X, Re

In determining a child’s future, welfare remains the paramount consideration. In an international case the court must assess welfare in the light of the child’s country of origin, culture and the relevant foreign welfare framework, without applying a presumption that return is required. Origin and culture may provide a starting point, but the outcome depends on the circumstances of the individual child.

Public policy, comity, the attitude of the country of origin, dishonesty, subterfuge, immigration consequences and risks arising from unlawful removal are relevant welfare factors. They cannot displace welfare or operate as punishment or deterrence. The court must conduct an intellectually rigorous evaluation and balance all relevant considerations. Here, the cumulative welfare considerations required permanency in Kenya, with adoption preferred and long-term fostering as the alternative.

X was a Kenyan child brought to the United Kingdom in July 2006 by means involving false documents, deception of immigration authorities and breaches of Kenyan and English law. She lived with Z and Y until the local authority removed her into foster care in May 2007.

The local authority sought a care order. The Government of the Republic of Kenya sought, under the inherent jurisdiction, X’s return to Kenya. Y and Z sought an adoption order. The central issue was whether X’s welfare required her to remain with Y and Z or to achieve permanency in Kenya under the Kenyan Government’s revised care plan.

1. Welfare and international context. X’s welfare was paramount under the Children Act 1989 and the Adoption and Children Act 2002. The court had to consider welfare throughout her life. Because X was Kenyan, the assessment could not be conducted from a purely English perspective. Kenyan concepts of welfare, her ethnic and cultural background, the Kenyan statutory framework and the views of the Kenyan Government were relevant.
2. No presumption of return. It was a convenient starting point that, other things being equal, a child should live in her country of origin and culture. That was only an initial assumption, not a legal presumption. Nor was there any warrant for applying Hague Convention principles by analogy to Kenya, which was not a party to the Convention on International Child Abduction.
3. Public policy and unlawful conduct. Public policy, comity, the attitude of the country of origin, dishonesty, subterfuge, immigration insecurity and the possible consequences of extradition were relevant to welfare. They were not paramount and could not be used to punish the prospective adopters or deter others. The decisive question remained where the best interests of this child lay.
4. Assessment of Y and Z. Good day-to-day care and a strong attachment were powerful factors in favour of placement with Y and Z. However, their deliberate illegal conduct, continuing lack of frankness, failure to prioritise X’s safety and needs, lack of insight into possible future resentment, inability to provide a reliable account of her history, and the real risks and stresses of extradition cumulatively outweighed those factors. Persistent and unacknowledged lying did not automatically disqualify a carer, but its implications for future care were highly material.
5. Kenyan plan and orders. The court had confidence in the Kenyan Government’s revised plan, including careful transition arrangements, professional involvement, adoption as the preferred outcome and long-term fostering if adoption proved impossible. The threshold for a care order was established. Further psychological assessments of Y and Z were unnecessary and would cause unacceptable delay. Y and Z were ruled out as future carers; the Kenyan and local authority care plans were approved; the adoption application was dismissed; and an interim care order to the local authority was made while X remained in England. The English court and guardian were to remain actively involved until X left for Kenya.

First-instance decision. No appeal is stated in the judgment.