A Local Authority v A & Ors [2016] EWHC 2635 (Fam)

Case No ZE15C00356[2016] EWHC 2635 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 19 th September 2016
Before
MRS. JUSTICE THEIS(In Private)
Between
A Local AuthorityClaimantA & OrsDefendant
B E T W E E N:
A LOCAL AUTHORITY Applicant
- and -
(1) MRS. A
(2) MR. A
(3) B (A CHILD)
Respondents
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MR. S. COYLE (instructed by Legal Services)
appeared on behalf of the Applicant Local Authority.
MISS B. ROBERTS (Lonsdale and Mayall Solicitors) appeared on behalf of the First and Second Respondents.
MS. M. HAMILTON (of McMillen Hamilton McCarthy Solicitors) appeared on behalf of the Children’s Guardian.
J U D G M E N T
This 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 children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Introduction:

[1]I am concerned today with three applications that relate to a little girl called B, who is now 4 years old. The three applications before the court are, firstly, an application by the local authority for a care order, dated 26th June 2015; secondly an application for a declaration of non-parentage dated 20th August 2015; and then, more recently, an application for an adoption order made by Mr. and Mrs. A, dated 10th May 2016.[2]I am giving this ex tempore judgment, so that, for reasons which will become clear, details of the basis upon which this court makes its order today can be disclosed to the Secretary of State for the Home Department, who is considering an immigration application by Mr. and Mrs. A.[3]I gave a judgment in relation to a determination regarding habitual residence on 10th March 2016. There will need to be directions made for that judgment to be disclosed, as well.[4]The context of the application is that Mr. and Mrs. A have cared for B since soon after her birth. The local authority issued an application for a care order in June 2015. B remained living with Mr. and Mrs. A pursuant to a child arrangements order, made when the case first came before me on 8th October 2015, and continued by the order in February of this year.[5]Even though Mr. and Mrs. A are B's primary carers, DNA testing has established they are not B's biological parents. That position has arisen in circumstances which I shall outline below.[6]I have had the advantage of reading all the documents in the court bundle. In particular, the Schedule 1 report prepared by Ms. Adams, as well as her updated assessment following receipt of the DBS checks. Nobody has required any oral evidence to be given as there is a consensus between the parties about the way forward.

Background

[7]Turning briefly to the background, Mr. and Mrs. A were born in Nigeria; Mr. A is now 55 years, and Mrs. A is now 47 years. They married in Nigeria in 1998. Mr. A has a child from a previous marriage, who is now 23 years old and has recently graduated from university in Nigeria, studying law. Unfortunately, and very sadly, her mother died in child birth, so Mr. A has been her main carer, responsible for her upbringing.[8]Mr. and Mrs. A had a child of their own, a daughter, who sadly died in March 2011, in circumstances as set out and described in some detail in the Schedule 1 report.[9]Mrs. A first came to the United Kingdom in 2011, to study here under a time-limited student visa. She reports that following the death of her daughter she consulted a herbalist in Nigeria about fertility treatment. In 2011 she presented for ante-natal care in this jurisdiction, stating to medical professionals that she believed she was pregnant. Subsequent medical investigation found no evidence of that pregnancy, but did confirm a diagnosis of fibroids. Mrs. A returned to Nigeria in April 2012 not returning back to this jurisdiction until September 2012. She informed the professionals that during her stay in Nigeria she gave birth to B at the Ayodele Natural Specialist Hospital in Okitipupa, Southern Nigeria.[10]The local authority first became aware of B's existence when there was a referral in November 2013 from the family's general practitioner, who expressed concern that Mrs. A was not B's biological mother. The local authority completed their initial assessment in December 2013. This raised no concerns about the day to day care being provided to B, but recommended, because of the circumstances outlined above, that a s.47 investigation was carried out due to the concerns about the risk of possible child trafficking.[11]Mr. and Mrs. A agreed to submit to DNA testing in February 2014, which confirmed that they were not B's biological parents. Notwithstanding the outcome of that DNA test, and other medical evidence that was available, at that time Mr. and Mrs. A continued to assert their belief that B was their child. They appeared to shift somewhat in that view in March 2015, at a meeting with the local authority. In June 2015 the local authority issued care proceedings.[12]In October 2014 the local authority instructed Dr. Samantha Dove, a consultant psychiatrist, to assess both parents. She concluded that neither of the parents presented with any symptoms of mental disorder which would prevent them from adequately caring for B. In relation to Mrs. A's belief that she was pregnant and her reporting of physical symptoms consistent with pregnancy, Dr. Dove considered that this would be consistent with a diagnosis of a condition known as pseudocyesis, which is known to be associated with women who have never had children, or experienced a death of a child. She advised that Mrs. A may benefit from an assessment to consider whether she would be amenable to any psychological intervention.[13]At the same time the Metropolitan Police conducted a criminal investigation into the circumstances in which B came into the care of Mr. and Mrs. A, and considered whether there was sufficient evidence to charge them with offences under the Immigration Act 1971. In March 2015 it was decided the case could be disposed of by administering a caution relating to Mrs. A's application to the British High Commission for a visa for B on 3rd September 2012, where she stated B was her child. Mrs. A accepted that police caution on 20th March 2015 and the police decided, on 22nd April, consequent to that caution being accepted, that no further action would be taken against Mrs. A.[14]At the case management hearing before me on 8th October 2015, permission was given to jointly instruct Dr. Willemsen to carry out a psychological assessment of B and Mr. and Mrs. A. In his report, dated 2nd December 2015, he raised no concerns about B's current psychological development and considered that she has a secure attachment with Mr. and Mrs. A. However, he did consider that the parents both need to receive therapeutic work as a couple to help them investigate their own feelings in relation to the circumstances surrounding B's birth, and to assist them in formulating an adequate and child-focused narrative to provide for B as she develops.[15]That work has been undertaken by a CAMHS psychotherapist. The aim of the work was to assist Mr. and Mrs. A to support B to have an understanding of her identity, and the issues surrounding her birth and her birth parents. Mr. and Mrs. A are the only parents she has ever known and this is evident, it is said, within their relationship. The Schedule 1 report in the adoption proceedings describes both Mr. and Mrs. A having made good use of the sessions they have attended which have now concluded. It is reported that it is evident from these meetings that both parents have a better understanding and acceptance of the circumstances that led to B's birth, and how they are going to communicate these events with B both now and in the future. That report confirms it is evident from the observations during the social work visits that B remains happy and thriving in the care of Mr. and Mrs. A.[16]In addition to these investigations undertaken in this jurisdiction, the local authority instructed an independent social worker with experience of assessment of families of Nigerian origin and cases involving Nigerian parents or children, Henrietta Coker, to make enquiries in Nigeria to identify what further information could be gathered, if any, about B's parentage and the circumstances of her birth. The report prepared by Ms. Coker indicates that the clinic visited by the first and second respondents, Mr. and Mrs. A, is well-known to the Nigerian authorities as a result of allegations that it is involved in the practice of so-called "baby farming", in which the children of young mothers, who have often themselves been the victims of human trafficking, are sold for financial gain. The particular clinic identified in Mr. and Mrs. A's evidence has now been closed by the authorities in Nigeria, and Ms. Coker was unable to make any further investigations in relation to the identity or location of B's birth mother or father. She concludes that there is now no realistic prospect of any further steps being taken to identify B's birth parents.[17]The local authority completed its final evidence and care plan in relation to B and are satisfied that B is receiving a good standard of care from Mr. and Mrs. A, and her welfare would best be served by her remaining permanently in their care. At that stage the local authority were not seeking any public law orders, although they recognised at a hearing before me there were uncertainties in relation to B's legal position, as a result expert evidence was necessary.[18]The court has the benefit of two reports being provided by an expert in relation to Nigerian law, Chimi Umezuruike, who is a practitioner not only in this jurisdiction but also in Nigeria. He was asked to provide expert evidence in relation to the legal position in Nigeria of a number of orders this court could make. In his first report, dated 17th February 2016, he confirms as follows:
"Nigeria has a federal system of government. It has a federal parliament and 36 states. Each state has its own parliament. There are areas in respect of which only the federal parliament can enact laws and some areas in which of which only the state parliaments can enact laws"
. He sets out at para.14 of his first advice there are three Acts that deal with the enforcement of orders or judgments made by foreign courts. The relevant one in relation to family proceedings is the Child's Rights Act 2003. He confirms that s.146 of that Act provides where a person has been adopted under any law in force in any part of Nigeria, or under the law of any other country other than Nigeria, the adoption shall have like validity and effect as if the adoption had been effected by an adoption under that Act. He confirms by virtue of this section, an adoption order made by a court in England and Wales will be recognised and enforced in Nigeria. There is no similar provision made for enforcement in Nigeria of a child arrangements order made here. What he confirms is that an adoption order made by this court, or by a court in Nigeria, will give Mr. and Mrs. A parental responsibility over B. Assuming that they intend to reside in Lagos state, the adoption order can be registered in the Adoption Children's Register by completing the form in Schedule 7 of the Child's Right Law of Lagos State 2007. He continues at para.17 of the first advice:
"On the assumption that the As and B will reside in Lagos, the As can also obtain parental responsibility for B by obtaining a guardianship order or fostering order under the Child's Right Law of Lagos 2007"
. They would have to make an application to obtain any of those orders. So he confirms at para.18 that an adoption order made by a court here will be recognised in Nigeria. A child arrangements order will not be enforced in the same way, it would be regarded as the legal basis for Mr. and Mrs. A having B in their care, but no more than that.[19]In relation to the consequence of that, at para.19 he states:
"Section 25(1)(b) of the Constitution of the Federal Republic of Nigeria 1999 provides that every person born in Nigeria after the date of independence, namely 1st October 1960, either of whose parents or any of whose grandparents is a citizen of Nigeria shall be a citizen of Nigeria by birth"
. He continues:
"Although B appears to have been born in Nigeria after the date of independence, she will not be able to rely on this section to claim Nigerian citizenship because she cannot prove that her, or any of her parents or grandparents, was a Nigerian citizen. This confirms that Nigeria has no equivalent of s.1(2) of the British Nationality Act 1981 which provides that a new-born infant who, after the commencement of that Act, is found abandoned in the United Kingdom, shall, unless the contrary is shown, be deemed for the purpose of subsection (1) to have been born in the UK after the commencement of that Act"
. He continues:
"Making an adoption order in favour of Mr. and Mrs. A will regularise the entries in B's birth certificate that they are her parents [that is her Nigerian birth certificate] and accordingly it will enable her to assert Nigerian citizenship by birth. If this were to happen she can validly enter Nigeria with her current Nigerian passport that will expire in May 2017"
. He finally confirms at para.24: "The Nigerian authorities will permit B to enter the country with her current Nigerian passport that will expire in May 2017, if an adoption order is made in favour of Mr. and Mrs. A, who are Nigerian citizens".[20]In his supplemental advice, he was asked to confirm the status in relation to B's Nigerian birth certificate and Nigerian passport, bearing in mind that they were granted on false information. He confirms at para.3 of that supplemental advice that s.40(1) of the Births, Deaths, Etc. (Compulsory Registration) Act 1992 provides that:
"No alteration shall be made in any register of birth or death, except as authorised by this or any other enactment"
. He continues: "My view is that by virtue of this provision any birth certificate issued under this Act will be valid until it is altered under the procedure provided by the Act, thus B's birth certificate will remain valid until it is altered by the procedure prescribed by that statute".[21]As to the position regarding the passport, he confirms, at para.4 of his supplemental advice, that his view is that B's current Nigerian passport is valid. He confirms again, at para.8, by virtue of s.146 of the Child's Right Act that a person adopted in another country will have that order recognised and enforced in Nigeria.[22]Since that advice was given, this court made a determination on 10 March regarding Mr. and Mrs. A and B's habitual residence. For the reasons set out in that judgment, I concluded they were habitually resident in this jurisdiction. Following that, the application for an adoption order was made on 10th May 2016.[23]The immigration position in relation to Mr. and Mrs. A is that Mrs. A first arrived here on 10th February 2011, having sought and obtained appropriate study entrance clearance. She enrolled to pursue her course of study and obtained a Bachelor of Arts degree in business management. Mr. A successfully sought entrance clearance to join his wife here as a dependant, and entered this country on 4th May 2011. B was also granted entry clearance to remain in the United Kingdom and entered this country on 16th September 2012, although as events subsequently turned out, that was on a false basis for which Mrs. A accepted a caution.[24]On completion of her Bachelor of Arts degree in business management, Mrs. A enrolled for further studies in the United Kingdom to obtain a Master's degree in law. She has applied for further leave to remain in the United Kingdom on this basis, and that application was granted on 26th November and was valid until 29th February this year. Further applications have been made, as set out in the statement dated 5th February from her immigration consultant, to secure her immigration position. The application is made pursuant to the provisions of s.55 of the Border Citizenship and Immigration Act 2009. Given the circumstances surrounding B, the application is founded on the basis that her best interests can only be served in the United Kingdom.[25]I am told that that application was refused on 14th August 2015. I have seen no documentation regarding that application, or the basis upon which it was refused. I am told that there has been an appeal lodged and that appeal is pending. Obviously the outcome of that application is entirely a matter for the Secretary of State for the Home Department. What I am determining is what orders will secure B's life-long welfare needs, irrespective as to whether she is here or returned back to Nigeria.[26]The Secretary of State for the Home Department has been notified of the various applications. In their letter, dated 29th September 2015 in their response to an EX660 request, they confirm that the Home Office would like to be informed on the conclusion of these proceedings. This will allow them to update their records. I made a direction on 10th March 2016, repeated on 23rd May 2016, that the local authority should notify the Secretary of State for the Home Department of the applications before me and invite the Secretary of State to notify the local authority whether they wished to make any representations, or become a party.[27]That was done by the local authority by email on 16th May 2016, which confirmed that Mr. and Mrs. A had made an application to adopt B and attached a copy of that application. No response was received to that email, sent on 16th May 2016 at 17:39. The local authority's solicitor sent a chasing email on 30th August 2016 at 17:28, stating that they write further to their email of 16th May:
"Please note that the hearing on 26th May was vacated and relisted to take place on 19th September"
. They attached the order I made directing that they be served. "I am grateful if you could confirm whether you wish to make any representations as to Mr. and Mrs. A's application to adopt B and/or attend a hearing on 19th September". There has been no response to that notification.[28]That deals very briefly with the history to this matter. What the local authority seek is permission to be able to withdraw their application for a care order, and their application for a declaration of non-parentage. They are satisfied and support the court making an adoption order as set out in the Schedule 1 report prepared by Ms. Adams. They consider that will give the life-long security that B’s welfare requires, whether that future be in this jurisdiction or in Nigeria. Miss Roberts, on behalf of Mr. and Mrs. A, and Ms. Hamilton on behalf of the Guardian, Miss Cockburn, who was appointed within the care proceedings, all agree.

Adoption Application

[29]Turning to the adoption application; the court is asked to dispense with the provision for consent to the making of an adoption order because, under s.52 (1)(a) Adoption and Children Act 2002 (ACA 2002), the parents of B cannot be found. It is quite clear, for the reasons I have given and the circumstances outlined in both of the detailed reports by Ms. Coker, there is no prospect of finding the birth parents of B. The clinic where it is said she was born no longer operates. It has been closed down by the relevant government authorities in Nigeria and there is no other lead available to be able to secure their identity or their whereabouts. I am satisfied that in the circumstances of this case s.52(1)(a) applies and the court, on the evidence that it has, concludes that the birth parents cannot be found.[30]Turning to consider whether the court should make an adoption order, it is directed to consider the welfare checklist set out under s.1 ACA 2002. The court needs to weigh in the balance the advantages and disadvantages of such an order. The obvious advantage in this case, in the light of the expert evidence the court has, is that an adoption order would secure in a life-long way B's legal position with Mr. and Mrs. A, whether they live here or return back to Nigeria.[31]In terms of the other matters set out in the welfare checklist, the court has the benefit of the analysis set out in Miss Cockburn's report. In terms of B's ascertainable wishes and feelings, it is clear that B, now aged 4 years has a secure attachment to both Mr. and Mrs. A. She is too young to be able to understand these proceedings and, therefore, be able to express her wishes and feelings in relation to them. However, it is the view of Ms. Adams, who completed the Schedule 1 report, and Miss Cockburn, who completed the Guardian's report, that if she could give her view she would want to remain in the care of Mr. and Mrs. A, who she considers to be her parents.[32]Turning to her particular needs, there are no concerns in relation to her general development. She is attending nursery and making good progress there. She needs to be able to have a permanent, secure and stable home with carers that are able to meet her physical, emotional and educational needs. I have already dealt with the therapeutic support and work that has been undertaken with Mr. and Mrs. A, which will assist them to be able to meet B's needs in the future, in particular being able to give her a clear and full understanding in relation to her background circumstances.[33]The court needs to consider the likely effect on the child of having ceased to be a member of the original family and becoming an adopted person. If B is adopted by Mr. and Mrs. A they will become her legal parents for the rest of her life. As I have already indicated during the course of these proceedings, despite the efforts made by the local authority they have not been able to locate B's birth family. She is going to grow up without any contact or even knowledge of who her birth family and biological family are. Mr. and Mrs. A, will need to support B as she grows up and comes to terms with that background in relation to her circumstances. In the light of the evidence I have I am satisfied they are able to do that.[34]Turning to her particular age and circumstances; she is 4 years old and, may be of Nigerian origin. Unfortunately, because of the circumstances of the case, it is simply not possible to know for certain as no information is available about her family of origin. In terms of harm she has suffered, I agree with Miss Cockburn that she has suffered significant harm due to the circumstances of her birth. She was effectively an orphan. Nothing is known about her background, her biological mother or father, her birth or how she came to be removed from her birth mother's care. In the circumstances she is in now, and with the assistance that has been given to Mr. and Mrs. A, they will hopefully be able to assist B come to terms with that in the future.[35]In terms of any relationship which she has with relatives and any other person who I consider will be relevant, she does not have any relatives for the reasons given. The evidence demonstrates Mr. and Mrs. A are able to provide the secure environment that her welfare requires. I am satisfied having considered the welfare checklist and looking at the life-long welfare needs of B in the very unusual circumstances she is in, the order that will best meet her welfare needs is if the court makes an adoption order. I will give the local authority permission for leave to withdraw their care order and the application for a declaration of non-parentage.[36]For those reasons, I will make the adoption order as requested.