England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE


IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: B (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		17th May 2016

MR JUSTICE BODEY:

1. This case concerns a little boy, A, who was born on [date stated] and is therefore 2½ years old. He is presently in foster care in this jurisdiction. The proceedings about which he is at the centre are care proceedings issued by Doncaster Metropolitan Borough Council on 10^th February 2016 in circumstances which I will come to. Those circumstances were such as to put in doubt the question of A's habitual residence and therefore the question of the English court's jurisdiction. Hence, in accordance with recent Court of Appeal authorities, this hearing has been set up by an order of mine dated 29^th April 2016 to resolve the question of jurisdiction. This judgment is intended not only to rule on that question, but also to assist the court and/or the social services in the Czech Republic.
2. There has been considerable difficulty contacting and remaining in contact with 'M', as I shall call M of A. I describe her as that, although (because of the circumstances in which A came to the attention of the authorities here) there was considered to be potential doubt about his maternity such as to need DNA testing. There is in fact an extant order within the care proceedings for such DNA testing to be performed. As I say, however, this hearing has proceeded on the basis that M is A's mother and I shall proceed on the same basis without being taken as deciding or attempting to decide the point.
3. In spite of the previous difficulties about contacting M and difficulties of interpretation, I am pleased to say that she has attended court personally for this hearing. I am additionally glad that she has been represented by counsel, Mr Duffy, to whom the court is grateful for taking on the case at such short notice. I likewise express my appreciation to the interpreter, Miss Vislcekova, who I am told had to get up extremely early this morning to be here and she has interpreted with great efficiency. Trying to conduct cases like this, which have a major international element, is extremely difficult without proficient translation. The other representations at this hearing have been as follows. The Local Authority has been represented by Miss Stanistreet and the children's guardian, Mrs Hobson, by Miss Richardson.
4. What is the factual matrix against which to decide if A was habitually resident in this jurisdiction on the date when this court was seized on 10^th February 2016? I say at once, and this is a caveat, that the information which follows has come in piecemeal from M. It has come in through two telephone calls from her with staff of the Local Authority and from emails to the Local Authority from the Czech Embassy in London relaying what she told Embassy staff. There is therefore room for misunderstandings in the information which now follows and I am not, by setting out the following facts, intending to make findings; merely to set out as best I can a summary of the main information which this court has.
5. M was born on [date stated] and is therefore aged 30. She is a citizen of the Czech Republic. She has told the court this morning that she has six children in all; BC, born in 2002; DE born in 2003; FG born in 2007; IJ born in 2008; A who was born in 2013; and KL born in 2015. Two of these children live with their respective fathers; three live with M (or presently with their maternal grandparents) in the Czech Republic; and then there is A, who is in foster care in this jurisdiction as already stated. M tells me through Mr Duffy that A is himself a Czech citizen. As I have said, he was born on [date stated]. This was in a [named] Hospital in Leeds, who have confirmed by letter that on the date just mentioned:

"A woman giving the name [a name almost the same as M's name] gave birth to a child named A."

6. M says that she came to this country with her then partner, Z when she was eight and a half months pregnant with A. He (her partner) no longer features in these proceedings, having apparently parted company with M in or about November 2015 and she believes him now to be in Slovakia.
7. Following A's birth, he was discharged to an address in Leeds which M has said was formerly the address of her parents. Five days later, on 15^th November 2013, M left that address with A and, according to her version of events, went with A to Germany and, more particularly, to Z's parents. She stayed with them with A, she says, for some eight or nine months. In about July 2014 (from calculating the months) M, Z and A moved from Germany to the Czech Republic, where they lived at an accommodation centre in Prague provided by the State. They remained there for some four or five months. In around November or December 2014 (again from calculating the months) M, Z and A went, intending this to be temporary, to Slovakia to stay with members of Z's family. This stay must have been for a number of weeks. In January 2015, the three of them returned to Prague where they stayed until April 2015. In April 2015, they moved within the Czech Republic to an address in Opava.
8. In May or June 2015, M's stepsister apparently became ill in Prague. M took A with her to Prague to care for this stepsister; but after two or three weeks she realised it was not appropriate for A to witness what she has described as the terminal illness of the stepsister. Therefore, she says that she asked her partner, Z, to take A back to Opava. However, it turned out that they were in the process of being evicted from their home in Opava and therefore (according to M) they agreed and arranged in about June 2015 that Z would bring A to the United Kingdom, '…with the intention that M would follow shortly.' M remained in Prague. She now says that it was her intention to locate to this country permanently when she was able to move having regard to her stepsister's illness. She has not been consistent about that, having originally described the move of A to this jurisdiction as temporary.
9. On 4^th November 2015, M telephoned Z to say that she was now in a position to come to the United Kingdom and to ask him to come to the Czech Republic to pick her up. However, she says that this never happened and she never saw Z again.
10. On 6^th November 2015, two males went into Doncaster Police Station with a complaint that they had come to this country on a false promise by someone (it is not clear who) that they would be provided with work and accommodation here. This can be described as an allegation of their having been 'trafficked' here. The police would obviously have asked them where they lived and later that day the police attended at an address in Doncaster. There they found A. The papers are not entirely clear, but the Local Authority's distinct understanding is that he (A) was found in the care of two men, one of whom, Y (a man with the same surname as M's then partner), was arrested. A himself was taken by the police under their emergency powers to a foster carer where he has remained ever since and where he is doing well.
11. Police disclosure shows that Y, although his name is stated as Y1, was arrested on suspicion of human trafficking, but was on interview considered to be more of a victim himself. He was therefore allowed to go. Sometime after 7^th November 2015, when it seems that Y had returned to the Czech Republic, he told M, according to her version of events, that the social services had found A 'in a flat with strangers' and had removed him.
12. On 27^th November 2015, M emailed the Local Authority [C24] 'begging' for the child. The email gave a telephone number and an email address; but telephone calls by Local Authority staff failed, as did an email to the stated email address. On 14^th December 2015, an email was received by the Local Authority from Mr P of the Czech Embassy in London [C6] saying that M had told them that her partner, Z, had taken A 'temporarily' to the United Kingdom. However, the email continued that "…as he, Z, was returning to the Czech Republic to see M, he, Z, had left A with Y". M, according to the Embassy's email, described Y as being a cousin of hers.
13. On 16^th December 2015, there was a telephone call between M and social worker, Sally Strachen. M told Miss Strachen that her (the mother's) sister had been dying of abdominal cancer in Prague and that she had been caring for her. She said she had arranged for her three daughters to be cared for by her own mother in Opava and had agreed to her partner, Z, and her (or his?) cousin, Y, bringing A to England "…to see family in Leeds."
14. At some time around now, the Local Authority were given a Facebook reference to M's Facebook site. They found there a photograph of A, seemingly in a hotel room, sat on a bed surrounded by what has been described as 'thousands of Euros' in Euro notes. That is clearly something which calls for an explanation.
15. On 10^th February 2016, the Local Authority issued these care proceedings, having until that point been accommodating A under S.20 of the Children Act 1989 as a child in need. The matter came first before me on 14^th March 2016, at which time M had not been served. I made comprehensive directions to which it is unnecessary to refer.
16. On 29^th April 2016, the case came back in front of me for further directions, when I set up this hearing about jurisdiction. On that occasion, M was telephoned from the court by the social workers and they had a telephone conversation with her, the notes of which are now to be found at C37. M has since confirmed that these notes are accurate. Much of what I have already described is taken from that telephone call. That brings the matter up to date.
17. The law on habitual residence has been considered and 'modernised' in a number of recent cases, at least five of them, in the Supreme Court, commencing with A v A [2014] 1 FLR 111. Some of the propositions which emerge from these cases as regards decisions on of habitual residence are as follows:

(i) The test is essentially a factual one, which should not be overlaid with legal sub-rules or glosses. It requires a consideration of all the circumstances of the specific case before the court.

(ii) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment, although it is not necessary for the child to have become fully integrated.

(iii) The meaning of habitual residence is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity, which in this context means the practical connection between the child and the country concerned.'

(iv) A child will usually, but not necessarily, have the same habitual residence as the parent or parents, or person or persons, by whom he or she is in fact looked after.

(v) Parental intention is relevant to the assessment of habitual residence, but not determinative.

(vi) It will be highly unusual for a child to have no habitual residence, as usually a child loses a pre-existing habitual residence at the same time as gaining a new one.

(vii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he or she resided before the move.

(viii) It is the stability of a child's residence as opposed to its permanence which is relevant. There must be a certain stability and regularity.

(ix) The requisite degree of integration can in certain circumstances occur quite quickly.

(x) The duration, regularity, conditions and reasons for the stay in the country concerned and the reasons for the family's move to the state concerned, the child's nationality, the place and conditions of attendance at school or nursery, the linguistic knowledge and the family and social relationships of the child are all matters which must be taken into consideration.

(xi) In addition to the physical presence of the child at some point, other factors must exist which are capable of showing that that presence is not in any way temporary or intermittent and that the residence reflects some degree of integration in a social and family environment. It is the family environment which is a key factor in determining the child's habitual residence, the various factors varying according to the age of the child.

(xii) An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent.

(xiii) Where an infant is looked after by a parent, it is necessary to assess the parent's integration in the social and family environment. The reasons for the move by the parent, the languages known to the parent and his or her geographic and family origins will or may all be relevant.

18. Here, A was apparently being cared for by M's partner. She (M) had made no plans for him (A) within this jurisdiction and on the initial occasions of her providing information, she described his (A's) stay in England as "temporary." No one who was caring for A in this jurisdiction had parental responsibility for him and M had understood that he was going to Leeds to see friends; whereas in fact he was found in Doncaster, an arrangement about which she appeared to know nothing. There is no suggestion that A was placed in any nursery or registered with a doctor. His carers were (or were associated with) men who complained to the police that they had been brought here on a false promise of work and accommodation and were then given very poor accommodation and not paid for their work. So there is a case for saying that they were 'trafficked' here. Overall, the arrangements have a disorganised, unplanned and unstable, if not transitory, feel about them.
19. I am not at all surprised that the Local Authority has accepted the difficulty in asserting that this court has jurisdiction and it has not sought to do so. The children's guardian agrees with that approach, as does M herself. In my judgment, A cannot be shown (on the facts as they are known) to have had by 10^th February 2016 a sufficient degree of integration in a social and family environment at the address where he was found in Doncaster. Accordingly, I conclude and hold that this court does not have jurisdiction over these care proceedings.
20. It is not my role to go further and I do not wish to appear to be trespassing on the province of another court. However, from my examination of the facts, it would appear that A was habitually resident in the Czech Republic from July 2014 until June 2015. That is the country of the citizenship of both M and himself. Thus, all things considered, it would appear that A is very probably now habitually resident in the Czech Republic. It is in that country that M lives, as do her parents and her other children. It is where she herself would like A's future to be decided. It was described by M's counsel, Mr Duffy, this morning as "…her home, where she has her children who are presently cared for by the maternal grandparents and it is where one finds the nucleus of the family."
21. My order will therefore be predicated on A being now returned by the Local Authority's social workers to the Czech Republic, on the basis that this country has no jurisdiction. M accepts that she cannot expect to care for A without a thorough prior examination of his welfare: how he came to be in this country; her commitment to him; the family dynamics within her family and so on. There should therefore be a relatively straightforward transition from the Local Authority's social workers in this country to social workers in the Czech Republic, so as to enable the authorities in that jurisdiction to consider and determine A's safety, his welfare and his future. The Local Authority has indicated its willingness to provide the Czech authorities with all and any information which would be useful to that jurisdiction, to include a translated copy of this Judgment and of my Order.
22. Last, I have explained forcibly to M the importance (a) of her now engaging with the authorities in this country and in the Czech Republic; (b) of her cooperating with the investigations and assessments in the Czech Republic which will be necessary in the light of the facts that I have set out; and (c) of her cooperating at every point with the practical arrangements which the respective social workers will need to make for A until the Czech Republic can make decisions about his future.