O, (A Child), Re (application for a final care order- child having family in Nigeria-whether there should be further assessment) No 1 [2016] EWHC 3707 (Fam)

IMPORTANT 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 her 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.[2016] EWHC 3707 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEICESTER DISTRICT REGISTRY
IN THE MATTER OF Re O (A Child)
Before
HER HONOUR JUDGE GEORGE(sitting as a High Court Judge pursuant to s9 Senior Courts Act)
Between
LEICESTER CITY COUNCILApplicantAThird Respondent
MR SLATER appeared for Applicant Local AuthorityMISS KABWERU-NAMULEMU appeared for First Respondent motherMR ROCHE appeared for Second Respondent fatherMS MATTHEWS-STROUD appeared for Third Respondent child
JUDGMENTHER HONOUR JUDGE GEORGE:Application and representationDate 2016-09-03
[1]This is an application by Leicester City Council for a care order for A, an 11-year-old girl. The local authority (“LA”) is represented by Mr Slater. A is the daughter of M represented by Miss Kabweru-Namulemu. She opposes the application and seeks the return of A to her care. She proposes that she and A should live in Alabama in the USA with an uncle. Alternatively, she asks the court to find that the assessment of her parents in Nigeria by the LA is unfair and a further assessment should be ordered. A’s father who is separated from the mother is F and he is represented by Mr Roche. He also opposes the application for a care order and asks the court to let him care for A in Nigeria where he lives with his partner, X, their young son and X’s child, who is 12 years old and attends boarding school. A’s Children’s Guardian is Jo Wilkins (“CG”) and she is represented by Miss Matthews-Stroud. She supports the LA’s application.

Background

[2]A came into the care of the LA on 13 June 2015 following her ringing 999 and calling the police complaining that her mother was shouting at her and hitting her. M had suffered a relapse in her mental health. She was arrested by the police and then detained under s2 of the Mental Health Act. Subsequently, on 8 July 2015 she was detained under s3 of the Act. In September she was discharged into community care. She was not well enough to look after A at that time. A few weeks later she returned to Nigeria to renew her passport which was expiring.[3]Around June 2015 when she was unwell M told A and the LA that A’s father was dead and so it was not until September 2015 that F was identified as A’s father and as alive and well in Nigeria. A and her parents are Nigerian nationals. She lived in Nigeria until she was 8 years old. In January 2013 M came to the UK to study and do a PhD. A could not travel with her on M’s visa so lived with her maternal grandparents (“MGPs”) for a few months. In May 2013 she joined her mother in the UK travelling with her father on his visa. F did not stay in the UK very long but returned to Nigeria in June 2013 leaving M and A together in the UK. This was the situation until June 2015 when A was removed from M’s care by the police under their protective powers.[4]In 2013 M suffered 3 episodes of ill health. 2 were related to her mental health and one to her Sickle Cell Anaemia and Thalassaemia. Each of those 3 episodes required A to be cared for by the LA for a short period of time, M’s support network in the UK being virtually non-existent at that time.

Evidence

[5]The court has read the trial bundle. A number of additional documents were handed in during the hearing which took place over 4 days between 15 and 18 August 2016. These included further social work records including Minutes of review meetings; a referral made to the Migrant Children’s Project for immigration advice; a placement desk referral; email correspondence between Paula Darlison, social worker and the maternal grandparents which formed part of the initial viability assessment of them as potential carers for A.[6]The court heard oral evidence by video link from Michael Nwoye a Nigerian social worker instructed through Children and Families Across Borders (“CFAB”) to undertake an assessment of F in Nigeria. It heard from 2 UK social workers: Paula Darlison and Lucy Alcock, both parents and the CG. On the morning of 16 August the court also had the pleasure of meeting with A who had asked to see the judge to express her views. The first 2 days of the proceedings were observed by Solomon Fehintola Counsellor, from the Nigerian High Commission in London.[7]There was insufficient time on 18 August for the case to conclude and so it was agreed the parties’ Counsel would provide the court with written submissions by 4pm on 30 August and judgement would be handed down on a date to be fixed. The court reserved its decision and now provides it in writing, conscious that F is due to return to Nigeria on 13 September 2016.

The law

[8]The LA brings these proceedings and the burden of proving its case rests upon it. It is required to satisfy the court that the threshold for the making of a care order pursuant to s31(2) of the Children Act 1989 is crossed. It must then satisfy the court that A’s welfare is best served by the making of a care order. The standard of proof in respect of factual issues and threshold is the ordinary civil standard namely the balance of probabilities. That is to say the LA must persuade the court that what it alleges is more likely than not to be true. The parents are not required to prove anything nor are they required to prove that something alleged against them when findings have not been made and are not sought, did not happen.[9]In Re B [2008] UKHL 35 Lord Hoffmann said: ‘If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened.” In ReA (A Child) v Darlington Borough Council and(1) M(2) F(3) GM and GF and(4) A (by his children’s guardian) [2015] EWFC 11 Munby P identified three fundamentally important points in respect of fact finding. “The first point, vital for practitioners on the ground, is that findings of fact must be based on evidence, not suspicion and speculation…..The second fundamental point is that a successful application for a care order must link the facts relied on to the threshold test, i.e., why do the facts asserted lead to the conclusion that the child is at risk of suffering significant harm…….the third fundamental point is that, in the “wise and powerful words” of Hedley J in Re L (Care: Threshold Criteria [2007] 1 FLR 2050: ‘society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent…some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.’”[10]If the court finds that the criteria for making a care order are met it must go on to carry out a welfare evaluation. A’s welfare is the court’s paramount consideration and the checklist of factors set out in s1(3) of the Act must be paid particular regard. Both A’s and her parents Article 6 and 8 ECHR rights are engaged. The court must make orders that are proportionate in all the circumstances. It should not intervene in family life unless it is necessary and then to the least possible extent.[11]In his written submissions Mr Roche on behalf of the father sets out some of the European jurisprudence over Article 8. The court has considered the cases to which he refers. The following quotations strike the court as the most relevant to the evidence in this case. Article 8 says, “Everyone has the right to respect for his private and family life, his home and his correspondence”. The words ‘right to respect’ in Art 8(1) have led the ECtHR to hold that, in addition to the negative requirement to avoid arbitrary interference with Art 8 rights, there is a positive obligation inherent in the article to ensure an effective ‘respect’ for those rights: Marckx v Belgium (1979) 2 EHRR 330.To be justified, an interference with a right protected by Art 8(1) must, under Art 8(2), be ‘necessary in a democratic society’. For example, the permanent removal of a child from parents can only be justified in exceptional circumstances if motivated by an overriding requirement pertaining to the child’s best interests: Johansen v Norway.[12]In paragraph 5.28 of their book, Childcare and Adoption Law, McFarlane LJ and Madeleine Reardon put it this way:
“It has been emphasised several times that local authorities must not lose sight of the importance of the child’s natural family, and must work towards reunification of the family where that is possible. The Human Rights Act 1998 brought into domestic law the European concept of proportionality: any interference with a person’s right to a private and family life must be justified, and no more than is necessary in order to protect the child. Where a child’s rights conflict with an adult’s the child’s interests will take priority; but the child too has a right to family life, and a right to know and be brought up by his natural parents wherever possible.”

Threshold

[13]The composite threshold document is drawn from M’s responses to the initial threshold document. The LA no longer relies on paragraph 4j. The majority of the threshold is conceded by M and relates to incidents which occurred during periods of her mental ill health. The court is satisfied on the balance of probabilities that the evidence supports the findings that the LA seeks. There is evidence from A’s discussions with the police of her being hit by her mother and the police independently record M shouting and presenting as aggressive when they attended the property in response to A’s 999 call. However, the threshold document does need to make it clear that these actions and remarks were made in the context of a significant mental health episode; M did not knowingly or intentionally harm her daughter and has no recollection of what she said and did now; there were no injuries to A; the assertion at 4e) was made to the police when A was not present and it is unclear whether A heard something similar herself when she was alone with her mother; 4h) needs to be set in the context of this remark having been made when M had been sectioned; 4i) was a single comment and said when M was unwell and there is no evidence that she or the family support FGM, indeed all have said they are against it; 4k) relates to the time M was in hospital and under section. The threshold document will need amending to reflect these findings. The LA is invited to file and serve an amended threshold document for approval by the court.[14]No threshold findings are sought against F. The court heard evidence from M about an incident of domestic violence when F was in the UK in June 2013. She says he threatened to beat up her mother (MGM) in front of A. He denies this and says this is fabricated. There is no mention of it in M’s witness statements. The LA does not seek a finding to this effect.[15]M also alleges that F continues to abuse alcohol. F accepts that during times of stress when in a difficult relationship with M he did drink to excess but he denies this is an issue any more. Again, the LA seeks no finding. The maternal grandparents also refer to F as a “drunk” and criticise his ability to care for A as a consequence.[16]M tells of a time in Nigeria when F faced rape charges. F accepts these were brought and explained the circumstances. He says the charges were not proceeded with. He has no convictions for rape or sexual assault.[17]Bearing in mind the test which the LA has to satisfy in respect of findings it seeks namely that they are to be proved on the balance of probabilities and on the basis of evidence not allegation or suspicion, these matters are not proved to the court’s satisfaction. The allegations of rape are not proof of rape and must be discounted. There is no evidence that F currently abuses alcohol although it is clear that there was period of time in the past when he did. The allegation of domestic violence made by M was not raised before she gave evidence. In Mr Nwoye’s report the account of the MGM about this incident is given. It accords with M’s to the extent that the parents argued but she makes no mention of any threats to assault her. If they were made this is surprising as she was both present and the alleged victim of the threats. She does say F was the worse for drink. The court finds that this was an ugly incident in which the parents argued. F accused M of having an affair with a man who was only a family friend and had paid a social visit to see the MGM. F was under the influence of alcohol at the time and this impaired his judgement. The parents argued but there was no physical violence between them or threats of the same.

Immigration issue

[18]The Nigerian High Commission advises that A is a Nigerian national and should be with her family in Nigeria. A is entitled to remain in the jurisdiction of this court until at least 30th April 2017. The LA says it is confident from its initial inquiries that in the event that a care order is made with a determination by the court that it would be in her best interests to remain in the UK, then further permissions will very likely be granted.[19]The Migrant Children’s Project informed the SW (by email in April) that:
“In very general terms, there is no automatic route to remaining in the UK for a child who is in local authority care. However, if there are proceedings where the child’s best interests have been considered and it has been established that these require the removal of the child from their parents and the child remaining in the UK, then the Home Office will need to facilitate this, by granting leave to remain. If there are no clear grounds for a child to make an application which fit the immigration rules (based on length of time in the UK) then the Home Office must consider whether there are any grounds outside the rules for granting some form of leave. This decision must also consider the child’s best interests. A child who is in the care of a local authority is likely to be granted leave. The standard form of leave is for 30 months, but in considering the child’s best interests, the local authority should consider how long she is likely to remain in the UK, and whether it is in her best interests to grant a longer period of limited leave, or to grant her indefinite leave to remain.”
[20]This is generic advice, not specific to A. There is no guarantee that she will be granted leave to remain in the UK from April 2017 onwards, 30 months later if a further application has to be made or when she attains the age of majority. Children are at risk of deportation from the UK even if it is their best interests to remain and in the current climate that situation is unlikely to change in the foreseeable future. The court bears this in mind in considering A’s welfare as it represents an uncertainty about her future in the UK even if a care order were made.

Placement with mother

[21]M has had mental health difficulties since 2006. She suffered from post-natal depression after A was born. In the UK she had 2 episodes in the autumn of 2013 and then a relapse in June 2015 which precipitated A coming into care. Her diagnosis is schizo affective disorder. She declined to participate in the psychiatric assessment ordered by the court and so there is no overview of her condition. However, it is apparent that the episodes of mental ill health in 2013 and 2015 occurred at times when M felt under pressure and stress. F says he would not support A returning to her care because he is not convinced her health is stable and A would be at risk if it were to deteriorate again. Whilst M’s mental health is currently settled the future prognosis is uncertain and M’s mental health is unpredictable. M has said that she will co-operate with mental health services wherever she lives. She would prefer to live in a warmer climate than the UK’s because it would be better for her Sickle Cell and Thalassemia conditions.[22]M did not demonstrate insight into the effect her ill health has had on A. She told the court that when A has phoned her and asked her to get her out of the foster carer’s home she replied, “you got yourself into it, you spoke to the police.” She confirmed that she had told A to “call the police herself if she needed help.” This was extraordinary evidence revealing M remains unhappy with the fact that A called the police in June 2015. It is unsupportive of A and shows a lack of empathy. It will have done nothing to alleviate the guilt A feels about what happened. M refused to answer the LA’s question, put three times, about whether she now felt that A had done the right thing in calling the police in June 2015. This failure to answer revealed she is still annoyed about it and does not appreciate what it must have been like for A.[23]M and A have lived together in the UK since 2013. F was only here a few weeks before returning to Nigeria and had very limited contact with A prior to proceedings beginning. Even before that in Nigeria, F worked away from home and only saw M and A at weekends. The relationship between the parents was a difficult one before M decided to come to the UK to do her PhD. M told of the fact they had to leave their accommodation following the rape allegation made against F.[24]M’s decision to come to the UK in early 2013 without A due to visa difficulties resulted in A being cared for her by her MGPs for a few months. She then came to the UK with her father but within a few weeks he had returned to Nigeria. M’s support network in the UK was very limited. M never intended to permanently settle in the UK. She came here as a student for 3 years. According to the LA’s records A was accommodated 3 times, albeit for short periods of time in the autumn of 2013 because there was no one to look after her when M became ill. M did not tell her parents of her difficulties or seek assistance from them. The family do not appear to have been that close to A that they were aware of the situation in which she found herself. Social Services did not become involved with A or M after these periods of accommodation to any further extent.[25]M felt that she needed to concentrate on becoming well again after the episode in June 2015. Renewing her passport in Nigeria, completing her PhD and awaiting surgery in the spring of this year all took its toll on M and meant she did not attend contact with A between January and May 2016. M’s evidence was that the cold weather has a deleterious effect on her Sickle Cell anaemia. M had to contend with these issues but the effect on A was that she saw little of her mother in 6 months. This may have contributed to her expressed wishes and feelings over time. M says she kept in regular contact with A even if indirectly and since the early summer M’s attendance at contact has been consistent. There is a clear attachment between A and her mother but it cannot be said that the mother has provided stability and security to A. Their relationship has not been without its difficulties. A has felt scared and worried by M’s ill health episodes and has had to seek assistance from outside agencies when her primary carer has been unable to meet her needs.[26]M’s current plans as articulated in her oral evidence are to go and work in the USA living with an uncle in Alabama whose family would be able to provide support for her and A. It was difficult to have a clear sense of M’s plans and they remained vague. M’s Counsel’s written submissions set out in the clearest terms yet expressed by M what her proposals are. She says she has the possibility of 2 employments in the USA one of which is research which she could undertake from her uncle’s home. A has no existing relationship with the uncle in Alabama or his family. He has not been assessed as a carer. Lucy Alcock was asked to speak to him a week before the hearing when his name was mentioned by M and the MGPs at contact but she was unclear of the purpose of the conversation.[27]It is unfair to criticise Lucy Alcock for not undertaking a viability assessment or any checks on the uncle in the USA following her conversation with him on 2 August. She told the court she was unsure of the reason she was being asked to speak to him. If the M and MGPs explanation to the Social Worker at that meeting was as vague as M’s oral evidence it is hardly surprising that the social worker was unclear about what was being suggested. Despite M having been represented throughout these proceedings there has been no formal notification of the uncle as a potential carer or as someone who could offer support to M. Even after the conversation with Miss Alcock no request was made by M’s solicitors for him to be assessed. No email of what was proposed was sent to the LA.[28]M’s evidence was generally self-centred and lacking in an awareness of what needs to be considered for A. She complained that nobody had cared that she was unwell. Just as she came to the UK in 2013 without A for 5 months and seemingly without there being any clear plan or agreement with F about what employment he would undertake when he came to the UK, the current proposal to live with A in the USA is founded on M’s desire to advance her education and research prospects rather than any thorough and well-thought out consideration of A’s needs. M’s plan would involve A going to another foreign country to live with a family member she has never met and with whom she has no relationship. There is no indication of how long A would live in the USA and there has been no detailed consideration to her schooling. M’s employment prospects are still uncertain. M’s plan to become pregnant again in the near future and the possible deleterious effect this may have on her mental health is a cause for concern. What would happen to A in such circumstances and who would care for her? Is this scenario in A’s best interests?[29]Overall M’s evidence was disappointing. She did not display insight and understanding of what her daughter had gone through. Her proposals for the future are vague and untested. They are not fully thought through and the court does not have confidence that A would be safe and secure in her care. It is not persuaded that it is in A’s interests to move to another country to live with M. If the court does not agree to this plan M’s second option is for A to return to Nigeria and to be cared for by her parents.

Maternal grandparents

[30]The MGPs were the subject of a viability assessment carried out by Paula Darlison. It was negative principally because they were assessed as “not having a clear understanding and/or ability to acknowledge M’s mental health difficulties and the impact they had and will continue to have on the child and M’s ability to parent.......they would not be in a position to appropriately safeguard the child.” The MGPs were not subject to a formal assessment as carers for A by Mr Nwoye. They were only seen by him as part of his assessment of F.[31]No formal challenge was made by or on behalf of the MGPs to the viability assessment. No Part 25 application was made. The MGPs wrote a letter to the Mayor of Leicester seeking to “appeal” the assessment. This was not pursued by those representing M and the LA did not react to it either.[32]The parents argue that the MGPs have not had a fair or full assessment and one should be carried out before they are ruled out as potential carers for A. Such assessment as was undertaken was conducted by telephone and by email. The social worker acknowledged the assessment was difficult to conduct because of poor telephone services although the MGPs replied promptly to requests for information. She accepted that some of the nuances and subtleties in the language used may not have been fully understood by the MGPs. She conceded that had they lived in the UK she would possibly have asked follow-up questions and explored their responses in greater detail. The email responses they sent have been cut and pasted into the assessment document. They are short. There has been no further exploration or detailed discussion upon them. The answers reflect the different cultural approach to dealing with the issues raised.[33]The MGPs are criticised for not having a good understanding of M’s mental health issues. It is unclear what they were told about M’s mental health. They were not sent any medical reports or police evidence. The LA has not produced cogent evidence to suggest the MGPs knew about M’s propensity for mental health difficulties before she came to the UK. Post-natal depression is usually a self-contained and time-limited episode and not an indicator of a likelihood of future problems. It is right that MGM is a nurse and may have been expected to have some understanding of the potential issues but that is not the same as having a detailed understanding of how M presented at the time she was unwell and how this impacted on A.[34]It is unclear what the MGPs understood of the nature of care proceedings, the court’s jurisdiction and the LA’s concerns about A. The information they had would have come principally from their daughter. Paula Darlison’s email to them on 23 September 2015 is the only explanation they had from the LA of the court and assessment process apart from a telephone conversation on a very poor line. The court acknowledges that the email from the MGPs dated 4 February 2016 raises concerns about their understanding of M’s mental health. They blame F for it. They also appear to suggest a challenge to any decision of the court to limit her contact with A. However, there has been no further exploration of these issues with them as there surely would have been had they lived in the UK and been available for a face-to-face meeting or a decent telephone conversation.[35]A has recently seen her MGPs and enjoyed their company. She lived with them for about 5 months before she came to the UK. She has said she would be willing to live with them in the UK but not in Nigeria. They are well-educated people who have raised 4 children of their own. They want to care for A and keep her within the family. There would be significant cultural benefits for A if she could be brought up in Nigeria by family members. She has a special place in the family as this couple’s first grandchild. The court is not persuaded that this viability assessment is adequate for the court to rule the MGPs out as carers for A. Further exploration of them is warranted. The difficulties in conducting the assessment have meant that it is not as detailed as it should have been. It would have been better if Mr Nwoye had been invited to have undertaken an assessment of them as carers as well as F although at the time he was instructed this assessment had not been completed. It began in September 2015 but was still ongoing in February 2016. The court acknowledges that a stumbling block in any further assessment will be the family feud referred to by Mr Nwoye in his assessment of the F. That remains an issue for the MGPs as much as it does for F. But no work has been done with the family on that issue as recommended by Mr Nwoye (see below).

Father’s case

[36]The CFAB assessment of F undertaken by Michael Nwoye is generally positive. He concludes that F and his partner are capable of providing basic care to A until she is 18 years of age. He refers to unverified information which puts doubts around the placement (alleged rapes by father, his misuse of alcohol in the past). He goes on to say that he “firmly believes F and his partner will make good carers of A but is concerned that she may be torn between the seemingly ongoing crisis between paternal and maternal family. I do not think this is good for A and therefore recommend that the LA have further discussions with both families and, if possible, work with them to manage their differences and discuss ways in which they can work together in the interest of A.”[37]F’s case is that the LA has not made adequate efforts to reunite the family and the evidence that she cannot be brought up safely in her birth family is inadequate and should be rejected. It is argued that the court cannot be satisfied that it is necessary to maintain the separation of father and daughter and the rights of the family under Article 8 of the ECHR would be breached if it did.[38]The LA social workers accepted that no work had been undertaken by them to try and resolve the family feud. Paula Darlison ceased to be the allocated social worker in March shortly after Mr Nwoye’s report was received. Lucy Alcock was not allocated the case until May 2016. In the intervening period no work was done with the family. Lucy Alcock has made no attempt to mediate any settlement or improvement in the relationship between family members since the case was allocated to her. In evidence her view was that “nothing could mediate an alleged rape, (M maintains the rape allegations) and her statement to her daughter that F had died.”[39]In her written and oral evidence M sets out the background to this family quarrel. She told the court that she and F are actually from the same large family. Her family has the status of a royal family in the tribe in Nigeria from which they come. M and F did not know they were related when they dated. When M’s parents found out about their relationship they tried to put her off having a relationship with F but she got pregnant with A and so then there was no choice. In her witness statement dated 14 April 2016 at paragraph 7, M tells the court that, “the reason for the dispute between the maternal and paternal side of the family arises from the suspicious circumstances in which A’s paternal grandfather died. It is suspected within the family that the paternal grandmother may have assassinated her husband together with the lady he was with at the time (suspected to be his mistress). That is the underlying reason why my family did not approve of my marriage to the father who is also my cousin.”[40]When she asked F to leave the property following the argument they had in June 2013 in the UK she says he then returned to Nigeria and effectively abandoned her and A without support in the UK. He had been unwilling to find work in the UK until his Nigerian pharmacy qualification was either recognised or he had obtained an equivalent qualification in the UK. When she told her parents about this they were horrified. Her father summonsed F to come and see him. He went to see her father but was drunk. He told her father that he disowned A. This meant they disliked him even more than before.[41]F’s account of this is different. He says that M threw him out of the property in the UK and told him not to return which is why he went back to Nigeria. He accepts the account of his visit to her father but disowned A in speech only and in anger and he has not publicly disowned her or acted in any way to actually do so. F found the experience of being told to leave the home by his wife humiliating. That sort of thing does not happen in Nigeria he told the court. He told Mr Nwoye that he did not want to return to the property in the UK in case M humiliated him again by calling the police, for example.[42]M’s hostility towards F increased when she discovered that he had entered into a relationship with X and that they now have a young son together. This played a part in causing her stress and distress prior to the deterioration in her mental health in June 2015 and may have been one of the root causes for her breakdown. She explained that F’s disowning of A and the fact that he had a son meant he was dead to her which is why she told A and the social worker that he had died. M’s hostility towards F remains. She made comments in her oral evidence such as, “people know what he was like so didn’t dare to visit me”; “he has had multiple sexual partners”; “he continues to practise his atrocities in a house I have given him which he shares with X.” M’s evidence also suggested that she did not think her relationship with F was necessarily over and she would like them to be reconciled.[43]The MGPs were vociferous in their dislike of F when they spoke to Mr Nwoye. The grandfather said that his family had been managing F’s behaviour since he got married to their daughter and he had been a constant “thorn in their flesh”. He described F as a “perpetual drunk” who has had problems keeping his job and that he had been called upon to intervene on his behalf at three different establishments.Mr Nwoye describes the grandfather as “visibly angry at some point, swore to never let F have custody of A and was ready to go to court ….and A is saved from the risks associated with living with her father.” The maternal grandmother shares her husband’s views and told Mr Nwoye that F’s bad character was known to all members of the larger family.[44]F’s mother told Mr Nwoye that she would prefer it if A lived with her although she supported A living with her father rather than remaining in the UK. She said she would continue to try and persuade F that A should live with her because Lagos was not a good place for a child. F told Mr Nwoye that he did not agree A should be brought up by his mother because that would mean the maternal family would have reduced access. Mr Nwoye also spoke to a paternal uncle and aunt of A. Neither had a lot to say about F and he describes the aunt as “casual in her assessment of F’s character, she sounded like there was nothing to be concerned about”. Both could see no reason why F should not care for A perfectly well and offered to be a support if needed.[45]Mr Nwoye’s assessment of the maternal grandparents’ bad feeling towards F was that A may be affected by the friction in the long run. He comments that there was no love or trust between maternal and paternal family with the grandmothers particularly having a very sour relationship. This is important because of the role that family, particularly grandparents, play in traditional Nigerian society. Having said all this the maternal family and F were agreed that A should attend a boarding school in Nigeria although F has since recognised that may not be appropriate for A, at least initially, given that she has been separated from her family and living away from Nigeria for the past 3 years.[46]It is argued on behalf of F that there is evidence before the court that the family have taken steps to manage their differences. On 1 August 2016 when meeting with Lucy Alcock the MGPs told her that they respect F and “would never push him away” and that “he is welcome in our home.” (However, they made no mention of any meetings, mediation, or Nigerian lawyer which the court was told about by M in her evidence). In the letter they wrote to the Mayor of Leicester on 24 April 2016 they said they wanted to appeal for custody of A. They added that if it was granted “we shall also be willing to allow her father visitation rights to his daughter whenever he so wishes.” Mr Nwoye told the court in his evidence that the disagreement between family members was not hopeless and there were family members/elders who could be asked to mediate. He concluded that if the family argument was resolved there was no reason not to place A in her father’s care. During the course of the hearing the parents sat side by side and maintained calm relations with each other. F gave his evidence quietly and respectfully. He did not lose his temper and he answered the questions put to him.[47]M told the court that she had paid £2000 to a Nigerian lawyer who had spoken to members of the family. She suggested that he had undertaken mediation and that the family had agreed she should live with A in the USA. However, this cannot be the joint wishes of both paternal and maternal families because F maintains his claim that A should live with him and does not support her living with M. The lack of clarity about M’s proposals calls into question whether there have been any meaningful discussions between the maternal and paternal family members. F also said there had been but there was no detail or specificity from him upon which the court could place any reliance or confidence. M’s evidence about the Nigerian lawyer seemed to centre on the fact that he had advised her she was still legally married to F and that the rape allegations had not been pursued in court. There was no credible evidence from either parent that the family rift has been healed or that the issues dividing them resolved. At this time the court is left with the situation described by Mr Nwoye in his report in February. This is a family in which the maternal and paternal branches are divided by long-standing and more recent issues. Hostility between family members is openly expressed.[48]M’s views on the status of the parents’ marriage were also explored in evidence. She considers herself to be legally and culturally married to F and having rights within the home to the exclusion of X and her son. This evidence makes it clear if it wasn’t already that if A did return to her father’s care she would do so against the wishes of her mother and to a household which M could seek to return to and assert her rights as F’s legitimate wife. This raises the prospect of tension and difficulties between M and F potentially in the same household which would expose A to the risk of harm as was the case when the parties were together in 2013. F disagrees with M and says X would not have to leave the home and, if she did, he has other property in which she could live. He said he thought his wife had come to terms with his relationship with X and the fact that he had a son with her. Having heard her evidence, the court disagrees with his assessment. M is still very unhappy about the situation. It is another complexity in a family dynamic which is already difficult.[49]If the court were to contemplate a placement with F these differences would have to be resolved, if not fully, then at least to an extent which gave the court confidence that A would not be exposed to acrimony and significant emotional harm. The court would also need evidence to reassure it that F’s alcohol misuse is a thing of the past.

A’s wishes and feelings and the welfare checklist

[50]A presented to the court as an intelligent, bright and smiley girl. She was clear that she wanted to remain in foster care in the UK. She wanted to see her mother regularly and to spend 4 weeks with her in the summer holidays whether she was living in Nigeria or the USA. She does not want to go and live with her mother in the USA. She does not know the uncle in Alabama. She does not want to return to Nigeria and live with her father. She did not see much of him when they all lived in Nigeria before coming to the UK. She had enjoyed seeing her MGPs recently and was waiting to hear which secondary school she was starting in September.[51]A’s wishes and feelings have not always been so expressed. When she first went into care she wanted to return to her mother and she was worried about her mother’s health. There were some difficulties in her foster placement. Paula Darlison told the court that this was because A had to get used to the foster carer and her rules and boundaries. Since about March 2016 however A’s wishes and feelings to remain in care have been consistent and clear to her social workers and the CG.[52]A’s wishes and feelings must be considered in the light of her age and understanding. They are but one of the factors the court has to have regard to in the welfare checklist. A is a bright girl. Her views are clearly important and the court does attach weight to them. However, having heard the evidence of the social workers the court has concluded that little work has been done with A around the improvement in her mother’s mental health and what the prognosis is for the future; any issues of trust that remain with A following having been told by her mother that her father was dead and a rapist; sharing with her that the CFAB worker concluded that F no longer drinks to excess; explaining F’s relationship with X and the fact that they have a baby son together does not mean he does not love her; explaining what F says about disowning her in anger but not actually and still wanting to provide a home for her; looking in detail at what living with F or her MGPs might look like were she to return to Nigeria.[53]The court accepts that A has some insight into the fact that her mother’s mental health is no longer a concern because she has been having regular contact with her since May which has gone well. She also recently commented that her father “used to drink” so this suggests she is aware that this is not currently a concern. However, neither Paula Darlison nor Lucy Alcock have done any detailed work with A about these issues and it is more likely than not the court finds, that they will have had a negative influence upon A’s thinking and understanding of her parents’ relationship and what sort of life they are offering her if she were to live with either of them in the future.[54]A has stated that she does not want to live with her father or in Nigeria for a whole variety of reasons over time. They have included in respect of her father because she does not like him, she does not know her father, she doesn’t even know his birthday, he does not understand ‘lady business’, she does not like her stepmother, he got drunk, he smokes, he whipped her when she vomited his medicine. So far as Nigeria is concerned she is scared of getting Ebola and of Boko Haram, caning, and health problems. It is submitted on behalf of F that none of these reasons stand up to scrutiny and they suggest that A’s understanding is limited (for good reason in the light of her age and life story). A has also stated that she would be willing to live with her grandparents in the UK but not in Nigeria. Mr Roche postulates that she may be saying this at least partly because her standard of living is higher in the UK and submits that, if so, this is not a factor that can carry any legitimate weight and there is no evidence that A truly understands the disadvantages of foster care.[55]These arguments have force. A’s expressed wishes and feelings must be considered in the context of her recent experiences. The relationship with her father even before she came to the UK was one where she did not see him save at weekends. She then spent 4 or 5 months being cared for by her maternal grandparents although F says he saw her 4 times per week. She arrived in the UK with her father who left within the month and within 6 months of her arrival she had spent 3 brief periods in local authority care because of her mother’s ill health and was also cared for by a family friend for a few weeks. While 2014 was a more settled period, in the early summer of 2015 her mother suffered a relapse in her mental health during which time she told A her father was a rapist and was dead. A called the police because she did not know what else to do and was scared by her mother’s behaviour and language. A experienced emotional trauma whilst living in the UK with her mother. Immediately afterwards she must have been worried about her mother’s health especially as M was too unwell to have contact with A for several weeks. M was then absent from the UK during the autumn of 2015 renewing her passport in Nigeria and on her return in January did not see A whilst she was awaiting surgery which took place on 1 April. It is likely that A felt bereft.[56]She has had to adjust to living in foster care with people she did not previously know. She also learnt that her father was not in fact dead but had another partner in Nigeria and a baby son. This caused her considerable distress. Her relationship with her father has not been fully repaired and a lot of work will be necessary for that to happen. Given this history and her life experience it is not surprising that A is unsure about her father or living with him.[57]The CG was full of praise for the foster carer and the placement. It is a culturally appropriate match. The foster carer speaks the Yoruba language and A loves her cooking. The last 14 months in foster care has arguably been the most settled and sustained period A has experienced since her arrival in the UK. It is hardly surprising therefore that she articulates a desire to remain and it is only natural that she would be apprehensive about a return to Nigeria. The CG describes A as having “blossomed” whilst in care and she has become a confident young woman. She has lived with her parents and does not want to return to their care. Jo Wilkins is an experienced CG and she was firm in her view that A will be best cared for in the UK preferably in her current foster home. The court did not find her to be dogmatic but it must weigh up all the evidence and balance very carefully the competing factors. If it takes a different view from the CG it must explain why.[58]A has no physical needs over and above those of any other 11-year-old girl. Her mother has sickle cell anaemia. The social workers were not aware whether A has been tested for this. Certainly she has not presented with any of the symptoms during the period she has been a looked-after child.[59]A is an intelligent 11-year-old girl and a Nigerian national who spent the first 8 years of her life living in Nigeria with her mother and father. M told the court that she (M) comes from the royal household of a particular tribe in Nigeria and, as the first grandchild of her MGPs A has a particular position and status within that royal family. If she lives in foster care in the UK she will be deprived of all that goes with that including acknowledgement of her position in her family and society, participation in family gatherings, celebrations and traditions. A speaks English as her first language but she also speaks Yoruba which is the native tongue of her family in Nigeria. Whilst her foster placement is a culturally appropriate one it is no substitute for the experience A would enjoy as part of her family in Nigeria. Paula Darlison told the court that A is aware of her position as the daughter of a princess of a Nigerian royal family. However, it is unclear how significant this is for A and what she understands by it.[60]M’s mental health issues cannot be predicted with any certainty in the future. M’s lack of insight into the impact that her mental health has had on her daughter exposes A to the risk of more emotional trauma in the future. The assessment of her father is more positive. Were it not for the family feud in Nigeria Mr Nwoye would be recommending a placement with him. There would be challenges even if a truce were achieved because A has no existing relationship with X and M may seek to return to Nigeria if A were placed with F which would complicate matters further.

Decision

[61]Whilst the threshold for the making of a care order is crossed the welfare evaluation leaves the court with a real dilemma. A’s articulated wishes and feelings are clear but she is only 11 years old and they must be considered in the context of her history and the life experiences she has had. They are only one of the welfare factors to be weighed and the court is not persuaded that they should carry as much weight as the LA and CG assert they should. In part this is because neither social worker was able to satisfy the court that the issues mentioned in paragraph 52 above have been addressed in any meaningful way with A. She has not been challenged about her concerns, for example, about Ebola and Boko Haram. A is highly unlikely to be at risk from either of these.[62]The court is not persuaded that work of any significance has been done with A to explain her M’s mental health and to address the difficult things she has been told about her father. M’s presentation of these in court made it clear that she is unlikely to have spoken to A about her father in a positive light. Had these issues been addressed and F had the chance to repair his relationship with his daughter it is likely the court finds, that A’s antipathy towards living with her family in Nigeria would be less than it is currently.[63]The court is not persuaded that the CG has attached sufficient significance to the cultural aspects of family life in Nigeria that A is at risk of losing if she does not return to her family. Neither is it as optimistic as the CG that the relationship between A and her family will be maintained as effectively as she suggests it could and, ideally, should be. The court accepts that there is an onus on the family to make an effort in this regard as well as on the LA and that modern communication and technology make it easier than ever before for people to stay in touch but it is still likely to be a tall order if her family is rarely in the UK. These issues are of concern particularly given the uncertainty about A’s immigration status and the prospect of her having to return to Nigeria at 18 years if not before, by which time she is likely to have had only limited contact with her wider family for a decade.[64]The alternatives before the court are a placement with M in the USA which the court has already rejected for the reasons given; long term foster care in the UK; or a return to Nigeria to live with her F or MGPs. The court cannot choose the latter alternative options today because the assessment of the MGPs is inadequate and the work recommended by Mr Nwoye which would open up the possibility of a placement with F is left undone. If the court considers those to be potentially viable options, then the ICO will have to continue while further social work is undertaken.[65]Long term foster care is preferred for A by the LA and CG. The current foster placement is a good cultural match. There is affection and a warm relationship between the foster carer and A. It is disappointing that the LA did not seek clarification from the foster carer earlier as to whether she would agree to care for A in the long term. She says that she will but this will need to be approved by the appropriate fostering panel. The LA says it is likely approval will be given but it is not definite. The foster carer has a good track record of caring for children over the long term so the risk of placement breakdown is less than it might otherwise be.[66]Placement breakdown is one of the potential disadvantages with long term foster care. Another is the risk of a loss of contact with birth parents and family. In A’s case this risk is greater because her family lives in Nigeria. Although modern methods of communication make it easier than ever before for people to stay in touch it will be a challenge for the family to maintain contact with A at a meaningful level until she is 18. The CG was confident that it was possible and pointed out that the family had the funds to travel to the UK from time to time and it may be possible for A to visit them in Nigeria. That would be expensive for the LA and there can be no guarantees it would happen. A would be a looked-after child subject to regular reviews, meetings with social workers, likely to change over time, and to regular medical examinations. All these things would mark her out as different from most of her peers at school.[67]Another disadvantage of foster care in A’s case is the potential for her to lose her familiarity and use of the Yoruba language. Whilst the foster carer speaks Yoruba another carer may not. Language is an important part of A’s cultural heritage and identity and it will be harder for it to be maintained in the UK than if she lived in Nigeria.[68]These factors must be weighed in the balance as must the prospect of the rift between paternal and maternal family members in Nigeria being healed to the extent that the differences between them no longer pose a threat to the stability of a placement with F or the MGPs. Following receipt of Mr Nwoye’s report the LA should have considered what steps it could take to address the issue identified. Had the parties been in the UK some process of mediation might have been employed or a Family Group Conference arranged. The LA could have instructed Mr Nwoye or one of his colleagues to undertake a similar piece of work in Nigeria. It could have sought his advice about the most appropriately cultural way to explore the issues. It could have sought to identify family members who may have been able to promote a meeting of minds and an agreed way forward so that A could be placed within the family. None of this has happened. Of course it would not have been straightforward but it was not impossible. To do nothing as the LA has is to ignore the positive obligation imposed upon it to promote family life and to seek to reunite father and daughter.[69]At the same time the family should have addressed this issue themselves. The parents say they have but the court was not convinced by their evidence on this point. The fact that the issue has not been resolved during the last 6 months could be said to mean that it is unlikely to be capable of resolution however long is afforded. That is a risk. To afford an opportunity for resolution which fails will simply mean a decision for A has been delayed for longer than was necessary. The court is also aware that A is due to, or has just started, secondary school in the UK and it would be better if a final decision could be made now so as to avoid any disruption to her education. However attractive that may be and having wrestled with the alternatives, the court is not persuaded it is in A’s best interests to ignore the prospect of a placement with her family in Nigeria and has concluded that this option must be further explored.[70]The court cannot sanction a return of A to her father’s care at this stage in light of the difficulties highlighted by Mr Nwoye in his report. To do so would be to risk exposing her to significant emotional harm because of the level of animosity between family members that she may be exposed to. Whilst it is suggested that F could and would take protective measures if necessary through the Nigerian courts and whilst that may offer a solution of sorts in the short term it does not address the issue in the longer term. If A is to return to Nigeria it must be after an adequate resolution of the family feud has been achieved so that the court is satisfied that significant family members have reconciled their differences sufficiently and signed up to an agreed plan of care for A.[71]The court recognises this may not be possible to achieve within a reasonable timescale or at all. It is possible that the family will not be able to set aside their differences to a sufficient degree to satisfy the court that A would not be at risk. There is also a complexity to the relationship dynamics between the parents which needs to be resolved, if possible. A cannot wait indefinitely. 3 months is a reasonable period of time in which to see if this can happen.[72]The court is very conscious that delayed decision-making is bad for A. She has been in care for over a year already. The assessment of the MGPs and the work recommended by Mr Nwoye to heal the rift in the family or at least to address it to the extent that it poses no risk to A could and should have been happening during the last 6 months. It now needs to take place urgently.

Future action

[73]The parties are invited to agree an order reflecting this decision. Enquiries should be made as a matter of urgency with Mr Nwoye, through CFAB if necessary, as to whether he or a colleague is able to undertake a full connected persons assessment of the MGPs and in what timescale. He should be invited to advise further about how the family feud can be tackled. The parents and MGPs must also take responsibility for making this happen. It cannot be done by the LA alone. They are best placed to galvanise the necessary family members into action. They know who the key-players are likely to be. By the time this decision is handed down on 27 September the court will expect to see a coherent plan of action showing how a resolution of the family differences may be attempted.[74]F’s admitted past issues with alcohol need further exploration. MGF speaks of having to write to three establishments to plead on his behalf. When was this and what were the circumstances? Does F accept what is said? What does his current employer have to say about F and his reliability?[75]There needs to be good quality social work done with A. The court’s decision needs to be explained to her. She can be told the judge is willing to write to her and explain why she has decided what she has if she would find that helpful. The social work needs to try and repair the relationship damage between A and her father caused by the things she has been told about him. He needs to have the opportunity to explain to her his relationship with X and his baby son and how this does not in any way reduce his commitment and love for her. He needs to give serious thought to how he will support A both emotionally and financially in the future. He will need to explain what he said about disowning her and try and find a way to show that he did not mean it. Age-appropriate work should also be done with A to help her understand her M’s mental health episodes and how these affected her behaviour and what she said. M needs to give serious thought to her attitude towards A having called the police and to try and put herself in her daughter’s shoes more effectively than she has hitherto. Insofar as the LA needs to undertake the work set out in this paragraph the court will expect to see a plan on 27 September setting out what it proposes to do and how. Even if rehabilitation to her family is ultimately unsuccessful this work needs doing and much of it should already have been delivered.[76]The LA should have a formal discussion with the foster carer and see if she is willing to be the long term foster carer for A. If she is, the appropriate application to panel must be made. The LA should also commission some specific immigration advice about A’s status and, if at all possible, the likelihood of a successful application for leave to remain being made. The court will need to know what appeal routes are available if the application fails and timescales. The court will expect to be provided with this information when this judgement is formally handed down. An amended threshold document is also required.[77]A further assessment of the MGPs is required. The parties should discuss how this can best be undertaken and the necessary Part 25 application submitted for consideration by the court on 27 September. Mr Nwoye, through CFAB if necessary, should be invited to advise as a matter of urgency if he could carry out an assessment of the MGPs as potential carers for A and if the timescale for doing so can be reduced from what might normally be expected because a lot of the background information is already known to him. The court has already indicated that he should be asked to advise how a resolution of the family feud may best be attempted. Too much time has been lost in this case and it now needs to be made up speedily.[78]The court will formally hand down this judgement on 27 September at 10.30am. It will consider any applications the parties want to make on that date. HHJ George 3 September 2016 Solicitors: Leicester City Council Legal Department; Straw and Pearce; ?