B e f o r e :
(sitting as a Deputy High Court Judge)
| LONDON BOROUGH OF B
|- and -
NAA (a child) through her Guardian
Mr Archer for the NAA (through her Guardian)
Maternal Grandfather, Maternal Aunt and Paternal Aunt neither present nor represented
In attendance a representative of the U Embassy
Hearing dates: 23rd-25th October; decision handed down 26th October 2017)
Crown Copyright ©
HER HONOUR JUDGE CAROL ATKINSON :
a) Whether I continue to be satisfied that I have jurisdiction to make decisions regarding NAA's future;
b) Whether I am able to make the findings of fact regarding the events which lead her to be placed in care and by that means construct a definitive narrative for NAA going forward;
c) Whether I should "transfer" this case to be heard in "U" (a country outside of Europe).
a) I am quite satisfied that jurisdiction is well founded in this case on the basis that NAA was habitually resident in this jurisdiction when these proceedings began, and as she has been for most, if not all, of her life.
b) I am quite satisfied on the evidence that I have read that:
i) NAA's mother was killed by her father;
ii) Prior to her death the mother had suffered regular domestic violence at the hands of the father;
iii) There is not a scrap of evidence that this mother was a radicalised Muslim;
iv) The father took his own life whilst in prison.
c) I do not intend to transfer these proceedings to U.
Uncontroversial background facts
a) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment.
b) The test is essentially a factual one and that factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence.
c) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration.
d) Parental intention is relevant to the assessment, but not determinative.
e) The relevant question is whether a child has achieved some degree of integration in social and family environment.
Applied to this case
a) NAA was born here;
b) She is a British Citizen;
c) Her parents were settled here, and had purchased their home;
d) It was intended that, as distinct from her siblings, she would live here with her parents, as demonstrated by the fact that they secured a child minder for her in July 2016;
e) She had only left this jurisdiction once in her life prior to the issue of proceedings when she was taken to U by her mother to visit her extended family and siblings between August and November 2016;
f) When she returned in November 2016 it was intended by both of her parents that she would continue remain here and in keeping with that she was registered for health care and she returned to the child minder.
An essential narrative
Events leading up to 11th December 2016
a) Allegations of financial abuse and control. She had restricted access to the money that she earned which was monitored by the father;
b) Controlling behaviour and restrictions on her movements; isolation from friends and family. The father prevented her from forming friendships. She was not free to call her family without his permission.
c) Threats to prevent her from seeing the children; the threat that they would be kept by his family and away from her if she left him or did not comply with his wishes;
d) Physical abuse;
e) Sexual violence.
I am satisfied that the mother suffered all of the above forms of abuse over a number of years.
9th-12th December 2016
a) She was killed by someone and almost certainly in their flat;
b) The only other adult with her during the time when she was killed, would appear to be the father;
c) There were no signs that any other intruder had entered the property during the time that he left the flat on 12th – no signs of forced entry;
d) Her body was wrapped in a sheet as if it was a shroud and she was laid out on the bed almost ceremonially. He was naked beside her and the two Poinsettias purchased by the father at 6.55am on 12th were placed at her head.
e) The physical marks to his body combined with the various notes left in the flat evidence that he was intending to take his own life.
f) The text message to the mother's line manager can only have come from father – it was a new contact number, not her usual terms of reference and NAA was not unwell. NAA was not expected at the child minder's that morning as the father was not due at work.
g) To this I must add the history of domestic violence. The mother herself had complained that she feared he would kill her to her REACH worker but also on a recording of them both on father's computer.
Death of the father in custody
"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: …… (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
'26. In setting the scene, I should make the following observation as a matter of law and structure. It is not necessary for me to descend to detail. The legal structure for these issues in an international private family case is plain. The court first determines whether or not the court in England and Wales has jurisdiction. It does so, depending on the countries involved, with or without reference to various international provisions. In a case such as this, which is not between Member States of the EU, the approach is straightforward. The court decides jurisdiction and decides it with regard to the habitual residence of the child at the relevant time. That determination in this case has been made and is not open to review or challenge and was not open to review or challenge at the hearing before Newton J.
27. It is then possible, if the parties wish to do so, for the English court to be invited, despite a finding that it has jurisdiction, to consider the question of convenient forum. The court, if required to do so, approaches that on the well known basis applicable to civil proceedings generally which is set out in Spiliada Maritime Corp v Cansulex Ltd  AC 460.
28. Again, as a matter of structure, the normal approach is for the party asserting that England and Wales is not the convenient forum to apply for the English proceedings to be stayed. The burden is upon the applicant for such a stay to persuade the court, on the principles of Spiliada and related cases, that the stay should be granted and that, despite having jurisdiction, England and Wales should cede to another court which is the more convenient forum.
29. It is established that the welfare of the child is a relevant consideration in determining the question of convenient forum but it is not an issue, that determination, to which the paramount principle in section 1 of the Children Act applies.
30. The final structural step is that, if jurisdiction is established and if a stay is not imposed because of forum conveniens considerations, then the court is free to go on to make more generally based welfare determinations with respect to the child's future.'
a) A stay will only be granted where the court is satisfied that there is some other available forum, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
b) The burden of proof rests on the person who is seeking a stay of the English proceedings to first persuade the court to exercise its discretion to grant a stay.
c) If the court is satisfied that there is another forum which is prima facie the appropriate forum for the resolution of the issues before it, the burden then shifts to the party seeking to keep the proceedings in the English courts to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country.
d) When considering whether there is some other forum which is the appropriate forum for the determination of the matters in issue, it is relevant for the court to consider whether the founding of primary jurisdiction in this country gives any advantage given that 'a court will not lightly disturb jurisdiction so established'. (per Lord Goff at page 477 E to F)
e) Since the question is whether there is some other forum which is clearly more appropriate for the determination of the welfare issues in this case, the court looks, first, to see what factors point in the direction of another forum. These factors have been described as factors which indicate that justice can be done in the other forum at "substantially less inconvenience or expense"' and are likely to include not only those which affect convenience or expense (such as the availability of witnesses) but other factors such as the law which governs the relevant issues which the court is being asked to decide.
f) If, however, a court concludes at that stage that there is some other court which prima facie is clearly a more appropriate forum, it will ordinarily grant a stay unless there are special circumstances which requires the continuation of proceedings in the less appropriate jurisdiction and justice requires that a stay should nevertheless not be granted. In considering this aspect of a case, the court will look at the totality of the evidence and all the circumstances of the case including matters which go beyond those taken into account when considering connecting factors with other jurisdiction
Applied to this case
a) NAA has an extensive extended family in U on both her maternal and paternal sides and two older full siblings. She has no familial connections here now that her parents are dead.
b) It might be argued that whatever the decision as to precisely with whom she should be placed, her welfare surely demands that she is sent to U to live with one or other of her extended family members.
c) The welfare determination as to who is best able to meet her needs from within the extended family can be made more conveniently, cheaply and appropriately in U.
d) It is not for this court to paternalistically question the processes in U. The assumption must be that presented with a welfare decision involving a choice between the two sides of the natural family the courts and welfare agencies in U will ensure that the decision made will be in U's best interests.
a) The fact that this court claims primary jurisdiction over decisions regarding NAA's welfare. NAA is a British child. The mother, child and father all lived their lives in this jurisdiction.
b) These proceedings are well advanced and any transfer will give rise to delay.
c) Transfer would build in a possible unnecessary disruption for NAA as she will be removed from the place in which she has settled after the trauma of the death of her parents to be placed with extended family whilst a decision is made as to the longer term. Hearing the case here brings with it the greater likelihood that her next move will be her only move.
d) This court is clearly better placed to address the welfare issues concerning NAA. Assessments of her welfare needs by a child and adolescent psychiatrist are complete. Likewise, assessments of the family members have been undertaken by witnesses based here.
e) Nothing prevents the court in this jurisdiction deciding to place NAA with family in U, if that is the best welfare outcome for her, whereas transfer of these proceedings to U would immediately remove from the menu of available welfare outcomes, permanent placement outside of the natural family in this jurisdiction, if that is considered to be in NAA's best interests.
f) Whilst placement outside of the natural family might seem unlikely on the facts of this case, there is a real issue as to the extent to which NAA's welfare needs will be compromised by placement in U in circumstances in which the customs and practice in the U courts may see her placed with family who may not accept the truth of the narrative set out in this Judgment.