Family Law Hub

SA v BN [2013] EWHC 4417 (Fam)

  • In a tweet: A very unusual case involving the court having to determine whether a child was still alive

    Summary: An unusual case with a complex and distressing factual background where the court was asked to determine whether or not the child of the parties was still alive.  

    The mother ("M"), who was from the Congo, was only 21 years old but had suffered years of sexual abuse at the hands of various family members. Her father had an unhealthy control over her and it was quite likely that he had been in a sexual relationship with her for some time. When rape allegations (made by other members of M's family) against M's father were brought to the attention of the police and he was arrested, M's father tried to send M back to the Congo. The police found her packed and ready to go and took protective action – she was placed in foster care. Not long afterwards, she formed a relationship with the father ("F") and fell pregnant. Despite moving in together and agreeing to an informal marriage ceremony, F returned one night to the home he shared with M to discover M's father had collected M and her possessions and had taken her back to live with him. That was the end of the relationship between M and F and he never saw his daughter (despite his best efforts) who was aged three by the time of this hearing.  

    In the face of M's hostility towards contact, F, sensibly, made an application for parental responsibility and contact orders. There then followed a series of hearings which M failed to attend and she also failed to cooperate with the preparation of the s.37 report by the local authority. M disputed paternity and DNA testing was ordered, which proved that F was the father.

    The DNA test was quite probably the catalyst for what then took place. It is fair to say that as the proceedings rumbled on, CAFCASS had alerted the court to the care proceedings that had taken place three years earlier involving M and her father. There was a suspicion that the DNA test would reveal that M's father was also the father of her child and it was almost inevitable that child protection proceedings would be begun not only in respect of M's child but also her father's children through his latest marriage.  

    Two days after the DNA test, M took the child to the Democratic Republic of Congo, without notice to anyone. It was said that she had travelled there for her mother's funeral. M's father, who had remained in this country, informed M's social worker about a month later that the child had then died in the Congo in a road traffic accident. 

    The matter was transferred to the High Court where the child was made a ward of court, M's father was invited to intervene, a Guardian was appointed and a port alert was made. At a later hearing the court made a declaration that the child was habitually resident in England and Wales and orders were made preventing the child from being removed from the jurisdiction, should she be within it, and preventing M from applying for travel documents. 

    M's father then informed the court that M had returned from the Congo and was living with him once more. The Guardian visited the family home and found M but found no evidence of the presence of a child. M provided various documents (death certificates, medical reports, burial permit etc) to support her case that the child had indeed died whilst she was in the Congo for her own mother's funeral. 

    The Court investigated the authenticity of these documents with the assistance of Children and Families Across Borders (CFAB) and CATSR, an NGO in the Congo whose mandate is to protect and defend children's rights. The court found that the death certificate produced for the child was a fake, as was the burial report, official police report, death certificate for the maternal grandmother and the hospital transfer ticket. The photographs of M by a child's grave were found to be staged and the photographs of a woman in a coffin were not considered to be evidence of the death of the maternal grandmother. 

    The judge received evidence of the level of corruption in the Congo and the ease with which fake documents could be obtained. The court made findings that the child had not died in the Congo and was alive and that M and her father knew of her whereabouts (most likely the Congo or France). Further there were findings that M was controlled by her father and that their relationship was unhealthy on every level. 

    The judge went on to make a raft of orders designed to ensure the child's return to England and Wales as soon as practicable.

Case note, published: 11/03/2014

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  • The father made an application for parental responsibility and for a contact order in respect of his daughter. In order to determine the application the court first had to conduct a highly unusual hearing in order to decide whether, notwithstanding the mother's assertions to the contrary, the child was still alive or whether as alleged by her and the grandfather she died in tragic circumstances in a car crash in the Congo. The court found that the child was still alive and was satisfied that the grandfather knew of the whereabouts of the child and that he could organise, if he so chose, to ensure her return to the UK, her country of habitual residence immediately. Accordingly, the court would make a raft of orders designed to ensure her return to this country as soon as practicable. Judgment, 11/02/2014, free

Published: 11/03/2014

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