England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		21st May 2010

MR. JUSTICE McFARLANE:

1. This court is seized of proceedings in relation to a very young child, K, a boy born on [a date in] 2010 and, therefore, now only some four or five months of age. His mother is FS and his father is AS.
2. The relevant history of the matter is that, following his birth, K lived with his parents at [address] but was admitted to hospital when some six or seven weeks old on 3^rd March 2010. The doctors discerned that he had sustained a number of injuries, including fractures and bruising, and the conclusion at that stage (and it remains the conclusion) of the local medical authorities was that it was probable that this baby had been injured in circumstances other than an accident. The local social services were contacted, a strategy meeting was arranged, a discussion took place with the parents and it was agreed that K, for the time being, would be voluntarily accommodated by the Local Authority under s.20 of the Children Act 1989.
3. Section 20 is a provision which requires the agreement of parents to a child being accommodated. Once a child is in such an accommodation under s.20, he or she becomes "looked after" by the Local Authority but may, in those circumstances, be placed not necessarily with foster parents but with members of the extended family. Given the injury to K which had occurred whilst in the care of his parents, or was thought to have occurred whilst in the care of his parents, the social workers were not content for him to return and be looked after by either the mother or father or both of them pending further investigation. It was, therefore, agreed and arranged that K's maternal grandmother, MS, would come down to X from her home in Y and move into the family home at [address].
4. That is what she did and, once he was discharged from hospital, she took over the care of K, the details of which were reduced to writing and are set out in a "working agreement" between X Social Care and MS, which was signed by both the social worker and MS on 10^th March 2010. Its terms are various but include the following, after summarising the basis of concern:

"Given the above concerns, the following working agreement has been drawn up. This working agreement aims to protect K so that he does not suffer further injury. Having discussed the concerns with MS she agrees to … look after K at [address] initially for a period of five weeks and this to be reviewed in the third week."

Below that:

"MS not to allow AS or FS unsupervised contact to K. All contacts to be supervised by social care and this to be reviewed in future and no unsupervised contact to take place between parents and K at any time."

There were other provisions but the basis of the agreement is plain. There had been an unexplained injury. The social services wished to regulate the parents' ability to be with K and that regulation was on the clear basis that K would be looked after by his grandmother and that neither she nor anyone else would permit the parents to have unsupervised contact with their young baby, pending further investigation and further review.

5. A separate working agreement was entered into, again in writing, between the social workers and the two parents. That was signed by each of them and dated two days earlier, 8^th March. Again it records the concerns. Again it records the arrangement for K to be looked after at the family home by his grandmother and it records the bail conditions which prevent either parent having unsupervised contact with any children under the age of 16. It is a mirror agreement to that signed by the grandmother. On the basis of those written agreements K was discharged from hospital and went back home to [address] with his grandmother.
6. Pausing there, knowing what this court, as a family court, knows of care proceedings and procedures in this country for the protection of children and given the unexplained but serious injuries that this very young baby had sustained, had there not been an agreement by the family members to this form of arrangement then it would be inevitable for the Local Authority, if they were to discharge their duty to protect children in their locality, to issue care proceedings then and there while the child was still in hospital and to seek an interim care order giving them parental responsibility for the child and then, in the absence of an agreement about the terms of any placement with the extended family, for the child to be placed with strangers in foster care. So whilst the agreement that was entered into by the parents is "voluntary" in terms of its legal nature and whilst the accommodation under s.20 of the Children Act is "voluntary" in the sense that, as a matter of law, the parents could seek to withdraw from it, it was not "voluntary" in the sense that it may have been freely given by parents without any regard to the choices or alternatives that they had before them because the alternative, as I see it, could only have been statutory intervention by the state in the form of the Local Authority before the baby was released from the hospital to ensure that he was protected. That is the context in which K came to be living with his grandmother after 8^th March.
7. Matters proceeded and the Local Authority conducted a child protection case conference on 17^th March. The parents attended, as I understand it. On 24^th March, there was a core group meeting, again attended by the key workers and the parents. At that meeting the parents were told that the Local Authority were considering issuing care proceedings. At that stage the Local Authority's plan apparently was to maintain K living with the grandmother but they wished to have the proceedings in relation to the investigation of the injuries and, if justified, any further orders resulting from that investigation to be conducted through the court. That was, again from my vantage point of experience of these cases, the inevitable next step, particularly because, as I understand it, the parents were not accepting that this was a non-accidental injury of their baby and they were looking for a second opinion as to any other innocent medical cause for these various symptoms. There was, therefore, a need for investigation and a need for fact finding one way or the other in the court process. The parents, quite properly, were given notice of that process and the plan for court proceedings as the Local Authority thought they were working in agreement with the parents in co-operating with, whatever the eventual outcome of the fact finding process might be, the holding arrangements for the baby in the meantime.
8. What transpired, in fact, within a very short time after that core group meeting on 24^th March, is that the grandmother, apparently with the full agreement of the parents, removed K from the property in [address] on 25^th March – that is the day after the core group meeting – and sailed on an evening ferry with him to Southern Ireland. The best information the court has is that in the early hours of 26^th March, around 5:30am in the morning, the ferry docked in Dublin. It was later that day that the Local Authority issued care proceedings. Again, no precise time is given but it seems to have been in the afternoon of 26^th March. The Local Authority did not know when they issued those proceedings that, in fact, K was outside the jurisdiction. They only discovered that information three days later on 29^th March.
9. Matters then moved on relatively swiftly with a hearing before District Judge Cotterill on 31^st March and then a hearing a week later before His Honour Judge Bellamy on 7^th April, both at Coventry County Court, to which the case had been transferred. This court now has a transcript of the hearing on each of those two occasions. It is right to record that the transcript of the hearing before District Judge Cotterill wrongly attributes the identity of the judge to that of Judge Ridgway. It matters not, but I simply point that out to avoid confusion.
10. At the hearing before the district judge on 31^st March the Local Authority, both parents and the children's guardian representing K's interests were all represented by counsel and a deal of disclosure of information and argument took place. The result of that hearing was an order (which is at page B13 of the bundle) which provided for K to be placed in the interim care of the Local Authority and orders variously were made for the recovery of the child under s.50 of the Children Act 1989.
11. When the matter came back the following week before Judge Bellamy, sitting as a deputy judge of the High Court (the case having been transferred to the High Court either in the meantime or certainly at the beginning of that hearing), again, full argument took place. That argument is of particular note because of the way in which the parents' case was put. I say "of particular note" for two reasons: first of all, what was said on behalf of the parents is clear in illuminating the reasons why they say they sent their baby with MS to Ireland; secondly, it is of note because, as I will explain in due course, despite having access to free legal aid and having instructed solicitors and counsel at previous hearings, the parents have now dispensed with the services of their lawyers and have decided not to attend this hearing today, on 21^st May, in London, again despite knowing that this was the hearing set down to consider their assertion that the English Court lacks jurisdiction to deal with their child. So what they said to Judge Bellamy is, in terms of legal submission, the only legal submission that this court has before it describing the parents' position.
12. Looking at the transcript of 7^th April, there is a relatively lengthy section from p.10 onwards which I am going to read into this judgment. It starts in the middle of p.10 in these terms:

"JUDGE BELLAMY: How can that be squared with the working agreement that both parents and the grandmother signed?

MISS PASKIN [counsel for the mother]: The mother accepts that she signed that working agreement in law and she accepts ----

JUDGE BELLAMY: As did the grandmother?

MISS PASKIN: Yes, and she accepts that ----

JUDGE BELLAMY: We have a child with significant and, so far, unexplained injuries.

MISS PASKIN: Yes, that is right, my Lord. She accepts that they have breached that order. However, she instructs me that her position was that it was the lesser of two evils because her position is that she desperately sought the medical professionals involved to carry out certain tests to ascertain whether or not there was any medical condition that could explain the injuries.

JUDGE BELLAMY: Those tests ought properly to be carried out if the court considers it appropriate within this jurisdiction and within the ambit of these proceedings.

MISS PASKIN: It is the mother's position that she sought desperately for the test to be carried out and ----

JUDGE BELLAMY: How can she have sought desperately for those tests to be carried out? The proceedings were not even issued until 25^th March.

MISS PASKIN: Not within the proceedings, my Lord, no, but she did speak to ----

JUDGE BELLAMY: The injury occurred on 3^rd March. It is early days yet, is it not?

MISS PASKIN: Well, from her perspective, my Lord, she had asked on numerous occasions and the response was always, 'No'. In her desperation she felt that the position would be different in Southern Ireland and that the tests would be carried out there. That is why she believes it was the lesser of two evils, if I can put it that way. That is why she agreed and gave her consent to her mother taking K to Southern Ireland. She feels that that was in his best interests. I have explained to her that the matter can be pursued through these proceedings. However, at the time, my Lord, this was the position that the mother was confronted with and it was in her desperation, because she had requested on numerous occasions that the tests be carried out.

It is clear that Dr. McLoughlin has formed her views as to the cause of these injuries; I am not saying wrong or rightly, but from the mother's perspective the difficulty – wanted the medical position to be explored and ----

JUDGE BELLAMY: As I said, it could have been explored within these proceedings. That is the normal process.

MISS PASKIN: Well, it could be, but the mother firmly believes that she is not going to get a fair hearing in this jurisdiction and that was what led her to make the decision that she did. It still brings me back to the point, my Lord, that we do not accept at the time, given that there was no order in place, that there was a wrongful removal because there has not been a breach of the custody rights. In my respectful submission, there would have to be a declaration, as I said to the court last week, if the child has been wrongfully removed, before the court can go on to make the recover order.

I am afraid that I have not had any opportunity yet to consider the authority Re P. It has been cited by my learned friend, for the Local Authority. Perhaps, maybe, a convenient time over lunch, I may be able to consider that authority, my Lord.

JUDGE BELLAMY: Yes.

MISS PASKIN: Unless I can assist any further ----

JUDGE BELLAMY: No.

MR. PENDLE [solicitor for the father]: My Lord, last week I did not take the jurisdictional point and I do not do so today, bearing in mind what was advanced on the last occasion and, particularly, as we now know that it appears that K arrived in Southern Ireland only hours before the proceedings were issued. I think it was established on the last occasion. My argument on the last occasion was that there was no need for an order because there was already evidence before the court that K was safe and well in Southern Ireland. It appears that that evidence has been hardened out since then because we know that social services and the police have visited the grandmother and, certainly, as of last Wednesday, there was some suggestion the grandmother may be issuing her own application in Dublin in respect of K, and we do not know any more about that. I suspect that if that is the case then that might be something that causes further problems in terms of the jurisdiction of this court.

JUDGE BELLAMY: But it is hard to see how it would because these proceedings were issued first before … this country, is it not?

MR. PENDLE: Yes, I do not know. I have got no idea what the law is in Southern Ireland as to what they would consider to be their priorities, but I imagine that the welfare of the child is going to be something that they would take into account in the same way as we do.

My position last Wednesday was that he was content at that stage. He has the same sort of concerns that his partner has, and I think, possibly, the court ought to be aware that whatever has happened here, obviously, there are things that happened but should not have happened.

But I think the scenario that caused these things to happen is that the initial decision of the Local Authority, plainly wrong, as all the professionals in court can see, was not to issue care proceedings in this case. There was always going to be a need to issue care proceedings to have a finding of fact hearing but the initial decision was no care proceedings because the parents were co-operating. There is then a core group meeting on 24^th March, where, for the first time, the parents are told (a) "We are issuing care proceedings", (b) "We may be applying for an interim care order", and then there is even talk at that stage of adoption being a possible long-stop plan.

Really, it was in those circumstances, coupled with the fact that, as I understand the position, Dr. McLoughlin has refused to undertake tests that the grandmother and mother wanted to be carried out in respect of K to ascertain whether or not there was any underlying investigation ----

JUDGE BELLAMY: It is not for Dr. McLoughlin to make the final decision on that issue; it is for the court to determine that issue, is it not?

MR. PENDLE: My Lord, I am not advancing that now; I am trying to explain to the court, and I want everyone to understand, the circumstances in which decisions – possibly wrongful decisions but decisions were made because these are people who are undoubtedly and probably a lot more intelligent than most parents involved in care proceedings. They are suddenly faced with a scenario where everything seems to be going against them, including the professionals, who have reversed the initial decisions; had a doctor, a paediatrician in charge of the child, saying, 'I am not going to carry out tests that you want to undertake because these are parents and a grandmother who researched the internet extensively', and I know that because of all the emails I have received about it from my client. They are being told by the paediatrician in charge of their child that she was not prepared to undertake tests which they felt ought to be undertaken. Now, I know that can be done now, but, as I say, I am trying to explain to the court the situation in which the decisions were made."

13. I have quoted that lengthy section of submission on behalf on each of the two parents because, to my view, it is important. So far as the submissions on behalf of the mother are concerned, she accepts she breached the written agreement which, perhaps erroneously, is referred to as an "order" by Miss Paskin. Secondly, the reason for the child's departure is explained by counsel not by describing some settled, pre-planned or well thought out plan for the child to change habitual residence from England and Wales to Ireland but as an act of desperation on the part of the mother who was frustrated to say the least, in the way counsel described it, at her inability to obtain a second medical opinion from an alternative doctor. Also, counsel for the mother stresses that the mother felt she was not going to get a fair hearing of these matters in England and Wales and that is why she sent her child to Southern Ireland. In due course the court will have to consider whether or not that child lost his habitual residence in England and Wales when the ferry departed for Southern Ireland. It is the parents' case now that that is indeed what happened. If that is the case, it does not seem to be borne out by the description of the mother's mindset given by her counsel to Judge Bellamy.
14. So far as the father is concerned, he, through his solicitor, does not even seek to argue the jurisdictional point. He described, again through his solicitor, an acceptance that he acted in a wrongful manner and he again spells out the very context within which I began this judgment, namely, that care proceedings had, inevitably, to be issued in relation to this child, and it is the father's solicitor – and I stress it is the father's solicitor – who says that the Local Authority were "plainly wrong" in failing to issue proceedings at the very start of the child protection process in this case and, again in terms, the father's solicitor says that the Local Authority were led into holding back on issuing those proceedings "because the parents were co-operating". Those are telling submissions, in my view, when they come to be considered in due course in the context of whether or not the parents have established that K lost his habitual residence on 25^th March.
15. The only other quotation from the transcript that I wish to make is on p.20. There, Judge Bellamy, who did not give a formal judgment at the end of this hearing, says this:

"Let me say, for the benefit of the parents, I have absolutely no doubt as to the rightness of the approach that the Local Authority is taking in terms of securing this child's immediate return to this jurisdiction. It is within this jurisdiction that he was habitually resident until 25^th March. It is within this jurisdiction that he received injuries that are at this stage unexplained and it is this jurisdiction that ought to examine and investigate the circumstances in which those injuries occurred and determine if they were non-accidental; if they were non-accidental, who is responsible for them; and to determine issues relating to this child's long-term future. My only concern is with making the right orders today to enable this child's swift return to the United Kingdom."

So Judge Bellamy, on his brief exposure to the circumstances of this case, was plain, that this was an English case, to give it that label, and that the child's case should be determined by the English Court.

16. The reason for that lengthy summary of the history up until 7^th April is that the question of this court's jurisdiction has continued to be raised by the parents. At a hearing before me on 5^th May in Birmingham, where both parents were represented by lawyers but both parents declined to attend, again asserting their position as being that the court had no jurisdiction. The court made orders providing for the grandmother and the parents to file documents by 18^th May at 4:00pm, setting out any evidence that they wish to place before the court in relation to jurisdiction and habitual residence, and skeleton arguments setting out any legal arguments that they wish to raise. It is a matter of record that neither parent nor the grandmother has taken advantage of that facility.
17. Without burdening this judgment unduly, the court has received evidence of the difficulties that the process servers have had in achieving personal service on the grandmother, but I am satisfied, so far as I need to be, that through the medium of email, through talking to her Irish solicitor and through leaving a message on her mobile phone number, she will be aware of this court hearing today and the requirements of that order. More importantly, perhaps, the two people who are still in this jurisdiction, who are entitled to free legal aid and who had lawyers, were certainly aware of the terms of those orders, and, rather than comply with them and file evidence before this court setting out the case they wish to argue and referring to the legal arguments, they have in fact dispensed with the services of their lawyers and have absented themselves from attending this hearing.
18. Despite the background it is nevertheless important for the welfare of this child and for matters of international comity as between this jurisdiction and Southern Ireland for this court not simply to rubber stamp, as it were, a conclusion that K is habitually resident in this jurisdiction but for this court to look keenly at the background facts and the relevant law to evaluate whether or not he is in fact habitually resident in this jurisdiction and certainly to look at whether he was at the key time, which is the moment of the issue of the care proceedings, habitually resident in this jurisdiction.
19. The law in relation to habitual residence is a matter that has been before the courts in England and Wales on many previous occasions. Most recently, in the case of Re P-J [2009] 2 FLR 1051 the Court of Appeal summarised the relevant legal principles and set them out at para.26 of the judgment. I am not going to read the various conclusions numbered 1 to 7 that their Lordships set out there because most are not directly relevant or necessarily controversial in relation to young K. Habitual residence is a term to be given its ordinary meaning. It is a question of fact in each case and it is for the court to determine, on its appraisal of all of the relevant evidence, what the factual position was in relation to the child's residence at any particular time.
20. It is of note that their Lordships go back to the oft-quoted judgment of Lord Brandon of Oakbrook in the case of Re J and recite that at subparagraph 5 of para.26. They are, in my view, right to do so. It remains a succinct distillation of the relevant law and it is in these terms:

"There is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.'s age [J was just over one year] is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."

The reason for referring in detail to Lord Brandon's observations are, first of all, in relation to a person losing habitual residence. It is the law that a person can lose habitual residence in a country in a single day. The parents here assert that K did indeed lose his habitual residence in England, where he had always lived from his birth and where both of his parents had, in fact, lived for many years, on the occasion that he sailed with his grandmother across the Irish Sea. But I remind myself, going back to Lord Brandon's words, that for someone to achieve such an instant loss of habitual residence the facts have to be strong. There has to be "a settled intention not to return" to the left behind county and "a settled intention … to take up long-term residence in country B instead".

21. I have already summarised what the parents, through their lawyers – and there is no evidence that has been filed by the parents so it is all this court has to go on – say about their settled intention for their child, because, of course, he has none himself, when he left, and the quality of what is described by Miss Paskin and Mr. Pendle comes nowhere near establishing a settled intention on their part, vicariously as his parents, for him to leave England, never to return, and to take up long-term residence in Southern Ireland. It was, to use Miss Paskin's phrase, an act of desperation on behalf of the mother in, to use my phrase, a crisis situation that she perceived herself to be in.
22. Also in this context, and with Lord Brandon's words in mind about a young child and mother, the court needs to look at what the position is for these two parents and their own habitual residence. They have not left the jurisdiction. Both of them are on bail to the police as a result of the police investigation into K's injuries. It is not possible, on my understanding, for them to leave this jurisdiction, and so it must be highly questionable that parents who are themselves unable to leave the jurisdiction can change the habitual residence of their child by sending him out of the country with someone else. Again, the parents neither through what their lawyers are recorded as saying nor through any statement filed with the court are asserting for themselves any long-term settled plan to go and live in Southern Ireland once all these difficulties are over.
23. In relation to habitual residence, the court also, in my view, needs to take account of the totality of the circumstances of the case. The parents assert that they were the sole holders of parental responsibility, which is right, and that, therefore, they were entirely able to send K out with the intention of never returning from the country. In my view, the wider context has to be looked at and that includes the fact that he was subject to child protection procedures and subject to the agreement which was, whilst not a binding legal contract, a formal and important document signed with the social services which required him not to reside anywhere else other than [address]. There is an acceptance by both parents, through their lawyers, at the hearing before Judge Bellamy that that agreement was breached and that they acted wrongfully in the terms of that agreement.
24. In looking to see how that plays in relation to habitual residence and also having in mind that the court here and also in Southern Ireland will have to consider these matters not only in relation to their own domestic law but under the Revised Brussels II Regulation, assistance is to be gained from a recent decision of the European Court of Justice entitled Re A (Area of Freedom, Security and Justice) [C-523/07] [2009] 2 FLR 1. There, the European Court of Justice looks at the various questions in relation to habitual residence that occurred in that case and at para.44 offers this definition:

"Therefore, the answer to the second question is that the concept of 'habitual residence' under Art 8(1) of the regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case."

25. It seems to me that the exercise described there by the European Court of Justice is no different from the fact finding of the English domestic authorities. The court has to look at all the evidence about the child's circumstances and decide as a fact where habitual residence lies. Within the jigsaw of factual material that will be relevant, in my view, must be the fact that the child was subject to arrangements, voluntary although they might be as a matter of law but which were imposed as a matter of necessity upon the parents and the grandmother by the Local Authority as part of the child protection procedures. Had they not agreed to them, care proceedings would have been issued and it is highly unlikely that he would have been placed in the grandmother's care. Within that context the question has to be asked, is it at all tenable to contemplate parents being able to alter the habitual residence of the child who is thus contained and protected within those arrangements? My answer to that question would be, "No", with the result – given the umbrella of protection that the Local Authority had round the child and given that the parents actually knew that proceedings were to be issued within a very short time, giving the court jurisdiction in relation to K, it was not actually open to them unilaterally to change his habitual residence. They were already in the child protection system with certain constraints on their actual and real ability to change his habitual residence.
26. To hold otherwise would seem to me to be totally contrary to English public policy. That policy is to support the protection of the children where serious injuries have been detected. It is also to adopt a proportionate approach to that protection and avoid issuing proceedings or making orders unless it is necessary to do so. Local authorities are encouraged to act in partnership with parents and the wider family in just the way that this Local Authority did in placing K at his home with his grandmother looking after him whilst matters settled and the investigations took place. For that very setup, one that involved the Local Authority in a forceful way directing the arrangements for the child but rightly holding back because of the apparent agreement of the parents from issuing proceedings, to be used in the way that these parents purport to have used it to avoid the jurisdiction of the court and duck underneath the umbrella of protection and remove the child from it would seem to me, as I say, to be totally contrary to public policy.
27. There is no doubt that K's parents were and are habitually resident in England and Wales. There is no doubt that he was habitually resident in England and Wales from the moment of his birth in the hospital in [town]. The question is, did he lose that habitual residence by his departure to Dublin? No evidence that this court has before it leads me to conclude that he did. All the evidence, such as it is, including the submissions of the parents' lawyers, points the other way. I also have concluded that it was not open to these parents in the circumstances in which he was and in which they acted to, as a matter of fact, change his habitual residence in this case. He, therefore, has not lost his habitual residence, certainly had not lost it some few hours after his arrival in Dublin when these care proceedings were issued and since that time this court has been making orders for his return. The court was right to do so, in my view. This court had, has and retains jurisdiction in relation to K because of his habitual residence in this jurisdiction and because, as Judge Bellamy said in the quotation I made from p.20 of the transcript, this is an English case where this English child was injured in England by parents who are still in England. He requires a return to this jurisdiction so that his welfare can be protected by the English authorities and so that the parents can engage in the process that will be conducted by the English Court.
28. If the parents were of the perception that they would receive an unfair trial in this jurisdiction, I hope they can be reassured that that would not be the case. If matters progressed on the wrong foot with a misunderstanding on their part, that may be regrettable. I do not know what went on, but I do know that it is in this child's best interests to be returned to this jurisdiction at the earliest possible opportunity.
29. I, therefore, conclude this judgment with a request to the authorities in Southern Ireland to progress their consideration of applications that are to be made to that court with the utmost speed, commensurate with due diligence, and for orders to be made requiring this young child's repatriation to England and Wales.
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