England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		3rd July 2014

MRS. JUSTICE PARKER:

1. This case, about Article 15 of Brussels II Revised in care proceedings concerning 'A', was listed for two days by Mrs. Justice Hogg on 19 June 2014. Judges and practitioners are in the process of grappling with Article 15, particularly in relation to public law proceedings. It is my experience that nonetheless these determinations can be resolved very much more quickly than may appear on paper, even when, as in this case there are many pages of paper; assessments, reports and a large number of court orders. This hearing has in fact been concluded in under half a day.
2. I am fortunate to have been assisted by legal representation of the highest quality. I am most grateful to all involved, and also for the very careful consideration given by not only the legal representatives but by the Social Work team of the local authority and the Guardian to what are always difficult and anxious decisions.
3. I have come to the clear conclusion after hearing oral argument that a request must be made now of the Romanian authorities, in respect of this Romanian child, to accept this case. I was not so clear – in fact, I was completely undecided – when I read into the extremely helpful skeleton arguments in this case.
4. A was born in this jurisdiction on 1 September 2013 of unmarried Romanian parents. He is now just over ten months old. The care proceedings were commenced very shortly after his birth and this case is therefore already well over the 26 weeks statutory time limit for its resolution. Sir James Munby P. in the recent case of Re S [2014] EWCC B44 has stressed that some cases exceptionally may have to fall outside that time limit and that where there is a foreign element and transfer has to be considered there may well be such an exception. In common with many cases, the Article 15 issue was not identified have until very late in the process.
5. Judge Sapnara at the East London Family Court at Gee Street recognised the issue when the case came before her for final hearing on 4 June. She transferred it up to the High Court; that is likely to be common in the present stage of transition; it may not be so common in the future. Mrs. Justice Hogg, as I have said, in turn set this case down for hearing today, 4th, and tomorrow, 5th July.
6. A's mother is said to have had problems caring for him, certainly in a way acceptable within this country and culture, thus he was removed into care fairly shortly after his birth and the local authority carried out various assessments. The prognosis in respect of the mother as a carer within our terms is said not to be particularly good. The mother is not present at court today. She supports transfer of the case to Romania.
7. The father was in prison during the early months of A's life. His mother was assessed, she was thought at that stage to have too much on her plate, with four other children, to care for A as well. Her circumstances may now have changed. The father has put himself forward, late but not fatally late, as a carer for A, and did so either at or following the hearing before Judge Sapnara on 4 June. As a result, the local authority, mindful of course of the Supreme Court decision in Re B (A Child) [2013] UKSC 33, and the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146, and that the plan for adoption in this jurisdiction needed to be justified on the basis that nothing else would do, has agreed to an assessment of the father by an experienced independent social worker, which is to commence this Saturday.
8. The father's case is that he is a man of some substance in Romania. He has property and family there. He is not entitled to any form of state support here, principally because of his conviction for a driving offence for which he served the term of imprisonment. He supports a transfer of the case to Romania on the basis not only that this is a Romanian child but because he cannot afford to remain in this jurisdiction for very much longer; he needs to return. If he does so his public funding may well cease, and it will be difficult for him to litigate here in any event. He puts forward family members, including his sister, as part of the 'support package' (to use English jargon) to help him look after A. He argues that it is for the Romanian authorities to assess the sufficiency of his potential care for A, particularly bearing in mind, as the President stressed in Re E (A Child) [2014] EWHC 6 (Fam), that this Court and our institutions must guard against applying our cultural norms, our expectations, or indeed our remedies, in deciding on solutions for a child of a different culture where different norms and expectations may apply.
9. Furthermore, of course, if A is to remain here and the only option is adoption, that will be a profound dislocation of a child who, though as yet he has no appreciation of his cultural and ethnic roots, may come to feel, however good a potential placement, stranded, dislocated, deracinated and disinherited by a permanent placement here.
10. The local authority was until this morning not clear where the advantages and disadvantages and the balance lay in applying the Article 15 criteria. It is self-evident that A has a particular connection with Romania. With all parties' agreement, I have approached the examination of the two contentious elements in Article 15(1), namely, is Romania better placed to hear the case and is this in the best interests of the child; with the assistance of a "pros and cons" list. Such are used routinely in the Court of Protection as an aid to determining best interests, and were recommended by the Court of Appeal as an aid and a tool for decision-making in Re B-S. As a result of that exercise, the local authority arrived at a position where they put forward only "pros" in respect of a transfer and could not identify any "cons".
11. The Guardian, through Mr. McIlwain, puts forward a conscientious, well-considered and thoughtful contrary view. In a difficult case like this I would particularly have required Mr. McIlwain through the Guardian to put forward that contrary view in any event to aid me before accepting an agreed solution. Not only am I not critical of the Guardian, I applaud and commend her approach.
12. The Guardian in June said that this case had taken so long to come on for hearing, and A was now at such a vulnerable age, that it was really important to get on with the adoption decision. At that stage she supported adoption. She and Mr. McIlwain recognise that the father's engagement in this process and the assessment has changed the landscape. Although this is by no means determinative – far from it - the father's contact with A is observed to be good. At the moment there is cautious optimism that the father's care may in any event, applying purely English considerations, be considered to be appropriate.
13. The Guardian says and I agree that the pivotal issue, and the only potential "con", of Mr. Poole's "pros" list, is that some do trespass into outcome considerations and I need no persuading, as Ryder LJ said, in Nottingham City Council v LM & Ors. [2014] EWCA Civ 152, that "best interests" within Article 15 is not best interests globally but best interests as to whether the case should be transferred or not.
14. The Romanian authorities have been less than clear as to whether they would wish to assume jurisdiction in response to a request for transfer. They have however made it quite clear that, if the Court were to reach the position whereby it was actively considering adoption of this child through the English system, they would be highly likely to request repatriation of their citizen. As the Guardian, through Mr McIlwain, has of course pointed out to me, pursuant to Article 56 of BIIR the Court can place a child in institutional care or with a foster carer in another member state following consultation with and the consent of the competent authority of the requested state.
15. I have had my attention drawn to two first instance decisions. In Bristol City Council v AA and Anor, [2014] EWHC 1022 Fam, where, similarly, there had been a lack of complete response from, in that case, Lithuania, Mr. Justice Baker directed that a request be made of Lithuania to run alongside assessments of the mother on the basis that the request would at least establish whether or not the Lithuanian authorities would accept a transfer. Both that case, and a decision of Moylan J in Leicester City Council v S, [2014] EWHC 1575 (Fam), also concerned what I have described as the pivotal question of delay.
16. Mr. Poole's first point is this is a Romanian and also Roma child whose interests are served by being in his own culture. Adoption is a last resort. As Ryder LJ said in Nottingham, the question of the Court which is best placed to decide the case is intimately connected with the question of best interests. I see no difficulty in conflating those two considerations when considering 'pros' and 'cons'. The father's proposal to live in Romania with support from Romanian family members can more easily be assessed –arguably, can only properly be assessed in this context – by the Romanian authorities, applying Romanian standards. The question of whether such support can be underpinned by any form of court order, such as an equivalent to our supervision order, or by any form of state charitable or voluntary sector intervention, can only be answered by the Romanian authorities. Only they can decide how this fundamentally Romanian child would be served by the placement options, and (a) whether any negatives in the assessment to be carried out on the father (if indeed they do take it into account, which must be a matter for them) would rule the father out in Romanian terms and (b) to assess the efficacy or family or other support in Romanian terms. Furthermore, the father can best litigate in Romania, and is likely not to be able to do so effectively here.
17. In the Nottingham case the Court of Appeal reversed the decision that the proceedings should be transferred to the Czech Republic on the basis of judicial continuity and the advantages that that would bring to the determination. In that case there had been a fact finding hearing and the case was eminently and imminently capable of resolution by the Judge who had found the facts. Here, the case has profoundly changed as a result of the father's now presenting himself for assessment. Judge Sapnara did not consider the merits in any respect and I am now the second High Court Judge to deal with the matter, the case having not been subject to any judicial continuity at its earlier stages. Therefore, A's future, albeit belatedly, is now being considered in a totally different context from that in which it previously came before the Court.
18. The assessment will be concluded on 8 August. If it is negative or ambiguous, the father may wish to challenge it. The mother may have her own case as to whether she should now put herself forward or propose other family members or make other proposals for the care of A. Although, as Mr. McIlwain rightly observes, at a hearing after 8 August, which would be likely to be around the time when the response to a request could at the latest be expected if I make that decision now, it would then be possible to fix the case for final hearing. That could well be a three - to four - day hearing, bearing in mind the need for interpreters. It is difficult to foresee precisely what the timescale would be for A if the case is retained here. Practical difficulties might, of course, arise as to translation of and cross examination of the assessment of the fact (assuming it to be less than positive). Those are difficulties likely to be no more difficult, perhaps in reality much less difficult, than the problems of this local authority carrying out or commissioning inquiries as to the father's capacity to care for A in Romania, particularly bearing in mind the cultural considerations and the difficulties in any event for an English Court to assess what really is available for A in Romania. So those considerations are either neutral or tip over into the "pros" column.
19. The Guardian, whose initial view was that the Court ought to rule against making an Article 15 request, takes the view that the decision now is very finely balanced between making a request now and putting that off until after the father's assessment is concluded. She is concerned that, if the case is transferred to Romania, the prospect of an easy reunification with the father in this jurisdiction within these proceedings may be inhibited if the Romanian court is to be in charge. In fact, the timing in this case is such that I do not see that as a particularly likely outcome but, in any event, it does not militate against the view that, in principle, Romania is the right jurisdiction. In any event there are many uncertainties have about timescale and the outcome of the assessment that none of these matters would tip the balance.
20. It is difficult to foresee whether more delay will be caused in this jurisdiction or in Romania. I am quite certain, however, that to put off the decision as to whether a request for transfer ought to be made runs a serious risk of delay and, as Mr. Justice Baker held in the Bristol case, the best possible outcome for A is for the father's assessment to run alongside that request, as is agreed should happen here.
21. The balance lies overwhelmingly in favour of this being a Romanian case, both in respect of Romania being better placed and the child's best interests. The worst prospect for A would be to get to the stage, foreseeable, if not necessarily likely, whereby, if the father fails his assessment, adoption is put forward as the English solution, and the Romanian authorities then make a request for repatriation. If there is to be a move for A, it must take place, both in terms of jurisdiction and physically, at the earliest stage.
22. The Guardian would like to make a request of Romania that A stay in his present foster placement whilst the case is determined but that also must be a matter for the Romanian authorities. As Mr. Justice Moylan remarked in the Leicester case, the longer a child stays in a particular placement, the more difficult it is to dislodge him. It is difficult to say whether a move from an established foster placement to another temporary placement now or fairly soon, or to be removed in three to six months time potentially to a permanent placement in three or six months' time, would be a worse outcome for A.
23. Those considerations have led to my decision that a request for transfer should be made now. It seems quite possible, if not likely, that, once a formal request is made, the Romanian authorities will be able to communicate a clear decision, whereas that is more difficult for them on a theoretical basis now. That seems to be the growing experience of Article 15 decisions. If Romania does not accept the request, the case will be on track, albeit much delayed, for a resolution of the proceedings here, and possibly, if all goes well, consensually.