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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> M (Children) (Suspected Trafficking: Competent Authority), Re [2017] EWFC 56 (02 March 2017) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/56.html Cite as: [2017] EWFC 56

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IN THE FAMILY COURT
SITTING AT BIRMINGHAM
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: M (CHILDREN)

		Priory Courts 33 Bull Street Birmingham B4 6DS
		2nd March 2017

THE HONOURABLE MRS JUSTICE PARKER DBE:

1. The two children with whom I am concerned are:

JM, born on 4^th July 2012 and therefore just over 4½ years of age; and

EM, born on 8^th September 2014, who is nearly 2½.

2. On 20^th December 2016, they were brought to England by Mrs N on a flight from Namibia to Birmingham ostensibly for a holiday. A number of matters caused immigration some concern. I take them not in order of importance.
3. Mrs N, who claimed to be the children's grandmother, did not have sufficient funds for a long stay. There appeared to be insufficient luggage for the claimed trip of two weeks (return tickets were for 4^th January). There were scant other provisions for the stay, such as the number of nappies, I assume disposables, for E. The children were very hungry and thirsty. Two men appeared to be waiting for their arrival but disappeared after immigration stopped them. The grandmother had with her a school report for another child.
4. Border Control was concerned by their observations of the children's relationship with this lady and about the purpose for which they were being brought in. To put it bluntly, they thought that these children might be being trafficked and may have been brought in for purposes of adoption. There are other prospects even more unsavoury and damaging to the children which can be imagined. I make it clear that there is presently no direct evidence to support any of these specific potential findings.
5. The grandmother (as I shall call her) was interviewed and then detained for about a fortnight. The children were made the subject of protection orders and transferred to the care of Solihull Social Services within whose area Birmingham International Airport is situated, where they remain. They were placed in foster care. They had been granted temporary admission. The grandmother was not granted temporary admission but she has remained here, now she has been discharged from detention, and has expressed her wish to return to Namibia with the children and if not permitted to do so to see as much of the children as she can and if possible to care for them. The grandmother's account, from which she has not wavered, and which documents now support, is that the children's parents are her daughter and her daughter's partner or husband, who both live in Canada, and that both children were sent by air to live with her in Namibia over a year ago from Canada, accompanied by a friend of the mother, and that the children are now in her guardianship following a formal decision to that effect by the Namibian authorities.
6. A referral was made to the National Referral Mechanism ('NRM'), termed the 'Competent Authority', operated through the Home Office under the Council of Europe Convention on Action Against Trafficking in Human Beings ('the Convention'). The explanation which follows is taken from the submission of Mr Mandalia now appearing for the Competent Authority. It is convenient to set it out now as it explains subsequent decisions and events.
7. For the purposes of the Convention, the human trafficking of children consists of two basic components. First, an "action" which is the recruitment, transportation, transfer, harbouring or receipt of a person which includes an element of movement, whether national or cross-border, and second "exploitation", for example, sexual exploitation, forced labour, domestic servitude, slavery, financial exploitation, illegal adoption, and removal of organs. When a case is referred to the Competent Authority it has to decide whether there are 'reasonable grounds' to believe the person to be a victim of trafficking (the 'reasonable grounds decision'). The Convention provides that the victim should be allotted 30 days for 'recovery and reflection' as it is implicit in this type of case that many victims will be competent to describe their experiences but too traumatised to do so in sufficient detail immediately. No exception is made for young children- but no doubt behaviour may be an important component of the assessment even with infants. The Competent Authority then has to make a 'conclusive grounds decision' on the balance of probability as to whether there are sufficient grounds to decide that the individual being considered is a victim of trafficking. If a positive conclusive grounds decision is made the Competent Authority will notify the person of its decision and relevant agencies, including when appropriate, the police, so that the necessary support services can be provided to the victim.
8. The Secretary of State for the Home Office has issued guidance 'Victims of Modern Slavery- Competent Authority Guidance'. The Convention requires that potential victims of trafficking are provided with a period of a minimum of 30 days recovery and reflection during which they will receive a range of support. The United Kingdom provides this support to potential victims for a longer period of 45 days. The 'recovery and reflection' period is a legal concept which triggers certain rights and measures in accordance with the duty placed on the Competent Authority in accordance with the protective and remedial duties assumed by the UK when ratifying and implementing the Convention. The Competent Authority cannot deny those measures when the victim wants them. The guidance clarifies that under the Convention there is no duty on the Competent Authority to make a decision within the period allotted as the time limits are not mandatory. This delay gives the Competent Authority time and opportunity to gather evidence and they are under a positive duty to make 'every effort' to do so. The Convention recognises that more information may need to be gathered, and the 'timescale …will be based on all the circumstances of the case'.
9. Mr Mandalia cites Rantsev v Cyprus and Russia (2010) 51 EHRR 1 in support of the proposition that Article 4 of the European Convention on Human Rights prohibiting slavery and forced labour makes it unlawful for a public authority to act incompatibly with a Convention right and places a duty on the Secretary of State to take reasonable steps; 'investigative', 'administrative', 'operational' or 'protective'; to protect an individual where there are circumstances giving rise to a 'credible suspicion' that that individual had been, or was, at real and immediate risk of being trafficked or exploited. If there is a credible suspicion, there is a duty to take appropriate measures to remove the individual from that risk.
10. The first decision of the Competent Authority on 29^th December in this case was that there were no 'reasonable grounds'. Solihull commenced proceedings on 19^th January and the children were made subject to interim care orders. The local authority asked the Home Office to reconsider and they made a 'reasonable grounds decision' in respect of both children on 27^th January 2017. The 45-day period was to expire on 14 March 2017.
11. Standard directions were given on the issue of the care proceedings and shortly afterwards Her Honour Judge Evans-Gordon held a case management hearing. The court recorded that there was an issue as to jurisdiction in respect of the children as they appear to have dual Canadian and Namibian citizenship (as seems to me to be correct). The court was satisfied, and I concur, that in the interim it had jurisdiction in relation to the children pursuant to Article 20 of Council Regulation (EC) No 2201/2003, also known as Brussels II Revised, which I shall call by way of shorthand 'BIIR'. The local authority was ordered to liaise with the International Child Abduction and Contact Unit and the competent authorities in Namibia. It was recorded that the timetable for the proceedings was 26 weeks.
12. Judge Evans-Gordon contacted me by email to tell me that this case has very serious international issues and should be listed before a High Court Judge as soon as possible. She knew I was shortly to start a three-week sitting here in Birmingham from 13^th February. I agreed to slot the case into my list on my first afternoon in Birmingham for consideration of the future conduct of the case. Our email correspondence can be made available to all the parties if they have any interest in it- we did not discuss the case at all.
13. These two very little children, on all the evidence, were living with the grandmother for some considerable time. They speak no English. They have been with the same foster carer since 20^th December but are, by all accounts, extremely distressed and bewildered. I take these concerns extremely seriously and I have expressed my worry about the children, and my anxiety to manage and conclude this case as soon as possible.
14. The grandmother has attended all hearings before me with a friend of the mother, Mr Z, assisted by Mr M, the interpreter, provided through the local authority, and has been represented since an early stage in the proceedings. The mother is now separately represented although not present. The father has played no part. The children are represented and have a guardian assiduous in promoting their welfare.
15. When the matter came before me on 13^th February, I expressed the view that there is jurisdiction under BIIR Article 20 for the court to make orders as 'protective measures' about which there can be no controversy. Having considered this issue before, my view is that in contrast to a case where children are habitually resident in a Brussels territory, there is no duty on or power in this court to declare that it has no jurisdiction under Article 17 and no duty to transfer the case under Article 15, as these provisions only apply where the children are habitually resident in a Brussels territory. In my view the reasoning in the pre-Brussels cases Re R (Care Orders: Jurisdiction) [1995] 1FLR 711 -Singer J- , and in Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 - Hale J (as she then was) -remain applicable. If that is right, in principle this court has power not only to have jurisdiction to proceed to make a final care order based on the children's presence (see Part 1 Family Law Act 1986). After all the court may not know where the child originates. But it has not been necessary to decide this or to hear argument at this stage.
16. Namibia is not, of course, a Brussels territory (and not indeed a signatory to the Hague Abduction Convention). My view is that the court must consider whether the case should be transferred to the state of habitual residence under the principle of forum conveniens – convenient forum - in which the children's interests are an important factor, as is the relative advantage of investigating the case there or here, and the principle of comity - respect for another jurisdiction's legal process. But whatever this court's power to hear care proceedings to their conclusion the court should consider at the earliest opportunity whether children brought here for a temporary purpose should be returned to the country of their habitual residence, if it is known. In this case even if these children were brought here for some illegal purpose it was unlikely to be in their interests to remain and be placed for adoption here in this country, particularly, as it seemed in terms of the children's background that this was a Namibian case through and through.
17. I expressed my anxiety not to allow any drift in this case and listed it for Friday 17^th February with the co-operation of all counsel. I was told that the Competent Authority's case was that it is the only body permitted to or in a position to make enquiries as to the underlying facts. I directed that the Competent Authority should attend the next hearing on 17^th February, by video link if necessary, with a view to trying to achieve at least some degree of resolution even if final resolution were not possible. I did not join it at that stage not having received any representations.
18. I also asked that there be communication with the Namibian High Commission, in order for that body to assist me as to what relevant information they could give me, what their view is as to my jurisdiction to make decisions which might conflict with theirs, and how they might wish to intervene. I invited its attendance at the 17^th February hearing with representation. It did not attend, but the Namibian Attorney-General has written to the court expressing the view on evidence from that country that these children are indeed Namibian nationals and that that State seeks their return, although it is recognised that I have jurisdiction at least to provide interim protective measures.
19. By 17^th February all had agreed that the children's interests required them to return to Namibia but the issue was what investigations need to take place here, and on what basis they would return, i.e. with the grandmother or not. Miss Gallagher of the Competent Authority attended by video link and told me that under the Convention it has duties to protect and assist these children as suspected victims of trafficking pursuant to important and significant international obligations and that I should be very cautious before I interfered. She had only been considering this case for a few days and was just about to allocate it a case worker.
20. I made an order with Miss Gallagher's consent that additional information should be produced to me today. The issue before me was whether there were reasonable grounds to believe that the children were suffering or are at risk of suffering significant harm from the action or inaction of a parent or guardian, within which concept child trafficking would certainly fall. I wanted, if possible, to bring this case to a conclusion, aiming speedily towards the children's return. As this is an international case in which I perceived that I had obligations of my own not to prolong the retention of another country's citizens for any longer than absolutely necessary, I considered the 26-week limit way too long. Ms Gallagher assured me that all efforts would be made to reach a conclusive grounds decision before the next Family Court hearing, which I listed before me for 1^st and 2^nd March, since fortunately a gap had appeared in my diary. I directed the Competent Authority to attend with representation to assist me as to how to resolve the potential conflict between its and this court's duties and obligation. I was especially concerned (i) whether I could make a decision that the children should be returned to Namibia before the Competent Authority had reached its own conclusive grounds decision (ii) if it had reached a decision different from mine whether that would bind me (iii) how I was to resolve the tension between my statutory duty to conclude these proceedings without delay and in any event within 26 weeks, and any longer timescale sought by the Competent Authority.
21. I am disappointed that by the time of this hearing the Competent Authority has not found itself able to comply with the direction and to have made a conclusive grounds decision.
22. Mr Mandalia has re-emphasised, as did Miss Gallagher at the 17^th February hearing, that the Home Office has important and significant international obligations and I should be very cautious before I interfere with its decision making process. Mr Mandalia accepts that the 'reasonable grounds' decision and the 'conclusive grounds' decision are not precisely to be equated with the task of a judge sitting in the civil jurisdiction to make a finding of fact pursuant to any particular process or provision which, of course, would also be governed by the duty to apply the civil burden and standard of proof, or indeed any other interim 'reasonable grounds' approach such as is provided by section 38 of the Children Act 1989. He accepts that I am not bound by any decision of the Competent Authority. He submitted however that for me to make a return order simply based on this court's welfare evaluation would place the Secretary of State in clear breach of her protective or operational duty under Article 4 as it would deprive her of the opportunity to take a conclusive grounds decision where the threshold for inquiry has already been met by a 'reasonable grounds' decision.
23. Before this hearing commenced before me yesterday, 1^st March 2017, Mr Mandalia had submitted to me a skeleton argument indicating what enquiries had been made and that some of them were not complete, and the Competent Authority's position, not only legally but factually. He also submitted a position statement prepared by the Authority as to the enquiries made and projected, with much of the material obscured in black ink. However, Mr Mandalia has explained to the court the subject matter of what is excised. I have seen, with the agreement of counsel, an unredacted version which I can confirm reflects what I was told by Mr Mandalia apart from one area of enquiry perhaps more sensitive to which he did not refer and to which it is not necessary for me to refer,
24. Mr Mandalia submits that there need to be more enquiries stressing again the importance, gravity, and seriousness of the Competent Authority's duties. He asked for more time to reach the conclusive grounds decision. This application is strongly resisted by all the parties. Their position is that further enquiry is unnecessary, unjustified; and to permit it will create further delay in the lives of these children which is not strictly unlawful pursuant to section 1(5) of the Children Act 1989, but certainly is presumed to be harmful. Initially I was unsympathetic to Mr Mandalia's submission.
25. It is also submitted that the Competent Authority has not acted with the focus and speed which I had required. The Namibian passports have been held by the Border Force since the family arrived. It is a matter of considerable disquiet that the Home Office did not despatch those passports to the Court until two days ago, nor provide copies. The passports have not gone missing but have been sent to a venue from which they have had to go to another venue to be collected. Mr Mandalia makes the point that all documents despatched between various departments of the Home Office are subject to very significant security vetting. That should have been thought of last week. So I do not have them. It seems also that the case allocation may have in the event been more leisurely than I envisaged.
26. If the non-production of the passports was a standalone issue I would not even begin to be attracted by the idea of an adjournment. The information that I have from Namibia, and I see no reason to doubt the grandmother's evidence in this respect, is that the children's Namibian passports were issued on 15^th December 2016. I have no evidence to suggest that they have previously had Namibian passports. The children, at that point, had been living in Namibia for 15 months or so. The Canadian passports are more of a problem for two reasons. Firstly, they are not recoverable by the grandmother. She tells me that they are locked up in her house in Namibia, and she has no way of retrieving them. I have photocopies of their front pages with passport numbers. They appear genuine and to relate to these children. However, one of the matters which the Home Office is pursuing through the Canadian authorities, although, again somewhat late, is whether there are records of entries and exits from Canada which may be relevant in respect of child trafficking. I accept that there is important material still to come particularly from abroad and however much judicial requests for information may assist the court has no powers to compel its production.
27. I formed the view that I needed, when considering the application, to adjourn to make some evaluation of whether there is a 'credible suspicion' that these children were being trafficked and that I needed to hear at least some evidence from the grandmother to form an evaluation as to the risks and whether the grounds for any intervention were met.
28. I have to consider whether these children should remain in this country while investigations proceed and if so whether they should remain in care or be reunited with their grandmother. My duty as the starting point is, first of all, to consider section 31 and/or section 38 which covers a wider ground than the trafficking Convention. There may be many facts or factors which cause me either on an interim 'reasonable grounds' or a final basis to conclude that there is reason to believe that the significant harm test is satisfied to the civil standard. The compass of section 31 is wide.
29. Furthermore, Mr Bainham, who today acts on behalf of the children through their guardian, submits to me, I find rightly, that in order to justify an interim care order, a court not only has to be satisfied that the child's safety demands removal into care, but that the court must continue to be satisfied that the child's safety demands intervention in order to continue with that placement, see B v LB and RB [2009] EWCA Civ 1254.
30. My review of the written material and the grandmother's evidence leads me to the following conclusions.
31. I was told by Miss Meachin, who appears on behalf of the local authority, that contact with Canada and Namibia had almost entirely allayed the suspicions and concerns about the identity of the grandmother and the children. Anxiety remains that these children were brought to this country for some illegal, or at any rate, non-welfare based purpose.
32. Assuming that the information before me is correct, these children, born in Canada to a mother and a father of Namibian origin, have been looked after by a woman said to be their grandmother and accepted to be so by the Namibian authorities, for well over a year with the consent of their parents. I was not in a position to be satisfied with this at that first hearing, but I am satisfied now that I have seen compelling documents, which seem to be reliable, demonstrating that the grandmother has been granted what we would call a custody or a guardianship order made by the Namibian court in early December 2016.
33. Accordingly, the grandmother can be demonstrated, probably conclusively, to have a Namibian order granting her what we would term parental responsibility, and grounds have to be properly established for interfering with that in care proceedings.
34. I have reasonably clear evidence as to the position of the Canadian authorities. As far as they are concerned, these children were lawfully removed with their parents' consent from the Canadian jurisdiction and have been placed with their Namibian grandmother. The Canadian authorities see no scope for Hague or other proceedings to compel their return to Canada. Furthermore, enquiries in Canada reveal no anxiety about the children apart from an occasion when one of the children was in a car without wearing a child seatbelt.
35. Mr Mandalia submitted that the children's birth certificates appeared to contain a discrepancy as to where the children were born. I am satisfied that that was an unhelpful misreading of the birth certificates which plainly refer to the children's place of birth as Canada and the parents' respective place of birth as Namibia, a mistake which, Miss De Freitas says with considerable force, indicates a degree of over-reaction, over-suspicion, and misinterpretation.
36. There are some discrepancies in respect of the date of birth of mother and the grandmother. One document has a different date of birth. The grandmother has explained that that was a mistake. Miss De Freitas says that this happens in third world countries. Namibia may or may not be classed as such, as its correspondence and documents give the strong impression of its having a strong infrastructure, a robust, highly effective welfare system, and a legal code comparable to ours in respect of the protection of children, but I take the point that nonetheless this discrepancy in isolation may not much matter.
37. There were other discrepancies. A social worker investigated the grandmother's application for guardianship of the children in Namibia. The report says that the grandmother said that one of her daughters (she has a number of children) is living in the UK. The grandmother told me in evidence that she did not say this. I find this a very peculiar thing for a social worker to have made a mistake about or misunderstood, or to have invented. The grandmother's daughter is in England, as she now accepts, although she says that she did not know it at the time. She says that she presently has no contact with her. This is a peculiar and unbelievable account. Mr Mandalia submits that suppression of such information may support an inference that the children's entry had an immigration motive, such as to provide them with a home here with relatives upon which their parents, or others, might rely to gain residence in this country.
38. Mother and grandmother have both been served with a series of questions by the Home Office. The mother's response has not been as full or as helpful as I would have wished. I find it difficult to understand this reticence particularly in respect of her own immigration status in Canada, employment, and other details. In fact, I would have thought that bearing in mind the predicament that her children find themselves in in this jurisdiction, she would have bent over backwards to be helpful. In contrast, the grandmother has provided a lot of information through her solicitors, for which I am grateful.
39. Enquiries as to the identity of the woman said to be a friend of the mother who brought the children from Canada to Namibia will prove difficult. The grandmother says she does not know the identity of this lady whom she met only briefly when retrieving the children from the airport when brought in. The mother says through Miss Tierney that she has asked the lady involved for her details, she has refused, and she, the mother, may be at risk of some form of criminal prosecution if she discloses her identity without consent. What criminal provision that might be and operative in which jurisdiction I do not know, and I find this an unhelpful and evasive account.
40. I accept, looking at this family and their African background, that little or, in fact, no adverse inference can be drawn against the adults by the placement of the children with their grandmother. It is, I am told, and I know from experience, a tradition in African communities. I have come across such arrangements on many occasions. Grandparents look after their grandchildren and not just in Africa, particularly in order to assist their own children to work. The tradition of children remaining in their home country whilst their parents work abroad is perhaps not so common here but is likely to be consequent upon the need of aspirant young people to pursue their own careers for economic reasons. So I draw no conclusions from the fact that these children were placed with their grandmother. Although many parents might not have had their children transported trans-Atlantically as young as the age of 8 months and 2½ years to a new home with a grandmother whom they had never met, this may have been considered acceptable. Sometimes needs prevail, although perhaps it was not ideal. The mother's case is that the lady who assisted her knew the children well. The grandmother says that she had had frequent contact with the children by telephone and Skype and I see no reason to disbelieve that. The grandmother says that it was far more sensible for this lady to bring the children over than for her to go to Canada to collect them. The question of why she did not know who she was is another matter.
41. As Miss De Freitas submits, the grandmother's reaction to the idea that she might be a human trafficker was immediate denial, and she appeared very spontaneous in her evidence, and became very emotional. There was nothing inconsistent in her demeanour with what she was saying. However, that is not conclusive. I can draw no conclusions on other disputed evidence such as the condition of the children on arrival, or the documentation relating to the other child.
42. The mother, notwithstanding that she has relinquished what appears to be her day to day parental rights in respect of the children, has not done so in a way which would fall within our concept of a special guardianship order. The grandmother's case is that she continues to maintain her and the children to quite a significant degree, certainly in Namibian terms, at several hundred pounds a month, although the grandmother is not able to tell me what the mother does, how much she earns, and the mother has declined to do so as well. The grandmother says that the mother is essentially in charge of decisions even at a distance. That is not unusual in this kind of case either, but where she gets her funds from is another matter.
43. I accept that there is evidence as to the genuine relationship between the grandmother and the children and that it appears immeasurably stronger today than it did than when they were removed. The children are evidently deeply attached to her, place confidence in her, have been desperate to see her, and are distressed at her absence. In that context there was concern when the children were originally stopped at the airport and placed in foster care that they were showing such distress when being touched and toileted that anxiety arose about what experiences they may have had. The evidence about that is far from conclusive although I am advised by all that it appears that the children are deeply traumatised by some experience. However, for good reason or bad, they have had a number of changes and that may be important.
44. Miss De Freitas makes the submission that the grandmother's evidence was frank, open, consistent, and highly credible. The guardian made that submission to me too, although that is a matter not strictly for the guardian. The Local Authority says that there is now nothing in the evidence which gives rise to concern and Miss Tierney on behalf of the mother makes that submission too. It is therefore important for me to analyse what it was that the grandmother said to me was her intention in coming to this country. The burden of proof remains on the Local Authority even if they are reluctant to continue the proceedings under the Children Act. I cannot ignore either the Competent Authority's 'reasonable grounds' decision and the test of 'credible suspicion' in deciding whether the children should remain here for further enquiries to be made.
45. The chronology is, in my view, quite important. The application for guardianship to the Ministry of Child Welfare in respect of the children was issued fairly shortly after the children's arrival. It took a long time to process notwithstanding that the mother and the father gave their written consent for transferring guardianship, and there was a letter from the social worker, who had been very much involved in the assessment and made a number of visits, recommending that the children were in need of care. The arrangements were made for the children to travel here before the order was issued. The grandmother says that the flights were booked before that too and she had to press for the order because of the imminence of the trip. I have no explanation for its urgency, if it was trip for a holiday, or why the children's mother, who was paying, thought the trip beneficial.
46. The grandmother says that she had wished to travel to a different country for a long time. She refers to a wish to go to Swakopmund, a resort in Namibia. She says in her statement that she wanted to go on an aeroplane and had never flown. So London was chosen instead, but for reasons I have not been given and I do not understand. The grandmother speaks very limited English even though she did seem to me in evidence to understand some things that were said, and she appeared able to read some English when she looked at documents. But I would doubt very much that she was competent to travel around the United Kingdom on her own and she does not suggest that she is.
47. She has, she says, no known contacts here because she did not realise that her other daughter was here. When asked what she intended to do in England, she was completely unable to help me. She had booked a fortnight in a hotel in Birmingham. The reason for coming to Birmingham was that that was the cheapest flight and that may be so. She reserved the room using a debit card, the details of which she gave to the hotel. She said in her statement that she had not intended to spend two weeks in Birmingham but to travel around the country. She was not able to tell me any destination to which she was intending to travel apart from London. She was not able to name any sight that she wished to see, either in London or outside London. She was not able to say how much it would cost, or indeed how long the journey would be, although it would be relevant to these very little children, one of whom was still in nappies. She was able to say that she would go by coach or train, but not what she would do with them in the middle of winter, particularly when places were not open over Christmas. She was not able to say what she thought the children might get out of it and what she was going to do with them on Christmas Day, how they were going to celebrate Christmas, how she might secure an hotel room or bed and breakfast accommodation in London over the Christmas period bearing in mind that she arrived five days before the Christmas celebration itself, or any other detail which any other person would have been expected to be able to give had this trip been genuine. It is not a case, as Miss De Freitas submits, of this being an unwise trip taken with insufficient preparation. Her story was, I am afraid to say, just simply nonsense.
48. I have asked myself how far I am able to go today in making findings of fact and that may also inform my decision as to whether I should make a final decision today. I am satisfied, on the evidence, that I have not been told the truth by the grandmother as to her intention in bringing these two small children here. I give myself a Lucas direction (Re R v Lucas [1981] QB 720) that not all lies are to be considered relevant to the subject matter of the enquiry. People lie for many reasons. They may do so to protect others, to protect themselves, out of embarrassment, and so on.
49. The lies here go directly to the subject of this enquiry and therefore they are of particular importance. The grandmother may well be trying to protect others. I cannot make this finding but it certainly seems to me possible and, indeed, almost inevitable in a case where children are brought here for an improper purpose of one type or another, that there are others in the background managing, controlling, supporting and supplying.
50. The grandmother says that she has been supported by her daughter who paid for this trip. The cost of the flights for the three of them there and back was about £2,000. She arrived, as I say, with insufficient money for them to survive, even though the two little children probably do not eat or cost very much, but she says her daughter was going to send her money orders. She says her daughter has been supporting her to a fairly high level. It is all untraceable through her bank accounts because her daughter provides the funding by money transfer. I have no idea whether the source of the money was truly her daughter or not and whether her daughter was able to afford these kinds of sums, or was going to provide them. This uncorroborated account does not assist me in assessing her veracity.
51. Miss De Freitas submits to me that she was the lawful guardian of these children. She had documents to prove it and this is entirely supportive of the fact that this was a legitimate journey for the purposes of a holiday. I understand that submission but I do not find it possible to adopt it. A person bringing in children knowing that it was not for the ostensible purpose described would of course equip themselves with documents. She would not have been able to gain entry otherwise. It cuts both ways. It does not establish what Miss De Freitas says it does.
52. As I find that I have been lied to about the intended purpose of the children's journey here, which is crucial, then I cannot accept the grandmother's account with regard to duration, its innocence, and what was intended. There are other surrounding circumstances set out in the local authority original case about which I have heard no evidence and on which I would not form any conclusions, but which, if proved, are wholly consistent with my finding. It follows that there is a credible suspicion that the children have been brought in to be in some way trafficked. For the purposes of the Children Act 1989, they are at risk of significant harm as there are reasonable grounds to believe that they have been brought in for an unlawful purpose which is not in their interests.
53. I am going to stand back a moment and look at my role and duty in this case. It has been submitted to me that I should make a final decision today, discharge the interim care order, and place the children with the grandmother with a view to a speedy return to Namibia when she is able to achieve that. It is suggested that this might possibly be backed up by a supervision order in the interim period. Solihull goes further and submits that notwithstanding its initial grounds for taking these children into care and starting proceedings, the section 31 threshold is not crossed and that I should either discharge these proceedings (I comment that I would probably not be able to do that at this stage) or at least permit them to withdraw or reach a final decision that the threshold is not crossed. The other parties accept and welcome that decision and ask me to acknowledge and reflect it. The parties recognise that now these proceedings have started, it is a matter for me, not for the Local Authority, as to whether these proceedings should be withdrawn.
54. Mr Mandalia submits to me that it is too early to take that decision. Probably these children should go back to Namibia, but in whose care and under what safeguards is crucial. Once they leave this country, probably even once they are through the immigration gate, it is entirely a matter for the grandmother as to where they are taken. The authority would then be in breach of its obligations under the Convention if it did not recognise that for these children to be introduced again for improper purposes to a EU or other country would be a dereliction of its, and the court's, duties under this international instrument. He submits to me, and this echoes a point I raised with counsel at one of the earlier hearings, that there is a difference between leaving the grandmother at liberty to do what she wishes with the children, on the basis that she presents no risk, and returning them to Namibia with the Namibian authorities fully advised of the concerns and with this court being aware of what steps they intend to take.
55. I would not, of course, dictate to the Namibian authorities what they should do which would be improper and outside my powers, but I might have to be satisfied as to what Namibia intends to do before I took the final decision as to when and how to return these children.
56. As a result of the evidence and my findings I cannot, at the moment, order the children to return to Namibia with their grandmother notwithstanding that many of the points which led these proceedings to be commenced can no longer be relied upon. It is not in their interests until risks are further evaluated. It would also pre-empt the further enquiry which I find to be necessary. I accept also that the Competent Authority is in a position which the court, local and authority and guardian are not, to carry out those enquiries.
57. Mr Mandalia accepts that it is sufficient for the purposes of the Competent Authority's enquiry that the children should remain in this country.
58. I cannot adopt the fall-back position of the parties that the interim care order should be discharged and the children be reunited with their grandmother. Although my finding has had to be non-specific as to the purpose for which the children were brought here, I cannot take the risk of placing them with their grandmother at the moment.
59. If there has been a harmful purpose, actual trafficking or not, in bringing the children in, I cannot take the risk of them being removed outside the jurisdiction, and court orders will not protect against that eventuality. Tipstaff orders (which I make often) are not a 100 percent failsafe. Furthermore, the absence of the Canadian passports means that any passport order or port-stop I make will be ineffective. All it would take is for the passports to be sent by courier service or post and the order would be undone. The passports may be here already. Also, there must be a real suspicion, if not higher in this case, that there lies behind these events some highly experienced person who could arrange for the children to be spirited out of the jurisdiction by one or other method which I know to be possible, although will not describe for obvious reasons.
60. There must be a chance, depending on decisions as to the law or fact, perhaps not a high one, I really am unable to tell, that it will not be possible to reunite these children with their grandmother swiftly or in the longer term. Therefore, it would wholly pre-empt my decision to reunite them now on an interim basis. I know the guardian disagrees with me but as a matter of common sense, for the children to be cared for by someone, whatever their blood relationship, who has been their sole mother figure for well over a year, and for that to be disrupted again, is likely to be devastatingly harmful.
61. The findings that I have reached make it entirely possible that I will have to consider a whole range of outcomes although I stress that I would like, in these children's interests, to be able to restore to them as much of their old life as I can and as quickly as possible.
62. Mr Mandalia has submitted to me that something may emerge from the further enquiries. I do not think this is simply a fishing expedition. I have to bear in mind that the Competent Authority is an experienced organisation and knows what it is looking for and I do not think I can discount its experience, expertise and knowledge. Furthermore, I need to have a clear understanding from the Namibian authorities of how these children can be protected on returning to Namibia and what that jurisdiction's intentions would be. It would be helpful to try to achieve that through the local authority and the Competent Authority, and possibly the guardian.
63. It follows also from my findings so far that I decline to accede to Miss Meachin's submission that I should give permission for these proceedings to be withdrawn. They still have a constructive purpose, in my view, and my findings more than satisfy the threshold criteria on an interim basis. However, in order to dispose of this case as best I can in compliance with the welfare of these children, I need more understanding, if possible by the time of the next hearing which I intend to convene on 14 March.
64. Mr Mandalia has submitted to me that it might not be possible for the Competent Authority to reach a final decision by then. I find that a gloomy prospect and I would need compelling reasons to adjourn this case again.
65. I said at the previous hearing that I was prepared to make a finding with regard to the relationship between grandmother and grandchildren in the sense of her being their blood relation on the basis that the Namibian documents appear to accept her as grandmother, and the observations of her closeness to the children. In the light of the evidence now, I am not sure I can go that far. I would be assisted, in spite of what I said on the last occasion, by DNA testing of her and the children and an evaluation of the children's genetic relationship to one another. I am reminded of the anxieties expressed at the outset of this case which suggested that the children had been treated differently and therefore might not be related.
66. The purpose of this adjournment is not just to permit further enquiries, which I do not intend to fetter in any way – it must be a matter for that body - but a vital opportunity for stock to be taken of the impact of my findings by the local authority and the guardian who are charged with advising me as to these children's interests, in conjunction with Namibia. We shall reconvene on 15^th March here in Birmingham.

Postscript- following hearing 15^th March 2017

67. DNA tests have now established to a very high degree of probability (over 99%) that these individuals are grandmother and grandchildren and that the boys are full siblings. I am satisfied as to the identities of all, their relationship to one another, and the validity of the documentation which establishes that the grandmother is their legal guardian. The order will so record.
68. The Competent Authority has made its conclusive grounds decisions, communicated to the court on 14 March, which were negative in respect of both children since it was not established that they had been brought here for the purpose of exploitation. Further enquiries elicited that there was other information from Namibia about the family which may be relevant, and that there are other family members in this country whose existence and whereabouts had not been disclosed, which all adds to the suspicions arising from the Namibian social worker's report, and the grandmother's reaction to it, and from other evidence, that the children were brought here to be placed with a family member. I see no utility in this court investigating this.
69. The Competent Authority's decision brings to an end this court's role in respect of these children, in the context of what I now know. It is now for Namibia to make enquiries and to intervene if it wishes. I would probably now return the children whatever the arrangements in their home country. I record however that I now have some highly impressive material from Namibia. I doubt whether this jurisdiction could do as well in the time available. The Namibian authorities are taking this case seriously and will investigate. They have assessed another family member who may be able to foster these children if the grandmother is found to be unsuitable. They will meet the family at the airport on arrival.
70. Any further investigation must be for the Namibian court, which I am quite satisfied is more than competent to decide whether it is necessary and if so what form it shall take.
71. I cannot go so far to say that the threshold is not met in this case on a final basis. It is unnecessary for me to carry out an assessment and it must be for Namibia to apply its own welfare /harm test if it thinks fit.
72. The grandmother has been stranded here and it may be difficult for her to house and maintain these children for the intervening time until they can all go home, likely to be no more than two or three days, quite apart from the risk that they will be removed somewhere else or otherwise go to ground. The children will remain in interim care and the easiest thing is for them all to be reunited at the airport for departure. There must be good contact in the meantime.
73. I see no reason to revisit my interim findings. Namibia must decide what weight if any to give them.
74. I shall provide for the Namibian authorities to have the court documents and this judgment and they are at liberty to apply to Birmingham Civil Justice Centre for any part of the transcript of the hearing that they require.
75. I have approached this case on the basis that Mr Mandalia is right that this court should not return the children while the Competent Authority is considering its decision and I have not formally ruled on it. I took a series of pragmatic decisions in order to progress this case as best I could. When first adjourning this case I had expressed the view that if I were to take a precipitate decision an appeal or judicial review (whether the latter remedy is available in respect of a decision of the Family Court might be contentious) might be brought. Mr Mandalia confirmed to me such might be contemplated. Such processes would have risked greater delay in reaching a determination as to what was to happen to the children.
76. I am satisfied that this type of investigation must be progressed with the utmost speed in accordance with the duties placed on the Competent Authority and the court should endeavour to facilitate communication and engage in as much decision making as it can at the earliest opportunity.
77. I am grateful for the co-operation of all legal representatives and also to the interpreter and to the friend who provided transport, support and explanation when needed.
[Judgment ends]