Case No: ZE16C00638
IN THE FAMILY COURT AT EAST LONDON

11, Westferry Circus,
LONDON,
E14 4HD

Date: 10/01/2017

Before :

HER HONOUR JUDGE CAROL ATKINSON
(sitting as a Deputy Judge of the High Court)

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Between :

	LONDON BOROUGH OF TOWER HAMLETS	Applicant 	
	- and -		
	MAC, mother
M, a boy, (by his Guardian)	Respondents	

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MR CHRIS BARNES for the LONDON BOROUGH OF TOWER HAMLETS
MAC, the mother did not appear and was not represented
MS SABINA MAHMOOD for the M, by his Guardian

Hearing dates: 10th January 2017

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JUDGMENT
HER HONOUR JUDGE CAROL ATKINSON:
1.	Monica, as I shall call her, is a Romanian National. It is believed that she was brought to England by an abusive partner in order to be a sex worker.  In the first week of July 2016 she presented at hospital suffering from sepsis.  She was pregnant and subsequently gave birth to a baby boy by emergency Caesarean section at just 27 weeks gestation.  I shall call him Matthew. 

2.	Monica told staff that she wanted to relinquish the child because she would not be able to care for him.  She refused to provide details of family members and indicated that she did not want her family to be contacted.  She wanted him adopted in the UK.

3.	A section 20 consent was signed on 25th July 2016 and Monica initially agreed to remain involved to provide consents under sections 19 and 20 of the Adoption and Children Act 2002.  She visited the child regularly until her own discharge on 11th August 2016 following which there was no further contact.

4.	Monica next presented to the same hospital on 31st August 2016, having been assaulted by her partner. She was provided with assistance by a charity to return to Romania.  It is understood that she returned to Romania by 2nd September 2016.  She had not signed the formal adoption consents.

5.	The LA issued care proceedings in relation to Matthew on 15th September 2016.  On 23rd September 2016, I made an interim care order pursuant to Article 20 BIIR as the issue of jurisdiction was still to be determined.  In the meantime, directions were made regarding contact with the Romanian authorities by liaising with the Romanian Consulate with permission to disclose the order and other relevant documents to the relevant Romanian authorities.

6.	Mindful of the difficult issues raised in cases involving the children of foreign nationals relinquished in this jurisdiction consideration has been given whether this matter should be transferred to be heard by a Judge of the Division.  In consultation with the FDLJ I have transferred to the case to the High Court but it has remained listed before me sitting as a Deputy.

7.	Whilst there is no active challenge by any party to the LA plan for Matthew there is opposition to it in the position taken by the Romanian authorities.  Although they are not parties to the proceedings, the local authority is concerned that the court considers all alternative arguments before sanctioning a course which is opposed by the Romanian authorities.  I agree with that course of action and observe that in any event I am obliged to satisfy myself that the arrangements for Matthew’s future pressed upon me by the local authority are the best that can be made.

8.	The issues for determination at this hearing are as follows:

a.	Does the court have jurisdiction to make decisions in relation to Matthew?
b.	If the court has jurisdiction, is the statutory threshold crossed?
c.	Does the court consider an Article 15 request for transfer might be indicated? 
d.	If not, on a proper welfare analysis should the court make a final care order and placement order in respect of Mattthew with a plan for his adoption in this jurisdiction?

Additional background information
9.	 There is very little more to add by way of background information.  The local authority’s evidence records Monica saying that she “was brought to the UK by a male, who had been sexually exploiting her in Romania. She said that, when they arrived in the UK, she lived with him at an address in [the north of England]”. On Monica’s account she was “forced to sex work” during her time in the north of England and assaulted by her partner in the course of her pregnancy.  There is evidence that she was assaulted by someone after his birth when she presented again at the hospital.

10.	According to Monica she had been in the jurisdiction for no more than 6 months when she gave birth to Matthew.  After the birth, having indicated her desire to relinquish the child, she refused to provide details of family members and indicated that she did not want her family to be contacted in relation to the child.

11.	The Romanian Consulate’s response was in the standard terms in the form of the usual generic letter objecting to adoption and requesting then repatriation of the child to Romania.  There has been no attendance from any representative of the Consulate at any of the hearings despite an invitation to do so.

12.	More recently, pursuing alternative information via the ICACU, the local authority received a response from the Romanian Central Authority following extensive – and eventually fruitful – communication. The mother was not contactable.   However, the report received confirms that the mother has another child – a half sibling to Matthew living in Romania though not in the care of his mother.  Contact was made with Matthew’s maternal grandmother.  Information regarding the mother’s family was pieced together.  She is one of a large sibling group.  She has 5 older siblings – all of them married it would seem.  The grandmother signed a declaration that she cannot offer Matthew a home and considers that he would be better off being looked after by a family in the UK.  There is nothing so specific from the siblings and indeed it is not clear that they have responded to the enquiry.  However, the report concludes that:
“Considering all of the above, we conclude [Matthew’s] repatriation and placement with his biological family would not be in the child’s best interests.”

13.	This response does seem at odds with the earlier responses to requests for information received from the Romanian Consulate.  It seems to me that the information is that there is no-one who has come forward from within the birth family to care for the child.  Thus repatriation in order to be reunited with his biological family is not an option.  However, the Consular position remains opposed to adoption in this country.

14.	Since the hearing on 2nd November 2016 the local authority has received a report from Dr G, Consultant Paediatrician, dated 2nd December 2016 setting out the child’s range of additional health and developmental needs.  I will set those out in full later in this Judgment.

Jurisdiction 
The law
15.	I must start by determining whether this court has jurisdiction in respect of this infant.  Jurisdiction is established here through habitual residence (Article 8 BIIR).

16.	The combined effect of Article 8 and 16 BIIR is that the relevant date for the determination of habitual residence for the purpose of establishing jurisdiction is the date of the issue of the local authority’s application – in this case, 15th September 2016.

17.	There are five essential Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 ("A v A"); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017 ("Re KL"); In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC ("Re LC"); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, ("Re R"); Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 ("Re B").  However, I am grateful indeed to Mr Barnes who has set out in an excellent skeleton argument a reminder of the useful summary provided by Hayden J in the case of B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam).

18.	The following principles, drawn from those authorities, are of the greatest assistance in the instant case:

a.	The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).
b.	The test is essentially a factual one which should not be overlaid with legal glosses and must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, Re KL). 
c.	In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42).
d.	A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC).  The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused.  It is the child's habitual residence which is in question and the child's integration which is under consideration. 
e.	Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B); 
f.	It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL);
g.	The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added);
h.	The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months).  It is possible to acquire a new habitual residence in a single day (A v A; Re B).  In the latter case Lord Wilson referred (para 45) those 'first roots' which represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move.

Applied to this case
19.	At the relevant date Matthew was barely 2 months old: vulnerable and utterly dependent upon adults for his needs.  I am invited to first consider carefully the mother’s habitual residence to whom such a vulnerable and utterly dependent child might well be linked.

20.	It seems to me likely that the mother will have experienced “some degree of integration in a social … environment” during her time in the UK even if – as appears likely – she may have been “living on the fringes of society” (see Cobb J in the case of London Borough of Barking & Dagenham v SS [2014] EWHC 3338).  By the time she presented at hospital, on the information that I have, it seems clear to me that her habitual residence was in this jurisdiction.  Following the child’s birth the mother maintained contact with him for a limited period and by that means continued a degree of familial integration in the UK.  

21.	However, by 15th September, which is the relevant date, she had returned to Romania where given the relatively marginal degree of integration here and her strong connection to Romania (based upon nationality, former residence, familial, cultural and linguistic connections) and assuming, as her failure to return here suggests, that she intended to remain there, it appears likely that the mother’s habitual residence here would have ended to be swiftly replaced by habitual residence in Romania.  Where does that leave Matthew?

22.	The habitual residence of a child will usually be the habitual residence of the parent but not in all situations. It seems to me that the period when there was likely to have been the strongest connection between the child’s habitual residence and that of his mother was the period after birth and while contact persisted until 11th August 2016. In that period from birth to 11th August 2016 the child’s habitual residence was undoubtedly in England and Wales, as was his mother’s.  

23.	However, once his mother’s contact had ceased and she had indicated her intention to hand over responsibility for her care, his stability and integration was principally delivered through the hospital and through the provision by the local authority of a foster carer who visited him in hospital.  By that means his connection with this jurisdiction strengthened.  Accordingly, I do not think that Matthew’s habitual residence would have been altered by his mother leaving the jurisdiction and I am satisfied that I have jurisdiction pursuant to Article 8 BIIR.

Threshold criteria
24.	The local authority brings this case and it is for the local authority to satisfy me that the statutory threshold is crossed.

25.	The question of threshold in a case of a relinquished child was considered by Baker J in Re AO (Care Proceedings) [2016] EWFC 36.   The case concerned a Hungarian child relinquished for adoption in England and Wales by his parents who opposed a transfer of the proceedings or the child to Hungary. On the issue of threshold Baker J observed that:
“… the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied…..Even when a baby suffers harm from being deprived of her mother's care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.”

26.	Monica relinquished the care of Matthew to the authorities when she left him in hospital.  He was safe and she was no doubt assured that he would be cared for.  Although she did not sign the necessary adoption consents she did sign a section 20 consent permitting the local authority to take over responsibility for his care before she disappeared.

27.	However, Monica’s circumstances were such that her relinquishment of her child was not planned at all.  In the case before Baker J the Hungarian parents had indicated their wishes from before the birth.  The mother accessed the appropriate health services before and after the birth.  They signed the necessary adoption consents and remained involved to ensure a best interest decision was made for the child.  

28.	In this case, the pregnancy was not planned and crucially Monica had not accessed any ante natal care.   She was not prepared for the birth.  The minimal information that we have suggests that she was living in circumstances which imply a level of potential risk of significant harm to the unborn child and would have presented the same risk to Matthew after he was born. This includes the mother’s own, forced, involvement in sex work, the potential for exposure to partner violence – of which two instances are known – and the possibility that she was abusing substances or alcohol (according to the maternal family).  Arguably, she recognized this and it informed her decision to leave him in hospital after birth.

29.	However, her presentation at hospital arose out of her own health needs when she developed sepsis, not out of concern for the pregnancy.  There is a suggestion in the papers that it was her poor state of health that caused the medics to carry out an emergency Caesarean section at such an early stage. Finally, she left no information about herself or her extended family. Nor did she leave the hospital with the basic information necessary to enable those treating Matthew to best meet his developing medical needs.  As Baker J observed, each case turns on its own facts but in my view her actions before and after birth did not constitute “responsible planning”.

30.	All things considered, although finely balanced, I am satisfied that for the reasons set out above this case feels more like the situation in which the baby is left abandoned on the steps, albeit the hospital steps.  

31.	I am satisfied then that when the mother signed the s.20 consent in July 2016, Matthew, who was then vulnerable by reason of his age and his then undiagnosed health needs, was likely to suffer significant harm through the absence of his mother to care for him and that harm was attributable to the care likely to be given to him by her, not being what it would be reasonable to expect a parent to give. The tragic, but nonetheless chaotic life that brought Monica to this jurisdiction, exploited, abused and pregnant, prevented her from responsibly planning this pregnancy, preparing for this birth and completing the handing over of her child and would have prevented her from providing him with the care he needed had she not left him in hospital.  

Article 15 transfer
The law
32.	Article 15 BIIR provides an “exception” to the ordinary determination of jurisdiction:
“1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)	stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or 
(b)	request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

33.	In AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 at paragraph 35, Munby J, as he then was, distilled the route to the exception of Article 15(1) into three essential questions:
a.	Has the child “a particular connection” with the relevant other member state within the meaning of Article 15(3)?  This is a simple question of fact.
b.	Would the court of the other member state be “better placed” to hear the case or part of it?  This is an “exercise in evaluation to be undertaken in the light of all of the circumstances”.
c.	Would transfer to the other court be “in the best interests of the child”?  Again, this is an exercise in evaluation undertaken in the light of the circumstances of the particular child.

34.	Article 15 transfers were considered most recently by the Supreme Court in the case of In the matter of N (Children) [2016] UKSC 15 (“Re N”).  Taking this decision together with earlier decisions, in particular, In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152, I remind myself of the following essential principles:

a.	The Article 15 exception to the general rule of jurisdiction only comes into play when all three of the essential questions to which I refer in the paragraph above are answered in the affirmative (per Ryder LJ In re M supra at para 15);
b.	The provisions of the Regulation are based upon mutual respect and trust between the member states. The starting point for the evaluation of whether the other Member State is better placed to hear the proceedings is one of "comity and co-operation" between Member States and we are reminded that "the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent" (In re M).  
c.	The question of whether a court of another Member State would be ‘better placed’ to hear the case (or a specific part of the case) is an evaluation to be performed having considered all the circumstances of the case and that evaluation is "intimately connected" with the question of the ‘best interests of the child’ (per Ryder LJ In re M para 19 – approved in Re N).  
d.	Factors which may inform the courts evaluation of whether one court is better placed to hear a case are factors such as – the availability of witnesses of fact, whether and by whom assessments can be conducted, the necessity for assessors to travel, whether one courts knowledge of the case (perhaps through judicial continuity) provides an advantage.
e.	…. the "best interests" question is intended to be an additional safeguard for the child. The question is not what eventual outcome to the case will be in the best interests of the child but whether the transfer will be in her best interests.
f.	However, whilst some of the same factors may be relevant to both…. it is clear that they are separate questions and must be addressed separately. The second one does not inexorably follow from the first.

35.	The issue of what was encompassed in the “best interests” test was arguably one of the most significant issues considered in the case of Re N:
“44. The question remains, what is encompassed in the "best interests" requirement? … The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child's best interests. This is a different question from what eventual outcome to the case will be in the child's best interests. The focus of the inquiry is different, but it is wrong to call it "attenuated". The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child's welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests. It is deciding whether it is in the child's best interests for the court currently seised of the case to retain it or whether it is in the child's best interests for the case to be transferred to the requested court.”

36.	At the time of hearing the appeal in Re N, the Supreme Court was aware that a decision of the CJEU was pending following a reference from the Supreme Court of Ireland.  The reference follows a request for a preliminary ruling from the Supreme Court of Ireland and invites the CJEU’s interpretation of Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 (“BIIR”). The judgment of the CJEU in Case C-428/15 – Child and Family Agency v JD arrived shortly before the adjourned hearing in this matter.  Of the 6 questions asked, of greatest significance for this instant case is a question concerning the general applicability of Article 15 and the three questions which concern the factors bearing on the “best placed” and “best interest” tests.

37.	On the issue of applicability, it is unnecessary for me to do anything other than confirm that the CJEU decision established that Article 15 can be used in circumstances which would apply in the instant case.  

38.	The remaining questions (3, 4 and 6) concern the “better placed” and “best interests” elements of the test.  The following principles are of importance to the instant case:

a.	The judgment emphasises that Article 15 “constitutes a special rule of jurisdiction that derogates from the general rule of jurisdiction” and as such should be “interpreted strictly” [para 48].  A request therefore must be “capable of rebutting the strong presumption in favour of maintaining its own jurisdiction” [para 49];
b.	Attention is drawn to Art 15(3) which contains the exhaustive list of factors establishing a “particular connection” and the point is made that these are factors which to varying degrees evidence a proximity between the child and the other Member state.  At para 54 the Judgment suggests that when considering the Art 15 exception a comparison can be drawn between the factors which point to habitual residence in the state with jurisdiction and “the extent and degree of the relation of ‘particular’ proximity demonstrated by one or more of the factors set out in Article 15(3)” between the child and the other Member state.
c.	 On “better placed” the CJEU determined that “the court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before that court”. [para 57]
d.	Finally, in relation to “best interests” the CJEU commented that for “the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned [para 58]…and “the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation.” [para 59]

39.	The judgment of the CJEU is, in many respects, supportive of the decision of Lady Hale in Re N.  It emphasises the respect that must be afforded to the competence of other Member States. It is clear that the consideration of “best interests” relates solely to transfer and not to the ultimate determination and confirms that “best interests” are not to be considered in an attenuated manner but must focus on the impact on the “material situation” for the particular child in the circumstances of the case.

40.	However, the CJEU places a particular emphasis on the exceptionality of Article 15 and the need to rebut the “strong presumption” in favour of the ordinary jurisdictional determination. Similarly, the requirement for a transfer to provide “genuine and specific added value” in the context of the particular case is forcefully put.

Applied to this case
41.	The local authority reserved its final position on a transfer pursuant to Article 15 until the decision of the CJEU had been received and considered.   Its position now is that an Article 15 transfer is not indicated here and accordingly it does not make any application for a transfer request to be made.  Until the commencement of the actual hearing when the up to date position with regard to Matthew was known, the Guardian favoured an Article 15 transfer request.  This morning, on filing his final analysis and recommendations, he changed his position and no longer seeks a transfer.  

42.	We have debated whether it is necessary for me to consider this matter any further because although I am entitled to request a transfer of my own motion, before a transfer can be made it “must be accepted by at least one of the parties” (Article 15 (2)).  What that means is that even if the court concluded a transfer request ought to be made it would not be possible unless at least one of the parties altered their position.  

43.	It seems to me appropriate that I should nevertheless consider the issue of transfer in this case not least because the local authority invites me to make final orders in respect of Matthew that anticipate his adoption in this jurisdiction thereby severing his legal ties to his Romanian family.  The position of the Romanian authorities – the other Member state – is one of principled opposition to the adoption of Matthew in this jurisdiction.  

Particular connection
44.	There is a finite list of factors set out in Art 15(3) which establish that the child has a “particular connection” to Romania.  In this instance I am satisfied that two of those factors apply - sub-paragraphs 3(c) and 3(d). The child is a Romanian national and – as set out above – the mother is likely to be habitually resident in Romania at present. I would observe that these particular factors do not establish a stronger proximity or connection with Romania than the proximity Matthew establishes to this jurisdiction through his habitual residence.  Nevertheless, that part of the test is met.

Better placed
45.	Would the Romanian Courts be “better placed” to hear the case?  As Mr Barnes points out, there is a distinction between theoretical benefits and those which would actually accrue in this case.  In terms of familiarity, language and geography the Romanian Court might be better placed to facilitate the family’s active involvement but this now seems unlikely in the circumstances of this case. The maternal Grandmother’s position is clear.  She has expressly ruled herself out expressing a clear view that Michael should remain here.  There has been no similar express declaration from his maternal aunts and uncles but nor has there been any indication of interest from them.  

46.	The Romanian Courts would be better placed in terms of their ability to offer the child a placement which best meets his ethnic and cultural heritage irrespective of whether that place was within the natural family. That being said the importance of such inherited heritage may be relatively less significant to a child born and raised in the UK and placed with an English speaking carer since discharge from hospital.

47.	On balance and particularly after the absence of any person coming forward in Romania, I do not consider that the Romanian Courts would be better placed to hear the case.  For the sake of completeness I will go on to consider the third question

Best interests
48.	The local authority asserts that the third question, whether transfer is in the best interests of the child, is the one which points most compellingly to the retention of jurisdiction. It is the view of the local authority that against the background of those needs the child’s stability and the reduction of potential disruption are pivotal.  I agree.  

49.	Matthew is vulnerable by reason of his age and health.  As per the recent medical report, [F4-6] he has a range of additional needs. These needs have a real impact now but are likely to continue to impact on the child into the future.  Without in any sense assessing the adequacy of Romanian protective measures the reality is that a transfer between jurisdictions (any jurisdictions), especially with additional language difficulties, runs risks. The transition between carers can never be as completely undertaken and there is the possibility that the child’s medical and developmental needs may not be adequately communicated and addressed.  There is a serious risk of delay given the uncertainties of whether, and when, the Romanian authorities would be able to accept such a transfer request.

50.	I agree with Mr Barnes that when turning to consider the child “best interests” the constellation of factors in this case – including the child’s vulnerability, additional needs, the practical disruption of a transfer and the likely delay in permanent resolution – point compellingly towards it being in the best interests that the decision as to Matthew’s future remains in this jurisdiction with the court declining to make a request pursuant to Article 15.

Welfare analysis
51.	That brings me to the welfare analysis.  At this stage Matthew’s welfare is my paramount consideration.  Indeed, because the local authority seeks a placement order, my focus is Matthew’s welfare “throughout his life” (section 1(2) Adoption and Children Act 2002).  Accordingly, I must have regard to the welfare checklist set out in the Children Act 1989, s.1(3) and also the welfare checklist set out in s.1(4) Adoption and Children Act 2002 to which I shall return in a moment.  Any delay in resolving the issue is contrary to Matthew's interests (section 1(3) ACA 2002).

52.	I must consider the options available for Matthew in a holistic way, and not consider the options sequentially.  Adoption represents a significant interference with family life, and should be assessed by reference to the requirements of necessity and proportionality even in a case in which a child has been “given up” as here.  As Baker J observed in Re JL and AO [2016] EWHC 440 (Fam) even where there has been a relinquishment, there should be a thorough analysis of all of the realistic options (Re JL & AO at [54-56]).  I can only make a placement order if I dispense with the consent of the parents on the basis that the welfare of the children requires it: s.52 ACA. It will be convenient if I gather the evidence together under the combined headings of the two welfare checklists being careful always not to lose any of the pertinent factors common to one but not the other.

Michael: his age, circumstances etc  
53.	Matthew is, as I have observed, vulnerable by reason of his age and health.  He is of Romanian heritage as his mother is Romanian.  He has extended family through her in Romania.  However, she is no longer here and her family do not offer him a home and so at this point in his life that is the full extent of his connection with Romania.  Obviously that connection will remain with him throughout his life but he is not a Romanian child in the same way that a child who has lived in Romania or with Romanian parents is.  

54.	He was born in this jurisdiction and has only recently been discharged from hospital.  Whilst in hospital he has been cared for by nursing staff and his foster mother with whom he now lives visited him regularly.  He has formed an attachment to her I am told and his understanding of language and cultural references – even at this age – will be English.

Michael’s wishes and feelings [regarding the decision – per ACA 2002](in the light of his age and understanding)
55.	Matthew is unable to express wishes and feelings.

His needs
56.	Matthew is overseen by Dr G at GOSH and is being periodically reviewed. He has an Umbilical hernia and Plagiocephaly for which he has been referred for Physiotherapy.  He has also failed his hearing test and has been referred to the audiology department as well as to an ophthalmologist for his eyesight.  His medical needs are as yet uncertain save to say that he will need continuity of treatment.  Longer term he will need a carer able to carefully monitor his health needs.

57.	Overwhelmingly, Matthew needs stability and security.  He needs carers who will claim him and provide him with the permanence needed to enable him to fulfil his potential.

Harm suffered or at risk of suffering
58.	 I have dealt with this under threshold and have nothing else to add under this heading.

Effect of any change of circumstances

59.	No matter what decision I make today Matthew will have to leave the home of his foster carer.  Thanks to her dedicated care through her visits to the hospital and now, he has made excellent progress and has formed a healthy attachment to her. That healthy attachment will assist him in transferring to a new carer.  It is worth observing, however, that if that new carer was in Romania then that transfer would necessarily present more of a challenge albeit not an insurmountable one.

The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person

60.	At this stage in his life and for a considerable time to come the likely effects upon Matthew of becoming an adopted person are all extremely positive. He will be offered a chance to form lifelong bonds with an alternative family who will claim him as their own in every sense

61.	Meanwhile, ceasing to be a member of his natural family will have no immediate negative impact upon him.  There are losses to Matthew through adoption. The loss of his birth family links and through that the loss of his cultural links to Romania.  At some time in the future he will undoubtedly have questions regarding his life story and his birth family.  However, those losses and the questions and their answers will not necessarily impact upon him negatively if handled carefully and if he comes at them, as adoption anticipates, from the secure base of a loving and supportive family.  Likewise, it should be possible for him to access his Romanian culture through information about his own history and heritage.

62.	It is the Guardian’s view that the desire to understand your own ancestry increases with age and so his “memories and history must be preserved for him”.  I agree with that and note that appropriately in the final care plan Local Authority has specified that life story work should be undertaken. 

the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including— .

(i)the likelihood of any such relationship continuing and the value to the child of its doing so.
(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs.
And 
(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child. 

63.	Sadly, Matthew has no relationship with any of his relatives nor is he likely to have, given the circumstances in which he has been given into the care of the authorities and the position subsequently taken by his extended family.  Neither has any of his extended family offered him a home.  

64.	Further, both the mother and the grandmother have made clear that they wish for him to be cared for by a family in this country.  I should add, for the benefit of Matthew in due course, that this is not necessarily reflective of a lack of desire to develop a relationship with him at some point in the future should he chose to seek them out.  They may feel that they cannot give him the start in life that a family could give him here in which case their decision is a selfless one not a selfish one.

Placement options
65.	There are limited realistic options for Matthew.  No-one has come forward from the extended family and his mother has made her position clear from within weeks of his birth.  Whilst the Romanian Consulate expresses the standard view that it opposes adoption and seeks the repatriation of Matthew as a Romanian national the fact is that through the Central Authority the child centred recommendation is that he should remain here.  As I have already indicated a transfer of the case to Romania is not indicated; a placement there would not mean care by a family member.
 
66.	Whilst there is no real alternative, I consider that adoption nevertheless offers this child enormous advantages in life. The local authority has three potential families expressing an early interest in Matthew and with knowledge of his health needs.  Interestingly one couple is of Romanian heritage.  In the absence of a safe parent or extended family placement, adoption is the only viable option for Matthew.  I consider that, the overall impact upon Matthew of being adopted is that he will have greater stability and will have the opportunity to experience a safe childhood and upbringing. It seems to me that overwhelmingly the best welfare outcome for Matthew will come with the making of a care order and placement order.

67.	In spite of her express wishes I have no formal consent from the mother to the making of a placement order.  So, finally, before making a placement order I must dispense with her consent.  I do so because I consider that Matthew’s welfare requires that I do so.  I should add, however, that for a range of reasons this mother came to the decision that she was not able to care for him but however unplanned and chaotic it was, she did at least begin the process of ensuring that he could find a family to love and support him, to nurture him and care for him and hopefully provide him with the stability and security she had not, herself, experienced.

68.	Before I conclude this Judgment I have to offer my thanks to Mr Barnes whose two skeleton arguments were erudite, focused and of invaluable assistance, in particular flagging the arrival of the recent CJEU authority and the possible impact it might have had on this decision and setting out, absent any real opposition, the possible arguments against the local authority position.  I am very grateful to him.