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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION	No. ME17C00004	
Royal Courts of Justice
Strand
London WC2A 2LL
Friday, 3rd November 2017

[2017] EWHC 3532 (Fam)
Before:

MR JUSTICE COHEN
(In Private)

B E T W E E N:
	A LOCAL AUTHORITY	Applicant

-  and  -
		L & Others	Respondents
	
[REPORTING RESTRICTIONS/ANONYMISATION APPLY]

_________

J U D G M E N T

A P P E A R A N C E S

MS A. NICE (instructed by the Local Authority Legal Department) appeared on behalf of the Applicant Local Authority.

MS A. WENTWORTH (instructed by Edward Hayes Solicitors) appeared on behalf of the Respondent Mother.

THE RESPONDENT FATHER was not present and was not represented.

MS M. COVER (instructed by Atkins-Hope, Chatham) appeared on behalf of the Guardian.
____________
MR JUSTICE COHEN: 

1	I have been dealing, this week, with L, born on [a date in] 2016 and so aged 18 months.  She is the daughter of the mother, Ms B, and the father, Mr A, and I will call them respectively mother and father.  I do not mean any discourtesy by not using their names throughout.  She is the fifth of five children of the mother.  The others are all significantly older – aged between 22 and 14.  The three younger children, that is R and his two next older siblings, were made the subject of care orders in 2013 due to domestic violence in the mother’s relationship with the father of those three children, poor parenting and neglect of the children’s needs.  Mr A, the father, also has four other children.  Those four children were removed from his care in 2015 and made the subject of a special guardianship order in favour of the maternal aunt due to domestic violence in his relationship with the mother of those children, substance misuse and poor parenting.  L is the only joint child that they have together.

2	I am told that the mother only found out that she was pregnant when she attended hospital in about September 2015 as a result of an assault upon her by Mr A.    Throughout this judgment I shall refer to various assaults on her by the father, but I should say that I only have her word for the facts of these incidents because Mr A has filed no evidence; he has not attended at this hearing; and, unlike the mother, I do not have any police records or statements made by him or of discussions that he has had with social workers about incidents, so I therefore have only the mother’s account of what happened.

3	As I said, she discovered that she was pregnant when at hospital for treatment.  It appears that she was about two months pregnant, and until then had been drinking a bottle of vodka a day or thereabouts.  That raises the spectre that it is possible that it might be found that L is suffering from foetal alcohol syndrome, something that will only become apparent when she is older.  That said, there are no indications at the moment that she has been so affected.

4	Immediately on birth the mother and L went to a mother and baby foster placement found by the local authority.  The local authority applied for an interim care order but that was refused on the basis that the parents indicated they were happy for L and her mother to be accommodated under s.20 Children Act, and the parents duly signed a working together agreement, which included an agreement to participate and engage with the family drug alcohol court (FDAC) process and assessment.

5	In May 2016 the mother went out for a night, leaving L at the foster home and spent the night with Mr A until she was subjected to another episode of violence.  The mother managed the basics of child care in the foster placement adequately, as one might expect of someone who had already had four children.  She returned to her home, a ground floor flat, on 19th September 2016.  

6	The mother did not sustain regular attendance at the FDAC and concerns were raised a little later that the father was visiting the home.  If that was indeed the case, it would have tied in with the cessation of his contact, which had been taking place in a supervised setting, the implication being that he might not need contact in such a setting bearing in mind he was seeing L at her mother’s home.  But I make no finding as to that.  The local authority had its suspicions.  Both the mother and the father denied it and there was no proof.

7	On the night of 3rd/4th December there was an incident at the mother’s home which she described in a police statement made three or four weeks later as follows:  She said that the father came round with a Christmas tree for the home.  She said that she knew she was not meant to allow him into the property, but as L was out she said she did not see the harm that would come from it.  They got chatting and during the course of the talk the mother said that she was going for a drink with a male over the weekend.  She said this set him off, and that he had been drinking (as indeed had she, but not to the same extent, she says), and he assaulted her.  She puts it in two different ways:  either by punching her in the mouth so hard that three of her teeth fell out or hitting her in the mouth with a bottle.  On her account in court she said that it was only as a result of the punch and that the bottle was broken by him separately rather than used upon her.  But the fact is in the police statements she gave both accounts.

8	The timing of that incident is significant because on 9th December there was to be the final hearing in the proceedings which had been initiated following L’s birth.  The incident was kept completely secret from both the guardian and from social services, and a supervision order was made in ignorance of what had happened.  It seems self-evident that it would have been unlikely that that would have been the outcome if the mother had told social services or the guardian what had happened just several days earlier.  

9	On or about 22nd December I find that there was another incident of violence, the knowledge of which emerged as a result of what the mother told the police when they came round to a third incident in December, later in the month on 29th.  But to go back to this earlier incident which, on 29th December, she said had happened about a week earlier, it appeared that she had been punched in the arm.  The mother says that there was no such incident, but I find there was such an incident.  First, because it is what she told the police; secondly, because the bruise seen on 29th December on her arm was not a fresh bruise but of a browny-yellow colour; and thirdly, because of course I have seen a photograph of it (albeit not a very good one) taken by the police on 29th December.  In her account given to PC D on the night of 29th/30th, she told him that the father had come round and punched her in her right upper arm, something which he says he saw and describes as “a very clear and obvious bruise approximately 3 inches diameter on upper right arm.  I asked B if A had caused the bruise and she told me he had.”  Because the mother denies that particular incident, and it was not reported at the time, it is not clear whether or not L was at home with the mother.

10	The third incident in December took place on the night of 29th/30th December.  Mr A, the father, came round with (so the mother says) a Christmas present for L.  It was at about 8 o’clock, by which time L had of course already gone to bed.  Notwithstanding what had happened just three weeks or so earlier when he came round with the Christmas tree, the mother let him into the flat.  An argument developed which again the mother describes in her police statement.  She says that the father wanted to wait until L woke up.  The mother says L was not going to wake up until the morning.  The father went to the shop and bought a bottle of vodka which they both consumed.  The father started arguing with the mother, and then began to take all the food out of the fridge, saying that it was his, and threw it all round the kitchen floor, making a huge mess.  He then threw his mobile phone at the mother, hitting her hard on the back of the head.  She said that she went to call the police and he came over and head-butted her in the top of the head.  

11	There was obviously a great deal of noise, and she told the police that L was woken by all this and was crying. She said that as L would not stop crying she went to pick her up whilst the father was, in her words, “in the front room kicking off”.  She tried to call the police again, but he came over and hit her in the face around the right eye.  She then said to the police that she went into her son’s room and gave him L so that he could keep her safe.  Becoming aware that the police had been called, the father then put his hands around the mother’s throat, squeezing, trying to get the phone from her, and as soon as he heard the operator he let go and left.  That is what she told the police.  

12	She told me in evidence that in fact L had been asleep for nearly all the incident, that she started crying at the end and that she went to pick her up and to calm her and she quickly quietened down.  She was not being held while any of the violence was taking place.  I am afraid I simply do not accept her account, and I do accept what she told the police.  As a result of the incident, a police protection order was obtained on 30th December and since that date L has been in foster care.

13	On 3rd January the mother said that she wanted to make a statement in support of a prosecution of the father.  On 5th January an interim care order was made, and on 10th January the mother went into a refuge.  There are accounts that she told people that Mr A was a “friend with benefits”, but it is not entirely clear what period she was talking about, and so I make no specific finding about those accounts.  But the story does not end there.

14	On 28th February there was a further incident of domestic violence of which once again the mother has given conflicting accounts.  She told me in evidence that by chance she bumped into the father while attending a club with a female friend.  She said that she had no knowledge that he was going to be there, that they did not leave together, but when she got back to her flat she found the father standing in the hall outside the flat and an incident then ensued.

15	The mother’s account to the police was that the father had gone to the mother’s address and they had then gone to a bar at 8.30 and that she had been out on the town specifically with him and the female friend.  It was only when they all got back to the mother’s address and the father found that he could not get in, which he wanted to because he had left his coat there, that he lost his temper and assaulted her.

16	The mother accepted in her evidence to me that during this incident she gave as good as she got.  A neighbour describes being woken by the noise and seeing the mother holding the father by the throat against the wall and hearing her say “I hate you” and the words “slicing your throat”, and the mother seemed really angry, with her face right up close in the father’s face.  It seems pretty clear that there was a serious incident.  The mother says that the father punched her in the face and threw a kebab at her, and after that, when each seems to me to have been using violence against the other, he then left.

17	On 8th March the mother told Miss S, the manager of the women’s refuge, that she was meeting the father regularly at weekends in her home.  The refuge permitted the mother to sign out and she had said that she was going home at the weekend to see her other daughter, LB.  If what the mother told Miss S is true, then what she had previously said about the reason for her absence (namely to see LB) was, at best, economical with the truth.  The mother says to me that she did not say that she was regularly meeting the father at weekends, but I am afraid I do not accept her evidence on it.  Indeed, on 28th February she had told the police that she had returned to the house pretty much every weekend “she has told A and he has gone round”.  I find that she was going home at weekends and meeting up with Mr A, the father.  Whether he stayed or not is by-the-bye and I make no finding.  

18	On 10th March there was another incident, this time not involving the father, when the police were called by a friend of the mother’s who said that she had been assaulted and punched twice.  On 12th March the mother overdosed on Olanzapine and Mirtazapine when she had also been drinking.  She was taken to hospital and discharged the next day.  This was not the first occasion that the mother had overdosed, but the first occasion during L’s lifetime.  At about this time the results of hair and blood tests revealed that the mother had apparently used MDMA at some stage, likely to have been between mid-November and mid-January.  The mother denies that she did so and cannot explain how the hair strand tests could have produced this finding.  

19	On 11th April the mother left the refuge and returned to her own home.  On 20th June the father was found outside the mother’s home, having consumed a large amount of alcohol, and caused a disturbance by throwing chairs around and shouting, and then laying down in the road and exposing his penis.  There is no reason to think that the mother was involved in this incident in any way, but it shows that there plainly had not been a complete disengagement of meeting between the mother and the father.  

20	At a date believed to have been in June the father’s charge of assault resulting from the incident on 29th/30th December was to be heard in the criminal court.  The mother was, of course, the prime witness.  She did not attend and could not be found.

21	On 16th August there was an unannounced visit by the two social workers involved in this case that is, the social worker who is L’s social worker and the social worker for R, who was suspected of being at his mother’s home contrary to the arrangements whereby he should have been in a foster home.  They made an unannounced visit.  I have heard from R’s social worker and accept that when standing outside the house he saw R looking out of the drawn curtains, observing what was going on.  Mr S, L’s social worker, rang the doorbell and there was a considerable delay in answering before the mother appeared, wrapped in a bath towel.  She said that she had been in the bath.  She later admitted that that was a lie because, as Mr S found out, the bath was dry and there were no signs of it having been used.  

22	She later said that actually the explanation was that she was involved in an intimate personal matter of a sexual nature not involving anybody else.  When questioned about why she would do such a thing when R was in the house, she said that R was asleep in bed, so could not have seen or heard anything.  That plainly cannot have been the case because R had been seen to be awake.  She would not let the social worker look in the bedroom.  She spoke to R out of earshot and he went in for about 30 seconds before emerging.  The mother says she sent him in for cigarettes.  The social worker does not accept it, any more than I do.  The probability is that he went in either to remove some sort of offending evidence and/or to tell any man who had been in that house to open the window and get out – something that could easily be done from the ground floor window.

23	Whilst there, Mr S saw a series of small bruises on the mother’s upper right arm which looked like pinch or grab marks.  The mother said that she had fallen off a BMX bike going over a hump.  The bruises that Mr S saw were inconsistent with that sort of accident, and later a message came back through R’s social worker that R’s elder brother had asked for a lift to pick up the mother from medical treatment as she had been hit by a bike thrown by Mr A.  The marks, to all intents and purposes, looked like grab marks.

24	On 26th September at the adjourned hearing of the case against the father, the mother again did not appear and the case was dismissed.  She says that she turned up two days later when she thought the case was going to be heard and found that she had missed it.

25	The final incident I need to recount is that Mr A was allegedly seen in the vicinity of the home to which the mother has recently moved, a short distance out of town.  I do not regard the evidence about that as satisfactory and I make no finding about that incident, if it happened.  I make it clear that I likewise do not place weight on the assertion that R was being housed by the mother without telling social services when he should have been in foster care.  Although there is criticism made of her I am not satisfied at all that the evidence shows that she did not inform social services of that.  Nor do I place any reliance on the presence of MDMA in her bloodstream.  It seems to me, if it was there, it is peripheral to the issues that I have to determine which are issues of violence and drink.

26	The father has played no part in these proceedings at all.  He has been entitled to monthly contact with L.  My understanding is that has been taken up on some occasions but not on some other occasions.  I am completely satisfied from all the evidence that he is fully aware of these proceedings and this hearing, and the local authority plan for placement and adoption.  I am satisfied on the following evidence:  from Mr S, who said that he had been trying to contact Mr A, as had his colleagues.  He says that about two weeks ago he had spoken to him and told him of the outcome of the assessment of the maternal uncle and advised him of the local authority plan to adopt in the United Kingdom.  He says he spoke to him again at about 1650 on 27th October (that is last Friday) and told him again of the care plan.  He asked if he could make himself available for service, and Mr A said that was not possible because he was in another town.  The social worker spoke to him again on what was the second day of this hearing, telling him that the local authority were planning for adoption.  Mr S asked again if he could serve the papers on Mr A.  Mr A said there was no point; he could not care for L but he said that he would participate in life story work and indirect contact.

27	I had similar evidence from the guardian, Mrs. M, and I would particularly like to pay tribute to her for her hard work and help in this case.  She spoke to Mr A on 27th October.  He confirmed his knowledge of these proceedings.  She expressed the hope that he would have been able to be served with the placement application when he was due to have contact on 25th October.  For whatever reason, that did not happen.  He made it clear to her that he knew of the hearing, he knew of this venue, and he knew that a permanent home was being sought by the local authority in this country.  I thus have not seen him and have not been able to make any assessment of him in the court proceedings.

28	Let me turn to the mother.  The mother gave evidence, and of course her evidence is every bit as important as every other witness.  She was composed and very quietly spoken in the witness box.  She conceded nothing and when faced with inconsistency between what she was noted as having said to others, her stock response was simply to say she must have been misunderstood.  I accept unhesitatingly her love for her daughter and that she wants to bring her up herself.  Also, it may be that it was that desire to care for her daughter that has made her unable, throughout the history of these proceedings, to make admissions.  But I have to say that where there are disputes of evidence I do not accept her evidence, contradicting as it does what she has said in police statements or to social workers or to the refuge.  She has minimised what has happened throughout, and has minimised the effects of her behaviour upon L.  

29	I want just to draw out certain other points, some of which I have already made. First, she obtained the supervision order on 9th December in part by not revealing the events of the 3rd/4th.  Secondly, the evidence shows clearly that she has, more or less throughout these proceedings, continued her contact with Mr A.  I cannot say whether she initiated that contact or was unable to resist his wish for it.  But it matters not.  Thirdly, the result is that L has been exposed to a home in which violence has been a regular part in December 2016.  Fourth, I find that these incidents were, at least in part, fuelled by the consumption of alcohol by both the mother and the father.  Fifth, that the mother has lied about the continuance of relationship with Mr A and she has been unable to operate in an open and honest way with the local authority.  Sixth, this is all particularly sad because the mother has been fully aware of the effects of domestic violence and drinking on children and their placement with her.  That is why she lost her older children to care; it is why the proceedings were started in 2016; and why they are taking place now.  Very sadly, I have to conclude that the mother’s lifestyle is not one that is going to change, or is likely to change in any timescale that is appropriate for L.

30	I do not shut my eyes to the positives.  I have already mentioned the love that the mother has for her daughter, and also that her take up of contact has been good.  Contact is meant to take place three times a week, supervised for an hour and a half on each occasion.  The mother has been consistent in taking that up, apart, I think, from some Mondays when finances have made it difficult.  The reports of contact show warm and successful meetings taking place between mother and daughter on each occasion.

31	The mother has been involved with social services now since 1995 – 22 years.  That very much speaks for itself.  There is nothing about the mother’s cognitive function that should impact on her parenting assessment.  But sadly, she has been unable to make any change in her behaviour.  Sometimes when children are removed, that acts as such a jolt to a system that parents do change, but not in this case.  The result has been that L has had to be removed from her mother’s care and has been apart from her since 30th December of last year.  She has suffered significant emotional harm, and the likelihood of continued emotional and/or physical harm remains.  

32	She has been in foster care now for ten months and there is an urgent and pressing need that plans are made for her so that she can make lasting attachments quickly.  Those sorts of attachments are the essential foundation of a healthy and rounded life in the future.  Therefore, I cannot do anything other than look to alternative plans for L for the future, away from both her parents.  I, of course, therefore find the threshold met.  

33	I turn now to consider what the alternatives are.  There are only two alternatives that are put before me and which are remotely realistic.  The first is the uncle and aunt in Australia, and the second is a permanent adoptive placement in England.  All other family members who have been approached and/or assessed have fallen by the wayside, either at their own choice or by having failed assessment.  

34	The mother says that she would wish L to live with her but if that was not possible then with her brother in Australia.
  
35	The local authority and Guardian contend for an adoptive placement in England.

36	I think it is important at this stage, as I come to consider the maternal uncle, just to give a little bit of history of these proceedings, started, as they were, at the very end of December 2016.  This matter was listed for a final hearing for 25th and 26th April of this year.  At the time that the listing was made the mother had not identified her brother as a possible carer.  But she had done so by the time that the matter came before the court for directions on 16th March.  As part of the directions made on that day, instructions were given to CFAB (Child and Family Across Border) to report and for an immigration lawyer to advise.  By 30th June, and the fifth case management order, it was still felt that the immigration advice was inadequate, and because of the international element of this case, and to secure judicial continuity, the matter was reallocated to the High Court.  The matter came before Theis J, who made directions about expert evidence and made further case management directions, listing the matter for final hearing in the last week of term in December 2017.  Fortunately, that hearing had been advanced to the five days that have been available in front of me this week.

37	Even as late as 12th September, on the last time that the matter was before a judge other than me, there remained confusion about the immigration advice.  But it is right to say that almost right up until 5th October, when the matter came before me on a pre-trial review, the plan of the local authority and the guardian had been, in what was understood to be the absence of immigration problems, for placement with the uncle and aunt following the successful report by CFAB.  That, of course, was subject to there having been a quick and successful introduction in England. 

38	Unfortunately, by 5th October the case had turned because the immigration advice appeared to be negative.  I will come back to deal separately with the immigration advice in a moment.  But first, I want to say something about the uncle and aunt.  GB is the mother’s brother.  He is 42.  He is married to FG who is 45.  They live in a small town in New South Wales.  I have read carefully two assessments of them.  They have been married for over 20 years and had been unable to have children of their own.  Although I have no precise date, it appears that they moved to Australia from England about 15 years ago.  He is British and she is Australian.  He has full rights of residence in Australia.  They have done a lot of travel over the years, but they have now settled down.  They have never had full-time care of children, although there are two young godchildren with whom they spend a certain amount of time.  They live in a privately rented house with a much-loved dog.  

39	The report that I have read is detailed and reflects well on them both.  There is nothing adverse said.  But none of us can underestimate the change of life that they would be making from the life of a couple without children to one taking on a child who they have never met.  So that to this extent this proposed placement is not quite the normal family placement; it is somewhere halfway between the traditional concept of stranger adoption and family placement.

40	Secondly, they may but may not, have to deal with difficulties of foetal alcohol syndrome.  Thirdly, there may be other behavioural problems as a result of the disrupted early 18 months that L has had.  Fourthly, they do live a long way from England, in an area to which they have recently moved, with little family support, and of course without the support that a placement in England would provide.  Finally, they may well find difficulties in bonding with a child because of the uncertainties inherent in the immigration process, which does not bring a guarantee of favourable outcome at the end.  It is a big ask of anyone to expect them to give full emotional commitment to a child who may be removed from them if immigration does not work out.  I have to say that it is this last problem and the fact that they have never met L, which causes me the most anxiety.

41	The immigration reports have not run a satisfactory course.  They have led to delay, they have led to difficulties for the parties, and a roller-coaster ride for the uncle and aunt.  I have very great sympathy with them in this respect.  The first report came from Mr K, the well-known Australian family lawyer.  But his remit was limited to helping the court with what form of order might best protect L’s interests if she came to Australia and only as a last question what the immigration and visa position would be.  His answer made it clear that he could not deal with this last issue, which actually was the most important.  This led to the instruction of Ms C, a partner in a firm of immigration specialists in Queensland.  She provided a long and detailed report on 26th September, and it was that report which led the local authority and guardian to change their minds as it appeared that these immigration difficulties were, if not insuperable, severe.  Very belatedly, two working days before this hearing was due to begin, the mother’s legal team wished to ask questions which I permitted.  

42	I am critical of this delay because it should have been raised at the pre-trial review.  I am absolving Ms Wentworth from this because she was not there on that occasion.  But it has contributed to what I have described as the roller-coaster ride for the uncle and aunt.  May I say, in case they were to see a transcript of this judgment, I am referring to them as uncle and aunt simply to avoid any confusions with any other member of the maternal family.  

43	Almost inevitably, the answers to the questions which I permitted to be posed produced further questions which Ms C again dealt with swiftly.  I took the view that there would only be clarity if we were to hear from Ms C orally.  Thus, on Wednesday morning of this week we sat early so as to hear her give evidence by way of telephone link in Australia.  That exercise proved valuable, because whilst her written reports told the court what the law was and what could go wrong, there was no sense of likelihood of outcome expressed in her written report.  The reports set out all the problems, but not whether they were likely to occur.

44	The first issue is that of the visitor’s visa.  Obviously, L could not enter Australia without a visitor’s visa.  That would not be straightforward because a visitor’s visa is issued to those whose visit would be temporary.  This would not be intended to be a temporary visit.  Secondly, said the written reports, when a visitor visa expired there was the need for a bridging visa the prospect of which appeared in the written report to be uncertain.  That, of course, raised the prospect of the need to return to England whilst the permanent visa was sought.  And it is said that the permanent visa, slightly misleadingly described as an orphan/relative visa, would take two to three years to process with a very uncertain outcome.  Faced with that evidence it is hardly surprising that the local authority and guardian concluded that a placement in Australia was not practical.  The uncle and aunt, whether or not they correctly understood the advice, conceded immediately that L’s future could not be left in limbo for what might be up to two years before a final decision could be made.

45	Ms C’s oral evidence gave a somewhat different slant to the issues that I have mentioned.  The visitor visa would need to go to the complex case officer.  She advised that it would be essential to be entirely open about the plan, and to say at the outset that there was no intention to remove L from the Australia.  The uncle and aunt would have to make it quite clear that they were seeking permanence and would have to agree irrevocably to immediately remove L from the country if the permanent visa was not granted.  From the date of lodging the application for a visitor visa she hopes a decision will be given within a month or two.  She felt the prospects for that were reasonably good.

46	She said that it would be essential to apply for a permanent visa during the duration or lifetime of the visitor visa.  She remained of the view that it would take two to three years to process the permanent visa.  To obtain it, the Australian authorities would need to be satisfied that the natural parents had a permanent incapacity which made them incapable of caring.  She thought there was a reasonable chance that a permanent visa would be granted.  I did not ask her to put a percentage on what a reasonable chance meant, but I understood her to be saying more probable than not, but not putting it higher than that.  In the interim she said the prospects of granting a bridging visa were good – almost automatic I think I paraphrased her as saying.

47	So there are really therefore two potential issues of difficulty.  First, would the visitor’s visa be granted or not, it being made clear that the visit was intended to be one of permanent duration rather than short duration?  If the visitor’s visa were not granted then the outcome would simply be delay, probably of four/five months.  I explain that timeframe in a moment.  Secondly, having got to Australia, might a permanent visa not be granted?  It would, it seems to me, be almost unthinkable that a permanent visa might not be granted if all had gone well in Australia, but if it were not to be granted that would be a disaster for L, because she would be two years down the line, having formed bonds with new carers, and the damage and disruption would be lifelong and make any other form of placement extremely difficult.

48	So there are two real difficulties that the uncle and aunt have to face.  One is the immigration issue which I have dealt with, and the second is what I describe as the bonding issue.  No court could contemplate granting an order that would end up with the placement of a child with carers who had never met her.  There would have to be a trial period in England first.  It is very unfortunate that that trial period has not taken place.  The social worker has told me that he tried to arrange it in 2017 and the uncle told him that he simply could not get away from his job.  The uncle denies that he was given encouragement to come at that time.  I cannot resolve that dispute.  There has not even been Skype contact between the uncle and aunt and L.

49	The uncle had withdrawn his interest in the light of what he understood to be the gloomy immigration prospects, but I felt, in the light of the new advice that I had received, that it would be proper to allow him an opportunity to consider his position.  He spoke orally by telephone link on the Tuesday of this case.  It is fair to say he was caught somewhat off-guard by the development in the immigration status, and he sent emails again on 1st November (Wednesday) and today, 3rd November.  He had been updated on the evidence in relation to immigration.  I can only apologise to him for the fact that the evidence of this change did not come about earlier.  But I have already dealt with the reasons for that.

50	The theme of what he has said has been consistent.  First, that he wants what is best for L.  Secondly, ideally, he hopes that she will be placed back with her mother.  It is quite evident that he does not know of the history of her deficits which I have set out earlier in this judgment.  Thirdly, if the mother is ruled out he would like to be considered.  Fourthly, that they would not now be able to come over to this country for a trial visit until February 2018 because, being in the hospitality industry, he is about to enter the busiest time of the year.  He has not commented on (and I do not criticise him for this at all) the issue of the potential difficulty of bonding in the uncertain position of the immigration status.  

51	It follows that if he did come over on a trial period, the timeframe that would have to be adopted, and the legal formula I would have to adopt, would be one that had L remaining in her foster placement where she has been for ten months for at least another four months, with a direction there be a further hearing in the second half of February when there would be reports on how that fortnight had gone with L.  I cannot blind myself to the possibility that I might receive a report that two weeks had simply been insufficient for the court to have a guide as to whether or not a successful bond was being formed between the uncle and L, even if, as was raised as a possibility, the aunt might be able to stay on for a bit longer.

52	This brings me on to the problem of timeframe.  We are now at about week 43 or 44 of proceedings that should be concluded within 26 weeks.  As I have already said, L has had a disrupted life, starting in a mother and baby unit, then moving back with her mother to the mother’s home and now into foster care.  It is self-evident that she needs to put down permanent roots quickly.  

53	The difficult issues that present in this case, when considering the case of the aunt and uncle, revolve around the immigration and bonding issues.  Without those issues the difficulty of emotional investment and bonding would not arise.  None of those are issues that face stranger adopters who would self-evidently be able to move very swiftly from introduction to placement, and the local authority envisage placement taking place in about two months’ time.

54	I have already mentioned that the advice that I have received is that the immigration prospects are better than even.  But the prospects of failure, particularly at the second stage, would be terrible to contemplate and run the risk of L being a stranded child.  

55	I must not and do not lose sight of the fact that as recently as September, when the problems with immigration had not yet surfaced, the preferred plan of the guardian and social services was, subject to a quick and satisfactory completion of a visit here by the uncle and aunt to meet and get to know L and the obtaining of the relevant visas, to place her with them in Australia. 

56	So what has changed since September?  To answer that question it seems to me that there are two things.  One is that although the immigration problems which raised their heads at the end of September have diminished, they are not extinguished.  Secondly, time has marched on.  It is now the start of November, not September, and there would be no prospect of these proceedings concluding for another four months at the earliest.  Statute  and the checklist rightly say that delay is inimical to any child’s welfare, and this is a major issue in this case.  

57	I have to consider all the considerations set out in s.1 Adoption and Children Act 2002 in making my decision once I have ruled out, as I have, a return to the parental home.  My paramount consideration must be L’s welfare throughout her life.  I have regard to the following specific matters, 
i.	L’s ascertainable wishes and feelings.  Her wishes, I am sure, if she was of an age where she could make them known, would be that she would wish to be raised within her birth family, provided this could provide her with safe and secure and loving home.  
ii.	Her particular needs.  Above all, she needs security.  She is now in her third home already, at 18 months, and she is putting down roots which are going to have to be lifted, and the sooner the better.  In addition, there is a risk of foetal alcohol syndrome, but that may not become evident for some years.  I do not put significant weight on that, but it is right to record that the adoption medical adviser has raised this possibility.  But much more important is she is of a crucial age with regard to her emotional development.  
iii.	The likely effect of L ceasing to be a member of her original family and becoming a member of an adoptive placement.  She will, of course, lose her legal relations with her birth family.  She will lose the sense of identity and self-confidence that goes with it.  She may lose any relationship with members of her family, including her eight half siblings in England.  That may happen, of course, even if placed with her uncle and aunt, because they live on the other side of the world.  So keeping in contact with any of her family in England would only be likely to be by electronic means.  The uncle is not close to members of his family, although has communication with them mainly by Facebook.  As I have mentioned, he is obviously not aware of many of the significant family events.
iv.	 On the other hand, whether an adoptive placement would permit proximity and meeting with her half siblings is something that would only become apparent in the future.  I must bear in mind that the likelihood may well be that she will in fact lose all relationships with the parental family.
v.	Age, sex and background I think I have already covered, and likewise the question of harm which she has suffered and is at risk of suffering.
vi.	The relationship which L has with relatives, including the likelihood of such relationship continuing and being of value to the child, the ability and willingness of any of the child’s relatives to meet her needs, and the wishes and feelings of those relatives.  I have, I think, commented at length on the uncle and aunt.

58	Before leaving the subject, it is right to say that the evidence is that if L did live with her uncle and aunt it would not be under an adoptive placement.  That is because in Australia family adoptions are extremely rare.  I do not put any weight on that particular factor.  Whether or not the parental responsibility of her parents would be removed becomes academic in my mind when L is the other side of the world.  But at an age of just 18 months it is absolutely critical that she has a permanent home.  Thus, the British concept of permanent fostering is not one that would be attractive because of the risk of placement disruption and the continued involvement of local authority throughout her minority.  Adoption, of course, severs all legal ties to the birth family and would make the only one of her sibling group to be adopted outside the family.

59	I have given this matter anxious thought and worry, but I have come to the conclusion that L’s need for permanence is so pressing that I cannot adjourn the matter further.  I cannot have the certainty which I feel is needed, that by the end of February the bond might be sufficiently close to permit me confidently to sign off L on a visit to Australia.  Nor can I be confident that the visa problems are so likely to disappear that I can disregard them.  The consequence of that optimism not being justified would be extraordinarily damaging.  I conclude that there is no realistic alternative to adoption and that nothing else will do, applying the principles in Re B and Re B-S.

60	Accordingly, I make the care order, I make the placement order and I dispense with the consent of L’s parents as her welfare requires me to do.

That is my Judgment

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