England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
(Sitting at East London)

		Westferry Circus Canary Wharf London, E14 4HD
		23rd March 2017

JUDGE ATKINSON:

1. Daniel is a little boy who was born in November 2013, and is three years of age. He is the only child of the mother and the father in this case. The mother and the father originate from Lithuania and Latvia respectively. The local authority issued proceedings in respect of Daniel on 11 November of last year. The precipitating event arose out of a reported instance of domestic violence and what is alleged to be subsequent discovery of physical harm to Daniel.
2. Daniel has subsequently been removed into foster care. He is now in his second foster care placement, the first having broken down, but seems very much more settled in his current placement. Following examination by an expert in these proceedings, he was identified as having a significant number of bruises to his body which are said to be unusual in their placing and in their number to be capable of explanation through accident.
3. The local authority case is put on the basis of the physical harm it alleges against Daniel from one or other of the parents and also the history of domestic abuse. The proceedings are relatively well advanced in that I have an IRH listed in this case on 20 April. Dr. Kennedy, a child and adolescent psychiatrist, is reporting, there having been some significant concerns about Daniel's presenting behaviour although, as I have already observed, that seems to have calmed down. Extended members of family have been assessed as kinship carers and in particular the maternal grandmother in Lithuania has been positively assessed. Another person - it does not matter who - has been positively assessed. As I have said, there is an IRH due on 20 April.
4. Within the proceedings, an issue arose as to jurisdiction which I have already resolved. Daniel is quite clearly habitually resident in this country. Whilst he has maintained his connection with Lithuania, which is the country of his mother's origin, through frequent visits and a knowledge of his family in Lithuania, he nevertheless is an English child. His connection with this country was such that he was very obviously habitually resident here, as are his parents.
5. There then arose an issue regarding Article 15 with which this judgment is concerned. The Lithuanian Embassy has become involved. I am well used to seeing the representative we have in court. I am pleased to invite him to be present and I am pleased that he has taken an interest in the case and attended the proceedings.
6. As is often the case, the Lithuanian authorities have expressed their opposition to any orders which might result in an adoption order in this case. Lithuania does not, as most European countries, recognise what it describes as forced adoption. That is, adoption that is without the consent of the parents, as it would be here. So it is that I have dealt with this case on the basis that through ICACU, the appropriate authority from Lithuania - the Lithuanian Central Authority, has invited a transfer of this case pursuant to Article 15 of Brussels II Revised.
7. On the last occasion, I sent the parties away in order to give me some idea as to whether or not there was any consent on behalf of any of the parties to a transfer, should it be indicated. In fact, just prior to this hearing for a time, it appeared that the father invited a transfer. He no longer does. The mother effectively does not say one way or another, but does say that she may well invite a transfer in circumstances in which the final care plan envisages adoption, which is something that is not, as I have already said, an outcome that would be acceptable in Lithuania.
8. It seems to me that I need to deal with this Article 15 issue now. It is not appropriate, in my view, to wait until we see what the local authority care plan is before I decide the Article 15 point. The authorities in relation to Article 15 are very clear that the nettle has to be grasped sooner rather than later and a decision made sooner rather than later. I do not intend to defer that until we find out what the alternatives might well be.
9. On that basis, let me turn to the law on Article 15 transfers. Article 15(b)(IIR) provides an exception to the ordinary determination of jurisdiction. It reads:

"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".

10. In AB v JLB (Brussels II Revised: Article 15 [2009] 1FLR 517, Munby J. as he then was, distilled the route to the exception of Article 15(1) into three essential questions: (a) has the child a particular connection with the relevant other member state within the meaning of Article 15(3)? That is a simple question of fact. (b) Would the court of the other member state be better placed to hear the case or part of it? This is an "exercise in evaluation to be undertaken in the light of all of the circumstances". (c) Would transfer to the other court be "in the best interests of the child"? Again, this is an exercise in evaluation undertaken in the light of the circumstances of the particular child.
11. Article 15 transfers were considered most recently in the Supreme Court in the case of In the matter of N (Children) [2016] UKSC 15. Taking this decision with the earlier decisions - in particular in Re. M (Brussels II Revised) Article 15 [2014] EWCA Civ 152 - I remind myself of the following principles which are most applicable to this particular case:

a. the Article 15 exception to the general rule of jurisdiction only comes into play when all three of the essential questions to which I have already referred are answered in the affirmative;

b. the provisions of the regulation are based upon mutual respect and trust between the member states, so the starting point for the evaluation of whether the other member state is better placed to hear the proceedings is one of comity and cooperation between member states. We are reminded in Re. M that:

"The judicial and social care arrangements in the member states are to be treated by the courts in England and Wales as being equally competent".

c. The question of whether a court of another member state would be better placed to hear the case or part of it is an evaluation, as I have already said, to be performed having considered all of the circumstances of the case. That evaluation is intimately connected with the question of best interests of the child.

d. Factors which may inform the court's evaluation of whether one court is better placed to hear a case are factors such as the availability of witnesses of fact, whether and by whom assessments can be conducted, the necessity for assessors to travel, whether one court's knowledge of the case provides an advantage.

e. The best interests question is intended as an additional safeguard for the child. The question is not what the eventual outcome to the case will be about whether the transfer will be in best interests. That is particularly pertinent, given the argument that is made that the outcome that the local authority has proposed may well conflict with what sort of outcome might be arrived at in the other member state, as in this case.

f. whilst some of the same factors may be relevant to both the best interests and better placed tests, it is clear that they are separate questions and must be addressed separately.

12. The issue of what was encompassed in the best interests test was arguably one of the most significant issues considered in the case of Re. M because, prior to that decision, there was a view that best interests could not extend to some form of welfare assessment in relation to the child. At paragraph 44, Baroness Hale I think it was, said this:

"The question remains what is encompassed in the best interests requirement. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child's best interests. This is a different question from what eventual outcome to the case will be in the child's best interests. The focus of the enquiry is different but it is wrong to call it attenuated. The factors relevant to deciding the question will vary according to the circumstances. There is no reason at all to exclude the impact upon the child's welfare in the short or the longer term of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests. It is deciding whether it is in the child's best interests for the court currently seized of the case to retain it or whether it is in the child's best interests for the case to be transferred to the requested court".

13. Following the decision of the Supreme Court in Re. N, there has been a decision of the CJEU of 27 November 2003 in the case of C-428/15 Child and Family Agency v JD. That decision has relevance to this decision as a result of the following: first of all, the judgment emphasises that Article 15 "constitutes a special rule of jurisdiction that derogates from the general rule of jurisdiction and as such should be strictly interpreted". A request therefore must be "capable of rebutting the strong presumption in favour of maintaining its own jurisdiction".
14. Secondly, attention was drawn to Article 15(3) in which the finite list of factors establishing particular connection is drawn. The point was made that these are factors which, to varying degrees, evidence a proximity between the child and the other member state. It is suggested in the CJEU judgment that, when considering Article 15, a comparison can be drawn between the factors which point to habitual residence in the state with jurisdiction and "the extent and degree of the relation of particular proximity demonstrated by one or more of the factors set out in Article 15(3) between the child and the member state".
15. On the issue of better placed, the CJEU determined that:

"The court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and specific added value with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before the court".

16. Finally, on the best interests test, the CJEU commented that:

"The transfer must be in the best interests of the child implies that the court having jurisdiction" - that is, this court - "must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another member state is not liable to be detrimental to the situation of the child concerned. The court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child's material situation".

17. Effectively, the importance of the CJEU decision for this case in particular is the strong emphasis that Article 15 is an exception to the rule of jurisdiction, that a transfer must bring with it some form of added value in terms of the other member state's ability to hear the case, some sort of added value for the child and no detriment to the child in transfer. That is a significant shift in the way in which we have been dealing with Article 15 cases until that decision. I cannot stress enough that the case needs to be read and understood by anybody who argues an Article 15 case.
18. Applying those factors to this case, whilst on the face of it I do not seem to have a formal request under Article 15 from any of the parties in the case at this time, I do have a request that an Article 15 transfer needs to be considered by the other member state.
19. What that means is, it seems to me, I do have to give active consideration to Article 15 and a decision, which is what I am doing. If I decide that Article 15 transfer is indicated, I cannot make that transfer request unless one of the parties consents to it. I would have to invite reconsideration by the parties as to whether anybody would consent to it. As it happens, that is not going to be a problem because I am not going to make the request. My reasons can be best expressed by looking at the three questions that I have to direct my attention to.
20. Firstly, particular connection. There is a finite list of factors set out in Article 15(3). I am satisfied that the "particular connection" here is nationality. So it is that the first part of the test is met, but that is always the simplest part of the test. If an Article 15 request fell at that hurdle, it would never succeed. They are seldom brought unless that particular connection can be established.
21. Moving on to "better placed", would the Lithuanian courts be better placed to hear this case? At the moment, it seems to me, with the best will in the world and absolutely respecting the capabilities of the Lithuanian courts to handle this case in an appropriate way, this case would not be better placed heard in Lithuania. The threshold facts arise out of incidents that have taken place in this country. The allegations of domestic abuse are recorded evidentially in this country. The evidence of bruising is brought through evidence from a paediatrician, who has examined Daniel. That witness is in this country. There is currently a child and adolescent psychiatrist who is carrying out a full assessment of Daniel. That evidence will be produced in this country in English. There is nothing, other than the fact that one of the kinship carers is resident in Lithuania, that would make this case better placed to be heard in the Lithuanian courts. The whole history is in this country.
22. Having answered that question in the negative, I do not really need to go on and consider best interests, but I will. Would it be in the child's "best interests" to have the matter transferred to Lithuania? Again, I do not see that it would. Nor, I might add, do I see that it would even if what was on the table was adoption. There will be in this country a full consideration of all of the options for this child. That includes a full consideration of two kinship carers, one of whom is resident in Lithuania, both of whom have been positively assessed thus far. There will be a full welfare analysis against a background of the availability of family carers. There will be a full welfare analysis of whether or not it is in this child's best interests to return to his parents, be placed with kinship carers or any other alternative that is put before this court. There is no other alternative at this moment in time but, even if there was, in the same way that I am expected to respect the legal system of Lithuania, there is mutual respect offered by the Lithuanian Central Authority to the legal system that there is in place here. The assumption must be that all options will be properly considered on a welfare basis.
23. There is also the impact upon Daniel of being uprooted from the country that he has grown up in and known to another country, to which I accept he has a particular connection through heritage. It seems to me that is something else that I have to take into consideration.
24. Finally, there is no suggestion at this juncture that the parents are looking to go back and live in Lithuania. Again, that in itself, it seems to me, diminishes the connection.
25. All things considered and bearing in mind the comments that were made in the CJEU case to which I have referred at length, it seems to me that there is no reason that I should rebut the strong presumption in favour of maintaining my own jurisdiction. There is no genuine and specific added value, looking at the second test, of transferring this matter to the Lithuanian courts. Finally, the transfer of this case may well have a detrimental effect on Daniel himself.
26. All those facts considered, I do not intend to make the Article 15 transfer.