England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2014

The Honourable Mr. Justice Baker :

1. This judgment concerns issues as to jurisdiction arising in care proceedings concerning a boy, H, born 12^th December 2006 and therefore now aged 7 1/4 Proceedings are continuing in the Bristol County Court but have been transferred to me to address specific issues as to jurisdiction, namely (1) whether H is habitually resident in this country or in Lithuania and (2) if he is habitually resident in this country, whether this court should request a court in Lithuania to assume jurisdiction pursuant to Article 15 of the Council Regulation (EC) 2201/2003, commonly known as Brussels II Revised.
2. It is unnecessary to set out the background in this case in any great detail for the purposes of this judgment. The salient facts are as follows. H and his mother are Lithuanian. His father, who the mother says is not the man to whom she was married at the time of H's birth, is believed also to be Lithuanian. The mother brought H to this country in March 2013. The circumstances in which she came to this country, and her intention about staying, both prior to and after her arrival in this country, are central issues in this application.
3. After arriving, the mother and H lived in accommodation in Bristol, and the mother started employment there. H started school in May, and returned to school in September at the end of the Summer holidays.
4. In October, the school referred H to social services because of concerns about the mother's drinking. On 8^th November, H was made the subject of a child protection plan. On 18^th November, he failed to attend school and, when the police attended at the home, he was found in the care of his mother who was in a state of extreme intoxication. Initially, he was placed under police protection, but subsequently the mother agreed that he should be accommodated pursuant to section 20 of the Children Act. Since that date, H has lived in foster care.
5. On 4^th December, the local authority started care proceedings which were transferred to the Bristol County Court where they have been managed by HHJ Wildblood QC. The local authority threshold document seeks findings that H has been exposed to his mother's alcohol misuse and that as a result he has been neglected. It is further alleged that H has been exposed to the mother's chaotic lifestyle living in a multi-occupancy house. The local authority also asserts that the mother is a victim of human trafficking. The mother denies this latter allegation, but substantially accepts the allegations concerning alcohol and chaotic lifestyle.
6. Since his reception into foster care, H has continued to attend school, although he continues to struggle with the English language. Contact has been arranged for the mother, although her attendance has been erratic. The mother has recently moved to Swindon where she lives with her boyfriend in accommodation which by all accounts is similar to that in which she was living in Bristol. I was informed at the outset of the hearing that the property had been the subject of a police raid that very morning, apparently in the course of a trafficking investigation.
7. The local authority has embarked upon an assessment of the mother to establish whether H can be safely returned to her care. In addition, an assessment of the maternal grandmother as a possible kinship carer is being undertaken at the request of the local authority by the Lithuanian State Child Rights Protection and Adoption Service. It is anticipated that that assessment will be completed by the end of April, although it is as yet unclear whether the assessment will be a full assessment or merely a preliminary core assessment. An initial report from the Lithuanian service has been shown to me and I note that this indicates that the grandmother is undertaking a child care course as part of the assessment.
8. The issue of jurisdiction was not considered at the outset of proceedings, and appears to have been first raised by HHJ Wildblood QC himself at the hearing on 17^th January. On that occasion, the proceedings were adjourned for a fortnight "to give the parties the opportunity to consider the implications of Re E [2014] EWHC 6 (Fam)". At the next hearing on 31^st January, the proceedings were transferred to the High Court but at that stage remained allocated to Judge Wildblood. The proceedings were adjourned to a hearing on 31^st March for consideration of the issue of habitual residence and jurisdiction, subject to any direction given by me, as Family Division Liaison Judge for the Western Circuit, as to whether the case should be heard by a full time judge of the Family Division. At that point, Judge Wildblood contacted me, and I indicated, on the basis of advice from the Office of the Head of International Family Justice, that the case should indeed be transferred to me. At that point, Judge Wildblood transferred the proceedings and thus the matter came before me for this hearing on 27^th March.
9. Meanwhile, in accordance with the guidance in Re E (supra), the local authority wrote to the Lithuanian Embassy on 21^st January in compliance with the relevant article of the Vienna Convention. The Embassy replied on the 27^th January to the effect that the Lithuanian State Child Rights Protection and Adoption Service functioned as the central authority, and indicated that the local authority's letter had been forwarded to that body with a request to reply to the local authority direct. To date, nothing has been heard from the central authority, save for the separate communications regarding the assessment of the grandmother referred to above. The local authority has also endeavoured to ascertain the identity of the court in Lithuania to which a request should be made under article 15, in the event that the court concludes that this case falls within the scope of that article. To date, no response has been received to that enquiry.
10. The jurisdictional basis for making public law orders under Part 4 of the Children Act 1989 is now derived from Brussels II Revised; see Re C (case C – 435/06) [2008] 1 FLR 490, and also Re E (supra).
11. Under article 8 of Brussels II Revised, "the courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised". It follows that this court has jurisdiction in respect of these care proceedings if H was habitually resident at the time when the proceedings were issued on 4^th December 2013.
12. Article 13 provides that "where a child's habitual residence cannot be established…the court of the member state where the child is present shall have jurisdiction." Thus, if H's habitual residence at 4^th December 2013 cannot be established, this court would have jurisdiction based on his presence under article 13.
13. Under article 17, "where a court of a member state is seised of a case over which it has no jurisdiction under this regulation and over which a court of another member state has jurisdiction by virtue of this regulation, it shall declare of its own motion that it has no jurisdiction." Thus if this court reaches the conclusion that H was at 4^th December 2013 habitually resident in Lithuania, it must declare that it has no jurisdiction.
14. In those circumstances, the proceedings would come to an end, save that, pursuant to article 20, "in urgent cases, the provisions of this regulation shall not prevent the courts of a member state from taking such provisional, including protective, measures in respect of persons…as may be available under the law of that member state, even if, under this regulation, the court of another member state has jurisdiction as to the substance of the matter." Thus, in the event that it concludes pursuant to article 17 that it has no jurisdiction, this court could still nevertheless maintain the existing interim protective measures pending the assumption of jurisdiction by the Lithuanian courts.
15. In addition, the court has powers under article 15 to request the courts of another member state to assume jurisdiction, but this power only exists if this court has jurisdiction. Accordingly, it will only be necessary to consider whether such a request should be made in the event that I conclude that this court has jurisdiction under either article 8 or article 13.
16. Delivering judgment in Re E (supra) the President of the Family Division, Sir James Munby, confirmed that, in determining the question of habitual residence, the courts will apply the principles explained by the Supreme Court in A v A [2013] UKSC60. The principles are summarised by Baroness Hale of Richmond at paragraph 54 of the Supreme Court judgment. In particular,

(a) habitual residence is a question of fact and not a legal concept such as domicile;

(b) the test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned;

(c) this depends on numerous factors, including the reason for the family's stay in the country in question;

(d) the social and family environment of an infant or young child is shared with those on whom he is dependent – hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned;

(e) the essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce;

(f) it is possible that a child may have no country of habitual residence at a particular point in time.

17. The position of the parties in respect of jurisdiction is as follows. The local authority asserts that H was at the material time habitually resident in this country and that this court therefore has jurisdiction under article 8. The mother, on the other hand, maintains that at the material time H remained habitually resident in Lithuania, and that accordingly this court should refuse jurisdiction under article 17. The guardian on behalf of H contends that his habitual residence at the relevant time cannot be determined so that this court has jurisdiction under article 13.
18. The mother has filed four statements to date in these proceedings, and it is instructive to consider those statements when identifying the circumstances in which she came to this country and the intention she had both before and after her arrival. Before considering those statements, however, I consider the case advanced on her behalf by Mr Seagrim in the course of his comprehensive and helpful skeleton argument.
19. Through counsel, the mother asserts that she and H came to this country with the intention of a temporary stay of around 6 months in order to earn money, with a plan of returning to Lithuania and their family thereafter. Whilst in Bristol, their travel documents and money were taken and retained. Although H was enrolled in school, and the mother worked, their integration into society was poor. The mother was isolated and vulnerable. They lived in a multi-occupancy flat, populated exclusively by fellow Lithuanians, including the mother's partner. Language was and is a significant barrier. The mother tried to return to Lithuania in November shortly before H was removed from her care, but was prevented from doing so by the absence of her documents. Subsequently, the mother became pregnant again. She now intends to return to Lithuania with H as soon as she is able to do so.
20. Mr Seagrim makes a number of other points concerning issues relevant to the question of habitual residence, all of which I have carefully considered. In particular, he points out that H grew up in Lithuania and lived there for the entirety of the first six years and 2 months of his life. He was raised speaking Lithuanian and still speaks little English. He was raised in a Lithuanian community and all of his family continues to reside in that country. He was brought to this country by the mother only out of necessity so that she could earn money. The mother too speaks hardly any English, has no family in this country, and is without any real support. Although she has an element of freedom, her staying in the property where she was living was subject to a degree of control by others, in particular her landlady who removed her passports and other documents. The mother denies that she is a victim of human trafficking, but Mr Seagrim concedes on her behalf that the arrangements for her accommodation "appear irregular".
21. When analysing the mother's case, it is instructive to look at her various statements made prior to and during these proceedings. In doing so, I bear in mind at all times that she speaks hardly any English and all statements given have been provided via an interpreter.
22. When interviewed by social services on 11^th October 2013, the mother is recorded as saying inter alia, that she "does not think she needs any support and there are no concerns at home with H". The note of the conversation adds;

"she stated if it doesn't work out I will return home". The social service record also quotes mother as saying that she came over here on March 2^nd, that her partner was already over here but she "came for a better life not necessarily to be with him".

23. After the start of the proceedings, the mother was spoken to again on a number of occasions. In one conversation with the social worker on 31^st December, she stated that she was two or three months pregnant. She told the social worker that she would like to remain in the UK to have her baby. She said that the father of the baby was planning to return to the UK as soon as he can.
24. In her first statement in these proceedings dated 17^th January 2014, the mother said, at paragraph 7,

"I wish for H to return to my care, and it is my plan to remain in the UK with him. I would like to live in the Bristol area and it is my goal to undertake a course to improve my English and therefore my employment prospects."

25. It was not until her third statement dated 14^th March, filed after Judge Wildblood had raised the question of jurisdiction, that the mother said anything to indicate that her stay in this country was intended to be anything other than indefinite. At paragraph 4 of that statement, she said

"before I left I told my mother that I intended to go, I informed everyone that this was not a permanent move. I told them I was only going to work. I also told H that we were going to live in the UK for me to work but this was not permanent. I never had any intention to reside in the UK permanently and only intended it to be for a short period to work. I had no specific idea of how long I would stay in the UK, however then I thought 6 months would be enough. I simply wished to earn some money and then return home. It is possible to earn more money in the UK than it is in Lithuania."

26. In paragraph 9 of this statement, the mother indicated that she accepted that there was a period of time after H had been taken into care, when she "considered residing in the UK." She said:

"this was from approximately November to January and I did inform the social worker of my wish to stay. However this has now changed again. I do not feel comfortable in the UK and I wish to return home. I am pregnant with my second child and it is my intention to return home for my child to be born. I wish to return home with H, however I will not do so whilst H remains in foster care in the UK. I accept my boyfriend lives in the UK, however this will not prevent my decision on returning. We have spoken together about this and he is planning to return with me. However, should he change his mind, I will return regardless."

27. Initially, the parties planned that the court would deal with the issues on jurisdiction on the basis of submissions alone. In the course of argument, however, I indicated that I thought it important the mother should give evidence so that the contradictions in her various statements could be explored. In oral evidence, she indicated that, when she had talked of coming to this country for a better life, she had meant that she came here to earn some money. Initially, she said that, when she said in her statement of 17^th January that "it is my plan to remain in the UK with [H]", she meant that it was her plan to get H back and stay with him in Bristol for a little while, by which she meant a couple of months while she was without her documents. In cross-examination, however, she conceded that she had told the social worker in December when she was 2-3 months pregnant that she planned to stay until her new baby was born, which would of course involve staying for a period of at least a further 7 months. Mr Seagrim conceded that the mother had in this respect given different accounts as to her intentions.
28. I found the mother's oral evidence on this point unconvincing. Looking at the mother's evidence as a whole, both her written statements and her various comments to professionals and her oral evidence, I find on the balance of probabilities that when she came to this country, in March 2013, her plan was to stay indefinitely.
29. I acknowledge that the mother was to some extent socially isolated, and that she was associating largely with people from a similar background. She had, however, started employment and H had been entered into school to which he returned after the summer holidays. I find, therefore, that there was some degree of integration by the mother and H into the social environment in this country. In these circumstances, given my findings as to the mother's intention to remain here indefinitely, I find, on balance, that H was habitually resident in this country on the date on which these proceedings were started..
30. Accordingly, this court has jurisdiction pursuant to article 8 of Brussels II Revised.
31. I therefore turn to the second question arising, namely whether or not this court should now transfer the proceedings to the Lithuanian court pursuant to article 15.
32. Article 15(1) provides;

"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, will 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 other member state in accordance with paragraph 4; or

(b) request a court of another member state to assume jurisdiction in accordance with paragraph 5."

33. Article 15(3) provides (inter alia) that "the child shall be considered to have a particular connection to a member state as mentioned in paragraph (1) if that member state … (b) is the former habitual residence of the child…."
34. Article 15(5) provides;

"The courts of that other member state may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seizure in accordance with paragraphs (1)(a) or (1)(b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with articles 8 to 14".

35. In AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 at paragraph 35, Munby J. as he then was, identified the three questions to be considered when deciding whether to make a request under the article

"(1) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various maters set out in Art 15(3) as bearing on theis question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))?

(2) Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

(3) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."

36. Article 15 has recently been considered again by the Court of Appeal in the case of Nottingham City Council v LM [2014] EWCA Civ 152, on appeal from a decision by Mostyn J to make a request to the courts of the Czech Republic to assume jurisdiction. In giving the leading judgment in the court, Ryder LJ said at paragraph 16:

"The Art 15 power is, as is stated on its face, an exception to the general rule of jurisdiction in Art 8 which is grounded in the habitual residence of the child. The power may only be exercised when all three questions can be answered in the affirmative….The corollary of that principle is that a court in England and Wales cannot divest itself of jurisdiction in respect of a child who is habitually resident in England and Wales simply because she is a national of another Member State or where one or more of the Art 15(1) questions cannot be answered affirmatively."

37. Later at paragraphs 19 to 22, Ryder LJ made these further observations:

"19. The question of whether a court of another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child, given the construction of the regulation and the logical connection between the questions. That said, the starting point for the enquiry in the second question is the principles of comity and co-operation between Member States of the European Union enshrined in the European Union Treaty which the provisions of BIIR were designed to reflect and implement (see, for example [2], [21] and [23] of the preamble to BIIR). In particular, the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent: Re K (A Child) [2013] EWCA Civ 895 at [24] per Thorpe LJ.

20. It is entirely proper to enquire into questions of fact that might inform the court's evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate court), and whether one court's knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on.

21. The evaluation of a child's best interests under Art 15(1) is limited in its extent to the issue of forum i.e. the best interests question asked by Art 15(1) is whether it is in the child's best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction. In relation to the same question asked in analogous circumstances, namely the language of Art 12(3), whether it is in the child's best interests for a case to be determined in this country rather than elsewhere, the Supreme Court of the United Kingdom held in Re I (A Child) (Contact Application:Jurisdiction) [2010] 1 AC 319 (per Lady Hale at [36]) that:

"this question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings will be in the best interests of the child?" It will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum"

22. This court has previously determined that the construction of the best interests test in Art 15 (1) is the same as that in Art 12(3): Re K at [25] and [26] and accordingly the test to be applied to the third question is that described by Lady Hale in Re I."

38. I return to the facts of this case. The first question to be determined is whether H has a particular connection with Lithuania. All parties concede that the answer to this question is yes. H was born in Lithuania, raised in Lithuania until March 2013, and until that date was habitually resident there. He speaks Lithuanian and his family all live in that country. He has as close a connection with another Member State as it is possible to have.
39. I therefore turn to the second and third questions under Article 15, namely whether the Lithuanian court would be better placed to hear the case or a specific part thereof and, finally, whether transfer of the proceedings to the Lithuanian court is in the best interests of H. The parties disagree as to the answers to these two questions. The mother and the children's guardian say that the answer to both questions is yes. The local authority say that the answer is "no, or at least not yet".
40. The issues in the case, as in all care cases under Part 4 of the Children Act, can be summarised as (1) whether the threshold criteria under section 31 are satisfied (that is to say, whether at the date on which proceedings started H was suffering or likely to suffer significant harm as a result of the care given by his mother not being what it would be reasonable to expect a parent to give) and, if so, (2) what order should be made in the interests of H's welfare.
41. It emerged in the course of legal argument that there was unlikely to be much disagreement over the issue as to threshold under section 31. The evidence concerning the factual matters on which the local authority relies is straightforward. If any witnesses of fact are required to give evidence, their evidence will be brief. It should be possible for the evidence to be facilitated (by video link if possible) in either England and Wales or Lithuania.
42. The principal focus of the case will be the second issue. Assuming the threshold is satisfied, what order should a court make concerning H's future? At present, there seem to be three options (1) a return to mother; (2) placement with the maternal grandmother or (3) permanent placement outside the family. Clearly, there is a strong argument that any permanent placement outside the family should be in Lithuania. The mother and the guardian would support that option, if H cannot be returned to his family. The local authority is uncertain about that at present. If it is right that any placement outside the family would be in Lithuania, all options for H's future will lie in that country. In those circumstances, Lithuania is manifestly better placed to weigh up the options and made the decision as to his future. All the evidence will be in Lithuania and given in the Lithuanian language. A knowledge and understanding of the cultural context will be crucial to the ultimate decision. The court must always consider the importance of judicial continuity when deciding whether or not to transfer proceedings to another jurisdiction, but, unlike Nottingham City Council v LM (supra) this case has not yet got to the stage where judicial continuity is a significant factor.
43. In those circumstances, it seems manifestly clear that the Lithuanian court would be better placed to hear this case.
44. As to the third question under article 15(1), which is, as Ryder LJ acknowledged in the Nottingham case, intimately connected with the second, the court must take into account that the process of making a request under Article 15 may cause delay. The procedure laid down in Article 15 obliges the court and the country to whom the request is made to respond within 6 weeks after being seised. If a request is made now, that will run alongside the time when the assessments of the mother (by the local authority in this country) and the maternal grandmother (by the Lithuanian Service) will be completed. Accordingly, with good will and diligence on all sides, both here and in Lithuania, it should be possible to avoid further delay. If I accede to the suggestion by Mr Fuller on behalf of the local authority, and wait to see if the third question is satisfied, there is a likelihood of further delay. As a general rule, the longer a court waits before making an Article 15 request, the greater the likelihood that a transfer will not be appropriate because of considerations of delay and judicial continuity. To my mind, delay may undermine the whole purpose of the Article 15 procedure.
45. In view of H's close connection with Lithuania, and the fact that all the options for his future are based in that country, and the fact that Lithuania can fairly resolve all issues in these proceedings, I consider that it is manifestly in his interests for this court to make a request under Article 15 with a view to facilitating the transfer of the proceedings to Lithuania as soon as possible.
46. Accordingly, I answer all three questions under Article 15(1) in the affirmative. I shall therefore request that a court in Lithuania assumes jurisdiction.
47. The only issue remaining is as to the identity of the court in Lithuania to whom the request should be made. I will be in touch with the Office of the Head of International Family Justice to facilitate this request and will keep in touch with the local authority and the parties to inform them of the progress of the procedure.