England and Wales Family Court Decisions (other Judges)

IN THE EAST LONDON FAMILY COURT

		11, Westferry Circus, LONDON, E14 4HD
		07/11/2017

HER HONOUR JUDGE CAROL ATKINSON :

Introduction

1. NAA is 2 years old. Her mother was killed on or around 12^th December last year. No one will ever know precisely when. Her father died in prison less than 3 weeks later where he was remanded, charged with her murder. NAA has lived in foster care under an interim care order made to London Borough of B (the local authority) since the death of her mother was discovered.
2. NAA has two older sisters aged 8 and 6 and an extensive maternal and paternal family. They all live in "U" (a country outside of Europe). The maternal grandparents, maternal aunt and the paternal aunt are each parties to the current proceedings.
3. At this hearing I have three issues to determine:

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).

Decision

4. I can summarise my decisions as follows:

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

5. NAA's parents were born and raised in U. Her father was 5 years older than her mother. They were 34 and 29 years of age respectively when they died.
6. They were introduced to each other as potential partners by family members in the spring of 2008. They married two months later in the summer of 2008. Although this was an arranged marriage it would appear that they were both happy with the arrangement.
7. In September 2008 the father moved to London followed shortly by the mother in the November. In August 2009 their first child, Z, a girl, was born in London. A matter of months after the child was born the paternal aunt took her back to U to live in the paternal family home. The couple's second child, S, another girl, was born in December 2010. The mother took S to U in May 2011. The mother remained in U for a month or so before returning to London without either of her girls.
8. In November 2011 both parents returned to U for 3 months. They lived with their two children and the PGM in the father's flat in T. In February 2012 they returned to the UK together leaving the children behind.
9. From the middle of 2014 the mother made allegations that the father had been violent towards her. There was police and other agency involvement with the couple during June and July 2014 as a result.
10. In June 2015 NAA was born.
11. In August 2016 M went to U with NAA. Whilst she was there, in September 2016, the father indicated that he wanted to divorce the mother. Given that they later remarried, I assume that he did so successfully. He remained in London throughout. In early October 2016 a meeting was arranged, as is the local custom, of a group of local people described as the "reuniting commission" whose aim it was to re-unify the couple and save their marriage. The commission included an Imam and people who I assume were respected male members of the community. The MGF was present. The father attended by Skype. The mother was not present. The attempts to persuade the father to continue in the marriage were, I assume, unsuccessful.
12. On 4^th November 2016 the mother returned to the UK alone. She was unable to return with NAA because the paternal family had NAA's passport. She had to leave all of the children with her parents. Her plan, it would seem, was to return to the UK in order to sort out documents for NAA and meantime to work to support the girls who would remain with her parents. She was not at this time being supported by the father who had removed all of her money from her bank account. Before she left U she made a "power of attorney" indicating that her children were to live with her parents.
13. When she returned to the UK initially she lived with her friend MM. The father was by this time intent on securing her return to him. It is at this point that he suggests that the mother has been subject to radicalisation and was "going down the wrong path". His family had made an unsuccessful attempt to remove the girls from the maternal family but using the document left by the mother the maternal grandfather secured their return to him.
14. In phone calls between the mother and father recorded on the father's laptop dated 7^th November, the father is heard begging the mother to return to him. She complains that he hurts her badly when he is angry and that if she returns to him he will kill her. He says that he can "go to prison for her for 20-30 years". In the days following these calls the father calls the police a number of times complaining variously that the mother was missing, that he was being chased and did not feel safe, that he was going to be killed or kidnapped because he was going to divorce his wife. On one occasion (12^th November 2016) the operator called LAS concerned that the father was paranoid and needed assistance. It is at this time that the father's employment is terminated due to poor performance.
15. The accounts of MM and the maternal grandfather are in conflict with regard to dates but nothing turns on this. It would seem that in a bid to secure her return to him, the father agreed to instruct his family to provide NAA's passport to the mother so she could bring NAA back to the UK. MM says that the mother returned to U between 11^th and 17^th November. Her father suggests it was later and between 19^th and 22^nd. Significantly, the mother returned to the UK with NAA. On 20^th November 2016 the mother and father remarried. The maternal grandfather insists that this was formalised when they were in different countries, over a telephone, with an Imam. That is quite possible. On 22^nd November the mother returned to live with her husband taking NAA with her.
16. On or around 12^th December 2016 the mother was killed. I will return to the detail of this in a moment. When her father was arrested for the murder of her mother, NAA was placed into foster care where she has remained.

Jurisdiction

17. It will be convenient for me to deal with jurisdiction at this point. I should add that I have already given consideration to jurisdiction in this case, inviting anyone who wished to take issue to do so by 23^rd January 2017. No issue was ever taken. Nonetheless, it appears to have been raised again by the U Embassy representative who attended court on 31^st July 2017.

The Law

18. The starting point is the directly applicable Regulation 2201/2003 (EC) ('Brussels IIA') which governs jurisdiction relating to matters concerning parental responsibility in England & Wales. The jurisdictional rules apply equally to disputes between Member States (except Denmark) and between England & Wales and non-Member States, see Re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2009] UKSC 10.
19. The key jurisdictional rules are set out at Articles 8-10, 12-14, 16 For the purpose of this hearing, Articles 8 is in my view the start and the finish of the argument, such that it is, on jurisdiction.
20. The combined effect of Articles 8 and 16 is that a court has jurisdiction in matters relating to parental responsibility where the child at issue is habitually resident in that jurisdiction at the time the court it seised, i.e. when the papers are lodged. The application was made in respect of NAA on 15^th December 2016. So, if NAA was habitually resident as at 15^th December 2016 in England & Wales, the English court will have jurisdiction pursuant to Article 8.

Habitual residence

21. Habitual residence is a question of fact, focused on the circumstances of the child.
22. The definition and test, derived from Article 8 of BIIA has been further defined in 5 Supreme Court cases, as well as some recent jurisprudence from the Court of Appeal. Those 5 cases are: Re A (Jurisdiction: Return of Child) [2013] UKSC 60; [2014] 1 FLR 111In the matter of KL (A Child) [2013] UKSC 75; In the Matter of LC (Children) (No 2) [2013] UKSC 221; AR v RN (Habitual Residence) [2015] UKSC 35 and Re B (A Child) [2016] UKSC 4.
23. For the purposes of this application I consider the following points to be of greatest influence from the authorities set out above:

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

24. It is beyond dispute that NAA was habitually resident in this jurisdiction at the time that the LA issued its proceedings. The reasons can be summarised as follows:

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

25. I have long considered it necessary for there to be as much clarity as possible concerning the circumstances in which NAA's parent's died. There is evidence from the ISW that the paternal family in particular are struggling to come to terms with the suggestion that their son was responsible for the killing his wife. They may not have been given all of the information. They have been persuaded that the mother may have been radicalised. It is suggested that somehow she was not behaving as their culture demands a wife should. Whatever the reasons, she is not held in high regard, it would seem in the home of the paternal family. That would be concerning without more but if this picture is also an inaccurate one it has implications for the emotional development of NAA and indeed for her sisters. The circumstances of their respective deaths and the reaction of others to those circumstances may inform the welfare decisions that are yet to be made regarding her future care.
26. I am also of the view that it will be essential to NAA's emotional welfare that she has a definitive narrative about her parents' life here and how that came to an end. If she is to return to U in due course she may leave behind and even sever all links to the place where her parents died making it difficult in the future to discover what actually happened. Given the suspicion that some of her family has regarding the motives of the police and social services it may not be sufficient for her to have the police report or an account from social services; she needs an account stamped with the authority of the court, in my view. Something in which she will have confidence and with which she can deflect rumour, or untruthful or just plain inaccurate accounts.
27. Let me turn then to the four essential matters I am asked to consider: the circumstances of the mother's death; domestic violence; alleged radicalisation; the circumstances of the father's death. First, a word about the law.

The Law

28. The local authority seeks findings on these four matters and so it is for the local authority to prove the facts that they assert. Those facts are set out in a schedule.
29. The standard of proof is the simple balance of probabilities meaning that I must be satisfied that something is more likely than not to have happened before I can find it so.
30. I decide the case on the whole of the evidence. In this case that evidence has been presented to me entirely in written form. I have full police disclosure, medical and forensic evidence, statements from the social workers. I have a police statement from the maternal grandfather and second-hand accounts of the position taken on these facts by the extended maternal and paternal families from the ISW who has interviewed them.
31. I listed this hearing in anticipation that there might have been an attendance from one or other side of the extended family in order that they could test or challenge the evidence presented. Indeed, I gave directions at the hearing on 31^st July 2017 and in the lead up to this hearing designed to enable the families to take part and they were to notify the court of their intention to challenge any of the evidence by 1^st September 2017. In fact there has been no communication from the maternal or paternal families and I was made aware that the LA has been advised that they would not be travelling to the UK for this hearing and efforts made by the LA and court to establish a secure video link with U have not been possible. Furthermore those instructed by the paternal aunt have not sought to make any representations in respect of this hearing although I accept they are yet to secure public funding.
32. Thus it is, I accept, that the written evidence has been put before me unchallenged. Nevertheless, I have approached that evidence with a critical eye. I have reminded myself that much of it is hearsay and untested. I have looked carefully for discrepancies in accounts. I have searched painstakingly for evidence which might undermine the findings that I am asked to make and perhaps support the alternative propositions which are suggested as coming from the paternal family.
33. I do not intend to recite all of the evidence I have read. I will summarise only the essentials. I limit myself to resolving only what it is necessary to resolve in order to make or refuse to make the findings and in the interests of this child. I intend to deal with the issue of domestic violence and radicalisation first and examine the evidence regarding the mother and father's life together here in the UK in the lead up to those terrible events in December 2016.

Events leading up to 11^th December 2016

Domestic abuse

34. On 13^th June 2014, the mother was referred to a domestic abuse service known as REACH and situated within the emergency department of the hospital at which she worked. The referral was initiated by a work colleague of the mother, AW, who has given a statement to the police asserting that she was aware from 2012 that the mother was suffering domestic abuse in her marriage to the father. The referral followed an occasion when the mother was thrown out of their flat by the father.
35. The mother took the referral up and met with LS, one of the workers on a weekly basis during June 2014. Those meetings were documented and the notes from the meetings form exhibits in the police disclosure. The disclosures made in those interviews are corroborated by accounts given by the mother to the few friends that she took into her confidence and who gave statements to the police. They are also supported by the account that she gave to police when she made a complaint on 14^th June 2014. The father was interviewed and denied the domestic abuse. Thereafter the police closed the case as there was no "collaborating" evidence.
36. I bear in mind that the abuse was denied by this father and significantly, there has been no opportunity to test this evidence. However, it seems to me that contrary to the position taken by the police, there was a considerable body of evidence that this mother was the victim of persistent and serious domestic abuse.
37. I accept as accurate the recordings made by LS. I note in particular that she was extremely concerned for the mother's safety. As someone well used to dealing with vulnerable people in such a situation I doubt that she would have been so had there been nothing in the complaints. The detail in those accounts is as troubling as it is confirmatory. I note also that this mother kept a secret phone in her locker at work. Those were in my Judgment the actions of a woman who was afraid.
38. The accounts given to LS are corroborated by the complaints that she made to friends and the complaint that she made to the police on 14^th June. It matters not that she had no visible injuries. Tragically, the truth of her situation has been confirmed by her death at the father's hands.
39. It is not possible for me to make findings as to the detail of that abuse, nor do I need to descend into that detail given the events that followed. Suffice to say that her complaints included:

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.

40. In addition there is clear evidence from these accounts and other sources that this mother did not want to be be separated from her two older children. The placement of the girls with their paternal aunt was initially of necessity as the parents did not have the means to work and pay for child care. There is clear evidence that as time wore on the mother became more and more unhappy at this arrangement particularly after the arrival of NAA.
41. There is evidence that whilst the father on occasions promised the mother that they would bring the older girls to the UK from U, the placement of the girls with his family in U was also used by him as a means of controlling her behaviour.
42. It is not unreasonable to observe on what I have read that whilst this mother had invaluable support from REACH, and some of her closest friends – AW and MM for instance, she was largely abandoned by other agencies that she sought to involve. She must have felt utterly powerless to change her circumstances. The police closed the case considering that there was insufficient evidence and then effectively joined with the father, who started to call them himself in what appears to be pre-emptive action, warning her from contacting him. She said to her REACH worker that she felt that they did not take her seriously and I can see why that was. The Home Office led her to believe that if she left him she would be removed from the UK. When she mentioned the domestic violence she was told it could take a year to sort out. Meanwhile the REACH worker, who, as it turns out, had it right when she warned that should she not turn in for work without explanation the police should be notified immediately.

Radicalisation

43. It has been suggested by the paternal family that the mother had been radicalised. There is absolutely no evidence of this.
44. I have read the maternal grandfather's statement in which he refers to father's suggestion, made in November 2016 and the aftermath of their separation that the mother had become involved in Islamic extremist groups. This is a position that has latterly been taken up by the paternal family though I note that other than pure assertion there is no evidence cited by them in support. No mention is made of conversations with the mother to support this, or increased religious observance or secrecy on her part.
45. I have searched the papers for any evidence or reference to this, other than from the family. The father himself raises the issue of ISIS. This was to one of his employers, RS in November 2016 when he was expressing concern that his wife had gone missing. He asked RS whether it could be "the ISIS". The next day he confirmed that he had discovered that she was staying with work friends and eluded to the fact that they had had a fight.
46. It is also right to observe that the notes left at the scene of the mother's death dated 12^th December and apparently written by the father make strange references: "I would like you to punish whoever put us in this situation. We have been used" and references to the involvement of "internal affairs" in U. There is no specific mention, however, of radicalisation or extremism.
47. Set against that is the evidence that has been collected from friends of the mother and those who knew her which confirms that whilst she was a culturally observant Muslim she was not seriously religiously observant. The most powerful evidence comes from the mother's few friends. MM had known the mother for 3 years. The mother had confided in her about the abuse she had suffered and her wish to have her children returned to her. She confirms that the mother did not wear a hijab, did not fast during Ramadan or pray during the day. Whilst she did not eat pork and did not like to drink, the father would force her to drink. Another friend confirmed the same.
48. Looking at the whole picture there is no evidence that this lady held extremist views or was in any way radicalised. It is difficult to know how she could have been radicalised because she was rarely out of the sight of her husband.

9^th-12^th December 2016

Mother's death

49. The following sequence of events is established from witness statements and other police evidence.
50. On Friday 9^th December the mother dropped NAA off at the child minder's at around 6.40am. She was seen at work that morning and is recorded as clocking in around 8am. She clocked out of work that day at just after 4pm. The day before (8^th) she was seen by the REACH worker in passing at work. She told this lady that all was fine and she was looking forward to Christmas. NAA was collected from the child minders by her father that day. Cell site data suggests that the father returned home around 5.30pm and remained there all evening. It also confirms that the mother is at home from that evening and suggests that she does not leave the vicinity of that home address again.
51. On Saturday 10^th December, cell site data places the father at his place of work between 6am and 5pm when he returns home and stays there all evening.
52. On Sunday 11^th December, the father worked from 7am until 4pm. There is a 1 minute call from mother's phone to father at around 12 noon. That is the last call or text message from the mother's phone. At around 3pm on the same day (11^th) the mother spoke with her father in U (8pm U time). Cell site data places the father back at home from 5pm for the rest of the evening and until he leaves to drop NAA off at the childminder on Monday 12^th. In fact, according to his employer, father was not expected at work on Monday 12^th.
53. When the police arrived on the scene later they would discover a series of handwritten notes purportedly written by the father and the mother. The first note declares that the father intends to divorce the mother and invites the person to whom it is addressed to process the divorce as soon as possible. The second note declares that they will sell their property and divide it equally. Both are purportedly signed by the father and dated 11^th December 2016. The third and fourth notes are in virtually identical terms except written by the mother. They are in apparently different handwriting and purportedly signed by the mother on 11^th December 2016.
54. In the early hours of Monday 12^th December – just after 2am the father called the maternal grandfather. It was just after 7am in U. He called to congratulate him on his birthday telling him he had a present for him that he would receive before the New Year. Between 4.38am and 5.32am the father posted a number of family photos on Facebook.
55. At 6.30 am the father arrived unexpectedly at the childminders with NAA. She complained to him about the hour and about the fact that she had not been paid. There is CCTV footage of the father in Tesco's at 6.55am where he purchased a bottle of whisky, a soft drink and two Poinsettia plants.
56. At 7.21am the mother's work colleague AW received a text from an unrecognised number. The writer of the message was purporting to be the mother saying that this was her new number and that she would not be coming into work as her daughter had a temperature. AW replied asking the mother to call her but heard nothing further. She considered the language used in the text message to be unlike the mother. Cell site data suggests that this message was sent from a phone being used by the father as it was used the previous day in the vicinity of the father's place of work at the same time cell site data demonstrates that the number he was known to use was in the same vicinity and his employer told police that he was at work there.
57. At around 9.40am the father called one of the mother's sisters (14.40 U time) telling her that mother was at work and N at school and that they were happy "like Romeo and Juliet". There is a similar reference made in one of the notes dated 12^th December and found in the flat by the police.
58. At 6pm that evening no one had attended at the child minders to collect NAA. Sometime between 7 and 7.20pm the child minder called the mother's emergency contact number – a friend of the mother's – MM. At 7.35pm the child minder walked to the family's home address and knocked on the door. There was no answer and so she returned home. About 10 mins later the father attended at her property to collect NAA. She reports that his eyes were red, he did not want to engage in conversation but he did say that he had slept through his alarm and that he was going to see his wife in hospital with NAA. He left at about 7.50pm on foot and just under 10 minutes later the payment that she had complained to him about was transferred to her account.
59. Meanwhile MM, who had been alarmed that NAA had not been collected tried to make contact with the mother and the father but received no response. She then contacted the mother's line manager at work to discover that someone purporting to be the mother had called in saying that NAA was sick that morning. As a result of this conflict and in the light of the history of domestic abuse, at 7.47 pm, MM called the police.
60. Police attended at the family address at 8.54pm. There was no answer. However, officers could hear a child crying inside the flat and they saw the shadow of an adult moving around inside. They forced entry.
61. NAA was found in the front room in a cot. She appeared physically unharmed.
62. In the bedroom the mother was lying on the double bed wrapped in a sheet like a shroud. Two Poinsettia plants had been placed by her head. She was obviously dead. The LAS pronounced her so at 9.23pm.
63. The father was lying beside her. He was naked and whilst appearing unconscious, officers record seeing his eyelids flickering. There was a knife between them and there was blood staining on the bed, walls and carpet. The father had self-harm wounds to his left and right wrist. Near to the knife on the bed was a handwritten note saying the father's name followed by "RIP cut around 9.00am 12/12/2016". The father began to rouse and when he attempted to move he was arrested on suspicion of murder. He would not move or speak and had to be handcuffed and carried out of the flat.
64. A number of other notes were found as mentioned already. Notably, one written apparently by the father stating "I just want to be with my wife" and dated 12^th December 2016.
65. The post mortem report establishes very clearly that the mother died as a result of manual compression to her neck – in short she was strangled. The distribution and appearance of the bruises to the front and sides of her neck and over her larynx was consistent with the application of pressure by fingers. The presence of petechiae in the face and facial congestion was suggestive that pressure was applied for a significant period. There was no evidence of natural disease. Whilst there was bruising to the back which was suggestive of some form of blunt impact there was no other evidence of force or struggle.
66. The father provided no explanation of what had happened in those hours after his return home on 11th until the arrival of the police the following evening. In the hours after his arrest he wrote notes variously asking to see his wife and children. He was not interviewed so far as I am aware and when charged with the murder of his wife simply stated "that is my wife".
67. In my Judgment the facts as I have related them speak for themselves and point overwhelmingly to the conclusion that NAA's father killed her mother by strangling her. I highlight the following as supportive of this conclusion:

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 12^th – 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 12^th 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

68. The father was seemingly largely incoherent immediately after his arrest, communicating initially though the writing of notes. He had been found in the flat in circumstances which were clearly suggestive of an intention to take his own life.
69. He appeared at the magistrates' court on 16^th December and it is recorded that he started to try and slash his wrists whilst there. He was placed at HMP B in Healthcare and on "suicide watch". Somewhat surprisingly, within a very short time his observations were lessened as he appeared to be settling and associating.
70. On 29^th December he was checked by staff at 5 past midnight and was noted to be sleeping. He was next checked at 3am when he was seen hanging in his cell. He had made a ligature from socks and some cord. According to the post mortem report his hands and ankles were bound and his mouth contained tea bags and tissue. The LAS was called and he was pronounced dead at 3.25am.
71. A post-mortem concluded that the cause of death was hanging. A ligature mark was observed on his neck on examination with "steeply ascending limbs" consistent with hanging. There was no trauma found to his head or brain which would suggest that he had been rendered unconscious and defenceless and then suspended. Likewise there were no other significant injuries to imply that he had been involved in any other violent altercation. The wounds on his arms were linear and consistent with attempts at self-harm. Significantly there were no defensive wounds on his body or signs of struggle.
72. Once again the evidence before me points irresistibly to the fact that the father hanged himself whilst on remand at HMP B. The facts speak for themselves. Given that this was precisely what he was trying to do before the police arrested him on 12^th December it is perhaps unsurprising that he would try again.
73. Out of an abundance of caution, I have considered whether there is any reason to be concerned that he was hanged by someone else in his cell. Were the bindings on his hands and ankles and the obstructions placed in his mouth put there by a third party who then hanged him? I consider that highly unlikely. That person would have had to have access to his cell and then render him silent and immobile whilst they completed the deed. It is far more likely that the bindings and obstruction in his mouth are signs of his determination in completing the task that he had embarked upon several times since he killed his wife.

Transfer

74. Immediately following the last hearing the maternal grandfather issued an application that I should transfer this case to be heard in U. What the application seeks is that I make an order that U should "assume jurisdiction…in respect of the ongoing care proceedings". The reasons for making the application are that the applicants are U nationals and have been positively assessed and as such the courts in U are "better placed to deal with these proceedings". I directed that the maternal grandfather should file a statement setting out why he says the courts in U are better placed to hear the case. No statement has been filed. Indeed the maternal grandfather has been unable to be here. However, his country, U, through the attendance of its representative, supports the grandparents in their application. I intend to deal with the issue today.
75. As Mr Twomey QC rightly observes, the basis upon which it can be asserted that proceedings should be transferred, is not immediately apparent. There are obvious parallels here with the situation that often arises in relation to other Member states falling within Brussels IIA. I refer of course to Article 15. Article 15.1 BIIA 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: …… (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

76. Article 15 does not apply here because U is not "another Member state". It seems to me, however, that the arguments set out below, framed in another way have obvious parallels with Art 15. Mr Twomey QC reframes the issue of transfer under the common law rules of forums non conveniens, adopting as his primary position that those principles surely cannot apply to public law cases.
77. In cases where jurisdiction has been founded, the principle that any party may invite the court to stay those proceedings and cede jurisdiction to another more convenient forum has its roots in the case of Spiliada Maritime Corp v Cansulax Ltd [1987] 1 AC 460. In the family justice arena there can be no clearer summary of the framework for consideration of this issue than the Judgment of McFarlane LJ in In the Matter of K (A Child) [2015] EWCA Civ 352 where at paragraphs 26 to 29, he said this :-

'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 [1987] 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.'

78. Those were private law proceedings, however. Upon a transfer of proceedings, the parties would remain the same. The dispute would simply be transferred and the issues determined between those same parties in another jurisdiction. Mr Twomey QC argues that the very nature of public law proceedings does not lend them easily, if at all, to being transferred to a foreign jurisdiction because the local authority and Guardian could not remain a party to the proceedings, and the relief available here would not be available. For that reason, he argues that a forums argument is not applicable here as it would amount to an effective dismissal, amongst other things, of the local authority case.
79. I am not sure that I agree. After all, we transfer public law proceedings to other Member states pursuant to Article 15 as set out above and in doing so there is no longer a continuing role for the Guardian or the applicant local authority. Of course, all of the conditions required by Article 15 must first be met and transfer is the exception to the rule of primary jurisdiction. The fact that a transfer in this case would remove from the local authority the chance to argue that it is in NAA's welfare to remain here is a factor which must be weighed with the other factors when considering whether U is the more convenient forum but it does not mean that the argument is not available to those seeking transfer.
80. So, having confirmed the position as to jurisdiction, I will consider the application for transfer in accordance with the principles set out in the leading judgment delivered by Lord Goff of Chieveley at pages 476C to 478E in Spiliada (supra). These principles were applied by Roberts J in K v B (Rev 1) [2015] EWHC 2192 (Fam). I remind myself of the following:

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

81. Finally, I remind myself that in accordance with the Judgment of McFarlane LJ in Re K (supra), NAA's wefare will be a relevant consideration but not paramount in my determination.

Applied to this case

82. I am mindful that the grandfather is not here and has not had the advantage of a legal representative who can put his case in this complex field. Doing the best that I can I have searched for factors which might well point to the courts in U being the more convenient forum for the determination of the welfare arguments in respect of NAA. They are, it seems to me, as follows:

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.

83. Against that position, Mr Twomey QC first argues that this court is clearly the better placed court to determine the truth of the threshold facts. That is true but through this Judgment I have now resolved those facts and so this factor no longer lends support to his position that the case should remain here. He has, however, set out in his skeleton other factors which for me amount to powerful arguments in favour of refusing this application to stay the proceedings and cede jurisdiction to U.
84. Those factors are as follows:

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.

85. Considering all of those factors I agree that U is not the better forum for determination of these issues. The application for a stay of these proceedings is therefore refused.
86. Finally, I must make mention of the position taken throughout this hearing by the representative of the U Embassy who, with my permission, has attended each hearing and been invited to comment, though he is not a party. He has told me that his Embassy has emailed a request that it should be made a party to these proceedings with a view to assisting and supporting the maternal grandparents who are simply unable to secure legal representation. I told him at this hearing that I had no formal application from his Embassy to become a party but if they made such an application it would be dealt with.
87. However, whilst I am sure that they are grateful for the diplomatic support, what these maternal grandparents need are lawyers. As I pointed out to him, the issues in this case on welfare will be very finely balanced. They are likely to involve the consideration of cross border issues of some complexity. More significantly, in circumstances in which there remains a risk that NAA may, if returned to U, grow up in a household clinging to a false narrative about her mother, there will, in all likelihood, be an invitation to the court to consider permanent placement in this jurisdiction and the possible termination of family links in U. This will be a difficult decision. As I explained at the hearing, if the Embassy wish to support the maternal grandparents in this case he might want to consider providing them with assistance in finding and funding proper legal representation.