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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> B-C & Ors (Children) [2014] EWHC 2997 (Fam) (16 June 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/2997.html
Cite as: [2014] EWHC 2997 (Fam)
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FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
In the matter of:
1 Bridge Street West Manchester M60 9DJ |
||
B e f o r e :
____________________
| In the matter of: | ||
| Re: B-C & others (children) |
____________________
Apple Transcription Limited
Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES
DX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838
Counsel for the Mother: MISS HOUGHTON
Counsel for the Father, Mr C: MISS HEPPENSTALL
Counsel for the Father, Mr B MR ROTHERY
Counsel for the Guardian: MISS WALKER
____________________
Crown Copyright ©
- MR JUSTICE HOLMAN: I have heard the whole of the hearing this afternoon in public and now give this judgment in public. I direct that no report in the media or elsewhere may name the actual names of the mother or fathers of the children concerned, or the children, nor reveal the address at which any of them are living or any school any of them attends.
- These are care proceedings concerning, now, four children. At a directions hearing on 16th May 2014, the designated family judge for Manchester, His Honour Judge Hamilton, of his own motion identified that the question arises in this case as to whether this court should make a request pursuant to Article 15 of Council Regulation (EC) No 2201/2003 to an appropriate court in Portugal for such a court to assume jurisdiction in relation to these children pursuant to Article 15. He listed that issue for discrete consideration and determination by myself sitting here today. Apart from that discrete issue, this case remains clearly retained by His Honour Judge Hamilton locally under principles of judicial continuity.
- The essential factual background is as follows. A lady, whom I will call "the mother," has given birth to six living children. One of them is adult and lives in northern England. A second was in fact already in the "guardianship" of a lady in Portugal. The next three, who are boys aged, respectively, 6½, about 5½ and about 3½, were all living with their mother in Portugal. During summer 2013, she travelled to England with those children and also the elder child, who was in fact in the care of another lady in Portugal. The mother and all those children are citizens of Portugal with Portuguese passports and so, of course, she and they were able freely to enter the United Kingdom.
- In early November 2013, here in Manchester, the mother gave birth to another son, who is now aged about 8 months. Immediately following the birth of that baby, the local authority and, indeed, the police became very concerned as to the circumstances of, and care being given to, all the children. In the upshot, care proceedings were commenced. The guardian of the eldest child successfully applied for that child to be returned to Portugal under the provisions of the Hague Convention on the civil aspects of international child abduction, and during May 2014 that child did indeed return to Portugal and resumed living with her guardian. The remaining, now four, boys are all in the interim care of the Oldham Council and fostered.
- The father of the eldest two boys is a man called Mr C. He lives and works in Portugal. He speaks Portuguese, but no English. The father of the third son is a man called Mr B. He, likewise, lives and works in Portugal. He, likewise, speaks Portuguese, but no English. There is or may be some uncertainty as to the father of the youngest son, the baby who was born last November. The mother strongly asserts that the father of that baby is also Mr C, who is father of the first two sons. As I understand it, Mr C accepts that he had sexual intercourse with the mother around the time when that baby was likely to have been conceived and that, therefore, he may be the father of the baby.
- I mention that DNA tests have been performed on samples taken from the baby and two of the elder sons for the purpose of sibling analysis. However, the reports, which were received today, indicate that the results of the tests are "inconclusive". Explanatory material with the reports makes plain that that does not in any way indicate that they do not have the same father as well as the same mother. However, evidently in approximately 20 per cent of kinship tests it is not possible to reach a reliable and conclusive result as to paternity on the basis of testing samples from siblings alone. That arises in situations where the sibling group happen to have genetic information that is common amongst the general population. The report makes plain that the fact that the outcome is "inconclusive" in no way precludes that Mr C is indeed the genetic father of the baby. A conclusive result may be able to be obtained by further and more sophisticated tests of the samples already available. Alternatively, it may be that Mr C may now provide a sample of his own DNA, which would enable the matter to be determined conclusively.
- The situation as it now is is that both the fathers seek that their respective child or children lives with him in Portugal. The mother now makes plain that she strongly desires to return to Portugal. It appears that things have not turned out well for her in England. Further, as I have explained, her elder daughter has now returned to live in Portugal and she is very keen to keep her family as close to each other as possible. Therefore, it is the wish and desire of the mother that she personally returns to live in Portugal and also that her four sons should do so, even if, as she would hope, they cannot live with her.
- The position of the local authority today is to support that this family now moves to live in Portugal and that the proceedings take place and are concluded there. They have made plain that they cannot agree at the moment to any of the children simply moving to live with a parent, whether the mother or a respective father. However, if the court in Portugal does accept the transfer pursuant to Article 15, then they would arrange for the children to be cared for temporarily under appropriate arrangements made by the authorities in Portugal to secure the safety and well-being of the children.
- Each of the fathers is now represented and each of the fathers positively asks that these proceedings are transferred to Portugal. The guardian has previously had some reservations or misgivings with regard to transfer and, in particular, is very anxious that the proceedings should not lose impetus and momentum. Further, she would, of course, be very anxious that the children themselves do not actually move to Portugal, except under appropriate arrangements to ensure their safety and well-being. However, subject to those reservations, the guardian also now supports that a request is made under Article 15.
- That is the factual background and context of this matter. I now turn to Article 15 of Council Regulation (EC) No 2201/2003 itself. I will not read it out into this judgment. I merely highlight the essential ingredients, in particular in paragraph 1. First, a request to the court of another member state to accept jurisdiction is clearly a matter "of exception." Secondly, Article 15.1 confers upon this court a discretion, for it employs the word "may." The essential pre-requisites before a request is made are, first, that the child or children concerned have "a particular connection" with another member state. The circumstances that amount to a particular connection are listed in Article 15.3.
- In the present case, the three eldest sons have a particular connection under a number of the provisions of Article 15.3. Portugal was the former habitual residence of each of them. Portugal is the place of nationality of each of them. Portugal is the habitual residence of a holder of parental responsibility of each of them, namely, their respective fathers. Therefore, in the case of the three elder children, the particular connection is crystal clear. The situation is more opaque in relation to the baby. He was born in England and has not lived anywhere else since his birth. Therefore, it is not possible to say of him that Portugal is his former habitual residence. As I have described, there is, as yet, some uncertainty as to the genetic paternity of the baby and so it would not be possible at the moment positively to say that Portugal is the habitual residence of a holder of parental responsibility in relation to him. It does, however, seem likely at any rate that the baby is in fact a national of Portugal. He is the child of a Portuguese mother. He happens to have been born here in England, but that certainly does not of itself confer any British nationality upon him. I am prepared to proceed in this case on the basis that the baby also does have a particular connection to Portugal in that it is likely to be the place of his nationality.
- The next matter of which this court must be satisfied is that the courts of the other member state, namely, Portugal, "would be better placed to hear the case." In my view, that requirement is amply satisfied on the facts and in the circumstances of this particular case. Real issues arise as to whether any one or more of these children should live with his mother or with his father or, indeed, in the care of public authorities. As I have said, both the fathers live and work in Portugal. It would not be at all easy for either of them to travel to, and spend any appreciable period of time in, England for the purposes of a court hearing, let alone more than one hearing. Neither of the fathers speak any English at all; they speak Portuguese. The mother now strongly desires to return to live in Portugal. She also speaks Portuguese and only has very limited command of English. It would really be a bizarre long-term outcome of this case if it had the effect that any of these children were required to live long-term here in England. The eldest three are Portuguese. Portuguese is their primary language. It is in Portugal that they were all being brought up and educated until last summer. It is in Portugal that their fathers live. It is to Portugal that their mother wishes to return. Therefore, as it is likely that the future of all these children will be in Portugal (whether with their mother, their father or in the care of public authority), it seems to me that the courts of Portugal are much better placed than the courts here in Manchester to investigate, assess and make decisions about with whom or in what circumstances each of the children should respectively live long-term.
- The third requirement is that a transfer to the other court is in the best interests of the child concerned. It seems to me that in this particular case it is in the best interests of each of these children that as soon as possible decision making about them is assumed by a court in Portugal for the reasons which I have really already given. As it is likely that they will live in the longer term in Portugal, it seems to me strongly in their best interests that they are enabled to move as soon as possible to Portugal and for a court there to take control of decision making about their future.
- Therefore, it seems to me that each of the three requirements of Article 15.1 are clearly satisfied in this case. It seems to me that I should, albeit exceptionally, exercise the discretion conferred by Article 15 to request an appropriate court in Portugal to accept jurisdiction in relation to all four of these children. If such a court should do so, then pursuant to Article 15.5 this court will later decline jurisdiction once jurisdiction has been accepted by that court. I stress, however, that unless and until there is a decision by an appropriate court in Portugal to accept jurisdiction in relation to these children, this court, of course, retains jurisdiction and all the existing orders and directions of continuing effect will remain in full force and effect.
- I have spoken this afternoon with Mrs Penelope Langdon in the Office for International Family Justice located in the chambers of the President of the Family Division in London. She has most helpfully outlined to me the form and language of an appropriate order designed to achieve the above outcome and to empower her now to communicate with appropriate authorities in Portugal to seek to give effect to it. I will not read into this judgment the detailed terms of the order, I merely record that it reflects and is based upon her enormously helpful advice.