A,L,K (BIIR Article 15 Request) [2014] EWHC 2511 (Fam)

[2014] EWHC 2511 (Fam)Case No LJ13C00132In the High Court Family DivisionVenue Leeds District Registry
Before
HER HONOUR JUDGE NANCY HILLIER(sitting as a High Court judge)
Between
Leeds City CouncilApplicantA Mother(1)RespondentsA Father(2)RespondentA,L and K, Children by their Guardian(3)Respondent
Counsel for Local Authority: MR SWIFFENCounsel for Mother: MS NELSONCounsel for Father: MR BROWNSolicitor for Guardian: MR BURNSHearing Heard on 7-11 April 2014, 28 April 2014, and 7 May 2014. Judgment given 25 June 2014.JudgmentIMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.IntroductionDate 2014-06-25
[1]I have been hearing applications for care orders in respect of three children and a placement order in respect of one of them.

Factual Background

[2]The applications relate to A, born in Poland in 2005, L, born in Poland in 2009 and K, born in England in November 2013.[3]The children’s mother (M) was born in Poland in 1988. A’s father is D. He has had no contact with A since he was born. The details provided by M have not enabled the LA to trace him, despite the assistance of the Polish authorities.[4]L and K’s father, J O (F) was also born in Poland in 1988. M was still at school when she had A, and he was initially cared for by her parents. M and F started a relationship in Poland in 2008 when A was about 3 years old.[5]In 2009 the couple came to England shortly after their first son, L was born. F came to the UK to escape criminal proceedings relating to car part thefts in Poland.[6]On 3 May 2010 F assaulted M. M and F agree that F punched M three times to her face in an unprovoked assault. The police report indicated that M was kicked whilst she was on the floor. Both parties now deny that M was in fact kicked.[7]On 10 May 2010 M returned to Poland with A. She did not take L because F would not allow her to. M and A stayed with M’s parents in Poland. She returned to England with A on 27 May 2010.[8]On 31 May 2010 M took the children to Killingbeck Police station requesting assistance to flee domestic abuse. She was offered accommodation but returned home to F the following day.[9]On 9 June 2010 M returned to Poland with both children. F returned to Poland in the December and the relationship resumed. In February 2011 he was sent to prison for 14 months in respect of the dishonesty offences (which related to a period going back to 2004). M visited him regularly, but they argued and she commenced divorce proceedings.[10]Between February and November 2012 A was admitted to a psychiatric hospital due to behaviour problems. The admissions relate to periods from February to April, May to July, 15 October to 22 October, with readmission some 7 days later to November.[11]In April 2012 F was released from prison. M resumed her relationship with him. M, F and L stayed with M’s parents and then moved to Zgierz using money F received when he was released from prison. Shortly afterwards M left F and returned to her parents’ home. F attempted suicide by cutting his arms around that time and shortly afterwards F returned to England.[12]On 6 November 2012 F again attempted suicide by cutting his arms with a razor blade and was admitted to hospital. M was contacted. She removed A from hospital against the advice of those treating him and came to England with both boys to live with F on 23 November 2012.[13]Once in England M sought assistance with A’s behaviour. In early 2013 CAMHS made a referral to social services and an initial assessment was commenced by the LA[14]On 6 February 2013 A’s school made a referral to social services because he had bruising to both cheeks. A said that F had thrown him against a wall. F said that he had accidentally bruised A when he had removed him from underneath a table where he was fighting with L.[15]On 25 March 2013 A was again seen with bruising to his face. He was referred for a child protection medical the following day[16]On the car journey home from the medical on 26th March, in the presence of the social worker and A, the parents argued and F allegedly placed his hands round M’s neck as if to strangle her. M was reported to have asked the social worker for help to leave F but when they reached the home she said “tomorrow” and followed F into the house. F was arrested for assault on M that evening. M and F now deny that F assaulted M in the car and that she asked for help.[17]On 27 March L was examined by Dr Bodey. A was present and demonstrated that F had tried to strangle him earlier in the year. M said that L had witnessed extreme violence.[18]M was offered accommodation help as she said she wished to leave F. The translator assisting with the application reported that M had asked for accommodation to include F. M says that this was mistranslated. M was told the children would be removed if she remained with F. She agreed to voluntary accommodation for the children.[19]A and L were therefore accommodated under s.20 of the children Act 1989 on 28 March. The Local Authority (LA) applied for a care order on 24 May and an interim care order was granted on 30 May 2013.[20]On 31 July 2013 M filed a statement stating that she wished to separate from F. She was given temporary accommodation as she stated that she was fearful of violence from F and reprisals for her actions from his family.[21]On 7 August M returned to live with F.[22]Dr Jennifer Wilson, a clinical psychologist, prepared a CAMHS report in respect of A on 20 August 2013.[23]CFAB completed an assessment of the maternal grandparents on 11 September 2013. the Local authority supplemented this with a four day assessment of the couple in the UK..[24]K was born on 29 November 2013. The social worker conducted a four day intensive assessment of the maternal uncle and his partner in Poland with the cooperation of the authorities.

Forensic Background

[25]The LA issued an application for care orders on 24 May 2013 in respect of A and L. The boys had been voluntarily accommodated since 28 March. The LA applied for a care order on 29 November 2013 in respect of their brother as soon as he was born. The proceedings were consolidated to be heard together by HHJ Tyler in December 2013.[26]I am giving this judgment a full year after the initial applications, therefore it sees to me necessary to explain why there has been such a delay in bringing these proceedings to a conclusion. Firstly, there was of course a delay in bringing proceedings, because A and L were in voluntary accommodation for 2 months before the applications were made.[27]The case was listed for final hearing before HHJ Lynch on 13 January 2014. On that date the proceedings were adjourned pending “…the outcome of an application under regulation 56 of the Council Regulation ( EC ) No 2201/2003 of 27November 2003 for consultation with the Central Authority of the Polish jurisdiction …given this court is being asked to contemplate the placement of K and A in institutional care or with a foster family in Poland”. The case was also transferred to the High Court and, following consultation with Mr Justice Moylan, allocated to me.[28]Unfortunately no provision had been made for a pre hearing review to consider the progress of the consultation. The case was listed before me, at my request, on 25 March 2014. I was informed that the LA had served the documents ordered by HHJ Lynch on the International Child Abduction Unit (ICACU). Further correspondence was sent to the ICACU following their request for further information on 13 February 2014.[29]The ICACU confirmed to the LA that they sent the information to the Polish Central Authority on 10 March 2014. On 21 March 2014, the ICACU confirmed that they had not received a response from the Polish authorities in respect of the correspondence that had been sent but said that they were expecting a response from Poland on 24 March. Since the information had not been received the pre hearing review was adjourned until 31 March 2014.[30]On 31 March I case managed the case through to the final hearing to commence on 7 April. I alerted all parties that I would require submissions as to habitual residence of the children and jurisdiction of the court and compliance with Brussels II Revised and the Vienna Convention as outlined in Re E (A Child) [2014] EWHC 6[31]As a result of my raising the obligation under the Vienna Convention an email was sent to the Polish Consulate on 4 April 2014, advising them of the proceedings in accordance with the good practice recommended by the President of the Family Division in Re E. No request for an accredited consular official to be present at the hearing was received, but an enquiry as to the outcome of the case was received on 2 June 2014 from Lucasz Lutostanski, Consul General. A copy of the judgment will be sent to him in due course.[32]The case commenced on 7 April as planned, however it was not possible to complete the evidence during that week. On the first day, despite my reminder for interpreters to be booked, only one Polish interpreter attended. F’s counsel informed me that unfortunately his interpreter had not been asked to come as it had been assumed (not by Mr Brown) that the first day would be a “reading” day. Mr Brown was unable to communicate with F so, despite valiant efforts by the court staff to locate an interpreter, the start of the case was delayed by a whole day. The evidence was completed on 28 April and the advocates made final submissions before me on 7 May. Due to other hearings and holidays I was unable to give judgment until June.

The Parties’ positions- jurisdiction

[33]All parties were clear at the start of the hearing that no issue was taken as to jurisdiction of the court to make orders in respect of the three children. On behalf of M, Miss Nelson supported a referral under Brussels II Revised (BIIR) Art. 15 in respect of L if the children were not to be returned to M and F. F did not. The LA and the CG opposed an Art. 15 referral in respect of L.

The Parties’ positions – Threshold

[34]The LA seek a finding that at the time the local authority issued proceedings A had suffered significant physical harm and A and L had suffered significant emotional harm attributable to the care given to them by their parents and all three children were consequently at risk of significant physical and emotional harm. The findings sought were as follows:• A and L witnessed extreme domestic violence between the first and second respondents which has included verbal and physical abuse. This impacted upon their emotional development causing them to suffer significant emotional harm, placing all three children at risk of suffering emotional harm.• F has physically assaulted A on more than one occasion causing him to sustain injuries including : ( a ) he strangled A so as to cause bruising to his neck in early 2013 ( b ) bruising to both cheek bones in March 2013.• M failed to protect her children by remaining in a relationship with the second respondent which led to both children suffering emotional harm and A suffered physical abuse• A exhibited extremely aggressive and self-destructive behaviour as a result of his experiences in the care of M and F. He was admitted to hospital on 4 occasions as a result of attempted suicide which was extremely unusual and concerning behaviour for a child of A’s age.• F has had mental health difficulties having attempted to commit suicide on two occasions.[35]M conceded that threshold for making orders under s 31(2) of the Children Act 1989 was crossed. She did not accept all the findings of fact sought by the LA. In particular M denied that there was a risk of physical harm to the boys, stating that the incident where F had put his hands round A’s throat was a one-off example of excessive rough handling, and that the later allegation in respect of the bruising to A’s cheeks was as a result of him self inflicting them. F did not accept that threshold was crossed. He accepted that there had been a violent incident in 2010, denied that he has mental health problems and challenged the attributability of A’s and L’s emotional difficulties to failure of parental care.

The Parties’ positions - care and placement orders

[36]The LA care plan for A, supported by the Children’s Guardian, (CG) Mr Wood, is that he should be placed in Poland with his maternal grandparents following registration of the care order. The contact proposed with his parents would be at a level of four times per year. The parents oppose this as they seek the return of A to their care but they do not oppose the placement if I find that he should not be returned to their care.[37]The LA care plan for L is that he should be made the subject of a final care order and that a placement order should be made authorising them to place him for adoption in England. Contact would be reduced and no direct contact with the parents would take place following placement. Sibling contact would “be explored”. The search for an appropriate placement would be time limited. The parents are opposed to the plan and seek the return of L to their care. M supports a BIIR Reg 15 request to Poland. The CG supports the making of a care order on the basis of L remaining with his current foster carer, with a placement order only being supported if they cannot care for him in the future. The LA and the CG are opposed to an Art 15 request.[38]The CG filed a further analysis on 25 April 2014 in respect of L, in addition to his report of 16 December 2013 and a placement report of January 10 2014. In the April Analysis the CG commented that at the time of writing his previous reports he had understood that L’s foster carers had felt unable to care for him long term, thus making at least one move for L inevitable. The foster carers were approved as long term carers and now felt that they would wish to care for L who had settled with them. The CG balanced the advantages and disadvantages of remaining with his carers against the advantages and disadvantages of adoption. He concluded that L’s needs would best be met by him remaining with his current carers and he therefore recommended that the care plan be amended to placement with the foster carers with placement for adoption if the carers were not successfully matched with L.[39]The LA care plan for K is that he should be placed in Poland with his maternal uncle and his partner following registration of the care order. This care plan is supported by the Guardian but opposed by the parents who seek to care for K as a couple. In the event that I find that K cannot safely be placed with them they do not oppose his placement with the proposed carers in Poland.[40]Whilst M conceded that the threshold for statutory intervention was crossed, she stated that the situation between the couple had greatly improved and sought the return of all three boys her care with F. F sought the return of all three boys. In the event that I agree the LA care plan for K and A he does not challenge the suitability of the proposed carers.

The statutory framework for care and placement orders

[41]Care orders are made in accordance with section 31 of the Children Act 1989. The court cannot make a care or supervision order unless the statutory threshold is crossed which gives jurisdiction to make such orders. In this case I am required to consider both that threshold and whether to make care orders in respect of the boys.[42]Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act. The LA seeks a placement order in respect of L to place him for adoption.[43]Under s 21(3) of the 2002 Act the court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent’s consent should be dispensed with. Neither M nor F would consent to L being placed for adoption, indeed they are very strongly opposed to such a course.[44]Section 52(1) provides that the court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” the consent to be dispensed with. In deciding whether or not to make a placement order my paramount consideration must be the child’s welfare “throughout his life”, as provided by section 1(2). I must have regard to the ‘welfare checklist’ in section 1(4) and keep firmly to the front of my mind the guidance laid down by the Supreme Court, the Court of Appeal and the European jurisprudence.[45]In Re B-S [2013] EWCA Civ 1146 the court of Appeal comprising Lord Dyson MR, Sir James Munby P and Lady Justice Black reviewed the law in respect of cases where adoption against parental wishes is being considered. They stressed that intervention of this type can only be justified in certain circumstances, as explained by Hale LJ, as she then was, in Re C and B[2001] 1 FLR 611, para 34:
“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”
[46]I have also reminded myself of the dicta against ‘social engineering’ in YC v United Kingdom (2012) 55 EHRR 967, para 134:
“family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”
[47]Section 52(1)(b) of the 2002 Act provides that the consent of a parent with capacity can be dispensed with only if the welfare of the child “requires” this. The judgment in Re B-S is clear: ‘Require’ has the Strasbourg meaning of necessary: “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable” and it is a stringent and demanding test.[48]Orders contemplating non-consensual adoption are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, a “last resort – when all else fails”.[49]I have also reminded myself of the provisions of the Children Act 1989 s 1(5), which, read in conjunction with s 1(3)(g), and s 1(6) of the 2002 Act, makes it clear that I should adopt the ‘least interventionist’ approach.[50]What are my options? They range, in principle, from the making of no order at one end of the spectrum and returning all three children to the care of their parents to the making of a placement order in respect of L at the other. My assessment of the parents’ ability to discharge their responsibilities towards their children must take into account the assistance and support which the Local Authority and others could offer. I must be satisfied that there is no practical way of sufficient support being put in place for them to be safely cared for within this family.[51]The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order, and as the judge I have a duty to investigate this to ensure that resource issues are not affecting the local authority’s thinking.[52]My task is therefore to evaluate all the available options, undertaking a global, holistic and multi-faceted evaluation of the children’s welfare which takes into account all the pros and cons of each option and then to compare each, side by side, against the competing option or options.[53]The revised Public Law Outline makes it clear that if, despite rigorous case management, I do not have the kind of evidence required to perform the requisite balancing exercise, then an adjournment should be directed.

The International Element

[54]It is very clear from the important judgment in Re E that good practice requires that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order the basis upon which, in accordance with the relevant provisions of BIIR, it is either accepting or rejecting jurisdiction and the basis upon which, in accordance with Art. 15, it either has or has not decided to exercise its powers under Art. 15.[55]BIIR is undoubtedly engaged in this case. Art. 8(1) provides :
“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.”
[56]Art.15 may be raised by application of a party, of the court’s own motion, as here, or by application from the court of another Member State. It is a requirement that if raised by the court transfer must be accepted by at least one of the parties. It is also desirable for a contested Art. 15 matter to be tried by a judge of the Family Division. Having raised the issue shortly before the third time the final hearing had been listed I decided that further delay and yet further loss of judicial continuity was extremely undesirable and the likely delay to be contrary to the welfare interests of all three children and therefore I proceeded to hear the case.[57]The test is found at Art 15(1):
"By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5."
[58]Art 15(1) was considered by Munby J, as he then was, in AB v JLB (Brussels II Revised: Art. 15) [2009] 1 FLR 517 at [35] where he identified the three questions to be considered:
" ... as Art 15(1) makes clear there are three questions to be considered by the court - here The Hague court - in deciding whether to exercise its powers under Art 15(1): i) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection' with the relevant other member state - here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))? ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case. iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."
[59]It is clear from that case thatthe court must exercise its discretion whether or not to request a court of another Member State to assume jurisdiction, but is constrained so that it cannot make that request unless the three questions have been answered in the affirmative.[60]The three questions for me to consider in respect of each child are: Does he have a particular connection with Poland, as defined by Art. 15(3)? Are the Polish courts better placed to hear the case? Is a transfer to the courts of other member state in the child’s best interests? And, finally, if the answer to all three questions is “Yes”, should I, on balance, make the request?[61]I must not, and have not, in conducting this exercise, consider the relative merits of the English child protection system and the Polish system: “In determining whether the other court is "better placed to hear the case" and whether, if it is, a transfer will be "in the best interests of the child", it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State”: per Munby P in Nottingham City Council v LM and Others 2014 EWCA Civ 152[62]In considering the children’s best interests I must bear in mind that: “…..evaluation of a child's best interests under Art 15(1) is limited in its extent to the issue of forum i.e. the best interests question asked by Art 15(1) is whether it is in the child's best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction”: Per Ryder LJ [21] in Nottingham City and LM supra.[63]Under BIIR Central Authorities (or other foreign State Agencies, including Embassies) are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England. It is important to note that embassies and consular officials are given no role in BIIR and shouldn’tbe used as proxies for Central Authorities[64]The test for habitual residence has recently been settled by the Supreme Court in Re A ( a Child ) [2013] UKSC 60 and the approach was endorsed by the President in Re E . The test for habitual residence is : ( a ) a question of fact and not a legal concept such as domicile ( b ) the test adopted by the European Court is applicable, namely: “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This will of course depend on numerous factors including the reasons for the family’s stay in the country in question ( c ) the social and family environment of a child is shared with those ( here the parents ) upon whom he is dependent. It is therefore necessary to assess the integration of the parents in the social and family environment of the country concerned.[65]In respect of K and A if I make a care order with a plan to place them in Poland Art. 21 provides:
“A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”
[66]Art. 23 sets out the grounds for non recognition by Poland and states that Art. 56 should be complied with. Art 56 provides:
“(1) Where a court having jurisdiction ( under Art. 8 ) contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the Central Authority or other Authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.” “(2) The judgment on placement referred to in paragraph 1 may be made in the Requesting State only if the competent authority of the requested State has consented to the placement.” “(3) The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.”
[67]Further, enforceability in Poland of any order made in this country is concerned this is governed by Art. 28 :
“A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another member State when, on the application of any interested party, it has been declared enforceable here.”
[68]It was on the basis of this that HH Judge Lynch adjourned the final hearing to allow for consultation with the Polish authorities via the ICACU in order to comply with Art. 56.[69]The Polish Authorities have confirmed that for the order and judgment of this court to take legal effect in Poland it must be registered in a Polish Court registry. Judge Kuziak gave details of the relevant procedure and the LA intend to employ an experienced solicitor to effect registration and ensure compliance with Judge Kuziak’s response if I make care orders in respect of A and K.

Findings – habitual residence/ Jurisdiction

[70]In this case nobody had questioned the habitual residence of the children from the time the local authority issued proceedings until I raised the issue in March 2014. The recent changes to the Revised Public Law Outline case management forms have ensured that such an omission will not happen in the new Family Court.[71]I have applied the test in Re A to the circumstances of this family. The parents in this case made it plain that they were settled in England, where other members of the paternal family also live, the children were in local schools. The family had lived in the UK for significant periods and had settled accommodation, were assimilated in the local community and intended to stay. They had spoken of a future intention to return to Poland, but they were clear that that was very much in the future. During the course of the hearing it became clear that their intentions are fluid and to a certain extent depend on where their children are placed. I am therefore satisfied, on balance, that they are habitually resident in England and that the court therefore has jurisdiction to make orders in respect of these children.

Evidence

[72]The LA conducted an initial assessment in February 2013, a core assessment in April 2013 and a full parenting assessment of this couple, followed by a pre birth assessment in respect of K and an addendum assessment of the parents in late 2013.[73]Miss Langley, the social worker, explained that the assessments had shown that it was unsafe to return the children to their parents. The plans for A and K are to place them with relatives in Poland and the plan for L is to place him for adoption in the UK.[74]She described M as warm and child centred in contact and said that M had been willing to cooperate with the assessments. Miss Langley also acknowledged that M now felt more able to challenge F but was concerned that any apparent improvements in the parents’ relationship was in the context of them not caring for the children. Miss Langley voiced concern that M had changed her description of events in the past. She said:”M has previously reported what has happened, for example describing F sleeping with a knife or blade under his pillow which had meant that she was unable to sleep through fear. She now says that it was only a nail file. M initially described a Stanley knife. The two really are quite different and it now feels that she is minimising it”.[75]Miss Langley gave evidence that M’s position had changed over time. In March 2013 she had said she wished to leave F and had been offered help. Housing options had been explored but ultimately it was felt that M was asking for joint accommodation with F which could not be supported.[76]Miss Langley described M stating in July 2013 she wished to separate from F and having said she was fearful of his mother, but within a week the situation had changed, and M now describes the paternal grandmother as helpful.[77]Miss Langley acknowledged that the family circumstances in early 2013 had been poor, with cramped housing and that M had ensured that the children were enrolled at school, accessed health services and that there had been a CAMHs referral. M had at that time acknowledged to professionals that A’s difficulties were rooted in the abuse which he had seen and suffered.[78]Miss Langley told me that whenever she had tried to raise the issue of domestic abuse with F “…he either refuses to discuss it or leaves. I have explained why it is very important. We have offered sessions without me present. He neither accepts nor denies that the children have seen domestic violence.” She explained that M had said that she had stayed awake at night worried that he might cut her hair but that F had denied keeping any implement in bed with him. M’s parents had also alerted her to the fact that M had started divorce proceedings in Poland whilst F was in prison, but the proceedings had been abandoned when she had returned to England to be with F after his suicide attempt.[79]Cross examined about the car journey from the medical on 26 March 2013 to the parents home, Miss Langley explained that she had been driving her car with the parents and A in the back and another social worker in the front. M and F were arguing in Polish and A was shouting at them to stop. The other social worker screamed and she saw F’s hands near M’s throat in the rear view mirror. She described M as frantic and denied that this had been a friendly gesture by F putting his arm around M. She said that she was concerned for A’s emotional safety.[80]Miss Langley explained that whilst F had been able to engage with the assessment on occasions, he had at other times been offensive. When the care plans were explained to F he lost his temper and kicked a table, which Miss Langley said had injured the team manager. Mr Brown suggested to her that the table had not in fact hit the team manager, to which Ms Langley replied that she had seen a bruise the following day and the incident had been reported to the police.[81]Miss Langley’s assessment of contact was that F refuses to take advice about dealing with L, but his contact is more positive with A and K. Miss Langley filed a sixth statement during the course of the hearing to clarify the position in respect of the foster carer for L. In that statement she explained that a period of two weeks would be required to achieve approval for the current carers to act as long term carers, but was clear that the LA plan for him is adoption.[82]Miss Langley described A as now settled and making progress, but that on occasions his behaviour deteriorates and he has to be physically restrained. He still struggles to interact positively with L because when A becomes distressed or angry, L is frightened. She told me that A’s specialist placement now support him being placed with his grandparents in Poland, but they have commented that he will still require therapeutic work. In her view the grandparents were in favour of therapeutic support and had identified appropriate resources in Poland.[83]Miss Langley described L as very well settled in his placement, and said that he has become much more talkative, confident and able to express his feelings. She stated that when he was initially placed in foster care L was terrified of water or playing in the park. He was very afraid of loud noises. He had been very unhappy on contact days in the past but now appears happier, with less emotional behaviour such as gorging on food or hiding in a cupboard.[84]Miss Langley explained that L’s foster carers are “…unable to maintain his Polish culture. They don’t have much willingness to adapt” L now shows “…no desire to speak Polish”. She explained that the grandparents had put themselves forward to care for both A and L but that she had advised them against such a proposal. She relied on the reports about A which stated that he needed to be an only child because of his behavioural issues. They had said that if they had to choose between the boys they would choose to care for A because he had been in their care as a young child.[85]Miss Langley explained that the relationship between A and L had always been very difficult. A tried to strangle L with a belt when he was still a baby, had punched him, pushed him over and encouraged him to misbehave when they were placed together in foster care. She stated that four sets of experienced foster carers had felt unable to keep L safe from A, which was why they had been placed separately. L’s relationship with his parents with his parents was also, she said, very different.[86]Acknowledging that the possibility of finding an adoptive placement for L was “remote” Ms Langley said “…but worthwhile considering in order to give him permanence and promote his cultural needs.” Otherwise “… his long term foster carer could meet his needs” save for the cultural gap.[87]Miss Langley stated that K had had some health issues following his birth and he had been quite ill. She had explored this with the maternal uncle and they had identified a paediatrician in Poland who could take over from the UK health services and would be supplied with translated relevant health records.[88]In respect of the proposed move to Poland of both A and K Miss Langley explained that A would have telephone contact with his grandparents and there would be a handover period in the UK for them to be reintroduced before returning to Poland. K’s prospective carer would have skype contact with his foster carer in England to learn about routines and a similar handover would be arranged.[89]The LA also filed a statement from Margaret Orchard on 16 April. She is the team manager with the Adoption and Family Finding Team. She stated that a family finder has been identified for L who would commence family finding if a placement order is granted. She stated :
“Ideally, the LA would try to place L with a family who would reflect his cultural and ethnic needs. In L’s case the LA would look to see if there were any Polish adopters who may be available. However at the same time, the LA would widen the search to adopters from other Eastern Backgrounds and those who are White British to avoid any delay”
. She continued: …”Although other Eastern European countries will differ in many ways to Poland, the focus would be on looking at prospective adopters from this part of the world owing to the greater similarities, in comparison with prospective adopters from other regions.” Ms Orchard was not called to give evidence, the parties’ preferring to challenge the placement plans through submissions and cross examination of Miss Langley.[90]The social worker was recalled in the light of this additional evidence. She maintained the view that it was important to look for an adoptive family with eastern European connections for L. In her understanding Czech families would be similar to Polish families but she had not asked about other nationalities.[91]Miss Langley was opposed to L being the subject of Polish proceedings. She said that she was genuinely concerned for his wellbeing and could not foresee how suitable preparatory work could be undertaken for him if he were to be moved. She explained that the situation would differ from the plans to move L’s brothers to Poland. She was concerned about short term placements in Poland which could add to L’s distress, feeling that the potential benefits of him being in Poland would be outweighed by the trauma of moving to strangers.[92]M gave evidence that she intends to remain with F. She stressed that they had “…lost the children together and they had to get them back together” She said that although she knew she would stand a better chance of the children being returned to her care without F it was too difficult to leave him. She said that she had tried to separate and had failed; “I failed to do it and I don’t think I’m going to. I think I have failed. I’ve disappointed them.”[93]M was acutely aware that she had said different things about her relationship with F at different times in her statements and when challenged. She said “…that was my view at the time”. M stated that she wanted the children to be with her and F but if not A and K would go to Poland with her blessing.[94]M said that although at times she had said she wished to separate from F “…at the moment I’d like them to be with us. Things have changed for the better. We lost our children because of the arguments. We don’t have arguments now. We sit and discuss things calmly. We support each other.” She accepted that after the children had been taken into care F had slept with a sharp object under his pillow and that she was worried about him cutting off her hair or harming himself. She said “It was ok in fact because he didn’t”. When asked whether she was fearful she said that she had been afraid, but not very afraid.[95]Of the assault in May 2010, M said that F had left the house abruptly and without explanation. He had returned and had punched her three times to her face. She had a swollen nose and a cut lip, and she believed it was because he suspected that she was having an affair and had had a lover in the house. He had not said this to her, but had said it to the police. M said that the boys did not witness the assault, which happened about 10am. Mr Swiffen challenged her because she had previously stated that they had witnessed the assault. M said that they had only witnessed the aftermath. They hadn’t asked her about the injuries and she had not given any explanation. She also denied that her initial statement that F had kicked her while she was on the floor was true, stating that it must have been misinterpreted, as must her statement to the police that F was at that time drinking heavily and was “constantly drunk”.[96]M gave evidence that when she fled the UK following the assault she had not taken L with her. She said that F had retained L and the ticket that she had bought for him to return to Poland “…because he thought I wouldn’t come back”. She denied that she had any concerns about L’s relationship with his father at the time. When she had called F from Poland he had not believed she was there, thinking that she was calling from England. She had been honest with her parents about the violence before she returned. In June 2010 F had allowed her to return to Poland with both boys. She continued to have contact with him via skype and telephone. He had asked for a further chance and said he would return to Poland even though that would mean prison. She said “I thought his intention was to change”.[97]M described the initial period when F returned to Poland in December 2010 as good. He went to prison on 25 February until the April of the following year. She visited him in prison and took the children on occasions. She accepted that she had started divorce proceedings in 2010 but explained that between December 2010 and February 2011 their relationship was good and he did not blame her for the fact that he had to go to prison.[98]M told me that when F was released from prison he came to stay with her and her parents, and they had moved to Skierz. On one occasion they had had an argument and she returned home. Shortly after that F had attempted suicide and he had then returned to the UK.[99]M explained that she discharged A from psychiatric hospital to come to the UK because he missed F and wanted to see him. She felt that he would stop having suicidal thoughts if he saw F, but accepted that she was returning him to the UK shortly after F himself had tried to commit suicide. She felt that A did not have mental health problems, rather that he had “behaviour problems”.[100]M stated that when she returned to the UK F was fine, cheerful and happy. She said that F had not lost his temper often, but that sometimes he would lose his temper when A was naughty and they would argue.[101]M denied that F had assaulted A in early 2013. Of the February incident she said that A had been calling her names. “F grabbed him in an unfortunate way to his neck. I don’t know why. It wasn’t normal for F to do that.” She had grabbed F and pulled him back to stop him. She had taken photographs of the marks but did not know why. She had no explanation for why she had previously alleged an assault.[102]Mr Brown suggested to M that there were no bruises to A’s neck, but some reddening to his neck. M said that the marks were slight but they were blue like bruises. She said “I’m sure F didn’t want to hurt him” She was asked whether she had thought F wanted to hurt her in 2010 when he punched her face and she said “I don’t think so.”[103]When asked about the March bruising to A’s face she said that A “…beat himself up”. She said that he would self harm in this way, even in Poland, and denied that F had caused the injuries. She continued:
“I know F would not hurt the children”
. M acknowledged that A’s PTSD may have been caused by witnessing arguments, indeed she felt he was showing it in his behaviour, however she queried why A had behaved in a similar way when F was in prison and said he now would not be at risk if he returned because it would be to a normal family life “…with no arguments”. She said that now if they disagree she leaves the room or the house to allow the situation to calm down.[104]When asked about the car journey on 27 March 2013 M said that the couple had been talking a bit too loudly and that F had wanted to hug her. She acknowledged that the social workers had thought he was trying to strangle her “…but it wasn’t anything like that”. She denied asking for accommodation, pointing out that she cannot speak English. She said that the argument was because F had told her that another woman was pregnant by him; “He said it to hurt me because I am jealous” Mr Swiffen asked her how A would have felt hearing such a conversation, and she said that she didn’t think he would have heard. She said that F tried to hug her to say it wasn’t in fact true, and had not been trying to strangle her. She said “He’s not raised a hand to me since 2010”.[105]In oral evidence M accepted that both L and A had been emotionally harmed by F but she denied her previous allegation that he had physically harmed A. She said that L would ignore the couple when they argued but A would intervene and say ‘stop’. She said “We didn’t notice they were frightened. They never said they were frightened.”[106]Unfortunately it emerged that M was unaware of the advice that L’s proceedings could be transferred to Poland. She was recalled to give evidence on her future intentions. Having said that her intention was to return to Poland in a year or two, she had changed her mind. She said “If the children are in Poland there is nothing to keep me here.” She said that if K and A were moving back to Poland she would return if it would help placement of L with foster carers there. She felt that Polish had been Olivier’s main language and there was no reason why he couldn’t speak Polish again very quickly. She said that she can’t speak Czech, Hungarian or Romanian and she couldn’t see the purpose of seeking an adoptive placement with a family who were not Polish.[107]F made it clear that he intends to remain with M:
“We are not going to split up, no matter what.”
He told me that they had made mistakes which had influenced the children but he would like them to return. He confirmed that if A and K were in Poland it was his and M’s intention to return to Poland. “Wherever they are we will go there”.[108]F described the violent incident in May 2010 as his mistake and said that there had been no violence since. He said that he had not thought M had a lover but that two people he knew wanted to split them up and had told him she was having an affair. He denied kicking M when she was on the floor and said that the fact that she had given a statement to the police to that effect was a result of “…a massive misunderstanding”. He denied that he had been drinking around that time and said that he had stopped taking drugs.[109]F admitted that he had retained L’s passport to prevent M taking him to Poland after the assault. He said “I was afraid I wouldn’t see him again because of what I’d done to M. At the time I thought about myself, being honest, I wanted to keep him with me. I was phoning and skyping M. I regret what happened. It was not alright.”[110]When F gave evidence about the allegation that he had put his hands round A’s throat he denied it. He said:
“It wasn’t on his neck; it was around his neck to get him away from L. I don’t think I caused any lasting injury. I might have used too much force. I was trying to stop him harming L and things getting worse.”
[111]When asked about the bruising to A’s cheeks in March 2013 F told me that A's behaviour had been poor at school and he had kicked someone. F had told him he was grounded and A had punched himself in the face to blackmail his parents. He said that there was some bruising to A’s face and that he knew they might get into trouble:
“I know what it’s like in this country”
. He denied that R had seen any violence in the home, but accepted that R had witnessed arguments between himself and his wife.[112]F stated that he speaks to L in Polish and he responds in English, which showed, he said that L can understand Polish A speaks about 70% Polish and 30% English.[113]F gave evidence that he had kicked the table in late 2013 when the social worker had told him the care plan but said that he did not recall it hitting anyone. He said that if it had he would apologise. He also denied keeping a knife or blade under his pillow to frighten M, telling me that they were nail clippers which he kept there because he used them daily. Mr Swiffen pointed out that this behaviour was in 2013 and demonstrated that he was still jealous and angry. F admitted that he had sent messages to M when she went shopping but explained that it was he was frightened for her safety after a shop keeper had tried to assault her. He said that he didn’t think sending M messages asking when she would be home was ‘a crime’.[114]F denied doing anything to frighten the children but said that they had been worried about the arguments, which had been much worse in 2009 and 2010. He said “My wife might have been frightened of me but not recently. We gave each other a second chance.” Mr Swiffen suggested to F that the cause of A’s PTSD was the way F mistreated him both emotionally and physically. He said that he thought the cause was probably A leaving his grandparents’ home because he already had behaviour issues when M and F met. F also pointed out that he hadn’t been around much because he had been in prison and the couple had also been separated for some time.[115]F said that his relationship had always been stronger with A, and that L was fonder of his mother. He denied that L had been fearful of him in contact and had screamed, stating that L had changed since he had been in foster care and had become more aggressive.[116]When asked about the car journey on March 27th 2013 F said that they had had an argument and that it was a mistake because A was present. F said that M was angry with him for being honest about A’s behaviour. He had told her that he had found someone else in order to upset her. He said “I knew it would hurt her. I said it. I don’t think A heard.” He accused the social worker of driving irresponsibly because she described what she had seen in her rear view mirror:”It’s irresponsible to look in the mirror when driving a car with a child in it. I wanted to whisper to M to say it will be alright. The Guardian says social workers bloat things up. It was one hand, not to strangle her – to hug her”[117]F gave evidence that although he had returned to the UK alone in July 2012 the relationship continued in that they were still in contact, although “…not really a couple.” M had told him there was no point to the relationship. He said that he had attempted suicide because he couldn’t handle the pressure of their separation. He told me that he loved M and felt that if he could not be with her he would not be with anyone. He had telephoned M from the psychiatric ward and they had then started communicating on Facebook and decided to start the relationship again.[118]F was aware that A was an inpatient in psychiatric hospital at the time of the move. He said that they had given the matter some thought and it was a joint decision to remove him, stressing:
“She’s not a bad mother to do this.”
He felt that they had acted appropriately in referring A to a GP and other services in the UK.[119]The paternal grandmother, was not called to give evidence. She had put herself forward to care for L. A thorough assessment of her had concluded that she could not provide safe care for him, a conclusion which she and the parents did not challenge.[120]The initial assessment in respect of A was undertaken between 30 January 2013 and 8 February 2013. A told the social worker that he had been fighting with his brother and his father accidentally bruised him. M had explained to CAMHS that F had been violent towards her and that her children witnessed verbal abuse of her in the home. A core assessment was recommended.[121]The core assessment records that M told social workers that she wanted to leave F but he was controlling and she was worried he would take L from her. She had told a member of staff at the boys’ school that both she and the children were being abused , that she had no access to money and that F took his anger out on A, saying things like “he should be in a mental hospital” or that “…it will be A’s fault if the family separate”. M also stated that F would threaten to leave the children ‘home alone’ and send text messages saying he was following her if she went to the shops. She said that she was fearful of leaving F as he previously attempted suicide: “M is worried he will do this again”.[122]The core assessment also records M as providing emotional warmth for the boys and some affection between M and A. It states “L appears to shy away from his father.”[123]Dr Jennifer Wilson, a clinical psychologist, prepared a SACCS report in respect of A on 20 August 2013. A told her that he missed his mummy and that he wanted to go back to live with his grandmother in Poland. He had fond memories of life in Poland living amongst his maternal relatives.[124]Dr Wilson records that records and reports indicate that A had tied a ligature around L's neck when he was a baby and that he had been admitted four times as an inpatient to a psychiatric ward in Poland as a result of aggression and violence, self harm threats and trying to kill himself using ligatures and trying to cut himself. At school in England this behaviour had resumed, with him being violent and threatening self harm. Dr Wilson states that the CAMHS assessment conducted at the time felt that his presenting features were not consistent with the Polish diagnosis of ADHD but were more likely to stem from the traumas he had been exposed to as a result of the domestic abuse in the household.[125]When A was first placed in a therapeutic environment he used violence in play and encouraged adults and peers to fight with him. When restrained he would pretend to bite his fingers or hit his face.[126]Dr Wilson concluded that A meets the criteria for diagnosis of Post Traumatic Stress Disorder (PTSD) in the form of multiple developmental traumas. He also “…evidences attachment behaviours consistent with an insecure attachment style of an ambivalent subtype”. She recommended that he needs a very secure parenting style with carers who have information about therapeutic re parenting. He should be the only child or the youngest child by several years, preferably in a Polish speaking environment.[127]The limited medical records from Poland indicate that on admission in October 2012 to psychiatric hospital A was tearful and anxious:
“Afraid to be at home but does not know why”
On 2 November when he was discharged by M it is recorded that this was “against medical advice” and that what A needed was a stable, calm and consistent pattern of upbringing, clearly defined boundaries and a stable family situation.[128]On 26 March 2013 Dr Lorna Highet examined A. Both parents were present initially. They said that they were in good health, there was no drug or alcohol use and F denied any history of psychiatric problems. Rather surprisingly Dr Highet asked the couple about domestic violence when they were in the same room and A was present, at which point M became very upset and left the consultation. Dr Highet records “…at which point A became very upset and ran after his mother”. In her oral evidence Mr Swiffen asked M whether she had left because she had been asked about domestic abuse in the presence of F, M replied “It could’ve been”.[129]Amongst other marks Dr Highet noted two grey bruises to A’s cheeks, one 0.8cm x 1.3 cm and the other 0.3 x 0.6cm. With both parents’ present A said that the bruising occurred because he had slapped himself in the face. She records “On direct questioning with both parents’ present when I asked him if someone had hurt him he responded ‘no’”.[130]F told Dr Highet that A had caused the bruising to himself. He said that A had been in trouble at school for kicking a girl and that on the way home F had told him that he couldn’t play out until he explained what had happened. F said:
“Within 2 seconds he just explodes and I can tell the devil is coming out of him. Maybe my reaction wasn’t good, he clenched his fist and started punching his face and I said “it’s your face you can carry on”
. M had told Dr Highet that the incident had happened in the home.[131]F was then asked to wait outside and the consultation proceeded with M, A and the social worker. M told Dr Highet that she had photos on her mobile phone of marks on A’s neck caused a coupe of months previously when F had thrown him onto the bed. She said that deleted them as F would not have let her come to the appointment. She described F as mentally abusive to A.[132]On 27 March 2013 Dr Caroline Bodey examined L. M told her that there had been no direct violence to L but he had witnessed violence. A was present and was asked about a mark to L's cheek. He confirmed M’s account that this had occurred whilst the children were playing in the garden. Dr Bodey’s report records: "A was also questioned by the social worker about bruises to his neck a month or so previous. A showed with his hands around his neck and made strangling sounds to demonstrate how he got the bruises. When asked who did this to him he said that it was his father J.”[133]Dr Bodey concluded:
“The most striking thing about this case is the severe emotional abuse that I both witnessed and was described to me. L was extremely distressed coming to the assessment. This was of a degree that is certainly not expected from a four year old. M described to me that L has witnessed extreme violence between F and other family members and told me that L worries about her when she is upset. This is an overt demonstration of emotional abuse. This emotional abuse is secondary to the domestic violence caused by F”
. She opined that emotional abuse can cause severe and adverse effects on a child’s future emotional development and recommended protective action.[134]Mr Wood, the Children’s Guardian, wrote three reports in the proceedings and gave oral evidence. He has 30 years experience in the field and holds a Masters Degree in Child Protection.[135]Mr Wood supports the care plan for A as in his assessment it would be unsafe and unmanageable to return him to the care of M and F. Despite the fact that the last reported violence to M had been in 2010 Mr Wood was concerned that the triggers for violence went undetected and the emotional abuse had been ongoing. In Mr Wood’s view the situation of domestic abuse was compounded by the violence towards A. He said:” This isn’t just domestic violence. It’s also the direct risks from F. There are ongoing tensions even in these proceedings and M has changed her behaviour not to provoke him. That suggests a far from satisfactory relationship. It’s notable that F hasn’t really engaged with the LA and can’t accept any wrongdoing other than in 2010.”[136]The Guardian had met with the parents and shared Miss Langley’s view that F had offered superficial cooperation at best. He felt that the local authority had supported the family as much as possible and he could not identify any other resources or work which could have supported the family given the position adopted by the parents. Mr Wood felt that the social work assessment of the grandparents was “reasonable” and was very clear in his view that it would not be possible to place A and L together because to do so would almost inevitably breakdown with consequent disruption for both boys. In his view, A will need a specified source or sources of support rather than the Local Authority simply specifying what sort of support he will need, and he will require language support during the transitional process.[137]In respect of the planned four times per year contact to be supervised by the grandparents Mr Wood thought that such a level would be suitable to maintain identity links in a situation where rehabilitation to his parents was contra indicated. He also supported ad hoc contact with K which would occur spontaneously in a family context. He felt that the identity of the contact supervisor was unclear. He had understood that the family would supervise contact in Poland.[138]In Mr Wood’s view it would be unsafe to place K in his parents’ care and he supported placement with maternal uncle and his partner. He was concerned that the Local Authority should ensure that K’s medical condition and treatment should be effectively communicated via the Local Authority to enable an uninterrupted medication and care transition. He supported the slightly lower level of contact at three times per year because of K’s lesser attachment to his parents, his age and his permanence needs.[139]When Mr Wood was appointed L was already in a separate placement to A after three successive placement breakdowns where experienced foster carers had been unable to keep L safe from his brothers’ behaviour and influence. He described L as reasonably settled but a very anxious child who was affected by anything which wasn’t routine or known and commented that he is now much more relaxed and open.[140]In Mr Wood’s view it would not be safe to move L either to his parents or to Poland:
“Any move would be very disruptive. He’s anxious. He has had repeated changes. He’s a young child and it would be hard for him to change. It could be very disruptive. Handover could be difficult just on a practical level. He’s in a White British placement and his natural language is English. It would have be a dramatic difference”
. He continued:
“We have no advice from Poland about their foster care system. It’s speculative and uncertain. In the short term he would be in a short term placement so there would be potential repeated disruption.”
Mr Wood did not feel that much weight should be placed on Ls wishes – he would not wish to go to Poland – because of his age and understanding.[141]Mr Wood had spoken recently to Ls carer who had made it clear that she wished to care for him long term. Although he had supported the local authority plan for adoption in mid December 2013 he had changed his position because of the carers now putting themselves forward. He felt that the benefits to L of continued family contact and avoidance of an emotional disruption which any move would bring would be in his best interests.[142]Mr Wood was opposed to an Art 15 request. In his view the primary plan should be for L to remain with his foster carers. If that were not possible he would support the search for a suitable adoptive placement. He could not support a placement order at this stage and proposed an adjournment for the matter to be referred to the Agency Decision Maker to ascertain whether the current carers could be matched to L for long term care.[143]The Guardian stressed the need to avoid delay and to minimise disruption to L. In his view there could be increased disruption with a less effective handover if the proceedings were transferred. He said that if transferred “…I don’t know that he would have stability and there could be delay”. He also said that he would be concerned about the lack of certainty which transfer could involve.

Findings - factual

[144]The Local authority has brought this case and they must prove the findings they seek on the basis of cogent evidence on the balance of probabilities. I have reminded myself of the test as described in re B(Care Proceedings; Standard of Proof) [2008] 2 FLR 141: [70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.[145]I have taken into account all the written and oral evidence and have borne in mind the difficulties in giving evidence via an interpreter.[146]I recognise that life in England has been very difficult for both parents as they have struggled to find work, lived in unsatisfactory cramped conditions and have had significant financial and cultural obstacles to overcome. They are both still relatively young and clearly love all three children. M, in particular, has been observed to show warmth and nurturing to all her children.[147]I am however satisfied that both children have witnessed domestic violence between F and M which has included verbal and physical abuse. The level of this abuse has been extreme. I am satisfied that F is a jealous and controlling man who has ruled his wife and his children through fear and violence. I am also satisfied that the Local authority have worked consistently over the past 18 months to enable M to separate from F when she has said she wishes to and have provided all necessary support to her without pressurising her in any way.[148]F has not always used violence, although the admitted assault on M in May 2010 demonstrates how unpredictable he can be. I am satisfied that on that occasion he gave no warning of an attack, and viciously assaulted her because his jealous rage could not be controlled. I find that it is more likely than not that he kicked her when she was on the floor. I am sure that when she gave her police statement M was describing actual events. She does not embellish or exaggerate and there was no reason for her to lie about being kicked. I do not believe her when she now says that there must be a mistranslation. The interpreter would have no reason to describe a kick if none had been described to them by M.[149]I did not find that either M or F were truthful witnesses. At times, M was unable to help herself and there were glimmers that she wanted to tell the truth and describe what life had really been like. An example was when she refused to accept Mr Brown’s suggestion that F had not really bruised A’s neck, when she insisted that the marks were blue and looked like bruises. Most of the time however she colluded with F in presenting a false picture of their lives. This went beyond “minimising” the allegations – it was dishonest and deliberate.[150]F was even less impressive as a witness. His suggestions that he kept nail clippers under his pillow rather than a blade to frighten M, and that he was trying to cuddle her in the social worker’s car on 26 March 2013 were patently false, as was his description of holding A by the shoulders rather than putting his hands round his neck and his suggestion that A had beaten himself up.[151]There was clear evidence of the parents now colluding to try to hide the truth of what had really happened from me. A good example is their description on the car journey on 26 March 2013. I find that they had a serious argument in the car where they were sitting together on the back seat with A. I am satisfied that the incident must have been frightening for A, as well as the two social workers. F became so angry with M that he told her that he had made another woman pregnant in order to upset her. There is no doubt that A would have heard and understood his menace. I find that M had sufficient basic English to indicate her distress to Miss Langley. I am also satisfied that Miss Langley was telling the truth when she described her colleague screaming as F tried to assault M, and that she looked in the rear view mirror to see him attempting to strangle M. Miss Langley was unable to stop the car as she was in traffic and she was clearly very shaken by the incident, which she reported to the police that evening. The parents’ description of F trying to hug M was incredible.[152]I find that F will do anything to control M. He texted her repeatedly whenever she went out, he hurt her with untrue allegations that he had a pregnant girlfriend, he attacked her without warning and as recently as the second half of 2013 he slept with a blade under his pillow. He knew that she would be terrified that he would either harm her or himself. He had a history of two failed suicide attempts, both involving blades, and had been violent and unpredictable. He had cynically used the second attempt to persuade M that she should abandon her divorce proceedings in Poland and return to him in England. His behaviour was manipulative and cruel, just as it had been when he had kept L’s passport and tickets when M was desperately trying to leave him and flee to Poland. He thought that she would return for L, and he was of course correct. He also knew that she would remain afraid that he would keep L from her if she tried to leave in the future.[153]I am satisfied that F assaulted A by putting his hands round A’s neck in anger and with sufficient force to cause bruising. I do not accept that this was mere restraint by the shoulders. Firstly, restraint by the shoulders would not have caused red marks to A’s neck, which F accepted had occurred. Secondly, A gave a graphic demonstration of what had occurred showing hands round his neck on 26 March 2013. His account was consistent with M’s account at the time and since, and it was sufficiently serious for her to take photographs of the injuries at a time when I think she was quite desperate to leave F.[154]I recognise that A is a young boy with very serious behavioural problems and that on occasion he does in fact hit his face when angry, but that has not been recorded as anything more than ‘slight’ and no injuries have been caused. In March 2013 A had bruises to his face which would have needed significant force to inflict. I have also born in mind that A said that he had self inflicted the bruises, but I find on balance that F caused the bruises by assaulting him. I did not believe the description F gave which changed from ‘on the way home from school’ to ‘in the home’ nor M’s unconvincing description of A hitting himself.[155]I find that both A and L have been exposed to F’s reign of terror over M and have reacted in different ways. L has rejected his father and has shown extreme emotional reactions for a child of his age. A has tried to intervene in the arguments, as demonstrated when he told his father to stop in the social worker’s car on 26 March 2013. I agree with M’s view in March 2013 that A’s behaviour was inextricably linked to the abuse he witnessed and suffered.[156]I am satisfied that M has failed to protect her children from the damage she knew was being caused to them. Her behaviour in removing A from psychiatric hospital in November 2012 and bringing L and A to the UK against the advice of the hospital and her parents is a clear example of this. A had been threatening suicide and self harm and was sufficiently ill to have been recently readmitted as a psychiatric inpatient for the fourth time that year. She knew F had recently attempted suicide for the second time in the space of 6 months but decided to give into his emotional blackmail, risking her own safety and the physical and emotional wellbeing of her children. I am not sure how much F influenced this decision, which he describes as a joint decision, but it really was an extraordinarily risky thing to do. I am sure M soon regretted her decision and made several attempts to leave him in 2013, but the traumatic events of that year could have been avoided if she had remained firm in her resolve to separate from F and had remained in Poland where A could be therapeutically treated and L was safe from emotional harm.[157]The combined effect of the parents’ behaviour has thus damaged their children. I am satisfied that the s31(2) threshold criteria are met and I make the findings sought by the Local Authority.

Analysis

[158]Of course, the fact that I find that threshold is met does not necessarily lead to making the care orders and placement order sought by the Local Authority. I have carefully considered the parents’ evidence that their relationship is much improved and that the risk of further harm is therefore reduced or eliminated. All three of the boys should live with their parents if it is safe for them to do so.[159]I accept the social workers’ evidence that F has consistently refused to work with the Local Authority, has refused to discuss the abusive relationship with M and how it could be tackled. He has been dismissive of Miss Langley and unable to control his anger in her presence on occasions, such as in the car in March 2013 and when she and the team manager were trying to explain the Local Authority plans for the children later that year. It is easy to say that the parents were being told very distressing news and that F didn’t mean for the table he kicked to hit the social worker. It is however completely unacceptable. Many parents face such difficult conversations and news without reacting violently. The social workers in this case were acting professionally and should not have been exposed to aggression and physical harm.[160]M is willing to work with the authority but she knows that F is unable or unwilling to do so. She has however made a firm, positive decision to remain with him and has carried that plan through for almost a year. She knows the likely consequences of the decision I am sure. In my assessment M is enabling the relationship to proceed by subordinating her wishes and feelings to those of F. She does and says, in effect, what he wants. This was amply demonstrated during the hearing.[161]Children are not so compliant. A, with his behaviour and emotional difficulties, would be defiant and oppositional to his stepfather within a short time of return. The relationship would soon return to one of threats, violence and aggression. That risk would mean further, perhaps irreversible, significant traumatic harm to A. There is no possibility of managing the situation within the home because F denies any responsibility for A’s emotional turmoil and there is therefore no safeguarding work to be accomplished in order to reduce risk. In my assessment the risk of returning to his parents’ care would be extremely high and the outcome for him would be catastrophic.[162]A has made progress within his therapeutic residential placement and I have given serious consideration to whether his best interests would require him to remain there. The professionals involved, both at the placement and the Children’s Guardian, are now clear that he is ready to leave to live in a supported, caring family situation. It would obviously not be in his interests to remain in a residential situation if a suitable family placement which could meet his needs is available.[163]I have read the careful assessment of the maternal grandparents in detail. It is unchallenged and supported (M) and unopposed(F) as a ‘fall back’ position. A would no doubt wish to return to his mother but he has also shown a very strong wish to go to Poland and be with his grandparents. Professionals support the plan on the basis that he will have stability, his grandparents will access therapeutic services for him and he will in effect be an only child. He will also maintain contact with his parents, K and possibly L.[164]Placement with his grandparents will of course mean a significant change in circumstances for him. I am satisfied that the local Authority plan promotes his welfare needs and will ensure that the transition will take place as beneficially as possible. It will be particularly important to have translated documentation available to help him access services in Poland and for his grandparents to be given as much preparatory help as possible.[165]L is a five year old little boy who has lived for most of his life in Poland, but has recently adopted English as his language of preference.[166]L is described as quiet, but appears to be growing in confidence. He has attended nursery school since September 2013. L’s first language is Polish, but he has now started speaking more English. He has had regular contact with his parents during the proceedings and some supervised contact with A. His relationship with his parents is at times strained and he is clearly a child whose need for emotional stability is great. Any change in his circumstances will be highly significant for him.[167]I am satisfied that return to his parents care would be unsafe and highly risky. Whilst he is less confrontational than A I do not think that that necessarily shows he is more resilient. The comments by Dr Bodey about his presentation on 27 March 2013 clearly show how damaged he is and how extreme the effects of the damage can manifest itself in his behaviour. To return him would be contrary to his interests and his safety could not be ensured by any court order or support services/ intervention.[168]The maternal grandparents have been assessed as possible carers for L but since very experienced foster carers have been unable to care for A and L together owing to the emotional and physical harm which A is likely to inflict on L, such a placement is not possible if they are going to care for A.[169]The other options for L are remaining in long term foster care or being placed for adoption, unless the proceedings are transferred to Poland.[170]K is a small baby who has been in foster care since he was discharged from hospital. He has had some health difficulties but these are now controlled and are being monitored. He is developing well and there is every indication that he will catch up with the delay caused by his illness. He will be affected by change and therefore needs that change to be managed in a child centred manner with information about his routines and feeding regimes handed over to his carers.[171]K has not suffered any physical or emotional harm. I have carefully assessed whether it would be safe to place him with his parents, who say that they have changed sufficiently for him not to be harmed. Sadly, for the reasons I have outlined, I have concluded that the risk to K would be the same as to his brothers, namely a high risk of both physical abuse and emotional abuse. It is impossible to manage that risk and I have concluded that he would suffer the effects of similar harm to his brothers. Both of them exhibited extreme disturbance in March 2013 and A has a very clear ongoing need for therapeutic care for the foreseeable future.[172]It is important for K to be placed with wider family if possible since he will be able to maintain contact with his parents and his brothers, albeit on a limited basis, to promote his sense of identity whilst not undermining the permanence of his placement with his uncle. I am satisfied that the intensive assessment of the uncle and his partner, which was not challenged, points to a successful and permanent placement with them. This could be achieved within his timescales, a crucial factor given his age.

Decision

[173]I have spent some time during the proceedings considering Art. 15. This would allow for proceedings to be transferred to Poland, even though I have found that the children and family are habitually resident in the UK. It is clear to me that the children, in particular A and L, have a particular connection to Poland, but that is not enough.[174]I am satisfied that transfer is not in A and K’s best interests. Poland is not the better jurisdiction to hear their case. Assessments by CFAB and social services have been completed of family members in Poland. If I approve the care plans of the LA to place them with relatives in Poland as soon as the orders I make are registered their futures can be settled relatively swiftly. In my view the delay of making the Art. 15 referral would weigh heavily against their welfare interests in circumstances where they have been placed outside the family for an unacceptable period of time -in A’s case for 14 months and in K’s case since birth. It is clear to me that their interests would not be better served by a transfer. Had I considered the matter in April 2013 my view may very well have been different.[175]In A’s case, having considered his welfare interests and starting with the least interventionist order, I am satisfied that no order would be quite contrary to his interests and that a supervision order would be entirely inappropriate as it would offer inadequate protection for him. I am satisfied that a care order is necessary to protect his welfare interests and that the local authority care plan, for placement with his grandparents and limited ongoing direct contact with most of his family members, meets his welfare needs. There is currently no other order which would enable this plan to be achieved without significant further delay.[176]K has not suffered any significant harm and is a young child who needs a safe permanent placement as soon as possible. It is clear to me that placement with his parents would be unsafe and that he would grow up with the emotional difficulties now clearly exhibited by both A and L. As with A, there is no order which I could make to offer him sufficient protection in their care. A family placement is therefore ideal for K, and I am satisfied that the care plan of the local authority to enable him to live with his maternal uncle and have an upbringing which will ensure that he has developing links with his wider family and a stable home which understands his need for permanence is the only way to meet his welfare needs. There is currently no other order which would enable this plan to be achieved in his timescales.[177]I have considered L’s situation separately. On current plans he will remain in the UK, either in long term foster care as advocated by the Guardian, or adopted by a suitable family as advocated by the LA.[178]L has a very clear connection to Poland. His maternal family and part of his paternal family live in Poland. His brothers will soon live in Poland. His parents will probably return to Poland. As a question of fact I find that the first requirement of Art. 15 is answered in the affirmative.[179]Legal advice obtained by the LA during the course of the proceedings clearly showed that if I make a care order the LA will not be able to place L with foster carers in Poland unless his parents are living there. Until very recently the parents have said that they intend to remain here, and in any event the LA are now opposed to placement in Poland and vehemently opposed to an Art. 15 transfer. The Guardian supports their position.[180]I have carefully weighed the objections to an Art. 15 transfer in relation to L. The LA point out that no party had sought to make an application under Art. 15 and the court had not at any stage until the pre hearing review raised consideration of Art. 15. Mr Swiffen submitted that one of the reasons may be that A was receiving specialist therapy in a beneficial setting, and K was extremely unwell shortly after birth and required hospitalisation and subsequent treatment. It is also correct that the Polish central authority has now been contacted and has not suggested the case be transferred to the Polish jurisdiction under Art. 15.[181]In my view the failure to consider Art. 15 at an earlier stage should not prejudice L’s future. I have decided, in weighing all the factors both in favour and against, that in his case Poland would be better placed to hear the case, and that it being heard in Poland would be in his interests.[182]My reasons for this are that a Polish Court will have the assessments in this case providing a wealth of information about L and his family, which can no doubt be translated expeditiously. The court will have this detailed judgment, containing my findings in relation to the family and the circumstances in which L’s brothers will soon be returning to Poland. A Polish Court will be able to place L in foster care in Poland – which I cannot do – and will be able to consider afresh family placements if it so chooses.[183]The child protection authorities and courts in Poland are able to deploy a similar range of protections available to the local authority and courts in England and Wales although the concept of non-consensual adoption is very limited, in common with many jurisdictions in Europe in contrast with our own practice. It is however clear from the decision in February of this year in Nottingham City Council v LM and Others [2014] EWCA Civ 152 that “The difference in practice and principle relating to the measures to be taken in different Member States to meet risk and/or to meet the needs of a child including the use of non-consensual adoption is not a basis under Art 15 to decide the second or third questions.” Per Ryder LJ[184]Art. 15 provides that a part of a case can be transferred, thus not precluding a referral at this stage, even though judicial continuity will be lost if accepted.[185]I have not underestimated the value of judicial continuity and the uncertainty which a change of judge may bring. There are at least two aspects to this. I have seen and heard the oral evidence of the witnesses including the M and F. I would normally follow through my findings of fact and impressions about reliability and credibility into final determinations. I cannot cover every aspect of the case in this judgment, although I have included as much detail as I can, and transfer would lose the impressions I carry in my head. Judicial continuity promotes consistency of approach and in this case I am acutely aware of the fact that the course I propose involves me determining the welfare interests of two siblings and requesting that another jurisdiction ultimately determine the welfare interests of another.[186]This case would not come within the split hearing principles set out Cambridgeshire County Council v S (A Child) [2014] EWCA Civ 25 but the evaluation of evidence and analysis was in my view necessary in respect of all three children in this case to be undertaken without further delay because of the history of this case. I would hope that this detailed decision and my findings are clear enough for another tribunal to use in the best interests of L.[187]I have also decided that the case being heard in Poland would be in L’s best interests. I have weighed the fact that he is very settled in foster care and the fact that an experienced Children’s Guardian has recommended that he should remain with his current carers to ensure his emotional wellbeing. Mr Wood joined with the Local Authority in opposing the referral.[188]My reason for departing from the views of the social worker and the Children’s Guardian is that in my assessment both fell into the trap of giving undue weight to the considerations prohibited by Ryder LJ and Munby P in LM . Both Miss Langley and Mr Wood held the belief that a Polish court and social services would not be able to effect a transition which would cause the least emotional damage to L. Comparisons with the English Local Authority plan to move him to an adoptive placement or concerns about the Polish foster care system are not relevant to this decision.[189]I am also aware that L has stopped speaking Polish, that he does not want to return to Poland and that he is very settled and attached to his foster carers here. I take these matters into account but do not elevate them above other factors.[190]L is a Polish child. He spoke only Polish until about a year ago. His current rejection of Polish culture and language is in my view not in his best interests. His foster carers have not taken him to Saturday Polish school and he has had only his parents’ cultural influence during restricted and limited contact. He is only just 5 years old, and I am sure he would be able to return to his native tongue without too much difficulty. He was able to converse with his grandparents when they visited last year, so I do not agree with the Guardian and the LA that he would suffer harm in being placed in a non English speaking environment.[191]Whilst he has formed very clear bonds with his foster carers I am sure that they would assist him to move to another placement, and his parents, particularly his mother, will encourage him to adapt. From what I know of his extended family in Poland I am sure that they too would assist the Polish authorities in making his return to Poland, and decisions about his future life, to take place in the best manner possible. I anticipate that L could return to Poland in the near future and be placed there before the start of the next school year.[192]I do not doubt that there could be some short term emotional detriment to L by my decision. He will be very unhappy. If L remains in his current circumstances he will lose his Polish identity. His Foster carers have not promoted his Polish culture in any meaningful way, despite the recommendations of the LA and I have little confidence they would do so in the future. His contact with family will not be spontaneous or natural, and is likely to diminish significantly. He will soon be unable to speak Polish. He will not be able to communicate with his parents, his brothers and his extended family without a translator. Those important relationships will effectively be denied to him and in my view that long term loss would be highly damaging to him and contrary to his welfare interests.[193]I have tried very hard not to elevate one of the three questions above the other. They are all intimately entwined, and I have considered them individually and globally. I have made final decisions about two Polish nationals in this court which demonstrate, I hope, that I do not make the request simply because L is Polish.[194]Having evaluated the factors above and balanced the submissions of the parties, and having applied the recent authorities to this unusual case I am on balance satisfied that I should exercise my powers in relation to Regulation 15 in respect to L as being in his welfare interests.[195]The proceedings in relation to L are therefore stayed in effect. He will remain subject to an interim care order. Should the Polish authorities decline the request, I will conclude his case in due course and with as little delay as possible.[196]In relation to A and K I approve the final care plans as being in their best interests ascertained by applying the Welfare Checklist contained in Children Act 1989 s.1. I shall therefore make final orders in respect of both boys. Postscript. The Art 15 request was accepted on 25 September 2014. Arrangements for transfer of the child were still not finalised at the end of October

Cited in 1 later judgment