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Cite as: [2017] EWFC B1
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CASE No: DE16CO0340
IN THE FAMILY COURT SITTING AT DERBY
Date: 17 January 2017
Before
His Honour Judge Clifford Bellamy
Re W (Care Proceedings: Jurisdiction)
Mr Gordon Semple for Derbyshire County Council
Mr David Parkes for the First Respondent mother
Mr Vince Beckworth for the Second Respondent father
Miss Anne Williams for the children
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their families must be strictly preserved.
JUDGE BELLAMY
1. On 23 rd November 2016 Derbyshire County Council ('the local authority') issued an application for care orders in respect of two children, L (a girl aged 2) and M (a boy aged 1). The children's parents are both Polish nationals. They arrived in England on or around 20 th September 2016. The case comes before me for determination of a preliminary issue as to whether the court has jurisdiction under Council Regulation (EC) No 2201/2003 known as the Brussels II Revised Regulation ('the Regulation') to determine the application for care orders.
Essential background history
2. The mother is aged 23. The father is aged 28. Both parents were born in Poland of Polish parents. Their first language is Polish. The mother has required the assistance of an interpreter at this hearing. The father has not.
3. Since 2010 the father has, on occasions, spent time living and working in Northern Ireland. He was living in Northern Ireland in 2012 when he first met the mother.
4. In or around October 2012 the mother travelled to Northern Ireland to visit friends. She had only intended to stay for around three weeks. Until then she had been living alone in a one bedroom flat in Poland.
5. Whilst in Northern Ireland the mother formed a relationship with the father. As a result, she decided to stay in Northern Ireland. She remained living in Northern Ireland until October 2014. It was during that period that L was born.
6. Between 2012 and October 2014 the parents lived initially with the father's sister. After the birth of L they obtained the tenancy of a house.
7. The local authority has obtained disclosure from the police in Northern Ireland. This reveals that on 28 th February 2014 the father was cautioned for being in possession of an offensive weapon. Two months later he was cautioned for being in possession of a class B drug.
8. On 1 st July 2014 there was an incident of domestic abuse as a result of which the father was bailed to his sister's address. The father was cautioned for offences of common assault. The parents separated briefly but quickly resumed living together.
9. The parents moved back to Poland with L in October 2014. They went to live with the paternal grandparents at their farm in Poland. They gave up the tenancy of their home in Northern Ireland.
10. At the time when they returned to Poland the family was involved with Children's Social Care in Northern Ireland. In oral evidence given to this court on 28 th November 2016 the mother was asked why she had had a social worker. She said, 'Because I called the police saying that [the father] was beating me up'.
11. The mother says that following their return to Poland the father obtained work. She and L stayed at the farm whilst the father was out at work.
12. L was registered with a local doctor in Poland.
13. In February 2015 the father was convicted in Poland of an offence relating to domestic violence for which he received a four month prison sentence. The sentence was suspended for two years.
14. The family's stay in Poland was relatively brief. The father says that he returned to Northern Ireland in February 2015 and that the next month the mother and L joined him. The mother says that they both returned to Northern Ireland in March. Once again they lived with the father's sister.
15. At the time of their return to Northern Ireland the mother was pregnant with her second child though she did not discover this until after her arrival in Northern Ireland.
16. In her written evidence the mother explains the decision to return to Northern Ireland. She says,
'I found living on the farm a little boring and so I wanted to try again in Northern Ireland. Looking back now I miss the farm but at the time I found living there a little boring. I also found living in Poland hard, there is not much money. Once I had seen how it was in Northern Ireland I realized the difference. I thought the children would have a better future in Northern Ireland/England than they do in Poland.'
Notwithstanding the mother's reference to England there is no evidence that the mother had spent any time living in England up to that point.
17. Three months later, in May 2015, the family again returned to live in Poland The mother explains this decision as follows:
'I wanted to give birth to M in Poland and that is why we again travelled back to Poland. I found the language barrier quite intimidating when I gave birth to L in Northern Ireland and so I thought it would be better to give birth to M in Poland. My friends on Facebook told me that the Polish hospitals were great for midwifery care. There was also some support from [the father's] parents. I was also conscious that L had a close bond with her grandfather from our previous period of living in Poland. [The father] and I sat down to talk about a return. We had some saving (sic) and we decided we could sell our belongings. We decided to return.'
18. By the time of the family's return to Poland they were again under the scrutiny of Children's Social Care in Northern Ireland. The mother had been advised to go to a refuge. She did not follow that advice.
19. Upon returning to Poland the family again lived with paternal grandparents. They remained living in Poland until 20 th September 2016. The mother says that during this period the father managed to find work. The children were registered with doctors. M had a health visitor.
20. On 20 th September 2016 the family came to live in England. They went to stay with the father's friends in Derbyshire. The mother says that the move to England had been planned for around two or three months. She says that when the family came to England it was her intention to find a job and settle here. She says,
'We went to live with [the father's] parents as soon as we arrived back in Poland. I cannot say a bad word about [his] parents, they always helped us. It was hard though and we again decided to return to the UK with a view to giving the children a better life. We wanted L and M to go to a preschool/nursery in England. We also decided that the children learning to speak English was very important for the children, we want them to speak both languages.'
The father says that it was their intention 'to settle in the UK for the foreseeable future'. The father found work. He says that 'we began to register with the local doctors and to settle in.'
21. On 4 th October 2016 the father was arrested for offences of violence towards the mother. He was bailed. The police made a referral to the local authority. The parents have not lived together since that date. The mother and the children remained living with the father's friends. As a condition of his bail the father moved out.
22. On 10 th October the mother and the children moved to live in a refuge. Later that month the mother indicated to the local authority that she wished to resume her relationship with the father.
23. On 13 th November the mother met with the father. The meeting took place close to the refuge. As a result, she and the children were asked to leave the refuge. With the assistance of the local authority they were placed in an alternative refuge.
24. In her initial social work statement the allocated social worker says that the mother,
'has limited family support. She says that she has no family in England and does not have contact with any of her extended family; therefore there is no one else who can provide a place of safety to them.'
25. In her second statement the social worker states that the children were registered with a GP at the medical centre near to the refuge where they were staying. They attended a day nursery at the refuge from 14 th to 28 th November.
26. In the period from their arrival in England until their separation on 4 th October the father was in work and supporting his family. In the period from 4 th October to 23 rd November the mother was reliant upon the local authority for financial support. She was not then entitled to state benefits.
27. The local authority issued these proceedings on 23 rd November. Directions on issue were given by District Judge Douce. He listed the application for an urgent hearing to consider an application by the local authority for interim care orders. That application was heard by His Honour Judge Orrell on 28 th November. Interim care orders were made. The children were placed in foster care. They have remained in foster care since that date.
Jurisdiction - the law
28. So far as concerns the issue of jurisdiction, paragraph 5 of Judge Orrell's order of 28 th November 2016 records that,
(a) The Court finds that the issue of jurisdiction is live in these proceedings.
(b) The Court considers that habitual residence of the children is to be determined within these proceedings and records, without prejudice to that determination, that the Court may not have jurisdiction founded on habitual residence.
(c) The Court has therefore limited the exercise of its jurisdiction to taking urgent, provisional, protective measures (pursuant to Art 20 Brussel IIr) pending determination of jurisdiction.
29. The starting point for considering the issue of jurisdiction is Council Regulation (EC) No 2201/2003 . Article 8.1 of the Regulation provides that:
'The courts 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.'
30. Article 16.1 provides that:
'A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent...'
31. In this case that means that the court must determine whether L and M were habitually resident in England and Wales on 23 rd November 2016, the date when these proceedings were issued. If they were then this court has jurisdiction.
32. Even if the court is not persuaded that the children were habitually resident in England and Wales on 23 rd November there are circumstances in which the English court may still have jurisdiction to determine these proceedings.
33. So far as is material, Article 12 of the Regulation provides that,
'3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.'
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, the courts of the Member State where the child is present shall have jurisdiction.'
Article 14 provides that,
'Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.'
34. In determining the issue of habitual residence it is necessary not only to consider the relevant provisions of the Regulation but also the guidance given in the authorities concerning the interpretation and application of the Regulation. In the case with which I am concerned, two recent decisions of the Supreme Court are of particular relevance.
35. In A v A (Children: Habitual Residence) [2013] UKSC 60 ; [2014] AC 1 the issue for determination was whether the High Court of England and Wales had jurisdiction to order the "return" to this country of a very young child who had never lived in or even been to England, on the basis either that he was habitually resident here or that he had British nationality. In her judgment, Baroness Hale was very clear about the approach that should be taken when considering the issue of habitual residence. After analysing the Regulation and the relevant authorities, she said [§54]
'Drawing the threads together, therefore:
i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) 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. This depends upon numerous factors, including the reasons for the family's stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon 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.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.'
36. Further guidance was given by the Supreme Court in Re B (Habitual Residence: Inherent Jurisdiction [2016] UKSC 4, [2016] 1 FLR 561. Whereas in A v A (Children: Habitual Residence) the court was concerned with the circumstances in which habitual residence may be acquired, Re B (Habitual Residence: Inherent Jurisdiction) concerned the circumstances in which habitual residence might be lost. Lord Wilson approached that issue thus:
46. One of the well-judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandon's third preliminary point in the J case), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child's habitual residence is overarchingly 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. '
37. The decision of the Supreme Court in Re B (Habitual Residence: Inherent Jurisdiction was not unanimous. Responding to the dissenting judgment of Lord Sumption, Lord Wilson expanded on the points made earlier at §45:
'54. In para 65 below Lord Sumption complains that the only proposed ground for allowing the appeal is that it is "highly unlikely, albeit conceivable" that one habitual residence will be lost before another is acquired. There, with respect, Lord Sumption misunderstands my judgment. What I suggest - in para 45 above - is that the modern concept of habitual residence operates in the expectation that an old habitual residence is lost when a new one is gained. The mere unlikelihood of the correctness of an outcome favoured by a judge would be a disgraceful ground for allowing an appeal. The ground for allowing this appeal is that the modern concept of habitual residence identifies the point of its loss as being the stage when the person achieves the requisite degree of disengagement from the old environment (para 48 above); that intention, in this case parental intention, is no longer dispositive in this respect (para 47 above); that highly relevant to the person's achievement of that requisite degree of disengagement is his achievement of the requisite degree of integration in the new environment (para 48 above); and that, by application of the modern concept, B had not lost her habitual residence in England by 13 February 2014 (para 51 above).
Discussion
38. With the Regulations and that authoritative guidance in mind, I turn to consider their application to the facts of this case.
39. The key dates are provided by the parents. Their account is provided in their written statements. I have not heard any oral evidence. For the purpose of this present enquiry I proceed on the assumption that those written accounts are accurate.
40. The mother arrived in Northern Ireland in or around October 2012. She quickly formed a relationship with the father. They remained together as a family living in Northern Ireland until October 2014 when they returned to Poland. They stayed in Poland until February or March 2015 when they returned to Northern Ireland. Their stay in Northern Ireland was short-lived. They returned to live in Poland in May 2015. They remained living in Poland until 20 th September 2016 when they came to live in England.
41. The first question that falls for consideration is to determine where, if anywhere, the children were habitually resident on 20 th September 2016, the day they arrived in England. It is common ground that neither child had set foot in England before their arrival here on 20 th September 2016.
42. As at 20 th September 2016 the children had been living in Poland for 16 months. The parents and the children are Polish nationals. The parents' first language is Polish. The parents have extended family members living in Poland including the children's paternal grandparents with whom the family had been living during those 16 months. The father worked during that period. The children were registered with local doctors. M was registered with a health visitor.
43. In A v A Baroness Hale noted that,
'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. This depends upon numerous factors, including the reasons for the family's stay in the country in question.'
Baroness Hale made it clear that that is the approach that applies in England and Wales.
44. Following that approach, I am entirely satisfied that as at 20 th September 2016 the place which reflects some degree of integration of these children in a social and family environment was Poland. They are Polish nationals. They had been living in Poland continuously since May 2015 (a period of around 16 months). They had been living with family members (paternal grandparents). That is where M was born. That is the place which reflected 'some degree of integration' by these children 'in a social and family environment'. I am satisfied that on the day the family arrived in England the children were habitually resident in Poland. No party disagrees with that analysis.
45. The question that remains for determination is whether, following their arrival in England on 20 th September 2016, the children lost their habitual residence in Poland and acquired habitual residence in England.
46. The local authority issued these proceedings on 23 rd November 2016. For the purpose of Article 8 of the Regulation, that is the date when the court becoming seised of these proceedings. It is necessary, therefore, to consider in some detail the children's circumstances during the period from 20 th September to 23 rd November (hereafter referred to as 'the relevant period'), a period of 74 days or just over 10 weeks.
47. In the period from 20 th September to 4 th October the parents and the children lived together as a family. That is a period of two weeks. During that period they lived with friends of the father; they were lodgers.
48. On 4 th October the father was arrested on suspicion of assaulting the mother. He was placed on bail. During the remainder of the relevant period the parents and the children did not live together as a family. The mother and the children continued to live with the father's friends. The father was on bail.
49. On 10 th October, with the assistance of the local authority, the mother and the children left their rented accommodation and went to live in a refuge. They remained at that refuge for 5 weeks until 14 th November when they were asked to leave because of the mother's clandestine meeting with the father.
50. On 14 th November, again with the help of the local authority, mother and children moved to a second refuge. The children remained in this refuge for 2 weeks until 28 th November. Whilst at this refuge arrangements were made for the children to be registered with a local GP and for them to attend a nursery attached to the refuge.
51. On 23 rd November the local authority issued these proceedings.
52. Against that factual background the following factors support the contention that the family had acquired habitual residence in England and Wales:
(a) Both children travelled to England with their biological parents. Not only were the parents the children's primary carers they were also the only people with parental responsibility for them.
(b) At the time they arrived in England the parents claim to have had a settled intention to remain here. The mother, in particular, had a belief that the children would have a better life in England. She had intended that they be brought up to speak English.
(c) The parents say that they had been planning the move to England over a period of two or three months.
(d) Upon arrival in England the father managed to find work.
(e) During the relevant period there were indications of the initial stages of social and familial integration including the registration of the children with a GP and obtaining a nursery place for them.
(f) The removal of the children from Poland to England was a lawful removal.
(g) There are no restrictions on the family's right to remain in this jurisdiction.
53. The following factors would tend to suggest that the family had not acquired habitual residence in England and Wales:
(a) At the time of the move to this jurisdiction the children were habitually resident in Poland. They had lived there for 16 months.
(b) Members of the children's wider birth family, and in particular their paternal grandparents, live in Poland. Those family members continue to live in Poland. Neither parent has any family members living in England.
(c) The mother acknowledges that L has a close relationship with her grandfather.
(d) Since 2014 there have been frequent moves between jurisdictions. The family have spent time in Northern Ireland, Poland and latterly England. At the time of each move the parents had an intention to remain living in the receiving jurisdiction.
(e) There has been social services involvement in each country and concerns have been raised in each country regarding the safety of the children as a result of the father's violence towards the mother.
(f) The chronology suggests a possible link between the involvement of statutory agencies and the family's movement from one jurisdiction to another.
(g) The family's accommodation arrangements in England were only temporary. They were lodging with friends of the father. At the time these proceedings were issued the family still did not have secure accommodation.
(h) Prior to their move to the second refuge on 14 th November 2016 no arrangements had been made for either child to have nursery provision.
(i) The family did not register with a dentist. It would seem that they only registered with a GP after the local authority became involved.
(j) In the period between the date of separation and the issuing of these proceedings the mother was not entitled to state benefits and was dependent upon the local authority for financial support for herself and the children.
(k) M was born in Poland. Neither child had set foot in England prior to 20 th September 2016.
(l) Both children are Polish nationals.
Applying the see-saw analogy referred to in the judgment of Lord Wilson in Re B, in the course of the brief period of time between the family arriving in England and the commencement of these proceedings had the family put down those first roots which represent the requisite degree of integration into a social and family environment in England to a degree that was sufficient to pull up their roots in Poland to the point at which the family achieved the requisite degree of de-integration? In my judgment, the balance sheet assessment I have undertaken leads clearly to the conclusion that on the date when this court became seised of this matter the family had not done so. The picture created by the history outlined above suggests social isolation rather than social integration.
54. I find that on the relevant date these children continued to be habitually resident in Poland. This court does not, therefore, have jurisdiction to deal with these proceedings for the purpose of Article 8 of the Regulation.
55. As I indicated earlier, even if the court does not have jurisdiction under Article 8 it is necessary to go on to consider whether the court has jurisdiction under Article 12, 13 or 14. I am satisfied that it does not.
56. So far as concerns Article 12(3)(a) I have already indicated my finding that neither parent was habitually resident in England and Wales at the relevant date. Even if I am mistaken and one parent did have habitual residence here there is no evidence that the jurisdiction of the courts of England and Wales 'had been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings' at the time the court became seised. In my judgment Article 12 does not invest the court with jurisdiction to determine the care proceedings relating to these two children.
57. I am equally of the opinion that jurisdiction does not arise under Article 13. I am satisfied that on the relevant date the children's place of habitual residence could be established. That place of habitual residence was in Poland.
58. As I noted earlier, Article 14 provides that 'Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.' Having found that on the relevant date these children were habitually resident in Poland it is clear that the court does not have jurisdiction under Article 14.
Conclusion
59. Article 17 of the Regulation 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.'
60. I am satisfied that the courts in England and Wales do not have jurisdiction to determine the care proceedings issued by the local authority on 23 rd November 2016. I make a declaration in those terms.
61. I noted earlier that on 28 th November His Honour Judge Orrell made interim care orders in respect of both children. In his order he made it expressly clear that he was doing so pursuant to the powers set out in Article 20 of the Regulation. Article 20 provides that,
'(1) 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.
(2) The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.'
62. The local authority promptly notified the Polish authorities of the action it had taken in issuing proceedings and obtaining interim care orders. Further, by letter dated 16 th December 2016 the local authority wrote to the Polish Embassy in London to advise them of this hearing and to invite them to arrange for a representative to attend this hearing. The letter was passed on to the Consulate General of the Republic of Poland in Manchester. The Vice-Consul responded by e-mail dated 3 rd January, saying
'Please be kindly informed that this information is very much appreciated. Unfortunately we will not be able to attend the hearing on the 16 th January 2017 due to earlier confirmation of participation in other hearings. However, please be kindly advised that this Consulate would like to be further informed about this case's progress.'
The Consulate should be informed promptly of the outcome of this hearing and should be sent a copy of my judgment.
63. The interim care orders made on 28 th November are said to expire 'upon the cessation of proceedings'. Cessation of these proceedings will not take place until the Polish court 'has taken the measures it considers appropriate.' Given that these children have already been in foster care for 7 weeks it is important that the court keeps progress under regular review. The proceedings will therefore be listed for review in four weeks. The Consulate should be informed of that hearing and invited to attend.