In the recently reported case of the London Borough of Tower Hamlets v D & Others  EWHC 3901 (Fam), a father living in sub-Saharan Africa applied for an assessment to be carried out in his country of his ability to care for his children (who were living in England).
Initially, the local authority proposed sending a social worker to the father’s country to assess him there, having discussed his circumstances with him over the telephone. However, having then considered guidance from the Foreign and Commonwealth Office (FCO) and Children and Families Across Borders (CFAB), the local authority decided this was too dangerous.
Hannah Perry of TV Edwards, on behalf of the father, identified an independent social worker based elsewhere in Africa (and who has dual nationality) who was willing and able to assess the father in his country. The court had to decide whether to order an assessment in the father’s country (despite the FCO and CFAB advice ) and, if there was not to be an assessment there, what else could or should be done to assess the father as a possible career in his country for the children.
The judge applied the test of whether the assessment was ‘necessary’ and made it clear that this test cannot be considered without looking carefully at the facts of the case. He underlined the need to avoid cultural relativism and stated; ‘The fact that a family member may live in a country where there are high levels of crime for example, or terrorism, corruption, or civil unrest will undoubtedly be relevant to the overall evaluation of the factors set out in s.1(3) of the Children Act 1989, but to my mind they will rarely, if ever, be determinative in and of themselves. It is the care offered by the individual that weighs most heavily and not the challenges faced by the State in which he lives. In any event these will often be facets of the child's own cultural inheritance.’
The Judge decided against sending the independent social worker to assess the father. However, he also decided that other options could be considered. He therefore looked at the children’s history, likely future needs and decided that their needs and their time-scales could not be catered for if the court agreed to the father’s caring for the children in his country. The judge also decided that it was at that stage, when the court was considering the children’s overall welfare, that the court had to consider the conditions in the father’s country as part of the overall balancing of the factors in the Children Act 1989 s1(3) welfare checklist.
The father’s application for assessment was refused.
TV Edwards’ solicitor Hannah Perry represented the father.
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