Case No.  WR14P00534

IN THE FAMILY COURT
SITTING  AT  WORCESTER
The Shirehall
Foregate Street
Worcester
WR1 1EQ

13 February 2015

Before:
HIS  HONOUR  JUDGE  RUNDELL
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In the matter of S (a Child):
Between:

MR and Mrs L
Applicants
(Paternal Uncle & Aunt) 
and

M
Respondent (Sister)

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MISS ALYSSA HOWARD (Counsel) appeared on behalf of the Applicants
The Respondent appeared In Person
MISS TERRI MASON (Solicitor) appeared on behalf of the Child's Guardian

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JUDGMENT
JUDGMENT
ON APPLICATION FOR A CHILD ARRANGEMENTS ORDER

13 February 2015
J U D G M E N T

JUDGE RUNDELL:  

   1.	This application concerns S, who will be fifteen next month.  He is known by everyone as S, and I shall call him that in the course of this judgment.  

   2.	He came to the United Kingdom towards the end of 2008 with his parents and his elder sister M, who is now eighteen.  It may be that S at any rate had made a previous visit earlier that same year, but it does not matter one way or the other for the purposes of this application.  He and his sister were granted six-month entry visas in December of that year. The purpose of the visit it seems to me was for the family to visit other family members in the United Kingdom, two of whom were Mr and Mrs L, who are the paternal uncle and aunt of S.
   3.	The parents left the children with their uncle and aunt, supposedly for a few days, whilst they visited other relatives, and they never returned.  It seems that they have returned to India, and since then there has been no contact between parents and children.  Despite the reasonable efforts undertaken by the applicants(Mr and Mrs L) to trace the parents, those efforts have proved unsuccessful.  It may be that one reason for the parents' return to India at short notice was that there had been some form of dispute in respect of property, either here or in India.  Again, I do not have sufficient information to form any clear conclusion, and in any event it does not matter to the determination of this present application.So S has not seen or heard from his parents for the past six years, during which time he has lived with the applicants in Hereford, along with their two sons.  
   4.	Both S and M made applications for asylum in 2009.  Those applications were refused.  Last year, M (then seventeen) got married and her husband sponsored an application for leave for her to remain in the United Kingdom, in which S was named as a dependent relative.  That part of the application was, to use the words of the Home Office, "voided" because he clearly was not a dependent relative, and in any event her application was refused.  Thus, for immigration purposes, both brother and sister appear to have no legal right to remain in the United Kingdom.  
   5.	Whether the Border Agency take any action against them and, if they do, when that might be, is simply impossible to predict.  If they do take action, there may be strong, possibly very strong, human rights arguments in favour of S to remain in the United Kingdom, and M’s position is probably similar, but it is impossible for me to predict the outcome of any such action if the Border Agency seek to proceed.
   6.	Three issues arise, therefore, in these proceedings today.  The first is that of jurisdiction.  S was brought to the United Kingdom at the age of eight and left here by his parents who, on the evidence, I am satisfied have returned to India.  They have made no attempt to secure his return to India.  He is now almost fifteen and wants to stay in the United Kingdom, and has expressly said he has no wish to live in India.  He is settled in this country, I am satisfied that he clearly has habitual residence here and nowhere else.  In those circumstances, the Court has jurisdiction to make orders in his case.
   7.	Secondly, the parents:  They have not been served, nor, so far as I am aware, know of these proceedings.  As I have said, there have been some efforts to locate them; perhaps not as extensive as they might have been, but they are reasonable efforts.  I am quite satisfied that further inquiry is unlikely, probably highly unlikely, to locate the parents, and even if they were located, they appear to have no interest in S since leaving him in the United Kingdom.  Therefore it seems to me that there is no prejudice at all to the parents from my making any orders today.  In any event, they know where he is or, if they do not, they can easily ascertain that, because there are other family members in the United Kingdomand, if they were minded to do so, they could always come to the United Kingdom and make any application that they saw fit to the Court.  I very much doubt that they will ever trouble S again, sadly for him.In the circumstances, it seems to me entirely appropriate and in accordance with the overriding objective that I dispense with service of this application on each of them.
   8.	So I now turn to the merits of the application, and I have very helpfully had my attention drawn to the decision of Mrs Justice Bracewell in Re M [1993] 2 FLR 858.  The welfare of S is my paramount consideration.  In considering welfare issues, I will pay particular regard to the views of the guardian, who has undertaken a great deal of work at fairly short notice in respect of this case. 
   9.	S, as I have already said, is well settled with his uncle and aunt in Hereford.  He is progressing well at school.  His health is satisfactory.  He has regular contact with his sister, who is his closest relative and has been so for many years.  He wants to remain with his uncle and aunt.  He is keen for this matter to be resolved.  At the age of almost fifteen, his wishes and feelings are entitled to be given considerable weight.  No-one opposes Mr and MrsL application, and the guardian supports it.  
   10.	The guardian in her final report is critical of the local authority.  S, in his unusual circumstances, is clearly a child in need and therefore the local authority has a duty towards him.  But he is being well looked after by his uncle and aunt and they have expressly said that they do not seek assistance from the local authority.  There is, as we know, a proud tradition in the Indian subcontinent, which is carried abroad when they locate in this country, for families to look after other members of the extended family, and the Court is bound to respect that tradition.In the circumstances, I make no further observation in relation to the local authority, save to remind Mr and Mrs L that if in the future they do feel they need some help, the local authority will be there and will be obliged to assist them.
   11.	So far as harm is concerned, S, as I have said, is suffering no physical, emotional or educational harm at present, but at the moment he has no one in the United Kingdom holding parental responsibility for him.  His uncle and aunt have in effect de facto responsibility, but no legal rights in that respect, and it would help and be of assistance to S that he should have a legal parent in the United Kingdom.  Both Mr and Mrs L have undertaken that role for the past six years and they are willing to do so in the future, and it seems to me entirely appropriate that they are enabled to do so.
   12.	I shall therefore give them leave to make this application.  I shall grant their application for a Child Arrangements Order in respect of S in their favour, that S lives with them.  These are indeed exceptional circumstances and I therefore make the order to last until S’s eighteenth birthday.  
   13.	I shall direct a transcript of this judgment to be prepared at public expense and, when it is available, it, together with the guardian's final report, can be disclosed to the Home Office in the event that the Border Agency seek to take any action against S.
   14.	A final word of caution:  if the Border Agency do seek to take action, this order in itself, it seems to me, is no bar to them doing so, although hopefully it may strengthen any human rights claim in support of his remaining in the United Kingdom.