England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		27th June 2014

MRS. JUSTICE THEIS:

Introduction

1. This matter has been listed before me to consider jurisdiction in accordance with the practice and guidance given by the President in Re: E [2014] EWCA Civ 789 that in cases where there was an issue as to jurisdiction that should be determined sooner rather than later.
2. These proceedings concern a little girl, H, who was born in February 2013, so is now one year and four months old. Her mother is R. The whereabouts of the mother are unknown and she is not represented or present at this hearing. The identity of the child's father is not known.
3. The jurisdiction issue has arisen in the context of care proceedings issued in April 2014 in the Family Court sitting in Brighton. The matter has been case managed by the Designated Family Judge, Her Honour Judge Jakens, and the IRH is fixed for hearing in November. Following updated information provided today that reports she directed can be completed earlier than originally thought the timetable can be brought forward for the IRH to be listed earlier than November.

Background


4. The background of this matter together with the relevant legal principles, have been set out in the enormously helpful skeleton arguments filed on behalf of the Local Authority and the Guardian by Mr. Cameron and Miss Phillips respectively. They are both, if I may say so, excellent documents that have enabled the court to understand and readily grasp the relevant issues and be in a position to give an ex tempore judgment today. They will both recognise much of their hard work in this judgment.
5. R was born in 1990 and is a citizen from Albania. She came to this country in November 2012 without leave and unsuccessfully claimed asylum. Her appeal against refusal to grant asylum was refused and in the decision dated 5^th April 2013 from the Immigration Judge there is detail as to the history behind the refusal of her asylum claim.
6. The mother refers to meeting a man, E, in January 2012, who she agreed to go on holiday with and started a relationship with. The mother referred to going to Italy in April 2012, he said that they would get married there. She claimed whilst in Italy he began to abuse her, forcing her to have sex with his friend and then strangers, and she realised she was pregnant in the autumn of 2012. She asserted she returned back to Albania in October 2012 claiming to have fled the apartment where she resided with that person. Following an alleged beating of an uncle with whom she stayed with in Albania she came by car to this jurisdiction in November 2012.
7. The Immigration Judge in his findings found that there were a number of material inconsistencies in the mother's account, such that there was no reasonable likelihood of her story being true. He set out in that judgment the various inconsistencies which enabled him to reach that conclusion.
8. H's care history is largely unknown, other than the period of time she was known to Liverpool Social Services. The Local Authority in these proceedings has sought disclosure of the records. She first became known to Liverpool Social Services in July 2013 in circumstances where it appears the mother sent a text message to a refugee and asylum support staff member stating she had bought a knife and was going to kill herself. The police attended the mother's address and found that the mother and child were safe and well. According to further information from Liverpool, at that time it appears the mother and child were residing in NAS or SERCO accommodation in Liverpool. She was said to be open to a Serco worker, and as of 25^th July 2013 it is recorded the mother was in receipt of support and health visiting services in terms of monitoring and offering support.
9. A strategy discussion was held in Liverpool in October 2013 as a result of the mother asserting that she had taken an overdose. The mother was refusing to disclose H's whereabouts despite several efforts made in late October and early November to locate her. There is a reference in the chronology prepared by Liverpool for these proceedings that on 30^th October 2013 "H is not with her mother and she will not disclose H's location"; they request the police to try and locate the child. The mother was apparently arrested for obstruction and taken to hospital, but H's whereabouts were still unknown. H was reported missing to the police and there is reference to the police making enquiries. The records indicate they checked the mother's phone, she had been down to the south of the country and the child could be anywhere. It appears in relation to Liverpool's involvement the case was closed in January 2014. From the limited documentation that is available, it appears that H was not seen between the period of late October 2013 and January 2014.
10. Following the chronology, the next material event was on 20^th March 2014 when West Sussex Social Services had telephone contact with a lady, T, stating that H's mother had attended her address with H three days previously and had stayed for a short time before stating she needed to collect something from the car. The mother was then driven off in a car waiting outside and H was left behind. T was visited by Social Services and police later that day. She claimed the mother was somebody who she had only met two times previously and had had no contact with for many months. She stated that a man had dropped H at her house, not the mother as previously stated. It appeared to the social worker who attended there were more belongings for H than would have been expected for a baby who had been dropped off only for a couple of days.
    T initially told the police and social worker that she had no contact details for the mother, despite being repeatedly asked for a telephone number. She said she had hardly known her and had only known her briefly through the Albanian community in Brighton. Due to the lack of clarity about how H came into T's care, police used their police protection powers on 20^th March and H was placed with foster carers, where she has remained.
11. T was interviewed by the police on 21^st March 2014 and she confirmed she had first met the mother having a coffee with some friends in 2012, there was general chat with the mother on that occasion but she did not have any contact details for any of these friends. She said the second meeting was some months later when they were in the street and the mother was five months pregnant. She said there were a few texts, which she numbered at less than three. T told the police that there were several phone calls with the mother over the few days after the child was left with her, and that T's mobile phone contained the mobile number to contact the mother on the initial visit by the police on 20^th March. She said that a male turned up at her home with H's birth certificate and red book.
12. On 26^th March 2014 T attended Social Services offices and produced
    a statutory declaration allegedly signed by the mother stating that she wished for H to be cared for by T. The statutory declaration indicated that the mother is without income, without a home and relying on friends, and that it was not known where she is living or with whom. During a telephone conversation facilitated by T between the guardian and the mother at court on 28^th March 2014, the mother was made aware of the court hearing and potential outcomes; however, she has continued to remain uninvolved in the proceedings. Following that call the mother sent a text message to T indicating she did not want anything further to do with the matter and did not want to be contacted. The mother has not been available to the social worker. The maternal grandmother indicated to the social worker that the mother was staying with Albanian friends, but she has taken no part in these proceedings.
13. The Local Authority started proceedings on 1^st April 2014, following emergency protection orders being made on 28^th March 2014.
14. Following directions made by the court, John Walsh, specialist Immigration Counsel, was instructed to advise as to H's immigration status. His written opinion is dated 6^th May 2014. In summary, his conclusion is H must be considered as requiring leave to remain in the United Kingdom, but the Home Office will not take any enforcement action against H while there is any question over her future care. His recommendation was that an application should be made to regularise her immigration position while she is in the UK in the care of the Local Authority. The Local Authority have instructed solicitors to make that application.
15. Other directions have been given regarding assessments. Firstly the maternal grandparents who live in Albania have expressed a wish to be assessed as carers for their grand daughter. There was a suggestion they were going to come over to this jurisdiction initially, but for various different reasons that cannot now happen. They are now going to be assessed through CFAB in Albania. Originally it was thought that assessment would take 12 to 16 weeks and was unlikely to be filed until 9^th October 2014. Extremely helpfully, CFAB have responded to say that assessment will take place between 3 and 6 weeks, which is one of the reasons why I have been able to bring forward the date of the IRH.
16. The second assessment in progress relates to T, with whom H was placed prior to the issue of these proceedings. A special guardianship assessment is being undertaken. That is about to be started, and can be concluded by the end of August.
17. Following the CFAB assessment being filed, there will be provision for a directions hearing before Her Honour Judge Jakens in the week after the CFAB report has been filed, which can be vacated by agreement. The purpose of such a hearing is in case any further directions are needed in the event that the CFAB assessment is positive to enable the maternal grandparents to come to this jurisdiction in order to take part in any further assessments that are thought necessary.
18. Before turning to consider the question of jurisdiction it is right to record that the Local Authority have been liaising with both the UK Central Authority and the Albanian Embassy. On 19^th June 2014 the Albanian Embassy sent an e-mail to the Local Authority enclosing a letter from the Ambassador, Mal Berisha, which is dated 18^th June 2014. The letter dated 18^th June 2014 appears to indicate that they seem to be under the impression that H is the subject of an adoption order. I have indicated that it would be helpful if the Local Authority could write to the Albanian Embassy setting out the current status of these proceedings and that the court is actively investigating all options (including placement within the wider family) and H is not the subject of an adoption order.

Jurisdiction

19. Turning to the question of jurisdiction, Mr. Cameron has set out in his skeleton argument the relevant regulations and conventions. It is agreed between the parties that the court is primarily concerned with Article 8 Council Regulation (EC) No 2201/2003 (Brussels II Revised); that the court has to consider whether H was habitually resident in this jurisdiction at the date the court was first seized, namely 1^st April 2014. That needs to be done bearing in mind A v. A & Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, which sets out the key principles in relation to determining habitual residence. They are set out in paragraph 54 and can be summarised as follows:

(1) The test of habitual residence is the place which reflects some degree of integration by the child in a social and family environment in the country concerned.

(2) The social and family environment of an infant or young child is shared with those, whether parents or others, upon whom he is dependant. It is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

(3) The test adopted by the European Court is preferable to that earlier adopted by the English Courts being focused on the situation of the child with the purposes and intentions of the parents being merely one of the relevant factors.

20. I have also been referred to paragraph 75 in A v A (ibid), the speech of Lord Hughes, when he stated:

"As a generalisation it is therefore plainly true that the infant will normally share the habitual residence of the person who has lawful custody of him, and this is a valuable aid to courts. But this is not an invariable rule of law, and it is not too difficult to envisage factual situations in which this proposition will not be true."

21. In her skeleton argument, Miss Phillips very helpfully sets out a number of matters that can be summarised from the evidence and information filed which are relevant to the question of whether, or not, H is habitually resident in the United Kingdom.
22. The mother is an Albanian National, who entered the United Kingdom illegally in November 2012, and subsequently made an application for asylum which was unsuccessful following the appeal process in May 2013. She submitted a further application which was rejected in March 2014, and her whereabouts are unknown. The court had evidence from T in March 2014 that the mother would not be attending because she is evading authorities due to her legal status. T also gave an account of meeting the mother twice in Brighton in 2012.
23. H was born in Liverpool in February 2013. The mother and H were known to Liverpool Social Services in July 2013, the mother making threats to kill herself, and the police visited the home and raised no concerns. There was a visit to the mother by an asylum support group in July 2013, recording the mother stating she would stab herself if she is refused asylum, and wants her daughter to grow up in England and not have to return home. There is a further reference in October 2013 to the mother taking an overdose, which again is brought to the attention of the authorities in Liverpool, and again this is in the context of her failed asylum application. At that stage H is not with her and cannot be located, and the evidence appears to indicate that nobody saw or had any information about H's whereabouts between October 2013 and January 2014.
24. Although at odds with T's account, the putative maternal grandmother reported to the social worker that H had been living with T since October 2013 for some five months before T states H was left in her care. That would of course coincide with the time frame in relation to what is known about H's whereabouts from the records from Liverpool. That of course is inconsistent with T's first account that was given to the police when she first rang and contacted the Local Authority in March 2014.
25. H is an Albanian citizen, acquiring citizen of birth by virtue of her mother being Albanian, but she does not yet have regularised immigration status in this jurisdiction unless the application funded by the Local Authority is successful to regularise her status in this country.
26. Miss Phillips submits the observations made by Lord Hughes in the A v. A case in relation to the child's circumstances are particularly apt in this case, because even with the lack of clarity in relation to H's care throughout her life, it is submitted that H's habitual residence is established in this country for the reasons set out in her skeleton argument. H was born in the United Kingdom, and although she is an Albanian citizen that is derived from her mother, and habitual residence does not necessarily flow from that. There is no evidence that H has ever left the United Kingdom; all of the evidence from the various different sources points to her having remained in this jurisdiction since birth. It is clear from the information that the court does have, albeit from third party sources, that the mother's intention was that her daughter should remain in this jurisdiction and be brought up in this jurisdiction. Although the mother's circumstances are far from clear, her ability to integrate into social and family environment is clearly affected by her lack of immigration status, but there is evidence to say that H has integrated into a social and family environment, although there remains uncertainty as to precisely when she went into T's care. The social worker who attended at the home observed that there was a significant amount of material there for H, which perhaps lends support to the view that was expressed by the maternal grandparents that they had understood H had been cared for by T since October 2013. In those circumstances, it is submitted by Miss Philips H has habitual residence in this jurisdiction in her own right.
27. That position is supported by Mr. Cameron in his skeleton argument at paragraph 57, where he agrees that H has lived here, on the information we have got, for her entire life; there is nothing to suggest that she has ever left the United Kingdom, and any health visitor support that was being given and involvement with the support group with the mother in July 2013 does indicate that there was some integration in the social and family environment in England. He submits that if this child has any place of habitual residence then it is England, since it is the only country in which she has reflected some degree of integration.
28. I agree, in the circumstances of this case, that H's habitual residence is in this jurisdiction. It appears from the information the court has it is the only jurisdiction that she has ever been in. There has been, in the relatively short period of time that she has been alive, some integration into the social and family environment in England, although there is some uncertainty during part of the time as to precisely where she has been. The indications are that it was the mother's wish for her to be born and brought up in this jurisdiction, and so in the somewhat unique circumstances of this case I am satisfied that her habitual residence is here.
29. There have been submissions made in relation to the mother's habitual residence but I consider that in the light of my findings in relation to H's habitual residence, it is not necessary for the court to consider that.
30. Having determined H's habitual residence is here and that this court does have jurisdiction, it is necessary for the court to consider whether it should consider whether there should be any request for these proceedings to be transferred to another jurisdiction (in this case Albania) pursuant to Article 15 Brussels II Revised. However, as Mr. Cameron sets out, the effect of Article 61 is that jurisdiction must be exercised under the Regulation rather than under the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the Convention). In those circumstances, it is submitted, rightly, that the court cannot make use of the Article 15 procedure because that is to request a transfer to another Member State, and Albania is not a Member State. It is also submitted, in my judgment rightly, that the court could not use the transfer request under Article 8 of the Convention, since Article 61(a) of the Regulation acts to provide for jurisdiction only to be exercised under the Regulation and that this would be consistent with the practice guide's comment at page 16 that 'the scope for using Article 8 must be limited'. So, I do not consider that there is any positive obligation as a result of either the Convention or Brussels II Revised for this court, in the circumstances of this case, to actively consider whether there should be any transfer of the proceedings to Albania.
31. However, I make it clear that in the assessments that are being undertaken in this case, active consideration is being given regarding possible placement with wider family members who live in Albania. If those assessments are positive there may need to be arrangements put in place for H's placement with those family members in Albania. But until we know the result of those assessments, the court is not going to be in a position to be able to determine whether such a placement will meet H's welfare needs.
32. So for those very brief reasons, I am satisfied that this court has jurisdiction to be able to determine this application.
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