Category Archives: international

Nothing else will do in the USA

Posted on February 3, 2014 by suesspiciousminds

Readers may be aware that in care proceedings, if it is not possible for a child to live with a parent then a family member is the next best thing. They may also be aware that the Supreme Court and Court of Appeal have been saying in 2013 that in order for a plan of adoption to be approved that the Court must be satisfied that “nothing else will do”

 You might not be aware, unless you happen to have done such a case, that where a family member lives in America, that the only lawful way to get the child INTO America is for the family member to adopt the child. That’s because of the way that the US authorities deal with immigration and visas and such.

 That poses something of a tension between “I want to place with Auntie Beryl, who lives in America” and “adoption is the last resort” because in this situation, adoption is actually the only legal route one can take to get the child placed with Auntie Beryl. 

 

But at the same time, you end up with a substantially more draconian order, one that ends the legal relationship between the birth parents and the child, than you would have countenanced had Auntie Beryl lived in Stoke instead of Tallahassee.

Should you find yourself in that tricky spot, this piece of caselaw will be helpful

 

RO v A Local Authority & Others 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/97.html

 

Exactly that situation arose, and where a Court would normally be looking to place the child with Auntie Beryl under a residence order or Special Guardianship Order, here they have to do so under a regime of adoption, which is now considerably more difficult than it was pre June 2013, when the caselaw shifted radically.

 The Judge approved the plan of placement with the relatives who were living in America, and outlined very carefully the reasons that this could only be done under the auspices of adoption, and thus why the making of a Placement Order was justified. It would stand as a good model for any one seeking to persuade a Court to place with relatives in the USA in future.

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Let’s make habitual residence a bit more complicated

Posted on January 15, 2014 by suesspiciousminds

Because heaven knows, it has always been so simple, and nobody has ever had to argue  in Court about where a person lives.

 The Supreme Court have handed down their decision in LC (Children) No 2 2014.

 

http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_Judgment.pdf

 

There’s a press release which nicely summarises it all  http://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0221_PressSummary.pdf  

 

 

I’ll try to break the facts down very simply.  Not that easy, because if it were, it wouldn’t have reached the Supreme Court.

 

Four children, oldest 13, youngest 5. They lived in England with both parents. The parents relationship broke down and mum moved to Spain with them in July 2012. The children came to stay with dad in England over Christmas 2012 and then did not go back. Mum made applications under Hague Convention for the return of the children. There are claims, strong ones, that the 13 year old in particular did not want to go back to Spain and viewed that she was not living in Spain but had gone there for a while and wanted to stay in England now.

 

[The whole issue is complicated because mother is a Spanish citizen, and the father had himself lived in Spain for a time, and there were certainly strong Spanish connections for the family as a whole]

 

A question that came up was whether the children were habitually resident in Spain (they had moved there with mum and had lived with her there for five months by the time the dispute arose) or in England (where they were physically present, and certainly the oldest child was indicating that she wished to remain), or possibly had no habitual residence.

 

All sorts of things flow from habitual residence. There are not just rafts of caselaw, but ocean-liners of caselaw about habitual residence.

 

What the Supreme Court say it had boiled down to prior to this case was that one looks at habitual residence as being whether there is some degree of social integration of the child in a social and family environment in that place.

 

(That gets rid of the ‘intention’ element which can be problematic, because one can have an intention or desire to live in say, Monaco, without actually being habitually resident there. I’d love to live in Moncao, but unless I actually do something about that desire, I’m not actually resident there)

 

So, on that test, it would have been fairly straightforward that the children’s habitual residence was Spain – they had moved there, they had integrated there and had spent months there.  

 

However, the Supreme Court accepted father’s argument that with a child who has understanding and a view about where she wants to live, such as the 13 year old, the Court ought to take that into account when deciding the factual question of habitual residence.  The Supreme Court also found that the lower Courts were wrong not to have joined the 13 year old as a party.

 

 

 

Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37].

 

 No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37].

 

 

[There was some dispute amongst the Supreme Court Judges as to whether the state of mind of a child is a relevant issue in determining habitual residence for ALL children or only ones that have reached a sort of Gillick-esque competence to weigh things up. Two Judges felt it was relevant to all, but had less weight with younger children, the majority felt it was only applicable to children who had that sort of understanding]

 

So, when looking at whether a child’s particular situation changes the starting point that their habitual residence is with the parent they usually live with, the Supreme Court say that what is to be looked at is

 

 

The Court notes that what can be relevant to whether an older child shares her parent’s habitual residence is not the child’s “wishes”, “views”, “intentions” or “decisions” but her state of mind during the period of her residence with that parent

 

 

They were clear that where a child was of sufficient age and understanding and wished to be joined as a party in circumstances like this, the Court ought to allow it.

 

Having been joined as a party, how are the enquiries into the child’s state of mind to be conducted?

 

 

the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross-examination of the mother by T’s advocate; and the same advocate’s closing submissions on behalf of T should suffice to represent her contribution as a party [55]

 

 

The Supreme Court make it plain that the sort of features of this case, where a child of the right sort of age and understanding leaves one country to go to live in another and then returns for a short time to the first country, whereupon  an issue arises about where she should live in the long-term are very rare, so they are not envisaging quizzing the children in every Hague Convention case about where they see their habitual residence – it is about ensuring that where this becomes a live issue in a case that the child’s position is not ignored.

 

Of course, arguments about habitual residence don’t merely become confined to England and Spain – you can have them about England or Scotland, Cumbria or Cornwall, Stoke or West Bromwich.  It is not that uncommon for families when they break up to have geographical separation between the parents as well as emotional separation.

So much flows from habitual residence and ordinary residence that we probably still have not heard the last of this. I suspect that even now, there are some Local Authorities bickering about who has responsibility for a child who are wondering whether the child’s state of mind might prove to be the vital key.

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This means nothing to me, ahhhhh Vienna

Posted on January 14, 2014 by suesspiciousminds

The decision of the President in Re E (A Child) 2014.   

 http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html

 You may recall from my last blog, which was about Mostyn J’s decision about a Brussels II application, in which Mostyn J posited certain ideas about whether the English Courts needed to be more proactive about alerting foreign EU authorities that the English Courts were dealing with a child who could be said to be a resident of that country rather than England, the case ending up with permission to appeal so that the Court of Appeal could give some general guidance.

 Well, before that appeal comes to pass, the President has given a decision in a case involving a child where the mother was from the Slovak Republic, lived for a time in the UK and then moved back to the Slovak Republic.

 In this case, the Slovak consulate were actively involved in the UK proceedings although were not making any application under BRII to have the proceedings transferred to the Slovak Republic.

 However, the President makes a lot of important remarks within the judgment, which may well be echoed in the Court of Appeal judgment when that case is finally heard – the Court of Appeal might well be quoting and relying upon Re E. Perhaps, as happened quite a bit in 2013, it might be the President himself quoting his own words – he does also sit in the Court of Appeal.

 In saying that, I don’t actually disagree with much if any of what he is saying here

  1. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
  1. In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
  1. It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent: see Re B-S (Children) [2013] EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34. Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.
  1. Before turning to address the three specific issues I have identified, a more general point needs to be made. Its importance cannot be over-stressed.
  1. The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR

The Italian C-section case, together with a raft of cases where the Slovak authorities have intervened, have really highlighted this as an issue. If what is said within this judgment is to be believed, this particular mother’s case is as big a cause-celebre in the Slovak Republic as the C-section case is here.

If one stops being parochial for a moment, every time a British citizen gets arrested for breaking the laws of a foreign country (smuggling drugs, having sex on a beach, calling a teddy bear Mohammed to name but a few) our press gets outraged and demanding that the person be brought back to the UK for trial and punishment, or even set free.  Heck, even when the foreign country is one with whom we have a special relationship, we get twitchy about our citizens being dealt with by a foreign court (google Gary McKinnon if that is leaving you baffled)

So, if you are a person walking around in the Slovak Republic and you hear that a woman who was born in the Slovak Republic and now lives in the Slovak Republic had her child taken off her in England and can’t get the child back, you’d probably be outraged and offended too. Fair enough.

The President points out the dangers of being patrician and parochial and assuming that our justice is better than anyone elses here

  1. In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he characterised as “a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen”. He added that the court “should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.” I profoundly and emphatically agree. That was a case which, as it happened, also involved Slovakia. But the point applies with equal force in relation to every country which is a member of the European Union.
  1. On appeal in the same case, Re K (A Child) [2013] EWCA Civ 895, para 24, Thorpe LJ said that:

“there is a fundamental flaw in [counsel’s] submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State. That is, in my view, impermissible. We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction”.

Again I emphatically agree.

We don’t get too far into the judgment before the President quotes himself (he is always rigorously transparent that he is about to do so, in fairness)

  1. Perhaps I may be permitted in this context to repeat what I said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

“Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.”

The guidance that the President gives about the operation of BRII in care cases generally in the future – subject of course to what the Court of Appeal say   (hint, Ray Winstone is urging me to wedge heavy on them agreeing with this more or less verbatim) is important.  We need to think about this in any case where a parent has come from another European country.

  1. BIIR – future practice in care cases
  1. What of the future?
  1. It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

  1. This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital. Judges must be astute to raise these points even if they have been overlooked by the parties. And where Article 17 applies it is the responsibility of the judge to ensure that the appropriate declaration is made.
  1. As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.

The President then gives some guidance about the Vienna Convention, prefacing this by saying

“Articles 36 and 37 of the Vienna Convention on Consular Relations are probably not very familiar to most family lawyers”

He is quite right

He sets them out in full, so if you want to read them, follow the link at the top.

The gist of them, however, is these three points

  1. I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:

i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.

ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is “detained”; and where a foreign national is detained the “competent authorities” in this country have the obligations referred to in paragraph (b).

iii) Third, Article 37(b) applies whenever a “guardian” is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular “duty” on the “competent authorities” in such a case.

The President then gives general guidance for future cases  (and again, Ray Winstone is telling me that I should lump on that the Court of Appeal will echo these sentiments – he adds that it is an “andsome tickle”)

Underlining mine, because this is pretty dense stuff.

  1. The Vienna Convention – future practice in care cases
  1. What of the future?
  1. I express no views as to the effect of Articles 36 and 37 of the Convention as a matter of either public international law or English domestic law. There is no need for me to do so and it is probably better that I do not. Nor do I take it upon myself to proffer guidance to local authorities, health trusts and other public bodies as to how they should interpret whatever obligations they may have under the Convention. That is a matter for others. What I do, however, need to do is suggest how as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions.
  1. In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a “competent authority”. They should also assume that there is a “detention” within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.
  1. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.
  1. Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

ii) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

iii) Whenever a party, whether an adult or the child, who is a foreign national

a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

b) is detained,

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.

  1. If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision

This is interesting – if one of the parents of the child is from another European country, they should have the ability to share documents and information with official members of that EU State without permission of the English Court and without fear of consequence.

That sounds to me like a good thing, but I do note that in the many changes to the provisions of Family Procedure Rules, English citizens USED to be able to share information and documents from care proceedings with their Councillor or MP and now can’t.  So you have a situation in which European citizens have greater rights in English Courts than English ones.  (anyone got Nigel Farrage’s email address?)

[See Family Procedure Rules 2010 12.75, or the nice handy table in Hershman McFarlane at C2965  – we USED to have provision for a parent to discuss information or disclose documents about their case to their local Councillor or an MP, but it isn’t there any longer. Not that you would necessarily know that]

 

The final issue dealt with in this case was a Reporting Restriction Order application, and the President is forgiven here for quoting himself, since Re J is of course both the leading and transformative case.

Again here, the President says that short of reporting the name of the child or anything that would identify the name of the child anything else is permissible, and the RRO is drafted in that restrictive way.

This goes a little further than Re J however, because of the foreign element, and the existing interest of the foreign press in the story.  (I wonder what was in the President’s mind when he coins the name “The Daily Beast” as a hypothetical newspaper rather than say “The Voice of Reason”)

  1. In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.
  1. On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider’s servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.
  1. Applying this approach, proviso (ii) to paragraph 15 makes clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used. And in relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.
  1. So the mother can publish whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet. The only restriction on the mother’s freedom to publish her story is that she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify E in one or other of the ways referred to in paragraph 15 (including by the use of her married surname).

The obvious thing that occurs to me that in a document written in the Slovak press where none of this is understandable to an English reader can legitimately include the mother’s surname and child’s name.  There can be a mirror story in the UK press which contains a translation of everything but those words. And the UK press can link to the Slovak article.

That is all within the Reporting Restriction Order. The fact that you don’t need to speak the language of the Slovak Republic (sorry Andrew, I’m not even going to try to guess) to quickly work out which bits of the Slovak story give the name of the mother and child seems neither here nor there.

If the headline contains nine words, and there’s a word that follows the mother’s first name (which we know and is allowed to be published in the English print media) you don’t need to be a genius to work out that this word is probably her surname.

In order that nobody inadvertently breaches the RRO, I’ll print it in full here

  1. Reporting restriction order

“1 The applicant is E (“The Child”)

The First Respondent is M (“The Mother”)

The Second Respondent is F (“The Father”)

The Third Respondent is [name] (“The Local Authority”)

The Fourth Respondent is S (“The Maternal Aunt”)

…

9 Upon the making of this order the local authority shall be treated as the Applicant. Any duties an Applicant is expected to meet, shall be met by the local authority.

10 This order binds all persons and all companies or incorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.

Territorial limitation

11 In respect of persons outside England and Wales:

(i) Except as provided in sub paragraph (ii) below, the terms of this order do not affect anyone outside the jurisdiction of this court.

(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:

(a) The first and second respondents and their agents;

(b) Any person who is subject to the jurisdiction of this court;

(c) Any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(d) Any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order;

(e) Any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

Nothing in this paragraph prevents the publication referred to in the proviso at the end of paragraph 15.

Undertakings to the court

…

13 The applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.

IT IS ORDERED THAT:

…

Prohibited publications:

15 Subject to the “territorial limitation” above, this order prohibits the Respondents and any or all other persons from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service of any information, including the mother’s married surname (as set out in Schedule 2) that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1) or the identity, or name or address of his carers (whose details are set out on Schedule 3) or the identity, or name or address of F (whose details are set out in Schedule 2) if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:

(a) A child who is or has been the subject of proceedings under the Children Act 1989 and the Inherent Jurisdiction; and/or

(b) A child who has been removed from the care of his parents; and/or

(c) A child whose contact with his parents has been prohibited or restricted; and/or

(d) A child who has been treated or hospitalised at a psychiatric unit; and/or

(e) A child who has been placed in the care of his maternal aunt; and/or

(f) A child of Slovakian descent;

PROVIDED that nothing in this order prevents:

(i) the publication of the mother’s first name; or

(ii) the publication of anything in the print or the sound or television broadcast media in any country other than England and Wales; or

(iii) the publication of anything on any public computer network, internet website, social networking website, or satellite program service in any other language than English.”

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Brussels Sprouts II – this time it’s jurisdictional

Posted on January 8, 2014 by suesspiciousminds

There haven’t been any posts since Christmas, because there haven’t been any judgments published. That’s sort of the way that a topical law blog works – when the Courts go quiet, I go a bit quiet too.

This one from the High Court, Mostyn J, is not what one could describe as interesting (Brussels II cases are NEVER interesting) but in the context of the biggest child protection story of last year, it might be politically important.  (I was hoping someone else would write it up first, as I had my fill of BRII with all of the Slovak cases last year)

 

Re D (A child) 2013 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4078.html

Brussels II is basically legal shorthand for meaning the mechanism by which the Court in one EU state says to another “Actually, you know that case you’re dealing with – well, we think it ought to come over to us and we’ll deal with it”. It is also important to note that where a BRII application is made, the rules are that it must be determined within six weeks.

You may remember a lot of discussion in the media about the C-section case as to why our courts were dealing with it at all – the answer is fairly simple – the child was physically here, an English Court was presented with an application, and no Italian Court made an application under Brussels II for the case to be transferred lock stock and barrel to them, nor did anyone else.

 

Anyway, this one involved a family who were in the UK but had originated from the Czech Republic  – care proceedings were initiated here, and eventually a plan of adoption was put forward.  The background is set out here

    1. The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.

 

  1. In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic.

 

The Czech authorities became involved, and put forward a plan whereby the mother and the child would live in the Czech Republic together, with support. The mother also sought to transfer the proceedings to the Czech Republic. (It would be fair to say that the Czech Republic were fairly lukewarm in their enthusiasm for that)

For the child therefore, the jurisdictional issue was not a merely semantic one – the decision as to whether this was properly an English case or a Czech one would determine whether the child would be adopted or live with mother.  Both sides indicated that they would seek leave to appeal if the decision went against them.

    1. It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.

 

    1. In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.

 

  1. But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.

Mostyn J decided that on the facts of the case the case ought to be transferred to the Czech Republic IF AND ONLY IF, having been told of that decision, the Czech Courts agreed to do so within six weeks, otherwise it would remain in the UK.

 

The important things about this case are :-

 

1. For the first time I am aware of, the application under BRII was made not by the foreign country or court, but by a party to the UK proceedings (Mostyn J specifically concludes that this is acceptable under BRII and that the application can originate from inside the proceedings – thus for the first time there’s a mechanism by which a party in the UK proceedings can try to PUSH the proceedings to another jurisdiction, rather than having to rely on that country seeking to PULL them). In the words of Ron Burgundy – that’s kind of a big deal.

 

2. Mostyn J highlights that in the Czech Republic there is no non-consensual (forced) adoption, and the tension therefore with the Supreme Court authority in Re B that a placement order should only be made if nothing else will do.

3. He also highlights that it is not for English Courts to critique foreign systems or indeed the actions of foreign social workers.

4. The case is obviously going to be appealed, and that will be an opportunity for the Court of Appeal to give some guidance on this issue, which will crop up more and more frequently, of how to deal with cases where one or both parents is living or plans to live in another EU country by the time of the final hearing.

In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.

 

So, is being from another EU country a get out of jail free card? Well, perhaps, perhaps not

 

    1. The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child’s homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.

 

  1. I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request.

 

Mostyn J certainly felt that where there was the potential for a BRII application, the Judge ought to discuss that with counsel, and if so to transfer the case to the High Court.  Although BRII is dry and dusty and not a lot of fun, this decision – and whatever the Court of Appeal do with it, are going to be important for any child protection case where a parent is from another EU Country  (purely anecdotally, for my own caseload over the last five years, that’s about 15-20% of them).  It will be important that the advocates understand what would be involved in such an application and what the tests and arguments are, and important for those advising parents to know that this is an option which might be available.  For some parents, moving back to their birth country might not be something they want to do, but it is certainly a powerful tool particularly where that birth country takes a different view about non-consensual adoption.

 

 

 

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“If you ever go across the sea to Ireland”

Posted on April 3, 2013 by suesspiciousminds

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27th November 2003 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

https://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

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Ambassador, with these Brussels 2 applications you are really spoiling us

Posted on March 22, 2013 by suesspiciousminds

The potential impact of the High Court decision in Re T (A Child Article 15 of BR2) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/521.html

An interesting  (if somewhat dry) one, brought about by the intervention of the Slovak authorities in care proceedings in England.

It seems (and one can understand why when one looks at their recent experiences) that the Slovak authorities aren’t that taken with the way care proceedings concerning their citizens are being conducted in England.

In this case, both parents were Slovak, although living in England, and the child had been conceived in Slovakia. In fact, the Slovak authorities had had the mother in care in a children’s home,  become aware that the mother was pregnant and sought to place her in another children’s home that had special provision for underage mothers.

The mother ran away and came to England.

3. Shortly beforehand on 19 May 2008 a court in Michalovce, Slovakia ordered that the mother be placed in a crisis centre following certain allegations by her against her stepfather and mother. In July 2008 the relationship between the mother and father began. The mother was then aged 13, the father 16. On 14 January 2009 the Michalovce District Court made an order placing the mother in the children’s home in that city.

In July 2011 the mother fell pregnant and on 30 November 2011 the Michalovce District Court ordered that the mother be transferred to the children’s home in Kosice which had a special unit for underage mothers. It was from there on 29 February 2012 that the mother ran away with the father and travelled to this country which she entered on false papers. The mother and father went to the town where her family were living, and it was there on 22 April 2012 that T was born.

4. It was not only on account of the mother’s young age that the local authority was concerned for the newly born infant. Almost from the moment of their arrival here in 2008 protective measures had been taken in relation to the mother’s siblings and this led to all or some of them being made the subject of care orders in 2010. I have not been given the details. At all events the local authority undertook a core assessment immediately following T’s birth and only allowed the mother to take him to her own mother’s home on discharge from hospital on 4 May 2012 on the basis that the mother signed a “contract of expectations”. Unfortunately as a result of various intra-familial disputes the placement broke down and ultimately on 18 May 2012 the mother and T moved to a Mother and Baby Unit for a 12 week period of assessment pursuant to an agreement made under section 20 of the Children Act 1989.

However, on 23 May 2012 the mother left the unit leaving the baby behind, and although she returned the following day she left again finally on 27 May 2012, complaining that the place was like a prison. Care proceedings commenced in England, and by the time of this application had reached the point where all assessments were completed, and the recommendation of the Local Authority in England, and the Guardian was that the child should be adopted.

The Slovakian authorities sought the return of the mother (and also later the child) to their country, so that decisions could be made in Slovakia relating to them both, and made an application under Article 15 of Brussels 2 On 19 July 2012 the Director of the children’s home in Kosice wrote to the local authority stating “our interest is that the mother be returned to the children’s home, as she is entrusted to our care by the courts”. Later the authorities in Slovakia expanded this to seek the return of T also.

On 27 September 2012 the children’s home informed the Slovakian Central Office of Labour, Social Affairs and Family (which I take to be the relevant government Ministry) of the circumstances of the case and on 3 October 2012 the Slovakian Central Authority received a report from the Ministry about the mother and T. The Slovakian Central Authority contacted the Central Authority (ICACU) here on 5 October 2012. On 18 January 2013 a lengthy letter entitled “Intervention of the Slovak Central Authority” was received by the court authored by Andrea Cisarova. This has been supplemented by two further detailed submissions dated 21 February 2013 and 8 March 2013.

In these documents the Slovakian Central Authority forcefully argues that under EU law, equally applicable in Slovakia and this country, the mother and T are both habitually resident in Slovakia; the mother is the subject of an order which is entitled to recognition and enforcement here; and that this is a case where a request should be made by this court under article 15 of Regulation Brussels II Revised[1] for a transfer to the Slovakian courts of the proceedings concerning T.

Like most lawyers who don’t specialise in international law, I hear the phrase “Brussels II” and have to suppress a shudder. It normally means that things are going to get fearfully complex.

In this case, what it meant was that the Slovak authorities were asking the English Court to relinquish the case over to them. The mother was agreeing to the order of the Slovak courts that she return and live in the children’s home.

Article 15 provides

9. “Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or

(b) request a court of another Member State to assume jurisdiction …

2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court’s own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph

3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.”

Mr Justice Mostyn, who heard this case, picked over the existing sole authority in English law on article 15 [AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517 ]   and drew from it the three questions that had to be answered by the Court who were dealing with the application

10. i) First, it must determine whether the child has, within the meaning of Article 15(3), “a particular connection” with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))?

ii) Secondly, it must determine whether the court of that other Member State “would be better placed to hear the case, or a specific part thereof”. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court “is in the best interests of the child.” This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

11. In paragraph 36 Munby J pointed out that even if affirmative answers were given to all of the three questions there remains a discretion whether or not to request a transfer. However he observed that if all the questions were answered affirmatively it was difficult to envisage circumstances where it would nonetheless be appropriate not to transfer the case.

He then went on to consider the application of article 15 to care cases and distilled the following principles

24. ) Article 15 applies to public law as well as private law proceedings.

ii) As a precondition the court must be satisfied within the meaning of Article 15(3), that the child has “a particular connection” with the relevant other member state.

iii) The applicant must satisfy this court that the other court would be better placed to hear the case (or a specific part thereof). In making this evaluation the applicant must show that the other court is clearly the more appropriate forum.

iv) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses.

v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result.

vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration.

vii) In making the best interests analysis at (vi) the court will not embark on a profound investigation of the child’s situation and upbringing but will dwell in an attenuated inquiry upon the sort of considerations which come into play when deciding upon the most appropriate forum.

What was particularly interesting in this case was that the Slovak approach was for mother and child to live together, albeit in a children’s home and given a long process of assessment and testing and support with a view to keeping the family together long-term, whereas the approach of the English professionals was that the mother could not meet his needs and keep him safe and that adoption was the only viable plan.

Thus a transfer to a different jurisdiction was not merely having a different Court with different laws determine the case, but a profoundly different outcome for the child. The direction of travel for either jurisdiction was very clearly laid out.

The High Court looked at the arguments put forward by both parties

31. The Slovakian Central Authority, supported by the parents, argues for a transfer for the following reasons:

i) Both parents and the child are Slovakian citizens. The habitual residence of the mother is Slovakia. The child’s habitual residence is, she argues, Slovakia.

ii) The parents only speak Slovakian. Any proceedings in Slovakia will be in their own language. Similarly any further assessments in Slovakia would be undertaken in their own language.

iii) The mother has agreed to return to Slovakia and to the children’s home to which she has been committed by a court order

iv) T has not been put in a permanent placement and a further move for him will have to take place in any event.

32. The Slovakian Central Authority has outlined the plan for the mother and T were they to return to their native country. They will be placed in the children’s home in Kosice where they will live in a small community with at most four other under-age mothers with their children. They will be cared for 24 hours a day by six child care professionals who will help them to provide care for their minor children. In this way the minor mothers learn to care for their children to create emotional bonds and to achieve parental skills. Psychological and special pedagogical care will be provided and the minor mother will have the opportunity of completing her education.

33. Of course it is accepted by all that this process is fundamentally one of assessment and that were a transfer to be made the court in Slovakia would have to decide whether reunification was possible in the long-term or whether T would have to be permanently placed with alternative parents.

34. In my opinion the plan I have outlined above best promotes the possibility of preserving this child’s Slovakian and Roma heritage. In his skeleton argument counsel for the child stated that “whilst of course there are additional welfare factors because of T’s Slovakian heritage, fundamentally he is a child like any other”. This struck me as a profoundly culture-blind statement. I do regard the promotion of this child’s heritage as being of great importance and I do not consider that the case of either the local authority or the Guardian has sufficient regard to that factor.

35. Additionally, I would observe that it is doubtful that either of these parents or indeed the child is lawfully present in this country under the terms of the Immigration (European Economic Area) Regulations 2006 S.I. 2006 No. 1003.

36. Leading Counsel for the local authority argues that the Slovakian plan would not be in the child’s best interests because it represents but a single inflexible option. This was the central part of his argument and so in fairness to him I set out the relevant paragraphs of his skeleton (as modified in oral submissions) in full:

The transfer of jurisdiction proposal carries with it only one plan, only one option.

The type of assessment proposed under the Slovak plan has already been tried at the Mother and Baby Unit. The Mother left the unit to be with the Father.

Previously she had run away from the Mother and Baby unit at the Kosice Children’s Home to be with the Father. She has consistently in Rotherham refused offers of accommodation on her own because she wants to live with the Father.

The prospects of her remaining without the Father at the Kosice unit for assessment are not sufficiently good to make it in the Child’s interests to try this because of the damage that will be done to him in the process.

The Child has a good, healthy attachment to his foster carer. He is at the age when he has the opportunity to transfer that attachment to another care-giver. If he is enabled to transfer this attachment to his new permanent carer, the prospects for his emotional wellbeing are good. If he is not able to do this successfully, the risk is that he will shut down emotionally and permanent damage will be done to the future prospects of any successful attachment to any carer.

The Slovakian plan involves the Child being placed with his Mother as his primary carer, albeit with professional supervision.

The observations of contact between the Child and his Mother show that he will be seriously distressed if he is placed in his Mother’s full-time care. Despite her best efforts, she is unable to soothe and calm him. He will often not accept care, such as feeding, from her. If the Mother and the Child are put in this position full-time, the distress caused to the Mother is likely to make her chances of caring successfully for the Child even less.

The Mother herself believes that the best way forward would be for Child to be in foster care initially in Slovakia in order to build up contact with her.

The Child suffers from herpes which flares up from time to time. The stress of leaving his foster carer and being placed in his Mother’s care is likely to cause his herpes to flare up. This will add to the difficulty of caring for him and the stress caused to the Mother. If he needed hospital treatment in Slovakia, the disruption to him and stress will be increased.

The further assessment is, in any event, unnecessary given the assessment work which has been done with the parents already. There is already sufficient information before the Court to establish that the parents cannot offer the Child the care he needs.

It is not in his best interests to take risks with his long term emotional welfare and ability to form attachments to a permanent carer and to cause delay in the final decision-taking for him. The prospects of success for the Mother/ Parents are not sufficiently good to warrant taking those risks.

37. It can be seen that this argument comes very close to the profound best interests enquiry concerning the child’s future care which Lady Hale emphatically said should not happen in Re I. Basically, it is a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen. I completely disagree with this approach. The analysis of best interests only goes to inform the question of forum and should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.

38. It can fairly be said that the local authority witnesses on events in T’s short life are all here speaking of events here and that this militates in favour of this court being the more appropriate forum. However, it is obvious that if this case is transferred to Slovakia there will not be any substantive court case as the parents will surely accept the plan of the Slovakian authorities. Only if that further assessment and attempted reunification fails is there likely to be a contested case in Slovakia; and that case will surely be focusing on the most recent Slovakian assessment and the reasons for its failure rather than historical assessments over here.

39. I conclude that all the requirements of article 15 when read conformably with the principles set out by Wilson J are satisfied in this case and that the transfer request should be issued. The proceedings will be stayed but T will remain where he is under a sequence of interim care orders made administratively until the Slovakian court makes a decision about his interim arrangement. Of course in the event that the Slovakian court declines the request then the matter must be restored to this court for final determination.

And of course, the significant matter there is the Court’s determination that it would be for the Slovakian authorities to determine whether the child could remain with the mother, and that in the event of a dispute on that, and proceedings being issued it would be the Slovak assessment and evidence which would be relevant, and not those matters which had occurred in England. The case was duly transferred to Slovakia – although the child had never spent a day in Slovakia and was not habitually resident there, Mostyn J found that the child had NO habitual residence anywhere, and was thus captured by Article 13.

[It was pretty clear from the judgment that although Mostyn found himself to be bound by the Court of Appeal authority in ZA & Anor v NA [2012] EWCA Civ 1396 that a person or child cannot be habitually resident in a country they had never lived in, he wasn’t of the same opinion, and favoured the dissenting judgment of that authority. This child of course, had been living in England for 11 months by the time of the judgment…]

This is a peculiar one – mother was really giving up her life here to go and live in a restrictive environment in Slovakia in order to keep her child with her, although she had herself fled that environment previously.

So, the question arises – if you are representing parents in care proceedings who are from another jurisdiction [where Brussels II applies], and they would be willing to return to that jurisdiction, is it worth approaching that embassy to see if they would be willing to apply under Article 15 to take over the case?

It will depend very much on the circumstances, but is probably something which needs more consideration than one might normally give it. If the Courts are willing to move the case over when the care plans are so divergent, it may be a way of achieving parent and child being together that is more effective than challenging the making of orders in the English courts.

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