If an application for registration and/ or Unconditional Landing is refused, there are two alternative options. The first is that D leaves and then returns to Jamaica under successive visitor's visas. That would be a short term solution only: if attempted too many times, re-entry is likely to be refused (Ms Cummings gave an example of an adult client who was turned away at the border after spending several successive six-month periods in Jamaica as a visitor). It might however offer a "bridge" until a more permanent solution is achieved.
The other option to secure D's right to remain in Jamaica is a student visa. Such a visa would be relatively straightforward to obtain once D is enrolled in school, but she is not yet two and it is not clear whether a place in "basic school" (the equivalent of nursery, open to children aged three) would qualify her for a student visa or whether this would have to wait until she starts primary school at five. Once granted, the expectation would be that the visa would last throughout D's education, that is until the age of 18 or longer if she attends university in Jamaica.
In the longer term, provided that D is able to remain in Jamaica throughout her minority, the prospects of her obtaining Jamaican citizenship are good. She will be eligible to apply for naturalisation once she reaches the age of 18, provided that by then she has lived in the country for at least five years. She will retain her British citizenship; both the UK and Jamaica permit dual nationality.
Having reviewed the evidence on this issue, I conclude as follows.
This is not a case where there is any guarantee that D's immigration status will be secured within a short period of her arrival in Jamaica. It may be a lengthy and complex process. There is a risk that one or both applications (for registration as a Jamaican citizen, or for Unconditional Landing) will be refused. At best this will lead to a period of uncertainty and stress for D's carers and at worst it is possible, although I hope unlikely, that she will be deported.
There are, however, a number of grounds on which the court can be cautiously optimistic about the viability of this option.
Ms Chambers, whose expert opinion was positive in terms of the prospects of D being permitted to remain in Jamaica, and ultimately to achieve Jamaican citizenship, works within the CPFSA and closely with PICA. These are the two agencies which will be charged with making recommendations and decisions for D. To the extent that any decisions involve the exercise of discretion, it is clear that the CPFSA will be prepared to lend its support to the application.
This local authority has worked tirelessly to achieve a placement for D in Jamaica. In the months leading up to the final hearing the local authority exchanged emails with staff at both PICA and the CPFSA about D's situation, and this led to a meeting in July which was attended by the social work team, the local authority solicitor, Ms Chambers and the Director of the CPFSA. The outcome of that meeting was a consensus that the proposed placement should be supported. The working relationships that the local authority has made with relevant personnel in Jamaica, together with the local authority's commitment to provide D with an allocated social worker until her status in Jamaica is secured, are likely to assist if difficulties arise along the way.
Once a special guardianship order is made in this jurisdiction, D will have no other carer available to look after her, other than Ms L. If Unconditional Landing (or another secure status) is refused, her situation will be precarious in the extreme. That distinguishes her from some of the other cases, involving adults, which Ms Cummings referred to in her evidence and will, I hope, improve the prospects of a successful application.
Welfare evaluation
The legal issues surrounding D's placement and immigration status in Jamaica are, of course, only part of the picture. I must be satisfied that the outcome for D is in her best interests, taking into account her welfare throughout her life. I have regard to the welfare checklist in ACA 2002, s1(4).
Despite her mother's lifestyle during pregnancy, and the fact that the mother tested positive for both cannabis and cocaine on D's birth, D is developing well and meeting all her milestones. There may be some future impact of her exposure to drugs in utero, but at present she does not have any identified additional needs.
D is a young baby who has spent almost all of her life in foster care. She has built good attachments to her carers, but I note that they travelled abroad for an extended period recently and as a result D spent a period of time in respite care. That underlines the limitations of foster care for a child of this age and the importance of identifying, sooner rather than later, the permanent family with whom D will grow up and the carers who will become her primary attachment figures. For that reason, although some delay in achieving her permanent placement is inevitable, this should be minimised.
D's early experience of removal from her mother's care, and the fact that she will experience a change of placement and the disruption that comes with that, means that the court has a particular responsibility to satisfy itself as to the stability of her future living arrangements. If the placement in Jamaica were to fail, either because of immigration difficulties or for other reasons, that would be disastrous for her.
D is a British child with mixed, part-European heritage. She has no genetic or cultural links to Jamaica. According to Ms Cummings, 92% of the population of Jamaica is of African heritage (although that figure relates to the Island as a whole, and the city where Ms L lives is perhaps likely to be more diverse). D may feel out of place in a community where most people do not share her ethnicity or cultural background.
D has three older half-siblings, two of whom live in country Y and the third, E, in Jamaica. She also has a younger maternal half-sister, F. The outcome in terms of F's care proceedings is not yet known but I note that unlike D, F has an identified father who has put himself forward to care for her, and the local authority's most recent evidence suggests that there may be other potential carers within the paternal family.
D has not yet met any of her siblings, although the local authority is planning to arrange contact with F in the near future. On the evidence currently available to the court, it is E who represents the best chance for D of being brought up with a member of her birth family. Her relationship with him, if they are brought up as siblings within the same household, is likely to become one of her most significant lifelong relationships, and a powerful protective factor against feelings of loss and isolation in later life.
The views of D's mother are important. She has not been able to sustain abstinence for long enough to care for D herself, but she has made the effort to remain engaged with her solicitors and has expressed a clear wish for D to live in Jamaica with E.
Ms L is not related to D but she has put herself forward to claim her and has shown her commitment to the assessment process and to these proceedings over a lengthy period of time. She and her partner asked to be assessed to care for D at an early stage in these proceedings, explaining that they wished to do so because she is E's sister and they are unable to have children of their own; they have been clear throughout that they are willing to offer both children a lifelong commitment. The special guardianship assessment highlights the quality of Ms L's parenting of E, jointly with her partner Mr M. E is, plainly, a treasured child who is the focus of their home; they have high aspirations for him and have developed a warm, loving and confident parenting style.
I have been struck by the fact that Ms L has, at least since I have been allocated this case, attended every hearing in these proceedings, some of which have taken place when it is the middle of the night in Jamaica. She has followed the evidence closely, asked questions and made thoughtful points. This matters for D, who will have to come to terms in the future with the knowledge that her mother was unable to overcome her addiction in order to care for her. For such a child, the knowledge that there was someone in her early years who wanted her enough to come forward and claim her can be a powerful factor supporting the child's sense of identity and self-esteem.
A move to Jamaica would be a big move for D, who has only ever lived in the UK. She is, however, young enough to adjust to the differences in culture and, to an extent, language, and I am confident that she will be able to do so, just as E did before her.
Balancing exercise
The realistic options before the court are adoption in the UK by strangers, and a placement in Jamaica with Ms L and Mr M.
Adoption has a number of advantages in this case. D is a baby girl with no identified additional needs. She is likely to be matched and placed relatively swiftly with a family who will be able to offer her a stable and permanent home. Their capacity to care for her is likely to be very good. The London adoption agencies have a good track record of finding at least a partial match for each child's cultural background so it may well be that D will grow up in a home where her mother's language is spoken.
It is perhaps reasonably likely, although there can be no guarantee, that D's prospective adopters will be open to establishing a relationship between D and E. Prospective adopters these days are encouraged as part of their training to be open to direct contact with their child's birth family, and sibling contact, particularly with a sibling who is in a safe and stable placement, is often welcomed. There are orders the court can make to set the template for sibling contact so that prospective adopters understand the importance the court has placed on this.
The disadvantages of an adoption are the complete severance of D's legal relationships with all of her birth family members, and the likely loss of any meaningful opportunity to build a relationship with her mother, her only relative in this jurisdiction, for the foreseeable future. D will grow up with a family who are not biologically related to her and as a result she may well feel a sense of dislocation and loss. She may worry about her mother's wellbeing and even whether she is still alive: I suspect that the mother may struggle to maintain regular communications with an adoptive family, who will be understandably wary about the risks she poses, and life story work may be difficult. Adoptive placements do sometimes come under strain, particularly when children reach adolescence and start to question aspects of their history and the decisions made for them when they were too young to have any influence on those decisions themselves. In the worst-case scenario, the adoption may break down.
The main advantage of a placement with Ms L is that D will grow up with a sibling, and this is likely to foster her understanding of who she is and to provide her with a sense of belonging. Her legal relationships with her birth family will remain intact and she will have the opportunity to develop these as she gets older. As well as her lifelong relationship with E, D may be able to meet and form relationships with her two adult half-brothers. Although the mother has not been consistent in maintaining indirect contact with E (the plan was for regular video calls, but the mother does not always attend) a direct channel of communication has been established, and if her circumstances improve the mother may be able to resume more regular contact with both children.
A further advantage of this proposal is the high standard of care which Ms L and Mr M are able to offer D, and the considerable level of commitment which they have shown to this potential placement. They have worked hard to give E a positive sense of his background and identity, and the assessing ISW was confident that they would ensure that D also feels that she is loved and a valued member of the immediate and extended family.
The disadvantages of a placement with Ms L are, first, the uncertainty around D's immigration status and the risk that she may not be granted permanent leave to remain in Jamaica. Although the likelihood of D being deported is probably quite small, the consequences of this would be catastrophic. A further disadvantage is that D will grow up in a country and a culture that is quite far removed from that of her mother, who is her only identified parent. She may feel out of place in an environment with which she has only an indirect connection, through the paternal relatives of her half-brother.
Decision
The decision in this case is quite finely balanced.
I acknowledge that a placement in Jamaica carries risks. The likelihood of an immigration application being refused is not as low as I would like, and the consequences of this happening are very serious.
The safer option in the short term is undoubtedly adoption. However that option will take away D's only chance of growing up with a blood relative, a sibling who has the potential to become one of her most significant adult relationships.
I remind myself that I must take a long-term view and consider D's welfare not just now but for many decades into the future. From that perspective I have concluded that the benefits to D of a placement in Jamaica outweigh the risks, which are most acute in the short term but will largely dissipate if, as is hoped, D's legal and immigration status is secured.
For those reasons I approve the plan which the parties jointly put before the court for D to move to Jamaica to live with her brother, Mr M and Ms L.
The local authority has prepared a transition plan under which Ms L and Mr M will travel to the UK, together with E, to meet D before she moves into their care and returns to Jamaica with them. The transition will be fully supported by social workers in both jurisdictions. It is intended that a hearing should be listed at an appropriate point in that process, and a special guardianship order made before D leaves the jurisdiction.
Note 1 Not, strictly speaking, a “visa” because entry is automatic, but both experts used the term as shorthand. [Back]