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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A & A, Re [2016] EWFC B121 (22 August 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B121.html Cite as: [2016] EWFC B121

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In the FAMILY COURT at
NEWCASTLE UPON TYNE

		The Quayside Newcastle upon Tyne NE1 3LA
		22nd August 2016

1. Her Honour Judge Moir : I am concerned with the welfare of two children, FA, who was born on 23^rd April 2000, so she is now 16 years of age; and NA, who was born on 2^nd November 2001, so she is 14 years of age, she will be 15 in November.
2. They are the daughters of AA and MAb. Neither parent is present at this hearing, which is listed as a final hearing. Both mother and father are represented. As far as mother is concerned, she has not given any instructions to her solicitors or counsel, since 23^rd May this year. When conferences have been arranged she has not attended and she returned to Kuwait on 29^th June without saying goodbye to her daughters and without telling her daughters that she was leaving the jurisdiction.
3. Father has given instructions to his solicitor and counsel. He has attended all the hearings; he attended the IRH and indicated that he was travelling back to Kuwait, but would return to this country in time for the final hearing. He has not returned. However, the information that has been provided on his behalf is that he does not oppose the local authority plan for his daughters and, in those circumstances, he was advised, as I understand it, that his attendance was not essential.
4. The local authority seek care orders in relation to each girl and their application is supported by their Guardian.
5. The background to this case is that the family, who are Kuwaiti nationals, had resided in Kuwait until November 2014. Father has been in various countries pursuing his career; he has studied for nursing qualifications and the point of him coming to the UK was to attend for a Masters degree in nursing, at Northumbria University, sponsored by his employers in Kuwait. Father was granted a student visa and the mother and their seven children were granted dependent visas. It is apparent that the mother was not fully invested in the idea of living in the UK, but father was keen that the family should come to the UK with him and for the family to benefit from matters that the UK had to offer in such things as education.
6. Thus, father travelled to the UK in October; the family followed him in November and all the family returned to Kuwait in September 2015, when father experienced difficulties with his visa, in that he had failed his university course. He told the court, through his statements, that he had submitted an appeal against the failing of his course, but no further information has been provided.
7. In October 2015, the father returned to the UK, it seems his visa problems had been resolved. Father travelled to the UK with F, N and two other children, H and A, while mother remained in Kuwait with the other children. Thus, F and N have been present in the jurisdiction since November 2015. In November 2015 the school attended by F and N made a referral to the local authority expressing concerns about the girls and the possibility that there was a risk of forced marriage, as the children were taken to Kuwait during term time and the girls were anxious and father, it is said, was evasive in relation to the plans. It was a holiday and the girls returned to the UK and in January 2016 the father applied for leave to remain in the UK, outside his visa validity, on compassionate grounds for himself, F, N and A and they were allowed to remain, pending the determination of the application.
8. In March of this year, the local authority became very concerned about F. She had made various statements and disclosures in respect of a long history of witnessing domestic abuse, she said perpetrated by the father upon the mother and, indeed, she herself had been caught up in the domestic difficulties. The concerns that F raised included a view that mother had attempted to flee from father, to escape the domestic violence, but there is no evidence, other than what F has said, in relation to that matter and mother did return to the UK when the children were in foster care. F undertook an ABE interview with Northumbria Police, which caused considerable concern. She told the police that her father would kill her if he discovered she was rejecting her religious and cultural identity, which indeed she was. She no longer wanted to be subject to the strict rules which her father imposed upon the family in respect of his religious views.
9. F disclosed that she had thought of self-harm and suicidal ideas and she had gone to the professionals at school and told the police that she wanted to be saved from her father's wrath. She wrote a letter which initially was not disclosed to the parents because of F's views. In the letters that were disclosed, eventually, she set out that she was terrified of how her father would react and she stated:

"I still am but I guess I just don't really care if he will kill me or not any more, because if he doesn't, if I'm sent back to him then I'll just man up and do it myself for him."

10. It is clear that F was in a state of distress and the local authority took the step of applying to the court for wardship and forced marriage protection orders. The court granted those orders on 24^th March, following upon which the local authority issued applications for care orders on 31^st March, and interim care orders were made on 5^th April 2016, renewing the forced marriage protection orders. The girls were placed in separate foster placements, partly due to their own wishes, and they have remained within those foster placements since 24^th March.
11. N has had contact with her father; F, until just recently, refused to have contact, but had, as I understand it, one visit before father left the jurisdiction. F did see her mother, as did N, and as I have mentioned, mother left the jurisdiction without informing either girl that she was going to do so and both girls were distressed at her actions. They have subsequently had contact by way of Skype, FaceTime and I am told that that contact indicates a warm and loving relationship with their mother.
12. F's wishes are to remain with her present foster carers, complete her education, and her thoughts at the moment are that she would like to become a doctor. N is much quieter but she has expressed no desire to return to Kuwait, although she has expressed the view that she misses her family. I had the opportunity to see both girls when they came with their Guardian to see me in my chambers. They were accompanied by their foster carers. F is a very intelligent, articulate young lady. She had asked to see the judge; she was well able to express her views; she was well able to give a balanced account of what she wished. It was clear that she did have a close relationship with her foster carers and felt able to confide in them. It was clear that she was indeed frightened of her father's reaction to the views that she held, which were that she wanted to be able to attend school, to have friends, to behave as a 16 year old and in the same way as her school friends did. She came across as a sensible girl. She clearly placed a great deal of weight upon her educational opportunities and she was well able to tell me that she did not wish to go to Kuwait. She feared that in Kuwait she would effectively – my words – be a prisoner within her father's household.
13. N, as I have indicated, is much quieter. What was very apparent was that she did not wish to upset anybody; she did not wish to say anything which may be taken to be critical of her parents, but she also made it clear that she was happy within her foster placement and, from what I could gather and I emphasise that it was limited in respect of N, that she did not want to return to Kuwait, but she did want to see members of her family.
14. Today this matter has been listed before me for final hearing. Both parents have been made aware of the final hearing, and the range of decisions which are before the court. The father, as I have indicated, takes no jurisdictional point and does not oppose the local authority plan for the girls to continue with their foster carers in this jurisdiction. To be fair to the father, he has accepted, since the issue of proceedings, that the wishes and feelings of his daughters should be taken into account and he has not wished to persuade the court to act other than in accordance with his daughters' expressed views. He has made it clear that as far as he is concerned, he was anxious to see both his daughters and he would have welcomed their return to his care.
15. As far as mother is concerned, when she came to the UK and attended at court, she said that the girls should be returned to her care and, if necessary, father would move out of the household to enable that to be accomplished. The local authority carried out parenting assessments of the mother and the father; those parenting assessments indicated that both parents were able to provide for the day to day care of the girls, in respect of feeding, clothing and providing accommodation for them. The parents were very supportive of educational achievement and there is no doubt that both parents love their daughters very much and mother was able to provide warmth for them. Because of father's attitudes, the relationship between him and F was difficult; his relationship with N, better. The parenting assessment identified that the emotional needs of the girls were not being met, by reason of the domestic abuse and atmosphere within the household and F's view in particular that she was terrified of her father and being the victim of violence from him. Both parents denied the abuse and the violence.
16. I am satisfied, upon the basis of the evidence before me, provided by F, in particular, whom as I say, I found to be an intelligent and articulate girl, that the allegations which she made were accurate and the threshold is indeed crossed. The local authority no longer seek a forced marriage protection order, but they continue to have concerns about the welfare of these girls.
17. The present position is that neither parent is in the UK; there is no indication that either parent intends to return to the UK; no plans have been put forward by the parents for they themselves to return to the UK; nor any plans in relation to the girls going back to Kuwait. Whilst it seems apparent that father envisages that F will continue in her education in this country, if mother's views can be taken to be the same as those she expressed in May, she would want the family reunited, but has put forward no plans as to how that could be achieved. Therefore, presently, other than the local authority, under the interim care orders, there is no adult with parental responsibility in the UK, in respect of either F or N.
18. The mother has disengaged, in that she has not responded in any way to the local authority; she has not given instructions for several months to her solicitors. It is right that she maintains the electronic contact with the girls and it is right to note that their relationship has been described as warm and loving. The issue that has been raised before the court, largely on behalf of the mother, but it is right to say that the advocates on behalf of the other parties, also require the court to consider the issue of jurisdiction. The local authority and the Guardian express the view that this court does have jurisdiction; Mr O'Sullivan, on behalf of the father, does not argue that the court does not have jurisdiction; Ms Wood, on behalf of the mother, says that the issue of jurisdiction must be very carefully looked at; it must be closely examined and if I have understood the submissions correctly, she argues that the uncertainty in respect of these girls would raise the very real possibility that this court does not have jurisdiction. Clearly, if the court does not have jurisdiction, then it should not be making orders in respect of these two girls.
19. The orders which were made at the outset in March have not been questioned in that nobody argues that this court does not have jurisdiction to protect children who are present in the UK and in respect of whom there are concerns that they may be subject to significant harm. On an interim or temporary basis, it is clear that this court has not only jurisdiction but responsibility to protect minors, who are present in this country. The issue of jurisdiction arises when the court is seeking to make what are called final orders in respect of these two girls; orders which set out where they will be residing during the rest of their minority.
20. The Kuwaiti authorities were informed at the outset of these proceedings, as required. They initially responded by asking to be able to speak to the girls; they attended one of the initial hearings. Two Kuwaiti gentlemen came to the court. The Guardian and local authority, at those early stages, had concern about these two men from the Kuwaiti Embassy speaking to the girls, without a knowledge of what they wanted to discuss with them. The Kuwaiti Embassy were informed of that view and asked the purpose of wanting to speak to the girls. It is right that F, in particular, was reluctant and, if I recollect it accurately, asked why it could not be a female that she spoke to. N was also reluctant. Since those initial responses, there has been no further correspondence or communication from the Kuwaiti Embassy, although the local authority have, at each stage, kept them informed as to the progress of the case and what was happening in respect of these two girls.
21. The jurisdictional issue is decided by looking at whether or not each of these girls was habitually resident in the UK. It is the habitual residence which operates to enable the court to make orders, in respect of these children. They are Kuwaiti by birth and only if they were habitually resident at the time of the application should this court consider exercising its jurisdiction to make care orders, in respect of them. The identification of a child's habitual residence is, as stated by Black LJ, overarchingly a question of fact. I have set out the background to the application by the local authority, in March of this year.
22. The local authority submit that these children have put down roots which represent the requisite degree of integration necessary for the court to be satisfied that they are habitually resident here. The local authority goes on to submit that the lack of adult planning by each of these parents and the fact that these children are adolescents, means that the state of mind of an older adolescent child is to be given great weight, quoting Re LC [2014] UKSC 1 and the local authority submit that that is sufficient to satisfy the court and to make the orders that the local authority seek.
23. The authorities which this court has considered indicate that the court must look at whether the child is habitually resident in England and Wales when a court is seized of the matter; that the court must consider the greater autonomy of children of the ages of F and N and the corresponding reduction in the importance of the parents in determining the child's habitual residence.
24. Mr Grey makes the point, on behalf of the Guardian, that the children have in fact rejected the culture and lifestyle afforded by their own family and both have embraced the alternative possibilities provided by foster care in the UK. These children are well integrated into their life in the UK, particularly in respect of school and their education, and F is clearly very committed to pursuing her education within this country. It is not length of time but the fact of the overall situation, expressed views. It is apparent in the authorities that if the arguments in relation to habitual residence are equally balanced, then the court should prefer the child-focused alternative. Ms Wood argues that this is not a finely balance situation; that the five month period between November '15 and April 2016, in circumstances when the lawfulness of their presence was tenuous; where not all the family had travelled; the court, she argues, should be slow to accept that that would establish habitual residence.
25. These children are of an age when weight should be given to how they approach the question of where they live. It is clear from speaking to both girls that they regard their home as being in the United Kingdom and their school as the one that they attend. There was no indication from them that they saw it as a temporary situation. It is right that they were fearful of it not being a permanent situation, but in general discussion it was clear that they were fully invested in the view that their future was envisaged to be continuing in its present form, as long as they were allowed to continue in that way.
26. Ms Wood raises the fact that the immigration status of the two girls is not confirmed to enable them to remain in the UK, once they reach majority. In my view, I have to look at the situation now; I have to determine habitual residence now; and I am satisfied that these girls have been fully integrated into life in this country. There is no indication that their father approached the matter on the basis that they should not be educated and continue in this country. It is fair to say, however, that their mother had a different view. However, I am satisfied, looking at all the facts of this matter, that this court should accept jurisdiction. The adults, both mother and father, have not put forward any particular plans which would show that they had positively devised plans to remove the girls at any specific time; nor any plans to return them to Kuwait. While I accept that the fact that these children would be left in the UK with no specific planning to enable them to return to Kuwait is not a reason to find jurisdiction, it does, in my view support the girls' view that the intention had been to continue with their education and life within this jurisdiction.
27. In looking at the welfare of these girls, if I am satisfied the court has jurisdiction, which I am, then their welfare clearly demands that the local authority share parental responsibility; that they provide for the care and support and welfare of both girls. I am satisfied that both girls are happy in their placement and look forward to their continuing placement within the families where they are, where it is clear they feel valued and able to confide within the adults and express their views.
28. Therefore, I am satisfied, in looking at the welfare of F and N, that it is right that this court should make care orders and that without those care orders these children would be likely to suffer significant harm.
29. As far as contact is concerned, it is an issue which will need careful planning. No doubt the electronic form of contact can continue and should continue. Direct contact, taking account of the ages of these girls, should be in line with their wishes. Clearly, if the parents come to the UK, the local authority will encourage direct contact. N has talked about going on holiday to Kuwait; there are numerous issues which will need to be carefully considered in relation to such holiday contact, but no doubt the local authority will have regard to N's own wishes and feelings and also the risks, or otherwise, of such contact taking place.
30. The orders this court has made will of course be relayed to the Kuwaiti Embassy and the immigration authorities and, of course, it goes really without saying that the parents should be informed straight away of the orders that the court has made.
31. I will order a transcript of this judgment to be prepared.
End of Judgment

We hereby certify that this judgment has been approved by Her Honour Judge Moir.

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