England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE.
FAMILY DIVISION

		Sitting at: A County Court
		11th March 2014.

Tuesday, 11^th March 2014.

MRS JUSTICE THEIS DBE:

1. This matter concerns three children: X, Y, and Z, who are teenagers. They were born in the Czech Republic and up until the 2000 were in the care of their mother. Since then they have been cared for by their maternal grandmother first in the Czech Republic and since 2009 in this jurisdiction.
2. Due to the concerns that were expressed about the care they were receiving from their grandmother the local authority became involved during 2013, resulting in the younger two children, Y and Z, being placed in police protection on 15^th January 2014. Since then they have been with foster carers, initially pursuant to an Emergency Protection Order and more recently interim care orders. The matter was listed today to consider the application and request under Article 15 of EU Council Regulation 2201/2003 (known as Brussels II Revised or B2R) for the transfer of the proceedings to the Czech Republic.
3. The parties to the application are the local authority, who instigated the care proceedings, the maternal grandmother and the children through their Children's Guardian. The mother is aware of the proceedings but has not attended today and is not represented. The father of Y and Z has not been located, it is not known where he is, and the same applies in relation to X's father. I have considered whether this application should proceed, bearing in mind the mother of the children is not here and not represented. However, the information I have from the Central Authority regarding the mother is she does not propose the children remain in this jurisdiction, she is not in a position to be able to care for them in the Czech Republic and she has had limited recent contact with them. In those circumstances I do not consider waiting for her to be involved in these proceedings is going to be of benefit to these children and/or assist the court in relation to the decision it has to make.
4. I am enormously grateful to all the legal representatives in this case, in particular Miss Phillips and Mr Donaghey, for the skeleton arguments that they have submitted to the court setting out the legal framework within which the court has to consider this type of application. There is no dispute now between the parties in relation to the course that is proposed; they all agree there should be a transfer request under Article 15 of B2R to the Czech Republic to assume jurisdiction of these proceedings. However, despite that agreement it is, of course, a matter for the court to consider whether that course is right in this case, applying the relevant principles.

Background

5. Turning briefly to the background. Y and Z are subject to interim care orders; X remains in the care of his grandmother and is not the subject of any orders. There have been previous proceedings, applications and orders relating to these children in the Czech Republic. Pursuant to orders made within those proceedings the children have been in the care of maternal grandmother since they were very young. In October/November 2009 the children came over to this country with the maternal grandparents. Concerns in relation to the care that was being given to the children came to the attention of the relevant authorities. All of the children had very poor school attendance. They were late; were regularly truanting; and were displaying behaviours which hampered their educational progress. The children came to the attention of Social Services in early 2013. There were particular concerns that Z and Y appeared to be involved in behaviour that was exposing them to the risk of sexual harm in particular. They would frequently go missing, often travelling to a local town, associating with older men, drinking alcohol, and were suspected of using illicit drugs. They were not being promptly reported as missing, and there were concerns about the grandmother's engagement with the local authority and with the school authorities. In addition, X had become involved in criminal behaviour; in September 2013 he received a six-month referral order for a burglary.
6. All of these concerns culminated in an initial Child Protection conference being convened by the local authority on 3^rd September when all three children were placed on Child Protection plans under the category of neglect. There were ongoing concerns reported by the school regarding Y and Z continuing to go missing and they were said to be befriending people who were putting them at risk of harm. The grandmother declined a request for Y and Z to be accommodated by the local authority in late December.
7. In early January 2014 both Y and Z attended school with large bruises to their cheeks. They gave inconsistent accounts of how they came to have these injuries and neither of them was able to provide a credible explanation as to what had occurred. On 14^th January Z presented with a large bruise on the right side of her face, said she had walked into a lamppost, but Y and another young person reported that her boyfriend had caused the injury. On 15^th January Y presented with a bruise on her left cheek and said she had been involved in a fight outside school the previous day. Both Y and Z were placed in police protection on 15^th January.
8. The local authority issued an application for an Emergency Protection Order, which was granted on 17^th January, it was extended on 24^th January and I made an interim care order on 31^st January lasting until 28^th March. Since they have been placed in foster care Y and Z have been making disclosures giving further details of the risky behaviour and situations they had been in. Y had disclosed that a male in a local town had attempted to sell her and another girl for sexual intercourse, she had been involved in criminal activity, and was spending her time with young people who abused illicit drugs, cannabis, heroin and crack cocaine. She also disclosed that they spent time with older men who gave them money, drinks and cheap cigarettes in return for kisses. Z has disclosed that she has been raped and beaten by her boyfriend.
9. It was quite clear when the matter first came before me that MGM, the girls' grandmother, was unable or unwilling to protect the children from the risk of significant harm, in particular, the risk of sexual exploitation. In relation to X she failed to protect him from harm from being exposed to criminal behaviour, and in relation to all the children she was unable or unwilling to prioritise the educational needs of all the children. They all had an appalling record of attendance at school.
10. It is important to recognise that during this period of time the grandmother was dealing with the deteriorating health of her husband, who had a terminal condition and sadly died on 18^th January of this year. That has left her in a very isolated and vulnerable position; her accommodation and her financial support were through benefits and assistance that were in her husband's name.
11. When the matter came before me on 31^st January her plans were to return back to the Czech Republic to make the necessary arrangements for her husband's funeral and then come back here. That is what happened. She went back to the Czech Republic for her husband's funeral to take place and then returned back here. As she set out in the statement she has helpfully been provided to the court today, she would not have come back here were it not for her concern in relation to the children and her wish to be able to care for them. It is right that both girls have indicated to their social worker and their children's guardian, that they wish to return to their grandmother's care, either here or returning with her to the Czech Republic.
12. As a result of the situation that was presented to me on 31^st January it was clearly important that the children's position with their placement with the foster carers was secured; that the grandmother was able to go back to the Czech Republic and make the necessary arrangements she had to make; and the matter to come back before me today and to be able to consider the application for transfer under Article 15.
13. During the intervening period the court has the benefit of some extra information. Firstly, and importantly, information from the Czech Republic through the Central Authority in an email, providing certain documentary evidence about the historical proceedings in the Czech Republic and setting out and summarising the position in relation to the children's mother. She remains in the Czech Republic; she has the care of her youngest child, C, but does not appear to have the care of her older child, J, who appears to be in some form of State care – possibly placed with foster carers. They set out in general terms what the arrangements would be if the children were returned to the Czech Republic and the support that would be provided, including the involvement of the local courts and the local authority to be able to support the care of the children. They rightly say the decision whether to transfer these proceedings and make that request to the Czech Republic is a matter for this court. In addition, there is an email that sets out which court would be the competent court in the Czech Republic pursuant to Article 15. It is in the District Court in Czech Republic, which in fact is the court that has dealt with the previous proceedings concerning this family, and is also the area where the grandmother plans to return back to.
14. The last piece of information the court has – and it is a very important piece of information – is the statement that has been signed today by the grandmother. It is an extremely helpful document for the court. It sets out what has happened and what her plans are. It describes that it is her definite intention to return to live in the Czech Republic as soon as possible. She has very limited support here and is in an impossible situation. She has no accommodation and no access to financial support. From the point of view of the court that is extremely worrying regarding X, because he is in her care. He is last known to have attended school last Tuesday.
15. This case has the enormous benefit of having two experienced social workers. They have provided excellent support, expertise and consistency; I would encourage the grandmother to take all the assistance they offer to be able to help her in the short term before she goes back to the Czech Republic. In particular to help her provide the necessary support for X; who is still in her care. The grandmother sets out in her recent statement that she intends to move within a month, so by about 11^th April. She says he does not want to be in this jurisdiction; she said she will go back to the area from where she came in the Czech Republic where she has family there and friends with whom she could stay. She states she would have access to State benefits there and will also be able to have the enormous benefit of being able to deal with the authorities in a language that she understands.

Legal Framework

16. Turning to the legal position, fortunately there is agreement between the parties about the legal position. There is no issue that this court does have jurisdiction to be able to hear this case by virtue of Article 8 B2R; it is accepted the children are habitually resident in this jurisdiction. However, it is open to this court, by way of an exception under Article 15, if this court considers that a court of another member State – here the Czech Republic – 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 they may request a court of another member State to assume jurisdiction in accordance with paragraph 5 of Article 15.
17. I have been referred to the two leading authorities that deal with this issue; firstly, the decision of Mr Justice Munby (as he then was) in AB v JLB [2009] 1 FLR 517 and also the very recent decision of the Court of Appeal in Nottingham City Council v LM [2014] EWCA Civ 152. Essentially those cases confirm that what the court needs to do is to determine three questions; (1) whether the child (or the children in this case) had a particular connection with the relevant other member State, and that is a simple question of fact; (2) whether the court of that other member State would be better placed to hear the case or a specific part thereof, which involved an exercise and evaluation to be undertaken in all the circumstances of the case; and (3) whether a transfer to the other court was in the best interests of the child, which again involved an evaluation in all the circumstances of the particular child. However, it related to the issue of where the hearing should take place, the court is not looking at what is in the best interests of the child; it is only in relation to and in the context of forum.
18. The court cannot exercise its powers under Article 15 unless all three questions are answered in the affirmative. If they are, then the court has to exercise its discretion in deciding whether to make the order or not, although it is difficult to imagine circumstances where all three questions are answered in the affirmative and the court then does not order a transfer.
19. Turning to the facts of this case in relation to each of the three questions. First a particular connection; it is agreed that the following relevant facts are applicable to confirm that requirement is met. The children are nationals of the Czech Republic; the Czech Republic was their former habitual residence; it is the former habitual residence of their maternal grandmother, who as I have said in her statement sets out that she intends to return there and wishes to be able to care for the children. The children's mother is Czech and lives there; she still retains parental responsibility; and finally their extended family reside there, including younger siblings one of whom is in the care of the mother.
20. The second question is whether the Czech Republic is better placed to be able to determine this application. The relevant factors that answer that question in the affirmative are firstly that the maternal grandmother, as I have said, has stated that she intends to return to the Czech Republic and wishes to be able to care for the children; she is isolated here in circumstances where she is no longer living with her husband, she has no access to support or effective support, and cannot speak the language, so finds it very difficult to continue her day to day life here. The Czech Republic is in a far better position to enable this grandmother to be able to access the relevant support and legal system there. There have been difficulties up until this morning in her being able to engage with her legal team; she has not remained in contact with them. That is probably likely to be linked to the difficulties there have been in terms of language.
21. The third matter is the role of the children's mother in the proceedings. While on the information the court has she is not formally putting herself forward to be able to care for the children, it is clearly important that she should, as far as possible, be able to have a role in the proceedings. That is much more effectively going to be able to be achieved in the Czech Republic. Initially the Children's Guardian set out in the position statement filed by Mr Donaghey reservations as to whether this ground was made out. It was submitted that the factual basis for these proceedings is here; there was very limited information as to what would be available for the children if they returned back to the Czech Republic, it was all very generalised; the local authority had commenced a parenting assessment and their position was that this jurisdiction was best placed to be able to weigh up the risks and benefits of whether the children should return to the care of the maternal grandmother. However, now having had the benefit of the helpful written statement by the grandmother the Guardian's position changed; she was able to reconsider the balance in the light of that information, which sets out very clearly that the grandmother intends to return back to the Czech Republic, sets out what her plans are regarding the area and the support that she considers that she will have available.
22. The final matter the court has to consider is whether a transfer will be in the best interests of the children, particularly in relation to Y and Z, who are teenagers. Their wishes are very clear; they want to be able to return back to their grandmother's care and they include within that being cared for by her in the Czech Republic. The children's guardian, saw the children with their solicitor on 24^th January and also saw X on 24^th January. It is quite clear that the transfer of these proceedings to the Czech Republic will be in the best interests of the children because they will be able to maintain the links with the family who are important to them; there will be an assessment effectively – and probably more effectively – undertaken in the Czech Republic for the reasons that I have outlined; and whilst there are concerns regarding the position here in terms of the care they were given, an advantage of them going back to the Czech Republic is that they would actually be removed from the circumstances that put them at such grave risk of significant harm when they were in this jurisdiction.
23. The only matter under this heading that gives the court some concern is the question in relation to delay. The information from the Czech Republic at the moment is that they will need six weeks to be able to consider whether to accept this request. Of course that is a time period that is provided for under Article 15, in particular Article 15(5) and it is very much a matter for the relevant authorities in the Czech Republic to take such time as they feel necessary to consider whether to accept this request. All I would add by way of observation and in the interests of comity between the two jurisdictions, is that any further delay about which court is to have jurisdiction is likely to detrimental to the children, in particular Y and Z. It will inevitably have a knock-on effect in terms of the delay as to which court will be making decisions what the plans are for their future care. Whilst I fully respect their position regarding six weeks to be able to consider the request and whether they should accept it, I hope that in the circumstances of this case they will consider processing the request sooner rather than later.

Decision

24. I am satisfied that each of the three questions that the court has to determine are met in the affirmative. Having considered and reached the conclusion I have to exercise my discretion as to whether I should make such a transfer. I am satisfied on the facts of this case that that transfer request should be made and it should be made without delay. So I will make a request to the court in the Czech Republic to assume jurisdiction in accordance with para 5 of Article 15. I will also endorse the directions, that I propose to be part of this request, under Article 56 to be able to elicit some more information in relation to the arrangements for Y and Z if the request is accepted. I also have to bear in mind that the request may be declined. It may be the decision of this court, if it retains jurisdiction, to consider whether there should be an order to place the children in another jurisdiction which would still be a course open to me. So it is important that this court has the best information available. It is also important for Y and Z to be able to know what arrangements would be in place for them if the request that has been made under Article 15(5) is accepted