England and Wales Family Court Decisions (High Court Judges)

THE FAMILY COURT SITTING AT PRESTON

		Sessions House Lancaster Road Preston
		15th November 2016

JUDGMENT
1. MR JUSTICE HOLMAN: These are care proceedings in relation to a boy who was born on 3^rd September 2016 and is now about ten weeks old. Both his parents are Polish. They are not, and have not been, married to each other. The father has lived for several years here in England, and currently in the area of Blackburn. The mother and father met through some web based connection or introduction, as a result of which the mother travelled to England about last December 2015. Clearly, the child was conceived very early in their relationship. Sadly, the relationship between them was characterised by aggression, and the relationship had already completely broken down before the baby was born. Even prior to the birth, the local authority were concerned about the potential risks to this baby, both from the aggression that had characterised the relationship between his parents, and also, more generally, the ability of this young mother (currently aged 20) to parent her baby without a good deal of help and support. Therefore, the proceedings for a care order were issued quite quickly after the child had been born. On discharge from the hospital of birth, the child, together with the mother, were accommodated by the local authority with a foster mother who is, in fact, present in court. My understanding is that the foster mother has provided, and continues to provide, an excellent home and environment for the baby and his mother, and is enabling the mother to learn parenting skills.
2. The mother has made very plain from the outset that it is her wish to return to live in Poland, taking her baby with her. In her statement dated 11^th October 2016 she says, in effect, that it was only because of the relationship between herself and the father that she first travelled to England. Now that that relationship has so completely broken down, she has no ties whatsoever here in England. She speaks little or no English. She wishes to return as soon as possible to live with, or at any rate under the umbrella of, her own family in Poland. As I understand it, the wishes of the father, who does have parental responsibility for the child, being named on the birth certificate, are that the child should be enabled to travel with the mother to live in Poland. The father is not personally present today. His solicitors have not always found it easy to obtain up-to-date instructions, but I am assured that, in a general way, that is his wish.
3. These facts, therefore, obviously raise for consideration the question whether these proceedings should be fully litigated here in England or transferred to Poland pursuant to Article 15 of Council Regulation (EC) No. 2201/2003 known as "Brussels II Revised." Further, there is an obvious question in this case as to whether the courts of England and Wales have any underlying jurisdiction at all. This child was born here and so far has never left England and Wales, but he is still only about ten weeks old. It is unlikely that he has yet acquired an habitual residence of his own independent or separate from that of his mother. His mother says very strongly in her statement that she does not regard herself as habitually resident here in England. She considers that she remains habitually resident in Poland, having only travelled to England in furtherance of a relationship which so relatively rapidly and completely broke down. She says that there is no sense in which she is settled here in England in a social environment and, accordingly, that she is not habitually resident here.
4. For the purposes of today's hearing and the order which I make today, I am prepared to park or shelve any determination of where this child is actually currently habitually resident, and I proceed, for today's purposes, on the basis of Article 13(1) of the    Brussels II regulation, namely that:

"Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction."

5. There have been earlier hearings before the allocated judge, His Honour Judge Booth, at which consideration was given to the application of Article 15 to this case. As is very well known, the opening words of Article 15, paragraph 1, are:

"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…"

6. There are, therefore, three conditions which have to be established for the application and operation of Article 15. The first is that there is another member state, "with which the child has a particular connection." That condition is clearly established in this case since the child is a Polish national and, indeed, is not a British national. The second condition is that a court of that other member state, "would be better placed to hear the case." At an early stage in these proceedings it was agreed by all parties that indeed a court in Poland would be better placed to hear this case, not least because the mother's first language is Polish and she has very little use of the English language. Further, the mother's own case falls to be considered in the context of her wider family, and they are all located in Poland. The third condition is that transfer, "is in the best interests of the child." Here, until today, there has been a concern as to the relative lack of information from, and engagement by, the authorities in Poland. As I understand it, at the last hearing before His Honour Judge Booth on 26^th October 2016 the whole issue with regard to Article 15 was fixed for consideration by me here today, on the basis that meantime the local authority would establish what support and facilities would be available for the mother and child in Poland, and that there would be an assessment of the extended family members in Poland. That is all the subject of paragraph 2 of the order made on 26^th October 2016. It is right to say that between then and now not a great deal of progress has been able to be made. The social worker, Mr Samuel Myhill LLB, MA, has communicated by telephone with the Director of the Municipal Social Welfare Centre for the town or area in which the extended family lives. That was only achieved last Thursday, 10^th November 2016. Mr Myhill describes the content of the phone call in his statement dated 14^th November 2016. He clearly gained a certain amount of information and, indeed, reassurance from the Director of the Municipal Social Welfare Centre, but there has not yet been any assessment of the extended family as such. The Polish authorities indicated, quite reasonably, that before they could undertake that they would require all the relevant documents from these proceedings already translated into Polish. The Director did indicate that once he had all that information an assessment could be completed:

"Within a couple of days, although delays could be caused depending on the response time of partner agencies."

7. Against that background, it was my impression when this case began in court today that there was a somewhat fatalistic sense that today's hearing could not be very effective, and that the whole question of transfer pursuant to Article 15 might have to be put off and adjourned until there was further information from Poland. I, myself, do not share that fatalism and approach. It seems to me very clear in this case that the future of this child should be in Poland. He is a Polish child of Polish parents. Both his parents wish him to travel as soon as possible to Poland in order to live there. His mother is, effectively, chained or shackled here, when she longs to return to Poland. I cannot, frankly, see any circumstances or situation in which, realistically, this child should not travel to Poland. Of course, it may transpire that neither of his parents is able properly to care for him. It may transpire that he could not properly be cared for within his wider family. It may transpire that he has to be the subject of some care type proceedings in Poland, and maybe fostered, or even placed in some kind of Polish institution for children whose parents cannot care for them. It may even be, if the law of Poland has a concept of adoption, that he may be adopted in Poland. Therefore, nothing that I say is intended in any way whatsoever to pre-judge or indicate the ultimate outcome for this child, although, of course, one would sincerely wish and hope that he can remain, long-term, living with his mother and brought up by her. However, whatever is the long-term outcome, it seems to me that it is an outcome that should be achieved within Poland and resolved, if necessary, by the courts and law of Poland. He is a Polish child. It is, essentially, adventitious that he was born here in England, the relationslip between his parents having already ended. He should travel to Poland and start being brought up within the Polish environment and, indeed, the Polish language just as soon as that can be achieved.
8. Article 15 does not require or even contemplate instant transfer of proceedings or instant transfer or travel of the child concerned. Far from it, the effect of Article 15(1) is that this court may either:

(a) stay the case… 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…

It follows from that that the first step in the implementation of Article 15 is, indeed, not automatic transfer of the case or the child but, rather, a stay or brake on the proceedings here, whilst the court of the other state and, more generally, the authorities of the other state decide whether or not to accept the child and put in place an appropriate framework and mechanism for receiving him. Article 15(4) provides that:

"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."

9. It seems to me, therefore, that it is wide open for me to grasp the nettle and reach a firm decision today that it is in the best interests of this child that he travel to Poland and that proceedings should be commenced in relation to him before an appropriate court in Poland. The effect of that decision today is that these proceedings will now be stayed, but it is not an effect that this child should instantly travel to Poland. Far from it; by acting under Article 15(1) I put the stay or brake on these proceedings precisely to enable appropriate steps now to be taken in Poland within the time limit that will be set.
10. It seems to me that it is not consistent with a stay that an interim care order should remain in place and, accordingly, I have requested, and the mother has readily agreed to give, undertakings to the effect that she and the child will, for the time being, remain with the foster mother in the present foster home, being voluntarily accommodated there pursuant to section 20 of the Children Act 1989. She will not remove the child from that home and still less remove him to Poland, save in accordance with arrangements made, and inevitably funded, by the local authority. She will very actively seek to obtain as soon as possible a Polish passport or other emergency travel document for the child so that he can exit the United Kingdom and enter Poland.
11. Therefore, it seems to me that I can entirely properly and, indeed, in the overall best interests of this child, stay and put a brake on further proceedings here on the basis that the local authority will now, very actively, drive forward as fast as they can the making of practical arrangements and safeguards for this child, together with his mother, to travel to Poland. Clearly, they will need to liaise fully with their equivalent authorities in Poland, and will need to take active steps to introduce before the appropriate court in Poland an appropriate set of legal proceedings, so that there is a framework within which this child can travel to, and be protected in, Poland.
12. However, for all those reasons I am not willing simply further to adjourn off this case today, while further enquiries are made of the authorities in Poland in, potentially, a somewhat desultory way. Rather, it should now be clearly signalled that it is to Poland that this child should move just as soon as appropriate arrangements and safeguards can be made. Therefore, for those reasons I will now make an order in the terms which have been discussed and drafted today, and I express the hope that the local authority will give the highest possible priority to driving this case forward in the direction indicated. Provided they do so, it should not, in fact, be necessary for any further hearing or proceedings before the courts of England and Wales. However if, for any reason, there are unforeseen difficulties or problems, then of course the stay can be lifted and the matter restored before His Honour Judge Booth to whom these proceedings, albeit stayed, remain allocated.
(End of Judgment)