The Royal Borough of Kingston-Upon-Thames v SK (A Child) & Ors [2017] EWHC 2636 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published.  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.Case No ZW16Z00008[2017] EWHC 2636 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Courtroom No. 40
1st Mezzanine
Queens Building
Venue The Royal Courts of JusticeDate Tuesday, 31 st January 2017
Strand
London
WC2A 2LL
Before
THE HONOURABLE MRS JUSTICE THEIS DBE
Between
The Royal Borough of Kingston-Upon-ThamesClaimantSK (A Child) & OrsDefendant
B E T W E E N:
THE ROYAL BOROUGH OF KINGSTON-UPON-THAMES
and
(1) S K (A CHILD)
(2) Ms A
(3) Ms K
Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
MR USMAN WAHID (Solicitor-Advocate) appeared on behalf of the Applicant
MR T RESTALL appeared on behalf of the 1 st Respondent
JUDGMENT

Introduction

[1]These proceedings concern a young girl called SK, who is believed to be aged eight, her age is one of the issues that I have to determine. She has been in foster care since June 2013 and, almost all the time since then, has been in the care of Ms A, who is a party to these proceedings and present in court and seeks a special guardianship order (SGO) being made in her favour so that she can have the necessary legal framework to provide S with the security and stability that she clearly needs.[2]A final care order was made in relation to S on 23 January 2014. Before I delve into the background, I am giving this extempore judgment so that the parties know what the court’s orders are today. It will be appropriate for the local authority to get a transcript of this judgment, which I can then perfect and approve, so that there is a record in relation to the basis upon which this court made the decisions that it did, not only for any applications that may be made to other agencies, but also, importantly, for S as being an important part of her history.[3]These proceedings have gone on for some time and I know this had caused some frustration to the local authority, but it has been important for this court to be able to gather as much information as it can in relation to S’s background, because of the somewhat unusual circumstances.[4]I am extremely grateful to Mr Wahid and Mr Restall who are, respectively, the representatives for the local authority and S’s Guardian. They have been thorough in relation to their skeleton arguments that they have put before the court and, in short, the court has had the best information available to enable it to reach its decision.[5]I am also indebted to Ms Kazina the allocated social worker, who has been involved in a lot of the evidence gathering in relation to S’s circumstances and has, in large part, been responsible for the compilation of the extremely thorough SGO assessment. I am also indebted to Ms Fitzgibbon, S’s Guardian throughout these proceedings who has ensured that every opportunity has been given to ensure that all the relevant information is before the court. Finally, Ms A, who has attended all hearings, without legal representation, but has been able to, helpfully, provide assistance to the parties, and the court, in relation to any missing information.[6]This hearing concerns, essentially, three applications made by the local authority. The local authority’s application is for an SGO in favour of Ms A. Their initial application issued in January of last year was for a placement order but they recognise, because of the willingness of Ms A to be put forward as S’s long-term carer, and her reluctance, for a number of different reasons, to not want there to be an adoption order, that they support the position in relation to a SGO.[7]The second application is a declaration in relation to S’s date of birth, that it should be deemed to be 21 September 2008, not 21 June 2010, that appears on a birth certificate that had been submitted by Ms K, establishing that she is S’s mother.[8]The third declaration that is sought is that Ms K is not, in fact, S’s mother.[9]The applications are supported by Ms Fitzgibbon, the Children’s Guardian, with the proviso, in relation to the application for an SGO, that, as there has been no DBS check obtained in relation to a young person called X, who lives with Ms A, and has lived with her for the last 21 years, having been placed there at the age of six months in 1995, and then continued her placement, following attaining the age of majority. As a result of there not having been DBS checks in relation to her Ms Fitzgibbon cannot give her consent to the making of an SGO. There is no application to adjourn that order being made today and it is agreed that there should be a recital to the SGO, that the local authority will undertake to obtain the DBS check. Ms A has confirmed that X has been in her care for this period of time; that she has an allocated social worker from Adult Social Care; that this is the same local authority who will place S with Ms A and so, if there were any safeguarding concerns, in relation to X, as regards S being placed with Ms A, there would have been the necessary referrals within the local authority mechanisms to alert S’s social worker to the position. That has not taken place, so I am satisfied, on the information I have got, that the court has sufficient information to be able to proceed with the SGO.[10]For reasons which I will set out in a moment, Ms K has not participated in these proceedings. S’s immigration position remains uncertain. She has been treated by the relevant agency as a trafficked child and has recently been given discretionary leave to remain here, from 12 January 2017 to 13 July 2019. Any decision I make regarding her future placement is governed by her welfare, which is the court’s paramount consideration under Section 1 of the Children Act 1989. What decisions are made regarding her immigration position are, of course, a matter for the Secretary of State for the Home Department. Background[11]The brief background to this matter is that the local authority first became involved in 2011, following a referral from a mental health worker, assisting Ms K’s partner, as the mental health worker had concerns about conflicting information they were given about a child who may or may not have been living in the home at the time.[12]The local authority encountered difficulties in making contact with Ms K and establishing whether or not there was a child living in the home.[13]In May 2013, a joint visit was undertaken at the home with the police and the local authority and Ms K was arrested by the police for immigration-related offences, in particular, possibly an alleged falsified passport in relation to S. Ms K was given bail. S was placed with a foster carer, pursuant to Section 20. An application was made for an emergency protection order which was refused by the Family Proceedings Court on 30 May 2013 and S was returned back to Ms K’s care.[14]On 2 June 2013, Ms K attempted to leave the United Kingdom with S. She was prevented from doing so and S was taken into police protection. S was then reported to be ‘filthy, wearing two soaking nappies and was in possession of a mouldy sandwich to sustain her’.[15]Ms K learned, on 3 June, that S would be kept in police protection for 72 hours and, as a result, decided to go to Turkey on 4 June 2013, not returning until 24 June.[16]Care proceedings were commenced by the local authority in June 2013 and an interim care order was made on 24 July 2013, following a contested hearing before Her Honour Judge Williams. I have a note in the bundle in relation to the reasons upon which she made an interim care order. I am just going to refer to the relevant parts, because it is the only direct information that the court has in relation to Ms K’s circumstances. Her Honour Judge Williams, between paragraphs 26 and 35, says as follows, in relation to the evidence that was given by Ms K: ‘She gave evidence in English but had the support of an interpreter for any matters she did not understand. The interpreter was called on once or twice only. She confirmed she went to Turkey on 4 June 2013. She said she had temporary Turkish passports for herself and S which lasted for one month. In Turkey she had to obtain another travel document in order to be able to return to the UK. Once she had this, she waited another four or five days to return. She said she was unwell and too weak to walk. She was asked about S’s presentation at Stansted and she said she had to put nappies on the child because of the long journey [to the airport] and the need to queue at the airport. She did not think that S had a speech delay and said S understands Turkish perfectly and can learn English when she attends nursery in September. She said she thought S was frightened and not very happy in foster care and because she was separated from her mother and that was why S was not talking. She was asked, in cross-examination, why the local authority had been unable to assess the family and she said this was because she was often in Turkey. She denied travelling to avoid assessment. When asked about receiving a letter making an appointment, she said she did not receive that letter and said there was no reason why she could not ignore [sic] a letter from Social Services. She was asked about the time she spent in Turkey in June 2013 and said she found out on 3 June, from her family solicitor, that S would be retained under a police protection order for a period of 72 hours. She did not wait to find out what would happen thereafter. She said she did not receive the text from the allocated social worker, on 5 June, to make arrangements to return S to her care and had replaced her UK SIM card with a Turkish SIM card because that is cheaper. She denied consenting, through her solicitors, to S being accommodated by the local authority while she was away. She was asked about the records submitted by the police saying that mother’s solicitor has informed her of the change of bail conditions at 10.00am on 4 June to the effect that she was forbidden to leave the UK, with or without the child. She said she did not receive this information and that she flew to Turkey at around 12 noon that day. She denies knowingly breaching bail conditions. Mother was asked by S’s solicitor about the effect on S of being left for a period of three weeks, whilst the mother was in Turkey. The mother had difficulty seeing it from S’s point of view and commented that she, mother, was upset and not happy to leave her daughter. She said she missed her daughter terribly. She was asked, at length, about whether or not she is the biological mother of this child. In particular, there is reference to a letter from her GP, at page F1C of the bundle, dated 1 February 2013, dealing with her attendances at [S’s GP’s?] surgery, during the period when she would have been pregnant with S. Her evidence in relation to this raised serious concerns as there appears to be no record of a pregnancy, even though she attended the GP as late as 20 April 2010, before flying to Turkey on 28 April 2010 and S’s birth on 21 June 2010. The tests she underwent on 20 April 2010 appear to be related to fertility testing which seems unlikely if she was then, as she says, seven months pregnant. A number of other matters were canvassed in evidence with the mother in relation to the maternity of S, which is a matter for another day. Mother was asked, again, whether she would agree to DNA testing and, once again, she refused on the basis that she has documentary evidence of S’s birth and her own maternity and that was sufficient. She said she felt the local authority had been harassing her in relation to this and that she would now refuse to undergo a DNA test’.[17]As was clear from what I have just read out, there was considerable doubt, during those proceedings, whether S’s age was correct or whether Ms K was, in fact, S’s mother.[18]The care proceedings concluded, with a final care order being made on 23 January 2014. As regards Ms K’s involvement with those proceedings, in the judgment of Her Honour Judge Williams, in January 2014, she states as follows, at paragraph 3: ‘As we know, the police have not disclosed that information,’ that is regarding the DNA, ‘having now taken a sample in these proceedings. In my earlier judgment I addressed some of the case law, setting out what they could not do. What I do understand now, in relation to these, is that Ms K has been required to surrender to bail on 11 February 2014. She appears to be out of the country in Turkey still and it is not known whether she will and it is not until after the date the police are going to send the papers to the CPS and a charging decision will be made’.[19]It appears there was an IRH on 13 November 2013 where the mother, although represented, did not attend and it was understood that she was in Turkey.[20]The papers appear to indicate that Ms K’s last direct contact with S was 23 August 2013 and there is reference, in the information from the Home Office, that the last entry they have of Ms K leaving the country is on 3 June 2014, so, even though she may have been here, in between the period between 2013 and 2014, it does not appear that she kept in contact with the local authority.[21]The plan put before the court in January 2014 was that the local authority were going to conduct a search for any further family members and, if none were found, to apply for a placement order within three months. There was some considerable delay in that and the application for a placement order was not made until December 2015.[22]During the course of those proceedings, as I have indicated, S’s current carer, Ms A, expressed a wish to continue to care for S but, for religious reasons, did not want there to be an adoption order. A special guardianship assessment was carried out; it was positive and the local authority plan became one of supporting S remaining with Ms A under an SGO.[23]During the course of these proceedings, the local authority and the Guardian identified that the issue surrounding S’s correct date of birth, and her parentage, needed to be resolved, although Her Honour Judge Williams had made a determination, in general terms, in relation to those matters in January 2014. This was especially as S had no valid status in the UK and there were issues regarding her identity documents. She had a British passport showing a date of birth of 21 June 2010 and Turkish identity documents showing the same date of birth and Ms K as her mother. As a result of this, the local authority issued their declaration application and the matter was transferred to be heard by a High Court judge. It was allocated to me, and I have dealt with all hearings since then.[24]Before moving to deal with the applications, Mr Restall, on behalf of the Guardian, rightly raises the issue of notice to Ms K in relation to these applications. His extremely helpful skeleton argument tracks through the relevant provisions in the Family Procedure Rules 2010 (FPR), and the documentation in the court, so he will recognise much of what I am about to say as coming from his helpful document.[25]Ms K is automatically a party to the placement proceedings, as she was a party to the previous care proceedings. That is pursuant to the FPR R14.3 (1) although, of course, the court retains the power to add or remove a party under the same rule, 14.3 (3). The applications for declarations as to date of birth are made under the court’s inherent jurisdiction. The respondents to such an application are the parents of the child, the child and any other person who has an interest in, or relationship to, the child. That is set out in the FPR r 12.3 (1). Mr Restall submits this would include Ms K. There is a power to add or remove a party under the relevant rules, at r 12.3 (3).[26]The application for a declaration of parentage is made under Section 55A of the Family Law Act 1986. Such declaration can include that someone is not a parent of the relevant child. The respondents to such an application are the person whose parentage is an issue and any person who, ‘is alleged to be’ the parent of that person, that is taken from FPR r 8.20 (1). There is, arguably, a lacuna in the rules since a person who is alleged not to be a parent is, at the moment, not included as a respondent. The FPR go on at r 8.20 (2) to provide that the application form must provide particulars of every person whose interests may be affected by the proceedings.[27]Therefore, subject to any order of the court, Ms K is a respondent to two of the three applications that the court is considering.[28]The starting point is that the application must be served on the respondent, as set out in the FPR R6.6 and r 12.8. However, the court has a broad case-management power, including to dis-apply part six of the rules in relation to service, as set out in r 6.1, or to deem service by another method, or steps taken to bring the application to the respondent’s attention, by another method, to be good service, as set out in r 6.19 or to remedy errors in procedure, as set out in r 4.7 and to make any other order for the purposes of managing the case and furthering the over-riding objective, as set out in r 4.1 (3) .[29]The local authority did not formally serve Ms K with the placement application, although they did write to her on 1 February to give her notice of the proceedings, as set out in the letter in the bundle. The local authority subsequently informed the court and Ms K responded to this correspondence by text message requesting details of the forthcoming hearing, again set out in the bundle. She also emailed the court on 21 February 2016, asking for the hearing to be rearranged, stating she wanted to attend with her lawyer and indicating her opposition to the application, so she was aware of the placement application.[30]At the first hearing on 22 February, when Ms K was not present or represented, Her Honour Judge Williams concluded that, given her previous findings that Ms K was not S’s mother, if she wished to be considered as a respondent to the application, she must provide her consent to the release of the DNA material currently being held by the police. This was recorded on the face of the order made that day, which also includes the court’s direction that a copy of that order only was to be served by the local authority on Ms K, along with a form of consent.[31]The local authority wrote to Ms K, as directed by the court, on 26 February. Although there was not a certificate of service, it is clear from the content of Ms K’s email, in response, that she had received the letter and the Guardian also emailed Ms K on 25 April.[32]At the next hearing on 27 April 2016, which had been listed as a final hearing, the local authority informed the court that Ms K had not provided her consent but she had emailed the Guardian on the day of the hearing, as set out at paragraph 39 of the Guardian’s report, dated 17 November 2016; the email exchanges are set out in full. Ms K said that she would not be attending court, her travel documents were in a named Police Station; that she opposed the application stating, ‘You have no rights to ask for test from me’. Although she was not discharged as a party, she was not listed as a party in the CMO made on that day.[33]Ms K was not named as a respondent to the declaration applications, but the local authority did write to her on 19 September informing her of the nature of the applications and giving her the next hearing date.[34]Ms K did not attend at that hearing, or any other hearing, but she did email the allocated social worker on 11 October, attaching a photograph of a Turkish identity document and a British passport for S.[35]At the next hearing on 18 November 2016, the court directed that the local authority was to serve Ms K by 25 November, by post and email, with specified information about the proceedings and the court directed that, other than these actions, service on Ms K was dispensed with and a certificate of service was directed to be filed.[36]The local authority, in accordance with those directions, wrote to Ms K on 29 November 2016, and emailed her, and a certificate of service has been filed, signed on 29 November 2016, confirming that those documents were sent.[37]At the hearing on 15 December, the court made similar directions regarding service, including a certificate of service in readiness for the hearing today, on 31 January. The local authority, as a result of those directions, wrote to Ms K on 21 December and emailed her the following day on 22 December, and, again, a certificate of service has been filed today, dated 22 December 2016, which confirms that those communications were sent.[38]There has been some recent communication from Ms K. There is an email dated 24 January 2017, sent to Ms Kazina, the allocated social worker, at 12.53pm on that day, which sets out that Ms K opposes the application and is contemplating publicity. It is quite clear that this email was sent, in effect, in response to the local authority letter dated 22 December 2016. It is also quite clear that she is aware of the issues that are before the court and that there is a hearing today. She refers to an application that she may be making to the Human Rights Court for a related matter, concerning her daughter. She asserts that she is a British citizen, automatically her daughter, S, is also a British citizen. She wants S to be returned back to her care as soon as possible and she suggests that the court proceedings are effectively harassing her on the basis that she is of Turkish origin and she indicates that she is going to generate some publicity in relation to what she sees as the unfairness in relation to the process that has taken place here. She makes it quite clear she is not going to consent to any DNA testing.[39]The Guardian emailed Ms K, having been made aware of that email, the following day on 25 January, inviting her, again, to share her views on proposals and reminding her of the details for the final hearing and offering for her to contact her but no response has been received from that.[40]It is clear from this detail, set out above, that Ms K has been aware of these proceedings, including the nature of the orders being sought and the dates of the hearings. Despite this knowledge, she has not attended the hearings or been represented. Her communications have been limited to brief messages indicating her opposition to the orders being sought. I am satisfied that all relevant steps have been taken to notify her of these proceedings. The evidence clearly demonstrates that she has been made aware as to what these proceedings are; what the issues are that the court is being asked to determine and she has chosen, for whatever reason, not to take any constructive steps in relation to these proceedings and, as a result, I am satisfied that she has had sufficient notice and the court is able to proceed with these applications.[41]Turning to two slightly related matters in relation to procedure. The local authority were directed to give notice of these proceedings to the Home Office and the Turkish Consulate. Regarding the Turkish Consulate, the local authority have handed in a letter, today, dated 11 May 2016, where they wrote to the Turkish Consulate, setting out their position in relation to these proceedings, outlining the issues and the reliance on the purported birth certificate, in relation to S, with the date of birth of 21 June 2010 and the fact that that may be put in issue, as a result of the information that the court had about S being older than as was purported by the birth certificate that was provided.[42]They responded on 20 June 2016 at 10.42, by email, when they said, as follows: ‘Dear Miss S, we would like to inform you that, on our record, there is a child named X, with the same information on the birth certificate which you have sent us. All the information on our record about SK matches with the copy of the birth certificate. On the contrary, we cannot confirm that the document is a forgery or not. Also, we do not have any medical records about SK. Hope this information is satisfactory’.[43]The local authority wrote to the Consulate on two further occasions in relation to the hearing that was listed in December and the hearing today. A letter dated 5 December 2016 and, on 21 December 2016, informing them of the hearing today. A statement of service has been provided to confirm this.[44]In the information that has been recently received from the Home Office, there was some suggestion that the Turkish Consulate had been corresponding with the court in Kingston.[45]Enquiries have been made with Kingston to see whether there is any information they have in relation to this and an email was received this morning, at 10 o’clock, from Kingston Court, from the Family Section, which says, ‘Thank you for your email regarding documents received from the Turkish Embassy, regarding the above mentioned and, as far as I can see, we have not received anything’ so it does appear that there is not any relevant correspondence sitting there that would assist the court.[46]I am satisfied, in relation to the information that the court has, that the Turkish Consulate has been notified of these proceedings and is aware of the issues that the court is going to consider.[47]It is also clear that the Home Office are aware of the order made on 15 December. The Government Legal Department wrote most recently to the court on 23 January, attaching a number of important documents. They indicated, as I said, that the Consulate had been in correspondence with the court.[48]The only other person that Mr Restall rightly reminds that the court should consider is any notice that should have been given to the person named by Ms K as S’s alleged father. He was not a party to the original care proceedings; the local authority have no contact details for him. In her police interview, Ms K gave no details of him and the police have confirmed that they do not have a relevant address.[49]Turning now, briefly, to the question of the position in relation to the Home Office. The National Referral Mechanism is a framework for identifying victims of human trafficking, or modern slavery, and ensuring they receive appropriate support.[50]A referral was made by the local authority, for S, in 2014 and a decision was made in June 2014 that there were reasonable grounds to believe that S was a victim of human trafficking.[51]On 23 May 2016, the Home Office confirmed that S had no valid status in the United Kingdom. There was no record of a lawful entry here and they were treating her case as a case of child trafficking. They confirmed that the making of an SGO would be taken into consideration when they do come to determine, in due course, S’s status.[52]On 12 January 2017, the Home Office’s competent authority confirmed that a conclusive grounds decision had now been made with a determination that S is a victim of human trafficking and she was granted discretionary leave to remain here from 12 January 2017 to 13 July 2019. It was noted she may travel out of the United Kingdom any number of times during the validity of this, with certain exceptions, and she may be readmitted without fresh leave being obtained.[53]Solicitors instructed to assist with regularising S’s immigration position have observed that this period of discretionary leave may be shorter than they might have expected and further information is being sought by them from the Home Office. In a recent letter from the Government Legal Department, in January, they have explained the reasoning for the duration of leave as being in accordance with their current guidance and stated that S is not automatically entitled to any travel document, by virtue of the grant of her discretionary leave to remain.[54]What is quite clear is that any issues in relation to S’s immigration status will need to be taken up with the Home Office by those solicitors who are instructed to regularise her immigration position. That is not a function of this court; this court is required to make decisions based on S’s welfare, and her welfare only, and any decision in relation to her status here is exclusively within the control of the Secretary of State for the Home Department. The Applications[55]Turning now to the three applications that the court has to consider. I will take them in turn. The parentage application, first of all. The court’s jurisdiction is under Section 55A of the Family Law Act 1986, which provides as follows:
‘1. Subject to the following provisions of this section, any person may apply to the High Court, a County Court or a Magistrates’
Court for a declaration as to whether or not a person named in the application is or was the parent of another child, so named. 2. A court shall have jurisdiction to entertain an application under sub-section 1, above, if, and only if, either of the persons named in it, for the purposes of that sub-section, a) is domiciled in England and Wales on the date of the application or b) has been habitually resident in England and Wales throughout the period of one year, ending with that date’. The other provisions do not apply.[56]There is no dispute that S is habitually resident here. She has been here since, at least, 2013, possibly earlier. She is settled and integrated here and is, on any view, habitually resident here.[57]In considering this application, the court has the Turkish birth certificate that names her mother as Ms K and her date of birth as 21 June 2010; it is dated 11 October 2010. According to the email from the Turkish Consulate, this corresponds with their records.[58]Further, Ms K has made assertions on a number of occasions, not only in her evidence in the proceedings before Her Honour Judge Williams, but in the email communications that she has had during the course of these proceedings, that she is S’s mother. This was most recently set out in the email dated 24 January 2017 and it appears that she had the care of S prior to June 2013.[59]However, this evidence has to be balanced against the evidence that possibly points the other way, namely the following:[60]On 1 February 2013, as Her Honour Judge Williams referred to in her judgment, Ms K’s GP wrote that the records made by a previous GP had been reviewed and there was no record of any pregnancy during the relevant time prior to what was said to be S’s date of birth in June 2010. This was despite Ms K having been seen during that period, and there was no birth recorded in her notes.[61]The general practitioner further notes that Ms K’s hormone levels of prolactin and FSH were normal on 20 April 2010, namely two months prior to what was said to be S’s birth in June 2010, which is inconsistent with her being in month seven of a pregnancy. Her Honour Judge Williams observed, in her judgment in January 2014, that this appeared to be possibly due to fertility testing at that time which, again, would have been inconsistent with a pregnancy.[62]Secondly, in November 2011, a referral was received from Mr M, who was Ms K’s partner’s community mental health worker, which included the information that he said his wife had adopted a little girl in Turkey, who was living with them, and, whilst the referral itself is not available, there is reference to this in the February 2012 initial assessment records.[63]Thirdly, as recorded by Her Honour Judge Williams, in her judgement in January 2014 at paragraph 10, in her telephone call with a local authority social worker on 20 January 2014 Ms K said she loves S ‘like a daughter’. She was then silent when she was asked whether she had given birth to S, although confirmed later in the conversation that she had done so.[64]The last matter that the court has to consider is Ms K’s unwillingness to engage in these proceedings, despite having had notice of them. She has not participated in the DNA tests that have been directed or consented to the DNA tests, held by the police, being released.[65]Turning to the age declaration, it is clear from the previous decisions of this court, that there is jurisdiction to be able to make such a declaration. In the case of LA v DN [2013] EWHC 2401 (Fam) I was asked to make an age declaration in relation to a child who was then the subject of care proceedings and, at paragraphs 10 and 11, I said the following:
‘Whilst these cases, [E v LB of X [2005] EWHC 2811 and Lambeth Borough Council v TK [2009] 1 FCR 285], were primarily concerned with the issue of whether or not a person was a child, it is submitted that it does not preclude the court from exercising its discretion, as to issues of welfare, for making a declaratory finding… It is submitted DN’s welfare demands that a declaration is made…It is clearly a relevant consideration, not only from the welfare checklist; one of the factors set out at Section 1 (3) is the child’s age, but it goes wider than that. In exercising its welfare jurisdictions, it is important the court should determine whether it is dealing with a child who is 13 years and 9 months or 11 years and 9 months. I am entirely satisfied that this court does have jurisdiction to make such a declaration. … Her welfare needs clearly demand that as much certainty as possible should be given in relation to her age… she now has clarity in relation to a situation which will serve her well in the future.’
[66]In this case, whilst the court has the Turkish birth certificate, which asserts the date of birth as 21 June 2010, there is other evidence that casts doubt on that date. Firstly, there was, in May 2013, an assessment that was undertaken by the health visitor. It refers to the initial contact in May 2013 and says as follows: ‘S was aged two years and ten months at this contact and I was able to undertake a developmental assessment because of her age and the fact that English is not her first language. The assessment was undertaken by discussion with Ms K. Observations: S was very happy during the contact, and playful. She ran around the room; Ms K acted appropriately to bring her back into the room and keep her safe during contact. S was well-presented in appropriate clothing and clean and appeared to relate well to Ms K. S appears steady on her feet and moves freely. When given a crayon she had a palm-grasp and was able to draw a face and place features of the face in the correct places. This was a scribbled attempt but easy to decipher as a face. This is age-appropriate for a three-year-old child. S was weighed and measured and her weight was 21 kilograms and her height 104 centimetres. S has average weight for a child of six years old and average height for a child of four and a half, according to the girls’[?] growth chart’.[67]The health visitor then goes on to say, as a result of this, enquiries are going to be made in relation to the differences as regards her age, according to the birth certificate, and what was observed.[68]In October 2013, a bone-age assessment was carried out by Dr Anna Thornton, consultant radiologist. It appears that there was a bone radiology taken on 25 October 2013.It says, ‘No clinical details given. Finding: Chronological age three years, four months’ which is what she would have been if her date of birth had been 21 June 2010. ‘On the G&P scale, bone age is between five years and five years, nine months’ and she continues, ‘Normal bone morphological appearances’.[69]As a result of that information, and a developmental assessments undertaken in October 2013, by Dr Kenyon, Associate Specialist in Community Paediatrics, who had done a global assessment, and concludes as follows: ‘S, who is reported to be a 14-month-old, chronologically, shows a developmental age of 48 months for her locomotor and her fine motor skills but her speech and language skills are significantly delayed. Her interactive social skills and [self-care?] social skills are between 30 and 36 months. Her expressive language skills are slightly delayed at 15 months and her receptive language skills, using visual clues, at 36 months and, using oral skills, is 21 months. Her overall cognitive functioning is at 36 months’.[70]It was decided in April/May 2014 that, as a result of these differences, she would be treated as if she had an age in accordance with the bone radiology, which would have put the time period between January and October 2008 and 21 September 2008 was selected. The thinking, at that time, was that would, when she started school in September 2014, bring her up to six years of age and, as at September 2014, enabling her to be the eldest in her class.[71]The next piece of information that the court has is an updated developmental assessment, dated 2 November 2016, carried out by Dr Kenyon who has carried out all the assessments to date. She says, as follows: ‘When S was first placed in care, her physical development and her physical abilities were seen to be far advanced than her known date of birth, then 21 June 2010. Following her bone-age assessment, which indicated her bone age between five years and five months [sic], October 2013, the local authority decided to officially change her date of birth so that S could be schooled appropriately to meet her physical, emotional and cognitive needs. S has been subject to early-life trauma; it is still not clear what led to her delay in developing language skills, emotional bonding and attachment difficulties. Since she has been with her foster carer, S has developed excellent communication skills, friendships, emotional stability and good attachments. She has thrived and developed, a very confident child who enjoys school and home environments’.[72]She then conducted an assessment in relation to each of the areas of the different skills: the locomotor skills, personal, social skills, language skills, eye-hand coordination, performance skills and practical reasoning. She said: ‘S’s gross motor and performance skills were scored at 96 months, namely eight years of age. Her personal social skills and practical skills are at 91 and 93 months respectively; her language skills and understanding of complex instructions are at 72 months, namely six years, but, when compared to her initial score, three years ago in October 2013, she was at the 15-month level. She has made very great progress’.[73]Dr Kenyon does not suggest that the age that has been taken by the local authority, as being born in September 2008, should be changed.[74]That is finally supported by the Merton Age Assessment, the global age assessment, that was carried out by the local authority in the report dated 8 November 2016, when they conclude, based on that global assessment, that S is aged eight, as at November 2016, with her date of birth being estimated to be 21 September 2008.[75]Whilst this evidence does not establish the precise date of birth, what the local authority submit, is that it demonstrates, on the balance of probability, that S was more likely than not, born between January and October 2008.[76]The local authority review minutes, for May 2014, set out the rationale for adopting 21September as her date of birth, where it says, as follows: ‘Since S had her age assessment in November 2013, that indicated that she was between five years and five years and nine months, now approximately five years, five months to six years, two months. The local authority approached the police to ask for advice about changing her official birth date. The social worker explained to the review that the local authority were told they could not formally change the date of birth but could use another date for age purposes, but consequently it was agreed that S’s birth date would now be regarded as 21 September 2008’.[77]This is the date that S has used since then. It has been confirmed that that is the date that she celebrated her birthday, the most recent occasion being when she celebrated her eighth birthday.[78]I have carefully considered the evidence available to the court. In my judgment, it is more likely than not that Ms K is not S’s mother. Whilst I recognise Ms K’s repeated assertions, and the information contained in the birth certificate, that document is inconsistent with other material available to the court. In particular, the information from the general practitioner regarding Ms K’s visits in April 2014, when no record of the pregnancy is made, and the blood tests at the time are inconsistent with an advanced state of pregnancy.[79]That evidence is supported by the comments purported to be made by her partner and Ms K, as set out by Her Honour Judge Williams, although I recognise those accounts have not been tested in oral evidence.[80]Finally, I am entitled to draw an inference from the fact that Ms K has chosen not to undertake DNA testing, which would support her position, conclusively, that she is S’s mother. Her reasons for not doing so do not stand up to scrutiny, particularly as they would establish what she asserts is the position.[81]In addition, in relation to her position regarding the DNA that is currently being held by the police, which they, for reasons that they have set out, are unable to disclose because of the terms of Section 63T of the Police and Criminal Evidence Act 1984 and the decision in Re Z (Children) (DNA Profiles: Disclosure) [2015] EWCA Civ 34. Thatconfirmed the limits of the disclosure that the police are able to make. I agree with the submission set out by Mr Restall, at paragraph 43 of his skeleton argument, in relation to inferences regarding the prosecution case against Ms K. One inference is that the DNA evidence shows that she is not related to S. It is possible the DNA result was inconclusive, namely that the sample was insufficient in some way. That said, the court is entitled to take into account, that if the result were positive that Ms K was S’s mother, then it would be likely that the prosecution case would not be what it is, namely charges in relation to entry to this jurisdiction on false documents.[82]I will, therefore, make the declaration sought, namely that it is a declaration of non-parentage; that Ms K is not S’s parent.[83]Turning to the declaration regarding S’s age. Again, I factor in the information contained on the birth certificate, and what is said about the Turkish Consulate’s position in relation to that, but its reliability is called into doubt regarding my conclusions relating to maternity. I am satisfied, from the evidence the court has that the birth certificate cannot be relied upon and that it is more likely than not, when one stands back and looks at the age assessment information that the court has, that I have just gone through, not only from the radiological evidence relating to the bones, but also the global assessments that have been undertaken, starting from that done by the health visitor in May 2013, through to the two assessments in November 2016, I am satisfied that it is more likely than not that S was born in 2008, not 2010. I agree with the position of the local authority, as supported by the Children’s Guardian, that the court should fix the date of birth as being 21 September 2008. The assessments that have been undertaken, when looked at together, demonstrate, on all levels, S is more likely to be aged eight than aged six.[84]Turning, finally, to the SGO, I will give leave for the local authority to withdraw their application for a placement order that they made in February 2016. The assessments in relation to special guardianship were made in July 2016. The joint authors were Ms Kazina, the allocated social worker, and Mr Smith and his team manager. They are detailed and thorough assessments, undertaken over five meetings between those conducting the assessments and Ms A and the family between May and July 2016, as well as extensive additional enquiries with the social worker, the school and the wider family.[85]Ms A is aged 50, is of Moroccan heritage but has dual nationality. She came to this jurisdiction in 1986. She has had the care of S since May 2013. She, herself, comes from a large family with six siblings, some of whom live here and others abroad.[86]Her 29-year-old son has recently completed further education and is working, although remains living at home. Her eldest daughter married in September 2012, had a child in 2013 and lives with her husband and child in London. Her youngest daughter is aged 24, still lives at home, and is currently not working.[87]A former foster child, called X, also lives at the home. She was fostered by Ms A from July 1995 when, I think, she was placed with her, aged six months, to December 2012. She has remained living there and attends college. She has health and learning difficulties, to the extent that she is a vulnerable adult. She has an allocated social worker from the Adult Mental Health Team which support Ms A in caring for her.[88]As I have indicated at the beginning of this judgment, although there have been DBS checks done in relation to the older children that live in the home, no DBS check had been undertaken in relation to X but I am satisfied, on the basis that the local authority will agree to undertake those DBS checks, and return the matter back to court if they reveal anything of concern, that on the face of it, the information the court has is that X has been living in the home for 21 and a half years; she has been placed, initially, as a child in care, through the London Borough of Kingston, which is the same local authority that placed S; if there had been any safeguarding concerns, there would have been communication between the relevant local authority departments. That has not taken place and so I am entitled, I consider, to infer that there are no safeguarding concerns in relation to X being in the home in which S is going to be placed.[89]Ms A does not have a current partner; she is separated from the father of her three children. He has since remarried and lives in Morocco. Ms A had another relationship with another person between 2013 and 2014. They undertook a religious marriage in 2013 but have been separated since 2014, when he was placed abroad and Ms A was not willing to join him and there are no plans for that relationship to be resumed.[90]Ms A has been a foster carer since 1995. She has had over 30 children placed with her. The SGO report states that she has been, ‘An excellent foster carer, changed many people’s lives for the better. She loves caring for children and takes great pride in doing a good job. Any child placed with her is welcomed into the family and nurtured. She has shown flair in many areas of fostering’.[91]The SGO assessment is very positive. It reports how well S has settled into the placement; that the strong and secure emotional attachment she has to Ms A. The detailed report concludes that, ‘Ms A is, ‘Able to ensure S’s stability into adulthood. Disruption is not likely to become an issue. S clearly presents with a strong bond towards Ms A, who she clearly confides in. All family members have clearly one wish, namely for S to remain in the family’.[92]The parties have been able to agree a special guardianship support package at the hearing on 6 October 2016. There are two parts I just want to draw attention to. The first relates to life story work. It sets out ‘Services to be provided: life story work is in progress and will be completed by S’s allocated social worker, Ms Kazina’.[93]Over the page, in relation to identity: ‘S has a very limited understanding of her life story. There are significant portions of her early life story for which there is very limited information because she was trafficked into the UK. This gap in her history will present a challenge in her formation of a cogent life story and is likely to affect the formation of her identity and sense of self-worth. Life story workis under way to address this significant aspect of S’s development’.[94]Under emotional and behaviour development, it records that S’s undergone a consultation with CAMHS, regarding her attachment style, but no further CAMHS involvement was recommended. Ms A was given practical advice by CAMHS in order to promote a healthier attachment style which seems to have been confirmed in the SGO report.[95]I am told, by Mr Wahid in relation to life story work that that will be continued by the local authority, either by Ms Kazina, or the new allocated social worker Ms Jenkins. I want to ensure that there are suitable arrangements in place so that there is continuity of this important work, which will become increasingly important as S gets older and wants to ask questions in relation to how she came to be living with Ms A.[96]The second matter that I just want to draw attention to is the position in relation to financial support. The plan sets out as follows: ‘The local authority undertakes to resolve the issue of S’s immigration status to include practical support for Ms A and assistance with legal fees and Home Office fees. The local authority will reimburse Ms A for the cost of a passport, if necessary, and will support her to obtain temporary travel documents covering the cost of the same for S, once a receipt is received’.[97]It then confirms the figures in relation to the current, weekly payment that is made under an SGO and there is confirmation that it is going to continue for a period of two years, then be subject to annual reviews and there will be no deduction made for any state benefits by way of child benefit being received.[98]It is clearly important that the court, having reached a conclusion in relation to welfare decisions concerning S, that her status, or otherwise, to remain in this country, is pursued to enable that important aspect of her life to have some form of security. As I have said, what that decision is entirely a matter for the Secretary of State for the Home Department but I agree with Mr Restall when he submits that there should, perhaps be a preamble in the order that I make today just to reinforce the importance of this aspect of S’s welfare and to make sure that it is kept at the forefront of the local authority’s support that they are providing for the continuity of this placement.[99]Having considered the welfare needs of S, in accordance with Section 1 of the Children Act, which, of course, is the governing provision in relation to the applications that I am concerned with, I am satisfied that her welfare needs can only be met by this court making a SGO in favour of S. That order accords with S’s express wishes; it will meet her emotional, educational, and psychological needs.[100]Ms A has clearly demonstrated, by the excellent care she has provided for S over the last three years, that she can meet S’s needs now and in the future. An SGO will give Ms A enhanced parental responsibility to enable her to effectively meet S’s needs during her minority and, most probably, beyond. For those reasons, I will make the SGO order.