in this country shortly before the hearing (the volume of beer consumed varied between two and four beers at various points in her evidence) but that she had not drunk during the hearing. She described herself as having a strong will and had told herself not to drink. She did not think that her drinking over Christmas and New Year, nor on arrival in this country, was an indication that she would continue to drink, although she accepted that such drinking had been unwise. Cross-examined by Ms Honeyman on behalf of the Guardian, the mother asserted that she did not have a drink problem.[63]In his evidence, KK admitted that he had bought one of the beers the mother had consumed on arrival in this country shortly before the hearing. He did not think that this drinking was significant. He said that he thought one beer every now and then was not harmful and likened her occasional drinking to his occasional smoking. He said that he thought that, if the mother was living with him, she would be able to show that she could quit drinking altogether.[64]I found the mother's evidence on this issue implausible and KK's comments naively optimistic. There is, to my mind, sufficient evidence to lead me to conclude, on a balance of probabilities, that the mother has had a significant drink problem for most of her adult life and that she continues to have the problem up to this day. She was given very clear advice on leaving the clinic that she should refrain from further drinking absolutely. On her own account she has failed to follow that advice at Christmas and on arrival in this country. In all the circumstances, I think it highly likely that she is minimising her drinking and has continued to consume alcohol regularly since leaving the clinic.[65]The fact that the mother has lied about this issue gives me further concern as to her overall credibility. More importantly, however, alcoholism has had a profound effect on her family. It was a principal cause for the proceedings in Poland which led to the removal of M from her care. In my judgment, the fact that the mother has an ongoing serious drink problem which she does not acknowledge is a serious impediment to her proposal that she should resume caring for W and A. Journey to this country[66]In his oral evidence, KK gave an account about the journey taken by him, SK and the two girls to this country. He said that they had set off with about two thousand euros with the intent of coming to the UK. The journey had taken about a month. He collected the girls from school and took them out of Poland on the same day and from there travelled by local trains via the Czech Republic, Austria, and Italy to the south of France where they purchased tents and stayed near Cannes for a while. From there, they moved on to Paris, Calais, and by ferry to Dover. They then took a train to Victoria with the intention of going immediately to KK's brother's house in Upton Park. By this stage, however, KK and SK were running out of money and only had enough to reach Bromley-by-Bow station on the underground. While travelling on the train, KK noticed a shed close to that station and decided to leave the children and SK there while he walked on to his brother's house in Upton Park. Before doing so, he laid down their belongings and made something hot for the children to eat. It was at this point that the police arrived. KK insisted in evidence that they had only been in the shed for a short period, that they had no plans to stay the night, and had not made any preparations for an overnight stay such as putting up coverings over the windows.[67]This account is, however, significantly at variance from the picture that emerges from the police records disclosed in these proceedings. As set out above, the police described the shed as containing cooking utensils, food, water and various tools with an old mattress, duvet, sleeping bags and clothing in one of the rooms. The two windows in the shed and the door had been covered in plastic sheeting. Plainly, this description is more consistent with a longer period of occupation than that asserted by KK in oral evidence. Furthermore, according to the police record, KK told them that they had made a temporary home in the shed for two nights. In addition, SK told the police that they had been travelling across Europe for three months, that they had travelled to Dover three days previously, that they had made huge efforts to make the premises comfortable for the girls, putting up sheeting at the windows and doors to make the place waterproof, and dragging an abandoned mattress back for the girls to sleep on. He added that they had spent the previous night in the shed and the following day KK had attempted to find work so that the family could then move to more appropriate accommodation. Prior to the police's arrival, it had been their intention to spend another night in the shed.[68]I have found KK's oral evidence about the journey, and the events after their arrival in England, vague, unconvincing and inconsistent with the accounts given by him and his brother to the police. I have found his account of travelling to Italy and France implausible given their intention to move ultimately to the UK and the shortage of money. If KK had been telling the truth, I would have expected him to have been able to give much more detail about their journey. I do not believe his oral evidence about the events on arrival in the UK. In particular, I do not accept that they had only just arrived at the shed when the police apprehended them. I think it more likely that KK and SK told the truth to the police at that point. In other words, the shed was not merely a resting place for a few hours but had been the accommodation that KK and SK had chosen for the girls for the two previous nights with the intention of staying there for an unspecified further period. It subsequently transpired in a conversation with the Guardian that KK's brother in Upton Park had no idea that he and the girls were in this country. I do not accept that KK was intending to visit him that evening.[69]It follows that KK has lied about material points in his account of the journey and this is a matter to be taken into account when considering his credibility about other issues. More importantly, however, I have found his account wholly lacking in any appreciation of the consequences of his actions upon the girls. He uprooted them from the country in which they had always lived, with the mother's connivance, but without informing the Polish court or authorities. He then travelled across Europe with the girls and allowed them to stay for at least two nights in wholly unsuitable accommodation by a live railway line. In all of these actions he was jeopardising the welfare of the children. His reasons for taking this drastic action was that he and SK and the mother did not wish W and A to follow M into the children's home in Poland. But on any view the steps that he took were seriously misguided and contrary to the girls' best interests. Inevitably, these are important matters to take into consideration when the court makes a decision about the future placement for W and A. The Children's wishes and feelings[70]Section 1(3) of the 1989 Act requires the court to take into account the children's wishes and feelings having regard to their age and level of understanding. In her final report, the guardian notes that it has been difficult to ascertain fully and reliably the children's wishes and feelings in this case. She expressed the view that this may be indicative of their anxiety and the insecurity they feel about their future. W told the guardian that living with her foster carers is "great fun", she was at ease making general conversation with the guardian, but enquiries about her experiences and wishes were principally met with shy smiles and responses such as "don't know". Interestingly, W was unable to recall many details about her life in Poland. So far as her future care is concerned, W told the guardian that she did not think she would remain in her current placement in the long term. She thought that she and A would go to live with KK or another carer. When the guardian asked what she wanted in terms of her future care, W shrugged and looked away. She said that she wanted to be with A but when asked what she thought about the prospect of returning to her family replied she "did not know". She agreed with the guardian that it was difficult for her to discuss those matters.[71]A told the guardian that she should tell the Judge that she wanted to live with her "dad", meaning KK. She said that she wanted to live in England with W, her mother, KK and her brothers. She was, however, unable to remember her brother's names. She told the guardian that if she was unable to live with her "dad", she would remain with her current foster carers. She also said that it would be fine to be placed with other carers.[72]The differences in the children's respective responses to the guardian's questions partly reflects, no doubt, the difference in their level of understanding about the complexities of the issues in this case. A's straightforward expressed wish to live with her mother and KK is to be expected of a child who is likely to have a limited appreciation of the complexities of the issues within the family. W, aged ten, is likely to have a greater understanding of the problems in her family and this may be reflected in her more hesitant and ambivalent response to the guardian's enquiries. The Children's Needs[73]W and A have been in the care of the local authority since May 2010. During that time, they have been placed together in four different foster placements. They have now been in their current placement for some time and are settled and well cared for there. They have enjoyed regular contact with KK. They have seen their mother on only a few sporadic occasions – in July 2010, then no visit until December 2011, followed by a series of visits before and after Christmas. They have had occasional telephone contact with her in the intervening period. They have had very limited contact with other members of their family and, so far as I am aware, no contact with their sister M.[74]In her final report, the children's guardian rightly states that:
"W and A have a need universal to all children for a loving, stable and secure home environment, with consistent nurturing, support, guidance and boundaries."
Manifestly, they need a permanent placement where they can remain securely for the rest of their minority. All parties agree, of course, that it is imperative that the girls are placed together. They are very close to each other and undoubtedly each has derived great emotional support from the other during the last few years. There are revealing descriptions in the social services evidence of how they play together in a way that often excludes all other people.[75]At the hearing before me, attention has been focused on the question whether it is necessary for the girls to be moved to a permanent placement as quickly as possible or whether such a placement could be postponed to enable further assessments to be carried out to establish whether they could be placed within the family. On behalf of the mother and KK, it is acknowledged that the children will need a permanent placement, but it is argued that their need is not so urgent as to preclude further assessments. They point to the evidence of Dr. Carritt-Baker who, whilst acknowledging the principle that delay in making decisions about the upbringing of children should normally be avoided, said in answer to Mr. Cleaver on behalf of KK that delay was not as important for these children as the number of changes they experienced in their lives. In Dr. Carritt-Baker's opinion, neither child is at an age where a delay of a further few months is going to cross over some important transition point.[76]The social worker Cynthia Locke and the children's guardian Toni Jolly disagree with Dr. Carritt-Baker's view. Ms Locke described the children as having been "in limbo for a very long time". Ms Jolly described them as being "on hold" awaiting the court's decision and said that their resilience is not limitless.[77]I remind myself of the general principle, recognised in section 1(2) of the 1989 Act, that delay is ordinarily inimical to a child's welfare although planned and purposeful delay may be in the child's interest. These children's lives have been plagued by instability for a considerable time. For an unknown period, but in all probability most of their lives prior to 2010, their family life in Poland was severely affected by the mother's drinking. They have endured the upheaval of being abducted across Europe. They have now been in the care of the local authority for 21 months, during which time they have endured a series of changes of placement. I acknowledge that they have not displayed overt signs of emotional harm. Their behaviour is not at present a cause for concern, either at school or in the foster home. They are, according to Dr. Carritt-Baker, "psychologically normal". It would, however, be a mistake in my judgment to conclude that they are particularly resilient children. They need a decision to be made as to their permanent placement as soon as possible. In my judgment, to delay that decision could only be justified if there were strong grounds for doing so. In other words, there would have to be a good prospect that a further assessment would lead to rehabilitation with the birth family to warrant any further delay in reaching a decision as to the children's permanent placement.[78]Wherever W and A are placed, they need to sustain their links with their family and culture. If placed permanently outside the family, there should be face to face contact with KK and their mother at a level consistent with the need to sustain those relationships but not so as to disrupt their permanent placement. Consideration should also be given to sustaining contact with other family members, in particular M whom they have not seen for two years. The issue of contact will plainly pose considerable difficulties for the local authority. In addition, W and A need to be helped to sustain their understanding of their Polish heritage. They will also need to be provided with a full and true account of their background life story work. This will require careful and sensitive handling by social workers and members of the family. In particular, W and A need to be lead to understand the truth about their parentage in a way that does not undermine any of their important relationships. KK's capacity to care for the children[79]I have summarised earlier in this judgment the conclusions reached by Dr. Halström and Dr Carritt-Baker in the course of their assessments and also the conclusions of the Eva Armsby Centre. Dr. Carritt-Baker, and Ms. Zelijka Hands of the Eva Armsby Centre gave oral evidence before me.[80]As stated above, Dr. Carritt-Baker's conclusion concerning KK was positive. He remarked upon the close bond and affection between KK and the children and thought that the children's needs would be best served if they were in the care of the family in the UK and at least partly in the care of KK. He broadly adhered to this opinion in his oral evidence, notwithstanding the evidence concerning the text messages to KK to the tarot card reader, the conclusions of the Eva Armsby Centre, and the DNA results. He said that he had no clear reason to rule out KK. He described KK as "able to do things with these children to engage them". It should also be noted that he described the children's presentation as not consistent with what is normally seen in children of this age who have suffered life long deprivation. Dr. Carritt-Baker stressed, however, that his opinion was based on his psychological assessment and added that the decision concerning their future placement was beyond the sphere of the psychological and had become a social work issue. He expressed the view, however, that the parenting assessment carried out by the Eva Armsby Centre was "a tough test", that a lot of parents would fail such a test, and that one must be careful "not to set the bar too high". Dr. Carritt-Baker stressed the importance of sustaining contact with KK whether or not the children were placed in his care, because of the close relationship between them and the need to sustain their family and cultural links.[81]As set out above, the Eva Armsby Centre team reached a less positive conclusion concerning KK's capacity to care for the children. They concluded that his insight into, and understanding of, the children's needs was at a very basic level and that he did not demonstrate an ability to meet their needs outside contact. He continued to deny, or minimise, the seriousness of the children's past experiences and demonstrated no capacity for change. Ms Hands from the Eva Armsby Centre gave oral evidence and adhered to those views as expressed in her report. She acknowledged in cross examination by Mr. Cleaver on behalf of KK that his client had engaged willingly in the assessment. She expressed the opinion that KK had a genuine need to be loved by the children whom he considered his, notwithstanding the DNA results, but she did not think that he had the capacity to consider the children's emotional needs by putting himself in their shoes and thinking of their experiences in Poland. She accepted that it could be argued that KK was the children's psychological parent, but qualified that by pointing out that he had lived mainly in England since 2004 and had not had so much involvement in the children's lives.[82]Having considered all the evidence as to KK's parenting capacity, I accept the conclusions of the Eva Armsby Centre. Their assessment was, in my judgment, thorough and persuasive. I recognise that Dr. Carritt-Baker's conclusion, from his professional perspective, was somewhat different, but as he recognised the decision is ultimately a social work issue rather than psychological.[83]The Eva Armsby Centre's conclusion was, to my mind, buttressed by other evidence that emerged in the course of proceedings. First, as set out above, I have found that KK has not told the truth about the girls' journey across Europe and the circumstances of their arrival in the UK. Furthermore, as set out above, he demonstrated little understanding in his evidence of the risk of harm to the girls resulting from his actions in abducting them, taking them across the continent and housing them in dangerous conditions by the railway line.[84]Secondly, I am concerned about the incident concerning the text messages sent to the tarot card reader. I have considered and given due weight to the analysis of this matter set out in Dr. Halström's report and Dr. Carritt-Baker's report, but ultimately the assessment of this incident is a matter for the court. I have had the benefit of hearing KK cross examined about this issue. He gave a very long answer (through his interpreter) in which he attributed his actions to his distress and despair at being separated from the children, the failure of the local authority to provide explanations for their suspension of his contact, his lack of sleep and loss of concentration. I find these various explanations implausible. I can understand that these various factors may have significantly affected his mood, but it is to my mind difficult to understand how and why he was driven to behaving the way that he did. I do not go so far as to find that his actions lead to a conclusion that he has paedophiliac or other dangerous sexual behavioural tendencies, but I do find, first, that he has not told the complete truth about this matter and, secondly, that his behaviour in this regard demonstrates a degree of instability that further calls into question his capacity to care for the children.[85]Thirdly, his evidence, both written and oral, was characterised by a dismissive attitude to the mother's problems and the impact of those problems on the children's lives. He is unable or unwilling to accept the truth about the mother's behaviour and is naively optimistic that all will be well if the family is re-united in England. His attitude demonstrates a serious lack of understanding and judgment.[86]I acknowledge that KK loves the children and has shown commendable devotion to them in contact and during the various assessments. It is undoubtedly in the children's interests for their relationship with KK to be sustained through ongoing contact. I find, however, that he manifestly lacks the capacity to care for the children himself. Assessment of mother[87]The mother now seeks an adjournment of these proceedings to enable her to undergo a psychological assessment and an assessment of her capacity to care for W and A. Her application is supported by KK but opposed by the local authority and the children's guardian. On behalf of the mother, Mr. Guyer made this application at the outset of the hearing before me. I decided, however, that it would be fairer in all the circumstances to consider the merits of this application at the conclusion of the hearing having heard evidence on other issues.[88]On behalf of his client, Mr. Guyer makes the following submissions. First, he relies on the principle of fairness and in particular the right to a fair hearing enshrined in Article 6 of ECHR. He submits that a party who is unfairly denied an assessment of parenting capacity before the court makes a decision as to the long term future of her children is denied a fair hearing and the opportunity to put a case in a proper and effective manner. In support of this proposition he relies on the various authorities concerning assessments under section 38(6) referred to above, as well as the well known judgment of Munby J (as he then was) in Re L (Care: Assessment: A Fair Trial) [2002] EWHC 1379 (Fam) and the decision of the European Court of Human Rights in P,C and S v United Kingdom [2002] 2 FLR 631 .[89]Secondly, he submits that the unfairness to his client is aggravated by the failure of the local authority to keep her properly informed as to the progress of the proceedings and the girls' circumstances. The most glaring omission is the failure of the local authority to comply with my order of 19th April 2011 requiring the local authority to serve a translated copy of that order on the mother. Mr. Guyer submits that this is but one of a series of errors and omissions by the local authority. He contends that social services failed to make any or any reasonable contact with the mother between 26th July 2010, when she was seen at the social services offices, and 19th December 2011 when she was next seen at a contact visit, notwithstanding the fact that at all times the local authority has known her address and telephone number. He further points to the failings of the local authority legal unit whose correspondence with the mother was confined to three letters translated into Polish. The three lever arch files of documents in the court bundle were not served on the mother, either in English or Polish, prior to her instruction of Mr. Guyer to act on her behalf at a late stage in the case. He criticises, in particular, the local authority's failure to serve a translated copy of the Eva Armsby Centre report until very shortly before the hearing. He acknowledges that the mother was given warning of the local authority's plan to place the children outside the family, but only by a phone call on 11th October 2011. He adds that these failures were compounded by the fact that the mother is an unsophisticated person who may (he suggests) have a learning disability and who was in any event living in a relatively remote part of Poland on the other side of Europe, about which relatively little is known because of the paucity of information provided by the Polish authorities.[90]Thirdly, he contends that assessments of the mother could be carried out in the course of the next few months under a "twin-track" programme along with preparatory work for placing the girls permanently in long term foster care if the results of the assessments are negative. In his submissions on behalf of KK, Mr. Cleaver reminds me that Ms. Hartley from the family finding team of the local authority suggested in her evidence that the children could be placed in six months. It is suggested that any further assessments could be completed well within those time scales so that the impact of any further delay on the children's future would be minimal. Mr. Guyer submits that, in those circumstances, there is no risk to the children from an order for further assessment. Alternatively, if the assessment does cause delay, Mr. Guyer submits that in all the circumstances it would be "planned and purposeful".[91]Fourthly, it is submitted that an assessment of the mother is particularly important in this case because of the risk that the children will lose their cultural heritage if placed in England outside the family. They are already losing their understanding of the Polish language, and a placement that does not accommodate their cultural background will be contrary to their interests. It would, for example, make it harder for them to sustain a relationship with their birth family through contact.[92]Finally, Mr. Guyer submits that there are grounds for optimism that the mother's proposal to care for the children would receive a positive endorsement at the conclusion of the proposed assessments. He relies on the fact that the mother has brought up six children without interference from the state and that two of her daughters now have daughters of their own and continue to live at home.[93]Mr. Jubb on behalf of the local authority and Ms Honeyman on behalf of the children's guardian oppose the application and advance the following arguments.[94]First, whilst it is accepted that the local authority failed to comply with my direction as to service of a translated version of the order of 19th April, Mr. Jubb submits that the mother has in fact received adequate notice of the proceedings and of this final hearing and that she herself is principally to blame for her failure to participate in the proceedings until a late stage. The mother knew at an early stage that the children had been received into care in May 2010. A few weeks later, in July, she was brought over to England at the local authority's expense, had contact with the girls and met the social worker. Mr. Jubb draws my attention to the fact that it appears from the mother's own evidence that she received a letter from the local authority's solicitor dated November 2010 translated into Polish informing her that proceedings had been commenced. He accepts that the translation was of poor quality but argued that the core message from the letter was clear, namely that proceedings had been commenced and that the mother needed to engage in the process. I accept Mr. Jubb's submission that the mother was thereby put on notice regarding the proceedings and that it would not be unreasonable to have expected her to take some steps to resume contact with the local authority. Furthermore, it is accepted by the mother and KK that they were in regular telephone contact with each other. KK had the benefit of legal representation throughout the proceedings and in my judgment manifestly understood what they were about. It has never been the mother's case that she wished to be considered as a sole carer but rather only in conjunction with KK. I agree with Ms Honeyman that it was therefore entirely reasonable for the court to expect him to take on a role in encouraging and enabling her to participate in the proceedings. I acknowledge that the mother's representatives have only had a very short period of time to prepare for the final hearing but in my judgment they were able to make all necessary preparations. I did not consider that the mother was at any disadvantage during the hearing.[95]Both the local authority and the guardian therefore submit that the mother has known that the children were in care from a very early stage after their arrival in this country, and about these proceedings, and that she is principally to blame for failing to engage in the process. They both submit that this failure is likely to be attributable to her drinking problem. Given the fact that the mother was admitted to hospital in Poland for several weeks in early 2011 because of her alcohol dependency syndrome, and the evidence that she has continued to drink after that admission, Mr. Jubb submits that it is a reasonable inference that her inaction in these proceedings was attributable to her dependency on alcohol.[96]Secondly, it is submitted that the plans put forward by the mother and KK are totally inadequate. In particular, the plans for accommodation and providing for the needs of the family are in what Mr. Jubb describes as a vestigial state. Ms Honeyman submits that the couple have not put forward a realistic proposal for caring for the children. They have not established a home together and would have nowhere to take the children at present. She adds that it remains unclear whether the mother is fully committed to establishing a permanent home in England. She points to the fact that the mother only arrived in this country on the day before the hearing returning to Poland on the following Sunday and in evidence was extremely vague about when she would return. Ms Honeyman submits that it appears that the mother would like to live in England but that this wish can not be described as a "plan".[97]Thirdly, it is submitted that any further delay in placing the children will be detrimental to their welfare. Ms Honeyman submits that any adjournment for an assessment would mean that the children will have spent the best part of two years in temporary foster care before a final decision is made. She does not accept that an assessment would have no impact upon the timescale for the children and agrees with the proposition advanced by Ms Locke in evidence that it might be confusing for the children to be discussing in detail the possibility of a move to long term carers while at the same time being involved in a further assessment of the mother.[98]Finally, applying the test set out in the House of Lords cases of Re C (supra) and Re G (supra) , and reiterated by Black LJ in Re S (supra) it is submitted that no assessment of the mother is needed and that the court has sufficient information to conclude that there is no realistic prospect that she and KK would be able to care for the children.[99]I accept the submissions made on behalf of the local authority and the guardian on this issue.[100]First, while I accept that the local authority has failed to comply with my direction as to the service of the order of 19th April 2011, and ought to have made further efforts to contact the mother during the currency of the proceedings, I reject the argument that the local authority is therefore responsible for the mother's failure to engage in the proceedings or apply for an assessment before the final hearing. I find that the mother has been aware for over 18 months that the children were removed from the care of SK and KK on arrival in this country. She visited England in July 2010 when she saw the children and met the social worker. During that meeting, she mentioned the possibility of looking after the children in England with KK. I further find that she has been aware of these proceedings from the outset but has failed to take reasonable steps to participate in them until a very late stage. It is, in my judgment, highly significant that she failed to come to this country to have contact with the children between July 2010 and December 2010. I take into account the fact that she is from a poor and relatively remote part of Poland, but there are regular coach links between Tarnow and London and I find that a reasonable mother would have visited her children in England at some point during that 18 month period, and would have made a greater effort to engage with the local authority and the court proceedings. I am driven to the conclusion that a major reason for her failure to do so was her addiction to alcohol, certainly in the early stages up to and including her admission into hospital in January 2011 and in all probability, given my findings about her ongoing drink problem, throughout the proceedings.[101]Secondly, I accept the submission on behalf of the local authority and the guardian that the plan put forward by the mother and KK is vague and ill-conceived. It is not unreasonable to expect them to have devised a plan as to how they would care for the children were they to live in this country, but they have no real proposals about accommodation or practical support for the children were they to be placed in their care. Furthermore, having heard the evidence, I have considerable doubts as to whether the mother really intends to live in this country.[102]Thirdly, whilst acknowledging that it is of importance to the children that they should retain their links with their cultural background, I do not consider that this is a factor which significantly adds weight to the mother's case for an assessment. The local authority will have to pay particular attention to the children's cultural background in implementing its care plan for the children, I see no reason why the local authority should not be able to do this, in particular by ensuring that there is sufficient contact with KK and other members of the family.[103]Finally, and most importantly, on the facts of this case and in the light of all the evidence available to me, I find that an assessment of the mother is unnecessary for the court to make a decision as to the children's future. As Black LJ has reiterated in Re S , the question to be asked is: Would the proposed assessment assist me in reaching the right conclusion in relation to the children? I have found that the mother continues to suffer from a serious drink problem that has affected her capacity to care for her children and that KK is either unaware or minimising that problem. I have accepted the conclusion reached by the Eva Armsby Centre that KK does not have the capacity to care for the girls. The plan put forward by the mother and KK to care for the children in England is vague and unrealistic. The mother has failed to show an adequate level of commitment to the children since they have lived in this country. There is, in my judgment no reliable evidence that she would be able and willing to live in England and help KK to look after the children, even if there was evidence that she had the capacity to do so. In these circumstances, I conclude that the assessments proposed on the mother's behalf would not assist the court in reaching the right conclusion about the children's future. Neither the mother nor KK have the capacity, separately or together, to care for W and A. This is, in short, an example of the type of case cited by Black LJ in Re S at paragraph 93 "in which the parents are plainly not able to care for the children and in which no amount of assessment or evidence gathering will enable to put forward a positive case".[104]I have given this aspect of the case particular attention because of the local authority's failure to comply with my directions as to service. I have carefully scrutinised all of the evidence and arguments to ensure that all parties are treated fairly. Having done so, I find that the balance of fairness plainly comes down against any further assessments. Care plans and future contact[105]It is accepted by all parties that the threshold under s.31 of the Children Act has been crossed. In view of my findings as to the mother's chronic drinking problem, and the circumstances in which the children were brought to and kept in his country by KK and SK in 2010, it is manifestly clear that at the date on which the local authority first took protective measures in respect of the children, they were suffering and were likely to suffer significant harm as a result of the unreasonable and inadequate care given to them by their mother, KK and SK.[106]In deciding what order to make for the children's future care, I apply s.1 of the Children Act. The girls' welfare is my paramount consideration. A number of factors in the checklist in s.1 (3) are important in this case – in particular the children's wishes and feelings, their physical and emotional needs, their background, the harm they have suffered, and the capacity of the mother and KK to meet their needs. Having considered all these factors, I conclude that the only realistic option for W and A is to be placed permanently outside the family. In reaching that conclusion, I have carefully considered Article 8 of the ECHR and the important principle that children should wherever possible be brought up within their natural family. In this case, however, the children's needs, and the inability of the mother and/or KK to meet those needs, require me to reach a different conclusion.[107]No party invited me to take any steps to bring about the return of the children to Poland. They will therefore remain in this country. Initially the local authority proposed adoption, but that plan has now been abandoned and the care plan is for long term fostering. Important features of the local authority's care plan include(a) an absolute requirement that the children be placed together;(b) a commitment to secure a placement with carers who are able to demonstrate an ability and willingness to sustain the girls' knowledge and understanding of their Polish heritage and language and their Catholic faith;(c) the provision of therapy as appropriate to help the girls come to terms with the consequences of their past experiences; and,(d) life story work to enable them to understand their past and in particular their parentage and the reason why they are not able to be placed within their birth family. I am satisfied that the local authority care plans for the girls for long term fostering under a care order address these issues.[108]There is, however, one aspect of the plan, namely contact, which is, as the local authority concedes, inchoate. The addendum care plans state:
"The local authority is not willing to be definitive about parental contact. We will need to see how the children react to the news (if such is the case) that they will spend the remainder of their childhoods in the UK, that they will not be living with their parents, that KK can no longer be referred to as their father. However, in the interests of clarity for the mother and KK, we can state that contact is likely to be offered at considerably lower levels than those proposed in the previous care plan. Telephone contact will not take place. We are willing to consider contact with paternal grandparents, subject to meeting with them. Contact with M, difficult to arrange though this is likely to be, is a priority. We are willing to consider letterbox contact for the mother, subject to conditions."
In her evidence, Miss Locke the allocated social worker recently assigned to the case, adhered to this position. She accepted that, in the light of the change of plan from adoption to long term fostering, and the positive observations of past contact sessions, that direct contact with both the mother and KK should continue, but added that it was difficult to say how often contact should take place because there were so many variables. The children's guardian agreed, saying in evidence that it would be important to take into account how things develop. In particular, she supports the local authority in its wish to see whether the mother can demonstrate commitment to remaining contact. Nevertheless, Ms Honeyman on behalf of the guardian was somewhat critical of the local authority stating that is "highly unusual" for a local authority not to be able to set out a plan at least for the expected range of future contact.[109]In closing submissions, Mr. Jubb on behalf of the local authority acknowledged that the plans for contact were indeed inchoate but submitted that in nearly every case there will be uncertain aspects of the children's future and that this should not preclude the making of final care orders.[110]On behalf of the guardian, Ms Honeyman set out the following options for dealing with the issue of contact(1) The court can make a full care order, acknowledging that the factors that will determined the appropriate level of contact will emerge over time; the local authority will review the contact plan at the Looked After Children reviews at statutory intervals and would have a duty to promote contact in line with the children's needs and wishes.(2) The court could make a contact order under s. 34 setting contact at a minimum level, for example not less than twice a year.(3) The court could make an interim care order and invite the local authority to perfect its care plan within 28 days.(4) Alternatively, the court could direct a series of interim care orders to enable further information to emerge with a view to a further hearing in a few months time.(5) Finally, there could be a full care order, but adjourning the question of any application for contact pursuant to s.34 to a further hearing in a few months time.[111]On behalf of the mother, in the event that a care order was made, Mr. Guyer invited the court either to make an order for contact for the mother to take place every two months, or, alternatively, to adjourn the question of contact to a further hearing. Given the real difficulties that have existed about the local authority keeping in contact with the mother, he submitted that it would not be in the best interests of the children simply to leave the question of contact to the discretion of the local authority. On behalf of KK, Mr. Cleaver also invited the court not to make a final order in respect of contact at this stage.[112]Whilst I am satisfied that the care plans meet the children's needs in other respects, so that it would be right to make final care orders, I do not consider that the time has come for the court to pass over responsibility for making decisions about contact to the local authority. I am persuaded that the difficulties in communication between the local authority and the mother, and the complexity of the issues around contact between the girls and their birth family, justify keeping the issue of contact within the control of the court for the time being. The court has wide powers to make orders concerning contact between a child in care and her parents or any other named person. S.34 (5) of the Children Act empowers the court, when making a care order in respect of a child, to make such order as it considers appropriate for the contact between the child and a parent or any other named person, even if no application for such an order has been made. In all the circumstances, I propose to make full care orders in respect of both girls, to make an order that the local authority shall facilitate contact between the girls and KK not less than once per fortnight, and between the girls and their mother not less than once every two months, and to direct that the issue of contact be listed for further consideration by me on a date to be fixed in the second half of June of this year. By that point, I hope that the local authority's plans for permanent long term placement will be well advanced and that sufficient information will be available to enable the court to make a final decision whether or not to make a long term order for contact and, if so, on what terms. I shall give all parties liberty to apply to me on seven days notice in the interim.[113]I therefore make the following

order

Dr. Carritt-Baker; Ms. Zeljka Hands of the Eva Armsby Centre; Ms. Gillian Hartley the practice manager of the Permanency and Adoption Team at the local authority; Ms. Cynthia Locke, the current allocated social worker employed by the local authority; the mother (through an interpreter); KK (also through an interpreter), and the Children's Guardian, Toni Jolly. In addition to the evidence ,I had the benefit of documents prepared by the advocates, in particular an extremely helpful and comprehensive case summary prepared by Mr. Jubb on behalf of the local authority and opening and closing submissions prepared by all advocates. I would like in particular to pay tribute to the work of Mr. Guyer, solicitor acting for the mother who was instructed late in the proceedings and has therefore had to prepare the case at short notice but who was, in my judgment, able to put forward all arguments and submissions on behalf of his client. Order: Further Harm) [2001] 1 FLR 611 . Order: Residential Assessment) [1997] AC 489 and Re G (Interim Care Order: Residential Assessment) [2005] UKHL 68 , [2006] I FLR 601 – and a series of cases in the Court of Appeal, the latest being Re S (A Child), TL v Hammersmith and Fulham LBC and others [2011] EWCA Civ 812 , (sub nom Re T (Residential Parenting Assessment) [2012] FLR Fast Reporting) in which important judgments were delivered by Sir Nicholas Wall P and Black LJ, from which the following principles emerge.(1) The purpose of a s.38(6) assessment is to enable the court to obtain the information necessary for a final decision to be made in care proceedings: per Lord Browne-Wilkinson in Re C, supra, at page 500, Baroness Hale of Richmond in Re G , supra, at para 64, and Black LJ in Re S, supra, at para 94.(2) In many cases, the local authority and the children's guardian, appointed to represent the children in the proceedings, should be able to assess the case. Further assessments should only be commissioned if they can bring something important to the case which neither the local authority nor the guardian is able to bring: per Baroness Hale of Richmond in Re G , supra, at para 71, and Black LJ in Re S, supra, at para 94.(3) It is not the law that a parent facing removal of a child has a right in all cases to an assessment of her choice: per Black LJ in Re S , supra, at para 92. "This court has, of course, stressed the importance of the hearing of the care proceedings being fair [and] being article 6 compliant. However, it is not necessary, for that purpose, to continue to assess parents if the process is not going to contribute anything to the information that is needed for the ultimate decision" (ibid, para 95).(4) A judge in care proceedings has a duty under the Act and the Public Law Outline to manage the case with regard to the timetable for the child: per the President in Re S , supra, at para 53. The designated local authority order: (1) That W and A be placed in the care of the Tower Hamlets LBC; (2) Pursuant to s.34 of the Children Act, the local authority are to arrange contact between the girls and (a) KK not less than once per fortnight, and (b) mother not less than every two months; (3) The matter of contact be listed for further review on a date to be fixed in the second half of June 2012, time estimate one hour, to be listed with the Clerk of the Rules in consultation with my clerk, counsel's clerks and Mr. Guyer; (4) Liberty to apply in respect of contact on seven days notice;(5) The judgment handed down on 2nd March 2012 shall be translated into Polish at the joint expense of the Applicant, 1st and 3rd Respondents, with the Applicant to take responsibility for arranging the translation, and a copy of the translated judgment sent by the Applicant to the Office of the Head of International Family Justice for onwards transmission to the Polish authorities. The cost of contributing to the translation is deemed to be a proper disbursement on the 1st and 3rd Respondents' public funding certificates.

Cited in 4 later judgments