England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
Sitting at Bournemouth

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/06/2016

MR JUSTICE BAKER :

1. On 16 May 2016, I made an order sitting in the family court in Bournemouth in care proceedings brought by Poole Borough Council in respect of a 10-year-old boy hereafter referred to as "L", in which inter alia I declared that, at the date this court was seised of this application under Part IV of the Children Act 1989, L was habitually resident in the Republic of Ireland and that pursuant to Article 8 of Council Regulation (EC) 2201/20003 ('Brussels IIA") jurisdiction in matters of parental responsibility over L lies with the courts of that country. This judgment sets out the reason for my decision.
2. L was born in this country in 2006. His birth mother used alcohol and heroin during her pregnancy and he was born with foetal alcohol syndrome. Following acts of abuse in the first weeks of his life, L was placed in the care of his maternal grandmother but subsequently in August 2006 accommodated by the local authority. In October 2007, he was made subject to a final care order and a placement order. In January 2008, he was introduced to prospective adopters, hereafter referred to as "Mr and Mrs C". Mr C comes from England, Mrs C is a national of the Irish Republic. In March 2008, L was placed in the care of Mr and Mrs C who subsequently issued an adoption application. On 10 September 2008, an adoption order was made in favour of Mr and Mrs C. Two days later, the family, consisting of Mr and Mrs C, L, and two older siblings, both the birth children of the parents, moved to live in County Dublin, Ireland.
3. Unfortunately, L's placement with Mr and Mrs C has been beset with serious difficulties. In particular, his parents have struggled to manage his behaviour. Although the court has had access to only limited documentation, it is clear from the documents included in the court papers that L has demonstrated particularly challenging behaviour. Over the last eight years, he has had a variety of therapeutic help and assistance from a number of professional agencies, including occupational therapy, psychological assessment, play therapy and psychotherapy. He has been diagnosed as suffering from ADHD, mood dysregulation disorder, alcohol-related neurodevelopmental disorder, a sensory processing disorder and a reactive attachment disorder. Despite the extensive support provided to L, Mr and Mrs C increasingly struggled to manage his behaviour.
4. Matters came to a head in the early part of 2016. Mr and Mrs C contacted social services in Dublin but were informed that the agency did not consider there was a role for social services as there were no safeguarding concerns. On 4 January 2016, Mrs C contacted Poole adoption services and advised them that the placement had become untenable due to L's behaviour and her own deteriorating mental health. Later that month, Mr and Mrs C warned Poole adoption services that they needed to return L to the care of that local authority. On 17^th January, social workers from Poole visited the family in Ireland. Mrs C reported that her mental health had deteriorated and that she felt she was having a complete breakdown. During this visit, and thereafter, the Poole social workers urged Mr and Mrs C not to bring L to England as they considered that the English local authority had no legal responsibility for him.
5. On 17 February 2016, L was permanently excluded from his school in Dublin. Four days later, Mr and Mrs C brought L to England and presented him to the social services department in Poole. In her statement subsequently filed in these proceedings, the Poole social worker described how Mrs C reported that she and her husband had made the decision not to relinquish care of L to Dublin children's services because, in their view, "he would bounce around the foster care system and end up medicated in a residential unit and his life chances would be very poor". The social worker reported that Mr and Mrs C were of the view that L's needs would be best met in the United Kingdom where L would be able to access the therapeutic support he requires. Mrs C reported that they were aware of the potentially traumatic impact on L but felt they had no other option as their family was at breaking point. According to the social worker, however, Mrs C added that she wished for L to be rehabilitated to their care in the future when he has received the therapeutic intervention he needs and is able to function within the family. She said that they wanted to continue to be part of L's life and have contact with him on a regular basis.
6. Mrs C returned to Ireland on 24^th February. When the Poole social worker contacted social services in Dublin, she was informed that the family had contacted Dublin children's services alleging they were struggling to cope with L's behaviour. The Irish social worker confirmed that there were no safeguarding concerns and that as a result it had been concluded that there was no role for children's services in Dublin with the family. The Irish social worker acknowledged that the family was presenting as in crisis. She stated that there were no services in Ireland that would meet L's complex needs. She was aware that Mr and Mrs C were bringing L to Poole in order for him to be able to access the services he needs in this country. It was the understanding of the Irish social services that Mr and Mrs C intended to relocate to England. They were unaware that Mr and Mrs C were planning to leave L in England and return to Ireland without him.
7. Mr C returned to Ireland on 3 March 2016. In all the circumstances, Poole social services concluded that they had little option but to accommodate L. They decided that no foster placement would be able to meet his complex needs as described by the parents. He was placed in an emergency therapeutic residential assessment centre in Kent.
8. On 14 March 2016, the local authority started care proceedings. On 8^th April, the case came before His Honour Judge Meston QC. The local authority informed the court that it intended to argue that L was habitually resident in Ireland at the date on which the proceedings were commenced and accordingly that the courts of England and Wales did not have jurisdiction, save to make emergency orders. The judge therefore transferred the matter to be listed before me at a hearing on 16^th May to determine the issue of jurisdiction. Meanwhile, L was placed in the care of the local authority under an interim care order. The local authority was directed to provide a copy of the order to the Central Authority for England and Wales and to extend an invitation to the Irish Central authority to intervene in the case. The order was duly served upon the Irish Central authority but that agency had declined intervene or contribute to the jurisdictional issues in the case. In addition, Tusla, the Irish Child and Family Agency, was invited to attend the hearing. They also declined to do so, but there ensued a series of communications between the Poole social worker and the Head of Legal Services at Tusla, and by email, Tusla confirmed that, if this court determined that L was habitually resident in Ireland, then Tusla would issue proceedings in that country. Tusla further indicated that attempts would be made to find an appropriate placement to meet L's needs in Ireland but, if that was unsuccessful, Tusla would consider funding an appropriate placement in the United Kingdom.

The law

9. The relevant provisions of the Brussels IIA regulation are as follows.
10. Article 1(1), which defines the scope of the regulation, provides inter alia that the regulation "shall apply … in civil matters relating to … the attribution, exercise, delegation, restriction or termination of parental responsibility". Article 1 (3), however, provides that the regulation shall not apply inter alia to "decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption."
11. Article 8 (1) provides that "the court of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised". Pursuant to article 16, a court shall be deemed to be seised "at the time when the document instituting the proceedings or an equivalent document is lodged with the court".
12. Article 13 (1) provides that "where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12 [which provides for the prorogation of jurisdiction in circumstances not applicable in this case], the courts of the member state where the child is present shall have jurisdiction."
13. Article 15 provides a mechanism for the transfer of proceedings from the court of one member state to a court of another member state. Article 15(1) to (3) provides:

(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 Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

(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."

14. Article 17 provides that "where a court of a member state is seised of a case over which it has no jurisdiction under this regulation and over which a court of another member state has jurisdiction by virtue of this regulation, it shall declare of its own motion that it has no jurisdiction". It has been held that article 17 applies even though no proceedings have been started in the court of the other member state: Re B (Care Order: Jurisdiction) [2014] 1 FLR 900.
15. Article 20 provides: "in urgent cases, the provisions of this regulation shall not prevent the courts of a member state from taking such provisional, including protective, measures in respect of persons or assets in that state as may be available under the law of that member state, even if, under this regulation, the court of another member state has jurisdiction as to the substance of the matter". It has been held that the provisional protective measures permitted under article 20 include the making of an interim care order: Re S (Care: Jurisdiction) [2009] 2 FLR 550.
16. In determining the question of habitual residence, the courts will apply the principles explained by the Supreme Court in A v A [2013] UKSC60. The principles were summarised by Baroness Hale of Richmond at paragraph 54 of the Supreme Court judgment. In particular,

(a) habitual residence is a question of fact and not a legal concept such as domicile;

(b) the test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned;

(c) this depends on numerous factors, including the reason for the family's stay in the country in question;

(d) the social and family environment of an infant or young child is shared with those on whom he is dependent – hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned;

(e) the essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce.

The European Court of Justice has identified the factors which are likely to be relevant as including the physical presence of the child, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state: Proceedings brought by A (Case C – 523/07) [2010] Fam 42, paras 38-9. The question to be asked was summarised by Baroness Hale in a subsequent case, (Re LC [2014] UKSC 1 at para 59:

"has the residence of a particular person in a particular place acquired the necessary degree of stability … to become habitual?"

17. In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, Lord Wilson observed (at paragraph 45):

"I conclude that the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a seesaw. As probably quite quickly he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or better disengagement) from it."

18. Later at paragraph 46, Lord Wilson added:

"the identification of a child's habitual residence is overarchingly the a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub- rules, but expectations which the fact-finder may well find to be unfulfilled in the case before him:

(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and conversely were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."

19. It has been held by the European Court of Justice that the scope of the Brussels IIA regulation extends to public law care proceedings: Re C (Case C-435/06) [2008] 1 FLR 490, Proceedings brought by A, supra. I note, however, that the application and interpretation of article 15 to public law cases is the subject of a reference by the Irish Supreme Court to the European Court of Justice (Case number C-428/15) in which judgment is expected imminently.

Discussion

20. In written submissions on behalf of Mr and Mrs C, Ms Deirdre Fottrell QC and Ms Louise MacLynn identified the following questions which they contended fell to be considered by this court.

(1) Is the local authority acting as adoption agency providing adoption support services to the family?

(2) If the local authority was not providing adoption support services to the family, ought it to have done so?

(3) Does Brussels IIA apply to this case? If the central issue in the case is the entitlement to adoption support, is the case excluded from the scope of the regulation by virtue of Article 1 (3)?

(4) If the regulation does not apply to this case, is the issue of jurisdiction to be determined on the basis of habitual residence and is the court exercising its parens patriae jurisdiction?

(5) If the regulation does apply, is L habitually resident in Ireland or England?

(6) If the child is habitually resident in England, how should the court approach the question of a transfer under Article 15?

21. As a preliminary point, Ms Fottrell and Ms MacLynn submitted that the matter could not be determined at the hearing on 16^th May because the parents wished to file a more detailed narrative statement as to the background of the case, in particular the extent to which they were not provided with adoption support services, and also because they sought further disclosure from the local authority.
22. Ms Fottrell QC was unavailable to represent Mr and Mrs C at the hearing on 16^th May, and her place was taken by Miss Sarah Morgan QC, appearing with Ms MacLynn. The preliminary application for an adjournment was pursued by Miss Morgan. I indicated, however, that I considered that I had sufficient information concerning the background and circumstances in the statements and documents filed by the local authority and a document headed "parental response document" filed on behalf of Mr and Mrs C to determine the issue of jurisdiction. I was particularly concerned to resolve the matter promptly because of the urgent need for a court, whether it be here or in Ireland, to address the issues concerning L's future. After preliminary argument, Mr C, who attended the hearing, instructed counsel not to pursue the adjournment and I proceeded to consider the issue of jurisdiction.
23. The first question was whether Brussels IIA applies. In their written argument, Ms Fottrell and Ms MacLynn submitted that these proceedings are about a failed adoption. The applicant local authority is the adoption agency who placed the child for adoption. It was asserted on behalf of Mr and Mrs C that the main reason for the failure of the adoption is because the agency failed to provide proper support. In the circumstances, it was contended that the court would have to grapple with the question whether the issue was a decision "on adoption" within the meaning of article 1(3).
24. At the hearing, I enquired of Miss Morgan whether Mr and Mrs C were seeking an order revoking the adoption and, if not, to identify precisely the basis on which it was contended that the issue before the court was a "decision on adoption". After taking further instructions, Miss Morgan confirmed to the court that her clients were not seeking revocation. This was not surprising, given their clear statements already quoted above that they remain committed to L and hope that in due course he can be rehabilitated back in the family. Miss Morgan further conceded that in the circumstances Mr. and Mrs. C accepted that the case came within the scope of Brussels IIA.
25. The next issue for the court, therefore, was to determine L's habitual residence. In their written submissions on behalf the local authority, Mr Samuels QC and Miss O'Hara identified the following factors in favour of habitual residence in England and Wales:

(a) L was born adopted in this country and therefore has British nationality;

(b) he lived here from his birth in 2006 until his adoption in 2008;

(c) his birth family are, in all likelihood, still living here;

(d) Mr and Mrs C intended to leave L here for him to be accommodated by the local authority.

On the other hand, Mr Samuels and Miss O'Hara identified the following factors in favour of habitual residence in Ireland:

(a) L lived in Ireland from September 2008 until February 2016, a period of 7 ½ years;

(b) he and his family are fully integrated into life in Ireland where his parents owned their own home and are employed;

(c) L has received several years of education in Ireland and has also received considerable assessment and therapeutic support in that country;

(d) his parents and siblings, who are the central figures in his life, remain living in Ireland and have no intention of returning to live in this country;

(e) the sole reason for L's return to England was to access services and resources said to be unavailable to him in Ireland;

(f) it remains the hope and intention of his parents that he should be rehabilitated with the family at some point in the future.

26. This analysis, albeit succinct, seemed to me to be comprehensive and clear and I indicated to Ms Morgan my preliminary view that I considered that the balance came down firmly in favour of L being habitually resident in Ireland. I also indicated that, were I to reach a final conclusion to that end and declare the jurisdiction lay with the Irish court, it would remain open to Mr and Mrs C to seek to persuade the Irish court to invite this court to assume jurisdiction under article 15, although I did not express any concluded view as to whether a transfer of jurisdiction to this court would be appropriate, bearing in mind inter alia the imminent decision of the European Court of Justice. After taking further instructions, Miss Morgan indicated that her clients no longer wished to contest the question of habitual residence, but would in due course be seeking to persuade the Irish court to transfer the case under Article 15.
27. Accordingly, this court did not hear full argument on the question of habitual residence. It is, however, right that I should express my clear view that L was manifestly settled in a social and family environment in Ireland up to 21 February 2016 when he arrived in this country and that, during the following three weeks prior to the start of these proceedings, he had neither lost his habitual residence in Ireland nor achieved anything approaching a reasonable level of settlement or integration in a social or family environment in this country so as to acquire habitual residence here.
28. I therefore made an order including the declaration as to habitual residence and jurisdiction set out at the start of this judgment. The order further recited the fact that I had been informed that Tusla intended to issue proceedings as soon as possible. I further recorded my intention to notify the Irish judicial network judge, Ms Justice Finlay Geoghegan, of my decision and the impending application. In the interim, having concluded (as I recorded in the order) that it was necessary in the interests of L's welfare to take protective measures in respect of him under Article 20 of Brussels IIA pending further determination by the Irish Court, and that the interim threshold criteria under s.31 of the Children Act 1989 were satisfied, I ordered that L remain in the interim care of the local authority until further order and listed the matter for a further hearing at the end of June 2016. I anticipate that, by that date, the Irish court will be seised of the matter. If a request for transfer under Article 15 is made, the hearing before me on that date will provide an opportunity to consider the proposal to transfer jurisdiction. If, on the other hand, the Irish court is exercising jurisdiction to make decisions concerning L's future, it will presumably be appropriate for the interim care order in these proceedings to be discharged.
29. As stated above, Mr and Mrs C have indicated their intention to pursue an application for transfer under Article 15. I stress that nothing I have said should be read as indicating any concluded view as to which court is better placed to determine the issues concerning L's future, or whether a transfer under Article 15 would be in his best interests. If formally invited to do so, I am of course willing to express a view but in the first instance it is a matter for the Irish court to consider whether or not to make a request under Article 15.
30. I conclude with three final observations. First, although I am satisfied that there are reasonable grounds for believing that L was beyond parental control when placed with Poole social services in February 2016, nothing I have said should be interpreted as endorsing criticism of Mr and Mrs C. It may be that after a full hearing a court would make critical findings about their care and treatment of L, but I am in no position to make such criticism and do not do so. Secondly, I respectfully urge the authorities in Ireland to act expeditiously to bring the matter before the Irish court. L's needs are plainly very considerable and it is crucial that they receive urgent attention from a court. Thirdly, anybody reading the sad history set out in the documents put before this court would expect all agencies to cooperate to ensure that L receives whatever help he needs. This court stands ready to provide whatever assistance it properly can to facilitate any decisions in respect of L's future.