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Tag Archives: Article 15 of Brussels II

An air of indifference

 

The High Court kicking ass and taking names in Re A (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/604.html

 

This involved a set of care proceedings in which the father was Latvian. For one reason or another, he did not get served with notice of the proceedings or get told that his child was in care or that he was entitled to be represented for FIVE months.  That despite a series of orders being made that he was to be located and served.

 

The High Court understandably took a dim view of this

 

As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.

 

 

The High Court gave some guidance on cases where one parent lives abroad, this being a more common feature in care proceedings

 

  1. In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent’s whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made;

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case;

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court’s jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party’s legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

 

 

Ignore those at your peril. I imagine if you happen to be before this particular judge and haven’t followed these guidelines if the issue arises, that it might turn out to be a difficult day in Court.  The retired manager of Manchester United was often described, when shouting at his players, to have given them ‘the hairdryer treatment’   – I suspect that would be putting it mildly. *

 

(* I note Charles J’s comments to the House of Lords committee looking at the Mental Capacity Act 2005 that writing a judgment on a deprivation of liberty case left him feeling like he had been in a washing machine on spin cycle)

 

At any rate, I don’t think that the judicial approach would be indifference.

 

Returning to the case itself, once the father was served, his application was that the case should be dealt with in Latvia.

 

His starting point was that the child was not habitually resident in England, but in Latvia when the proceedings started, so the English Court has no jurisdiction. His fallback position was that even if the English Court had jurisdiction, Latvia should be preferred under Brussels II

 

 

The father’s case was that the mother had taken the child out of Latvia and come to England without his consent, and that having not consented to that removal, it was an unlawful one

 

It is agreed in those circumstances that the removal of A was wrongful pursuant to Articles 3 and 5 of the Hague Convention, because he was habitually resident in Latvia prior to the removal. The father had rights of custody in respect of him under Latvian law under Articles 177 and 178, the father did not consent to his removal and the removal was in breach of his rights of custody which he was exercising or would have done but for the removal.

 

 

The mother claimed that the father had acquiesced in the removal

 

In determining acquiescence the House of Lords decision Re H (Abduction: Acquiescence) [1997] 1 FLR 872 is the leading authority setting out the factors that the court should take into account. They are summarised as follows: firstly, the question of whether the wronged parent has acquiesced in the removal or retention of a child depends on his actual state of mind; secondly, the subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; thirdly, the trial judge in reaching his decision on that question of fact will, no doubt, be inclined to attach more weight to the contemporaneous words or actions of the wronged parent than to his bare assertions in evidence of his intentions; fourthly, the court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted children and; fifthly, where the words or actions of the wronged parent had clearly and unequivocally shown or had led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

 

 

The Court was satisfied that the father had been making efforts to locate the mother and the child, and had made applications to Courts in Latvia, this being compelling reasons to discount a suggestion that he had acquiesced to the removal.

 

The Court then looked at whether mother had demonstrated a defence to the abduction that would make it justifiable, and concluded that she had not, or whether there was now ‘settlement in England; and that there was not. (If you are fascinated about the law on abduction, there’s a lot of meaty information in this judgment, but it probably lies outside of the scope of non-specialists)

 

 

Thus, the child was wrongly removed from Latvia, that removal did not change residence, and the English Court had to order return of the child to Latvia, and any future proceedings would be in Latvia rather than England.  The child had legally been habitually resident in Latvia (although was physically in England) at the time the proceedings began

 

  1. For the reasons that I have already set out, I do not consider the father has acquiesced to the retention by the mother of A here and in the same way I do not consider he has acquiesced to A’s habitual residence here and in those circumstances Article 10 B2R applies and A’s habitual residence remains in Latvia.
  1. So for those very brief reasons I am clear that at the time the proceedings were commenced in this jurisdiction A’s habitual residence was in Latvia and so this court, other than for the limited purposes under Article 20 B2R, does not have jurisdiction to determine the care proceedings.
  1. In those circumstances A should be returned to Latvia and I will hear submissions from the parties as to the practical arrangements that need to be made.

 

“If you ever go across the sea to Ireland”

 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)

 

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

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.