Neutral Citation Number: [2013] EWHC B31 (Fam)
Case No BM11P08244
HIGH COURT OF 
(FAMILY DIVISION)
Civil Justice Centre
The Priory Courts
33 Bull Street
Birmingham    B4 6DS

26th March 2013

Before:

MR RECORDER KEEHAN QC
(Sitting as a judge of the High Court)
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B e t w e e n:

RO
Applicant

- v -

A local authority & Others
Respondent 
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(Transcribed from the Official Tape Recording by Cater Walsh Transcription Ltd.
1st Floor Paddington House  New Road  Kidderminster. DY10 1AL
Tel:  01562 60921   Fax:  01562 743235)
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MR BAKER appeared on behalf of the Applicant
MR COWEN appeared on behalf of the Respondent Local Authority
MISS MEACHIN appeared on behalf of the Guardian
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JUDGMENT (As Approved)
The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by his or her true name or actual location and that in particular the anonymity of the child and the adult members of their family must be strictly preserved.

1.	INTRODUCTION:  In this matter I am concerned with one child, F.  F was born on [a date in] 2006 and is, therefore, six years of age.  Her mother is SM.  Very sadly SM, whom I shall refer to hereafter as the mother, died on [a date in] 2012.  Father is RO, he is 36 years of age and he has a partner with whom he now lives, JA.  She has a son from a previous relationship, N, who is 18 years of age and she is pregnant with a child with an expected date of delivery of 3rd June of this year.  F has a half-sister from her mother’s previous relationship, M, who is 20 years of age.  Also a party to this matter is F’s maternal aunt, TM who resides in the United States of America and is married to her husband KM.  A further important figure in this matter is a family friend, JG.  

2.	After the death of the mother JG assumed the care of F and since that time has provided warm, loving, stable and safe care and a warm and loving home to F.  The provision of that home will continue for some time but cannot last indefinitely.  I entirely agree with the tribute paid by Counsel for the guardian to JG and her care of  F and I wholly endorse it.  It has impressed me greatly that JG has attended almost every hearing of this matter which has been listed before me.  

3.	At this hearing I am considering two applications by the father.  The principal application is an application for residence made on 7th March of this year.  There is also extant an application by him for contact with F which was made as long ago as 21st March 2011.  

4.	THE BACKGROUND:  The background to this matter can be stated fairly briefly.  Prior to the birth of  F, the mother and the father were in a relationship and lived in Germany with M.  They decided, the father tells me, on the basis that the mother’s employment prospects were thought to be better in this country, to all move to come and live in the United Kingdom.  As I have said, in August 2006 F was born.  On 13th November 2006 the father was refused permission to marry the mother by the Home Office.  He tells me, and I accept, that for the early months of F’s life he was the main day-to-day carer because the mother worked full time.  On 16th August 2006 the father was deported by the UK Border Agency from the United Kingdom to Cameroon, the country of which he is a national.  The mother went out to Cameroon and there they married in October 2007.  Some short time later, she returned to the United Kingdom.  The father on 18th October 2007 applied for a family visa to return to the United Kingdom which was refused six days later.  A substantial period of time passed and there is an issue about the extent to which the father had contact with F during the time he was in Cameroon or the extent to which he provided support for the mother and F but for the purposes of this application I do not need to resolve those matters. 

5.	On 22nd September 2009 the father again applied for a family visa which was granted for a period of six months and he returned to live in the United Kingdom but he did not return to live with the mother and F and M as a family.  They lived separate and apart.  On 21st March 2011 the father made his application for contact.  In the body of that application at B8 of the bundle it is recorded that he asserted that since 2009 he had seen F only five or six times.  That application proceeded, sadly, slowly through the court system and PB who is now F’s children’s guardian had been the CAFCASS officer reporting in that contact application.  Sadly, tragically and unexpectedly, on 13th August last year the mother died.  Within two days the maternal aunt, TM, had arrived from the United States and for a period of time immediately after the death of the mother the aunt and M cared for F in her family home.  Indeed a residence order was granted to them both on 23rd August 2012.  But, quite understandably, there came a time when the aunt had to return to the United States and M had to return to her studies as a student and, accordingly, JG stepped in and provided a home as I have already described for F.  On 19th September 2012 that position was recognised by the making of a residence order by her Honour Judge Hindley QC in favour of JG.

6.	There were then a further series of court hearings.  On 14th November last year the matter came before Mr Justice Mostyn and one of the recitals to that order reads as follows at B47 of the bundle: 

“And upon the applicant father accepting that it 
is in the best interests of F to be placed 
permanently with the maternal aunt and uncle, 
TM and KM, provided that reasonable 
contact can be arranged.”  

7.	There was then another hearing on 30th January 2013 before me and one of the recitals to that order at B59 of the bundle reads as follows: 

“And upon the court indicating that F should be told that her father is supportive of a placement with her aunt.”  

However, at the next hearing on 18th February 2013 the following recital appears in the order at B61: 

	“And upon the court being informed that the 
	position of the applicant father is that despite 
	not being in a position to care for F he 
	is hopeful that this will change to such an extent
	that F could reside with him.”  

At the next hearing three weeks later before me again on 5th March the father signalled that he wished to make an application for a residence order in respect of F which I directed should be set down to be heard on 25th March and today, 26th March.  

8.	THE LAW AND RELEVANT MATTERS:  I remind myself and bear in mind when considering this matter at all times that my paramount consideration pursuant to section 1(1) of the Children Act 1989 is the welfare and best interests of F.  Secondly, I remind myself and bear in mind the matters set out in the welfare checklist at section 1(3) of the 1989 Act.  Thirdly, where the Article 6 and/or Article 8 rights of the child are in conflict with the Article 6 and/or Article 8 rights of a parent, the rights of the child prevail, see Yousef v The Netherlands [2003] 1 FLR 210.  Fourthly, the father sets out in his position statement filed for the purposes of this hearing the following, see 191 of the bundle: 

“During these proceedings SM stated to me that I would not obtain contact with F due to my origin which is black African.  I felt this was very unfair.  I mentioned this to PB in my initial appointment with CAFCASS who confirmed that this would not be the case.”

	That is a matter that the father has referred to and alluded to during the course of his oral evidence at this hearing.  I want to make certain matters clear beyond peradventure; the father’s ethnicity and cultural background are hugely important and they are hugely important because it is part of F, it is part of her identity and the person that she is and it is something that she needs to be told about, encouraged to be involved with and to know about.  I make it absolutely plain that there is no question of the father’s ethnicity or cultural background being a negative factor when the court is considering whether or not it is in F’s welfare best interests to be cared for by him. 

9.	Finally, it is right that I make absolutely plain, as I have done throughout the course of the hearing, that I am considering the father’s application for residence and that alone.  I am not contrasting or balancing or comparing the care that he could afford F against the care that could be afforded by anybody else including TM, the maternal aunt.  So I will consider whether it is in F’s welfare best interests that she should be cared for by her father.  If I accede to that application she will reside with him.  If I do not accede to that application then consideration will need to be given to what alternative care may be available and in her best interests.

10.	THE EVIDENCE:  I have read all the recent material filed by the father and his partner which appears in the trial bundle.  I have read all of the reports and statements filed by both the social worker and the children’s guardian.  I heard evidence from the father and his partner and from the social worker, SP, and the children’s guardian, PB.  M kindly attended the court today.  There was an issue about whether she should be called to give evidence but I am grateful to Mr Baker on behalf of the father who indicated that there was no need for M to be called to give evidence in this matter.  

11.	I start, first, with the evidence of the father’s partner, JA.  I made it plain during the course of the evidence today that I did not consider that it was right that JA should be the subject of any negative comments about her as an individual or about her as a mother to her son and to her prospective child.  All that I have read about her speaks positively of her as an individual and as a carer.  Furthermore, although the property which she lives in at the moment has only two bedrooms, I know of no negative comments about that property at all and any observations that I make hereafter should be read and taken in that context.  There was an issue which was raised both with the father and JA about for how long the father had been living with her at her home in Manchester where she lives with her son.  JA said it had been since October of last year, the father said it had been for the last seven and a half months.  In the scheme of things, in my judgment, nothing much turns on that.  

12.	Of more relevance, however, and of greater concern was the question and the issue about when it was that the father and/or JA had decided that it would be appropriate and right for them to seek to care for F.  JA was asked about this by Miss Meachin on behalf of the guardian and she said, “We never sat down and thought through whether we were in a position to care for F.  Father was wrong when he says to the contrary.”  She was asked, “When did you reach a decision that F should come and live with you?  Was it in March?”  The reply was, “No, that would have been some time in November last year.”  She said further, “I knew all along that he, the father, would not want F to live in America.”  I then asked JA what it was that happened between the order of 30th January of this year when there was the recital about F being told that her father supported her going to America and the order of 18th February where there is the recital that the father had resiled from that position.  Despite being pressed on a number of occasions JA simply said she did not know.  Given the importance for F of the right decision being made about her future care, it is of concern that there was a singular lack of clarity by the father about when decisions were made to put himself forward as a carer for F and, in particular, the failure both by JA and by the father to explain what and why he changed his position as set out in the recital of the order of 14th November last year, in the recital of 30th January of this year compared with that of 18th February.  

13.	In relation to the father’s evidence I very much regret to say that whilst I do not doubt that in his own way he deeply loves F, he was a most unsatisfactory witness.  There was an issue about what he had said to the social worker about where he lived.  The social worker for the purposes of speaking to the father at court on 19th September last year and again for the purposes of seeing him at his home on 27th September last year checked as to whether he required an interpreter, his first language being French and not English.  She was told by the father that he did not require an interpreter.  The social worker also told me that in those circumstances she was keen to ensure that the father understood what she said to him and what he said to her and I readily accept that evidence.  In one of her reports set out at D59 of the bundle which sets out the discussion that the social worker had with the father there is a question raised about where he was then living.  The father indicated a property in Brierley Hill.  The social worker in her report then sets out the following: 

“At this point RO was silent for a few moments and then advised me he did not actually live at the address on the court documents.  My team manager JH was present throughout this conversation and interjected at this point and asked RO if he currently had a partner.  RO laughed and said no.  JH then reminded RO that if he misled us during the assessments that it would not reflect well on him and that we needed him to be honest. RO then admitted that he did indeed have a girlfriend but that he did not live with her.  He refused at this point to share her name or address.”  

According to the father’s evidence, he was by that time living full time in Manchester with his partner and he could not explain why he had given that account to the social workers.  He sought to suggest that they had got it wrong.  I do not accept for one moment that the social workers got it wrong.  I regret that I have come to the clear conclusion that the father was for whatever reason deliberately lying and obfuscating to the social workers about where he lived and his own then personal circumstances.

14.	What is more, the father denied that the social worker had asked him when she met him at court on 17th September about the details of any partner that he may have had.  He asserted that that was only asked of him on 27th September and that he did not give that information to the social workers then because he needed to ask his partner for her permission.  Once more, I regret to say that I do not accept that the father was only asked on the second occasion for those details.  I accept that the social worker raised it with him on both of those occasions.  It is not limited to the social worker, however, that the father denies conversations taking place.  

15.	The guardian records this in one of his reports at D5 of the bundle at paragraph 17: 

“Mr RO told me that he had been to see his immigration support and had been told that because of his daughter F he will get his residence application granted.”

	That is, I understand he would be given leave to remain in the United Kingdom by the immigration authorities.  The father does not say that that was a misunderstanding.  He point blank denies making any such comments to the guardian at all.  I have no hesitation in accepting that it was said to the guardian, that the guardian has accurately recorded those matters in his report and once again the father is lying to the court.  

16.	The father was pressed time and again in the course of his oral evidence about his living arrangements, about his relationship with his girlfriend, about when he moved to live in with her and he was also pressed as to why he had not given an honest or accurate account about the same to the social worker.  The father’s answers, I regret to say, were wholly unsatisfactory and, whilst I give all due and proper allowance for the fact that English is the father’s second language, that does not begin to explain the unsatisfactory nature of the answers that he gave.  Moreover, when he was asked about why it was that on his behalf the recital was set out in the order of 14th November that he supported the placement of F with the maternal aunt and that he was not in a position to care for her and, similarly, why there was the recital in the order of 30th January that he supported F being told that he supported her going to America, he could simply give no adequate answer, in my judgment.  The best that he could do in relation to the recital of 14th November was to say that he did not understand it that way.  The recital in the order of just over a month ago on 18th February records that the father, whilst conceding that he is not in a position to care for F, wanted to pursue a residence application for her.  Five weeks later the case is being put on his behalf that he is now ready and able to provide for her care and seeks a residence order.  He has not explained at all and certainly not to my satisfaction why on 18th February he was not in a position to provide for her care and now he is.  He was asked about what has changed since 14th November 2012 towards the end of his evidence and he identified four matters; his immigration status had changed, his partner was now going to have a baby, they were applying for new housing and “we want her as our child” he said.  

17.	Dealing with those in turn, his immigration status has not changed at all.  I do not know when or whether the UK Border Agency will give the father indefinite leave to remain in this country or not and I have seen no documents or correspondence from solicitors to indicate that the outcome of that application is likely to be successful.  Two, it is right that the father and his partner are to have a child which is a matter to be celebrated and a joy no doubt to both of them.  The father seemed to give no thought as to the impact that that might have on F or on his or on his partner’s ability to give sufficient and proper attention to the care of F.  Thirdly, new housing, yes, they have applied for a larger home in the public sector.  There is no indication that that is going to be successful or when it may be successful or where it would be.  Moreover, I note the application was only made a month or so ago.  As to the final and fourth matter, “we want her as our child,” that relates to the father’s approach overall to this matter which I shall refer to in a moment.  Very tellingly and very sadly, in my judgment, the father was asked a question which asserted that F had been through a lot in her short life and his reply was, “Me, too.”

18.	ANALYSIS:  From all that I have read, it is perfectly plain that F is an absolutely delightful little six year old girl.  She is full of life, full of beans and enjoys her time at school, her time with her friends and at the moment enjoys her life living with JG.  I know that she is very close to her sister M and very much enjoys it when she comes back from university and she can see her.  She can of course, as any six year old can but particularly one who has suffered what F has suffered, tend to push the boundaries every now and then and needs very firm limits lovingly but consistently applied.  That JG has done and that has borne clear results and benefits for F.  It is also plain from the many moving accounts and descriptions given by the social worker of her meetings with F that F is desperately in need of a mother.  Whilst one accepts that nobody could ever replace SM for a moment, she needs a mother figure.  She in all of her actions, as far as the social worker is concerned, demonstrates a crying need for that.  She wants stability, she needs stability, she wants to know where her future is going to be and she needs to know that sooner rather than later.  It was said by both the social worker and the guardian, and I accept, that the full consequences of F losing her mother at such a tender age and the potential emotional damage that she will suffer in the shorter and longer term are not yet fully known.  But it is plain that she needs very sensitive and very devoted care and attention with carers who are particularly attuned to her special emotional needs.

19.	In relation to the father there are, in my judgment, three serious question marks over his motivation to care for F, over the degree to which trust may be reposed in him and he can be trusted to be honest and, most importantly, his ability to meet F’s emotional needs.  Whether the father’s vacillation and changes of position about caring for F, as indicated by the different recitals to the orders that I have referred to, are motivated by steps to improve the prospects of him securing indefinite leave to remain or whether it is motivated by a desire to prevent any possible adoption order being made in due course in favour of the aunt or any other person which would thus extinguish his paternal rights, I do not know and I do not know because the father has given no explanation of that vacillation to me.  The suggestion that he was concerned about adoption was not said by him in evidence nor in his statement but it was a matter submitted properly of course by his counsel in submissions.  That goes to his motivation as to why he is putting himself forward but it also has a bearing on his approach to an understanding of F’s emotional needs.  Chopping and changing as he has done, if F were to learn or to be told of those matters, what on earth is that going to do to this little girl who needs to feel precious and important?  

20.	Given the unsatisfactory accounts that the father has given, his unsatisfactory degree of cooperation with the professionals involved in this matter and the extent to which he has lied and lied sadly, I find, to this court, there is a very serious question mark over the extent to which this father can be trusted and would be honest in the future.  For the sake and for the avoidance of any doubt, I make it plain that those findings relate to the father and not to JA, his partner.  

21.	Finally, but most importantly, there is the extent to which this father can meet the emotional needs of this child.  He may love her, as he did frequently say he loves her.  Sadly in life that is not enough.  This child needs to have her emotional needs recognised and met.  She needs to be the centre of attention so that her needs are not missed.  I regret to find that the father does not begin to evince any understanding of what those needs are nor does he evince any ability to meet them and if she were to live in a household where there is a new baby and to live in a household where there is an 18 year old and to live in a household where there is a relatively new relationship established between the father and his partner, the carer would need to be particularly acute to her emotional needs and he is not.  When I heard him reply in answer to the fact that F has been through a lot in her short life, I thought it heartless on the part of the father to reply, “Me, too.”  There was no recognition given at all of what this little girl has been through.  It is a powerful and illuminating example of the approach of this father to this matter which is to his needs and his rights and what he wants and coming a very poor second is what this precious little girl needs.

22.	Accordingly, applying the welfare checklist and applying the paramountcy principle of deciding what is in F’s best interests, I have no hesitation in finding that it would be wholly contrary to F’s short term and long term welfare best interests to be cared for by her father.  I am asked, if I am against the father, to adjourn that application for residence, and hold it open for what may be unknown in the future.  I wholly disagree with that.  What needs to be heard is clarity.  I see no prospect of this father being in a position, on the basis of my findings of being available appropriately to care for this child in the foreseeable future.  Accordingly, I dismiss the application for residence.

23.	There is the question of contact.  I accept that the contact litigation proceeded slowly.  I accept that albeit there were only three periods of contact, on the day of the funeral, shortly thereafter and on 21st November last year, those went reasonably well but for whatever reason and despite the best endeavours of the social worker to bring F round, she appears to be against the idea of seeing her father.  I agree with the guardian that it would be in F’s best interests to be able to establish a good and warm relationship with her father and I entirely agree that steps should be taken to attempt to improve that position but I also agree with the guardian that if the father maintains his view that he is against F going to live with the aunt or other family members and is not prepared to support it, at the moment direct contact with the father is likely to be detrimental to F and I say that for this reason.  As I have indicated, she desperately wants to know where she is going to live.  She desperately needs to have stability and whatever course is now taken it is plainly going to take some time, and in the eyes of this little six year old a very long time, to in fact secure a placement for her.  

24.	Anything that seeks to undermine or destabilise her during this sensitive and difficult time for her is wholly contrary to her interests and thus if she became aware through contact with the father that he was, for example, against the placement that she wants, that is a placement with her aunt and uncle in America, the damage there could be very, very considerable for this little girl, not only in the short term but also in the longer term.  Accordingly, there will need to be some reflection, particularly by the father but also by others, about how best matters can be advanced on the issue of the father’s contact.  That application shall be adjourned for further consideration.  That is the judgment of the court.

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