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Momentous and difficult decisions

One of the on-going themes of my posts here is the difficult nature of the decisions faced by our family judges on an almost daily basis. For examples of what I have written previously see this post regarding the Court of Protection and this post concerning child relocation. The reason I have written these posts has been partly to inform, but partly also to redress some of the (mostly unwarranted) bad publicity that our judges receive.

Occasionally judges will acknowledge just how difficult is the decision with which they are tasked. Such was the case recently in D (A Child), which concerned the future of a two year old child, ‘ED’. That future fell to be determined by Mr Justice Mostyn, who began his judgment with the following:

“If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance.”

The background to the case is extremely complicated, but the essential facts are as follows. ED’s family are of Czech Roma heritage. In 2004 his father and then wife, ED’s maternal grandmother, moved to the United Kingdom, along with the grandmother’s daughter, LM. When LM was 17 the father began a sexual relationship with her and ED was born as a result of that relationship, on the 27th of June 2012.

The local authority began care proceedings in respect of ED on the 7th of August 2012. During the course of the proceedings the father returned to the Czech Republic. Shortly afterwards, LM also returned to the Czech Republic, where she again became pregnant by the father, giving birth to another child, LD, in September 2013. The mother, LM and LD now all live together in the Czech Republic.

The issue arose as to in which country the case should be dealt with. Mr Justice Mostyn originally decided that a Czech court would be better placed to hear the case, but that decision was overturned by the Court of Appeal and the case was therefore returned to Mr Justice Mostyn (who, interestingly, defended his original decision in his subsequent judgment, and even said that the Court of Appeal’s argument was ‘very hard to follow’).

Mr Justice Mostyn then had to decide between a number of different courses of action, all of which would have very profound consequences for ED. At one extreme he could make a care order and a placement for adoption order, as sought by the local authority. In that case it would very likely be that the adopters would not be in a position to promote ED’s Czech Roma ethnicity. At the other extreme, he could do as the parents proposed, which was to dismiss the care proceedings and return ED to them in the Czech Republic, a plan supported by the social services there.

In between those two extremes were two other options. Firstly, a special guardianship order in favour of ED’s current foster parents, under which ED could maintain contact with his mother and sister, LD. Secondly, placing ED with foster carers in the Czech Republic.

Mr Justice Mostyn rejected the two ‘extreme’ solutions. To place ED with his parents was too risky (he had already made numerous findings of harm and the risk of harm to ED), and the care order route would break the link with ED’s Czech Roma heritage.

Mr Justice Mostyn concluded that a special guardianship order in favour of the current foster parents was the preferred solution. He therefore invited the foster parents to apply for such an order. If they did not do so, then the possibility of placing ED with foster parents in the Czech Republic would be investigated.

Obviously, this judgment does not quite finalise matters, but one way or the other it will have a momentous effect upon ED’s entire life. So, I would suggest that when you next read criticism of our judiciary you remember this: who else has to make decisions that will affect the whole life of another person?

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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