Case No. NE24C50736 - [2025] EWHC 1767 (Fam)

The parents concede that the threshold for making care orders or supervision orders in respect of each child is met. I am so satisfied.

I am satisfied that it is in the best interests of S to allow the Local Authority to withdraw its application for a placement order. The Guardian supports that withdrawal. Whilst S is still only six years old and adoption would be a possibility for him, the attempt to find adoptive parents would be likely to be prolonged and very difficult. He needs stability now and is doing well in his current foster placement. Whilst there are dysfunctional sibling relationships, I am sure that he will benefit from sibling contact. Provided the Mother takes steps to abide by expectations of her conduct during family time, and precautions are taken to exclude the risk of flight, he will benefit from family time with her which would be significantly curtailed if not extinguished with adoption. The Local Authority does not wish to pursue adoption. Its position is supported by all parties. I permit the withdrawal of the placement application.

I reject placement of any of the children with the paternal uncles as unrealistic. The risks, obstacles, and disadvantages of that proposal are far too great to justify its contemplation. Assessment of the paternal uncles is unnecessary and would cause unwarranted delay for these children.

I have come to the firm conclusion that none of the children can safely be returned to the Mother’s care. She has taken actions including abduction of the children which have caused them serious, avoidable harm and placed them at grave risk. Indeed, she placed their very lives at risk as she has done on other occasions by her neglect and lack of supervision of R and S as described earlier in this judgment. She cannot safeguard the children, and instead repeatedly places them at risk. She has caused them emotional and psychological harm as described by the Austrian Court. Her conduct has not changed since that Court’s decision. Indeed, she has added layers of further harm to the children by the abduction and by her parenting and conduct in England.

I am sure that if the children were returned to her care she would fail, as she has done in the past, to ensure that they had access to therapy and other interventions they badly need. She is distrustful of professionals and sees no need for their assistance for her or the children, even when their vulnerabilities and need for professional assistance are so obvious to everyone else.

The Mother has not only indulged in deceit, manipulation of others, concealment from authorities, and subterfuge, but she has co-opted the children into all of that. She co-opted them into arranging the abduction, and changing their names on arrival in England, for example. Q’s response to P reporting that the Mother had hit him with a pan, namely to tell him to be quiet because he would get the Mother into trouble, speaks to a culture of secrecy within the family, the aim being to protect the Mother.

I have no doubt that the Mother loves her children but she has no insight into her own inadequacies and the consequences to the children of her dishonesty and her actions. She does what she wants irrespective of the consequences for others, including her children. She cannot see that any other person’s view about how to meet the children’s best interests has any validity. Hence, she repeats conduct which is harmful to them. She will continue to do so in the future if they were placed again in their care. Under her care the children have lived in a family characterised by lack of supervision and stimulation, violence, secrecy and deception, Her children have twice been removed from her care for their protection and it would be wishful thinking to believe that they would not be removed again if they were now returned to her. That would pile even further harm onto these already disturbed and vulnerable children. In short, the risks of serious harm to the children from return to the Mother would be due to:

Not all the children have suffered all of these harms and risks, and the Mother is not directly responsible for all the harm they have each suffered, but the Mother has caused, contributed to or failed to protect the children from nearly all the harm they have suffered since their flight from Country Z.

In my judgement, long term foster care is in each child’s best interests. I have no doubt that in the short term P and Q will react negatively to that decision. The Local Authority and those caring for all the children will need to prepare for a difficult few weeks and be on guard to protect against absconsion and abduction. However, foster care is the only realistic available option that gives these children a chance to develop to become emotionally healthy adults, to recover from the emotional and psychological harm they have suffered, to enjoy some stability and a nurturing environment, to access therapeutic help.

I approve the care plans, as amended, which will provide for:

I am satisfied that the children’s dates of births are as set out in the confidential schedule attached to this judgment but not to be published. In that respect I accept the closing submissions on behalf of the Local Authority. The Mother has given different dates of birth at different times including the same day and month for P and Q, as recorded by the Austrian Court. I do not accept her evidence as reliable and look at other evidence, including from the Father as to the years of birth.

Although the children’s surnames remain that of the Father, it is permitted for them to be known by the surname of their Mother unless or until an application is determined otherwise by the Court.

I urge the Mother to engage with the Angelou Centre and/or other support offered to her. She needs to gain some understanding of the children’s difficulties and the harm she has caused to them, and how she can affect their welfare positively in the future.

I promised P and Q that I would write to them when I gave my judgment and I shall write to all four children. These letters will not be easy for them to receive but I shall set out, in terms I hope they will be able to understand, some of the key reasons for the decisions I have taken. On the advice of the Guardian the letters will be shared with each parent and the Local Authority. Although the letters are from me to each child, I have decided to publish one of the letters, suitably anonymised, in an Annexe to this Judgment. The reasons are:

As a coda to this judgment I address an issue that arose during the hearing regarding the taking of evidence by video link from witnesses abroad.

The Father only fleetingly engaged with these proceedings although he has been represented since being joined as a party. He failed to attend a number of case management hearings and only provided a witness statement at the start of the final hearing. In that statement he proposed that P and Q should live with one of his brothers, G, and R and S should live with another of his brothers, H, both brothers living with their wives and children in Austria. A video link and interpreter for the Father had been pre-arranged and so he was able to attend and participate at the hearing. I expected to hear evidence from him via video link from Austria on the fourth day of evidence. FPR r22.3 provides that the Court may receive evidence remotely. FPR PD 22A annexe 3 paragraph 5 provides :

“It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome.”

I could have been confident that there was no doubt about the Austrian government allowing their nationals or others within their jurisdiction to be examined before this Court. It has been done in other cases without objection. Judgments have been published recording the giving of evidence remotely from Austria - UG v NN [2022] EWHC 8, and A Mother and A Father v Local Authority A and Ors [2021] EWCA1174 with no mention that objection was taken. Day after day parties participate and give evidence in cases before the Family Division of the High Court and the Family Court by remote video link from abroad. Accordingly, since no party had raised an issue about taking evidence from the Father and from G and H by video link from Austria, I expected evidence to be given without the need to make any enquiries of what is now the Foreign, Commonwealth and Development Office (“FCDO”).

The Father has asylum in Austria and could not readily travel to England for the purpose of giving evidence. Although his brothers were each proposing to care for two of the four children, the decision for me at this hearing is whether full assessment of them as potential carers is warranted. It would have been wholly disproportionate to insist on their travelling to England for the purpose of giving evidence that might last less than one hour each. The Father and one of his brothers do not work and it would have been costly for them to travel to and stay in England for the purpose of giving evidence. Insistence on the Father and his brothers attending in person would also have inevitably caused delay.

Hence, I would have had no hesitation in proceeding to hear the evidence of the Father and paternal uncles by video link from Austria. However, and unexpected development was brought to my attention shortly before the Father’s evidence was due to be heard. The Father’s solicitor had written to the FCDO as follows:

“I have been asked to make you aware that [LM] will be giving evidence tomorrow and his brothers [G and H] are expected to give evidence on Monday.

 [LM] and his brothers will give evidence by way of video link given that they are in Austria.

We understand that we need to make the Austrian Authorities aware of the fact that [LM] and his brothers will be giving evidence.”

This had elicited the following response from an officer of Overseas Public Services at the FCDO:

“We have not been able to obtain the agreement of the Government ofAustriato our request to allow citizens or residents of Austriato voluntarily give evidence from Austriaby video link for UK tribunals (either as a witness or when appealing a case). In these situations requests can be submitted on a case by case basis. 

However, your request mentions that that [LM] will be giving evidence on 20^th June 2025. The FCDO requires at least 20 working days' notice in order to submit the request and give the Government of Austriasufficient time to take the necessary action.

Given this, we are unable to process the request on this occasion and recommend that the taking of evidence does not take place at this time.

Should the hearing date change please let us know and we can advise you on next steps.”

This correspondence took place part way through a final hearing. Waiting twenty days for a request to be made to, and response to be received from, the Austrian Government would have been inconsistent with the no delay principle (Children Act 1989 s1(2)) and the statutory obligation to resolve proceedings within 26 weeks. The Court would not have been able to resume in twenty days in any event and the delay would have been much longer, probably to October 2025. Apart from the overall delay in resolving proceedings, it would have been unsatisfactory to go part heard for several weeks.

The Court has had regard to the Upper Tribunal decision in Agbabiaka (Evidence from Abroad: Nare Guidance) [2021] UKUT 00286 (IAC). Following that case, Presidential Guidance has been given about taking evidence from abroad in the Upper Tribunal and the Employment Tribunal. In that case the Upper Tribunal held that

“1)

There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's relationship with other States with which it has diplomatic relations and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice.

(2)

The position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is accordingly necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. Such permission is not considered necessary in the case of written evidence or oral submissions.

(3)

Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory.”

Those conclusions are drawn in wide terms and reference is made to the process within civil and commercial courts, but the Upper Tribunal gave guidance that expressly applied to an “administrative tribunal”. The decision is not binding on the Family Court or the Family Division of the High Court nor did it purport to be. Different considerations apply to family proceedings than to an administrative tribunal and in that respect, and more generally, I take into account the following factors:

In the present case Austrian children services in the relevant state have previously participated in these proceedings, but not the final hearing, remotely from Austria. They have provided written evidence but have also attended hearings and spoken to the Court at those hearings. They knew that attempts were being made to contact the Father to secure his participation – indeed they assisted in that process. At no point was any concern raised about the participation of the Father and, given it was known that the proceedings concerned the welfare of his children and that the Father was not free to come and go from Austria to England, it can be assumed that the Austrian authority knew that if he were to participate he would be likely to seek to give evidence from abroad.

I note that the FCDO has only recommended that the taking of evidence does not take place at this time and has not sought to insist upon it. Further, the FCDO did not raise any specific diplomatic concerns about taking LM’s evidence by video link from abroad.

I also note the approach taken by Cobb J in Re L (Article 13: Protective Measures)(No.1) [2022] EWHC 3427 (Fam):

“[4] A preliminary issue had been raised at a pre-trial review: namely whether I could or should hear oral evidence from the Applicant father and/or supporting witnesses (on both sides) by video-link from Belgium. Counsel referred me to the decision of Lane J sitting in UTIAC of Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), and to FPR 2010, PD22A Annex 3 §5. I was also referred to the Presidential Guidance for the Employment Tribunal judiciary prepared by the Chamber Presidents of that Tribunal in Scotland and England & Wales, respectively Judge Shona Simon and Judge Barry Clarke (27 April 2022).

[5] In relation to this application, I was provided (unsolicited) on the first morning of the hearing with a helpful witness statement from the Applicant's solicitor which revealed the following:

i)

Enquiries had been made of the 'Taking of Evidence Unit' at the Foreign & Commonwealth Office; the solicitor had received an automated response which had advised her to expect a "minimum of 8 weeks" before a response could be assured from a host country;

ii)

The Belgian Embassy in London had been contacted, but the official at the |Embassy had confirmed that there was no one who could answer a query on what were essentially 'judicial matters';

iii)

The case worker at the Belgian Central Authority, who had been responsible for this case initially, informed the solicitor that she was unaware of any prohibition on Belgian citizens giving evidence by video-link across borders, and "we can see no particular difficulty" in them doing so; she added "…indeed child abduction cases should be hindered by formalities as little as possible, in the interests of the minor and in order to obtain a swift decision";

iv)

A representative from the Slovak Embassy (the maternal family is Slovakian) confirmed that the Slovakian authorities would not have any difficulty with a Slovak national giving evidence from abroad;

v)

A representative of the Foreign Process Department at the Royal Courts of Justice had indicated that the range of response times to requests for permission for evidence to be taken by video from abroad varies enormously; reference was made to one country (neither Belgium nor Slovakia) from which the officials took approximately 9 months to respond to a simple enquiry.

[6] Neither counsel could point me to any provision in Belgian law which would prohibit the giving of evidence from that country by video-link either under their criminal law, or as a violation of any civil code.

[7] In the absence of any evidence which would contra-indicate the giving of evidence from Belgium, and having regard to the overriding objective contained within rule 1.1(2) of the FPR 2010 and the duty to manage cases (rule 1.4), together with the expectation that Hague Convention cases are heard "expeditiously" and within 6 weeks (see Article 11 of the 1980 Hague Convention and PD12F para.2.14) I did not consider it appropriate to delay the hearing of this case for further enquiries to be undertaken in this regard.”

I would have allowed the Father and paternal uncles to give evidence by video link from Austria in any event but I also came upon a decision on point by Joanna Smith J in Dana UK Axle Ltd v Freudenberk FST GMBH [2021] EWHC 1751 (TCC) upon which I can also rely, albeit somewhat tentatively since I have not seen the legal advice to which she refers:

“[27] On the evening of the first day of the trial, I was provided with a legal opinion on the taking of evidence in Austria by a foreign court (via video conference) by Daniela Karollus-Bruner of CMS Reich-Rohrwig Hainz Rechstsanwälte GmbH dated 5 May 2021, which expressed the view that, post Brexit, the bilateral treaty of 31 March 1931 between Austria and the United Kingdom (the Austro-British Convention on Mutual Legal Assistance BGBI 1932/45 (the "Convention")) governs the taking of evidence abroad by the courts of the respective other state. Article 8 of the Convention allows for evidence to be taken on Austrian territory without the intervention of state authorities, provided that a "Commissioner" in charge of the taking of evidence is appointed as a person authorised by the Court. Doctrine confirms that the Court can "commission" the presiding Judge herself. Accordingly, on 6 May 2021, I made an order pursuant to which I was commissioned to take evidence to be given in these proceedings from within the territory of the Republic of Austria.”

I have examined that Convention which applies to commercial and civil cases. Family proceedings fall under the broad umbrella of civil proceedings. Article 8a of the Convention provides that evidence may be taken:

“without any request to or intervention of the authorities of the country in which it is to be taken, by a person in that country directly appointed for the purpose by the court by whom the evidence is required. A diplomatic or Consular Officer of the High Contracting Party whose court requires the evidence or any other suitable person may be so appointed.”

As Joanna Smith J noted, the trial judge in England or Wales can be the “other suitable person”. Accordingly, it seems to me that in the present case, the Convention allows me to take the Father’s and paternal uncles’ evidence remotely from that country as a suitable person so appointed.

Accordingly, I ruled at the hearing that I would receive evidence by video link from Austria from the Father and the Paternal Uncles notwithstanding the correspondence from the FCDO.