In the Matter of J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45

Neutral citation number [2014] EWFC 45CASE No. SG14CO 0006
IN THE FAMILY COURT
SITTING AT
Venue THE ROYAL COURTS OF JUSTICEDate 11 th November 2014
Before His Honour Judge Bellamy
Sitting as a Deputy High Court Judge
Re J and E (Children: Brussels II Revised: Article 15)
Mr Mark Twomey, counsel for the local authority
Miss Jacqueline Matthews-Stroud, counsel for the mother
Miss Diana Murphy, counsel for the father
Miss Martha Cover, counsel for the children
Judgment
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
JUDGE BELLAMY:
[1]The London Borough of Hounslow (‘the local authority’) applies to the court for care orders and placement orders in respect of two little girls, J aged 2¾ and E aged 18 months. The children’s parents are AM (‘the mother’) and ZN (‘the father’). The parents oppose the local authority’s applications.[2]The mother is Hungarian. The father is Hungarian/Roma. The mother applies under Article 15(2)(a) of Council Regulation (EC) 2201/2003 (‘BIIR’) for an order requesting that the Hungarian court should assume jurisdiction with respect to these proceedings. The local authority and the Children’s Guardian (‘the guardian’) oppose the making of such an order.[3]The hearing of these applications took place from 3rd to 7th November. I reserved judgment until 11th November. I sent counsel a draft of this judgment on 9th November. On 10th November written submissions were received, belatedly, from the Hungarian Central Authority (‘HCA’). On 11th November counsel for the local authority submitted a request for clarification of some aspects of my draft judgment. On 13th November I received a request for clarification from counsel for the Children’s Guardian (‘the guardian’). The HCA’s submissions have been responded to by the local authority. The local authority’s request for clarification has been responded to by the father. All of this additional material has been taken into account in completing this judgment.

Pre-proceedings history

[4]The mother is aged 22. The father is aged 26. They are not married. The mother speaks no English. The father speaks only a little English. Both have required the assistance of interpreters at this hearing.[5]The father has two children from a previous relationship, H, a girl now aged 6 and K, a boy now aged 4. H and K were born in Hungary and continue to live there. They have been removed from their mother’s care and placed in foster care.[6]The parents arrived in England in July 2011. The mother was pregnant with their first child. J was born in January 2012. The mother had neither sought nor received any antenatal care.[7]J was born in hospital. Concerned about the lack of antenatal care, the hospital made a referral to Children’s Services. After initial discussions it was agreed that there was no identified role for Children’s Services at that time.[8]In April 2012 the family were living in a caravan. The caravan was in a poor state of repair. There was no electricity, no running water and no sanitation. The caravan was due to be impounded. On 30th April the parents were served with a notice that the caravan would be removed the next day. They visited Children’s Services to seek help. Initially they agreed to J being accommodated for a few days pursuant to s.20 of the Children Act 1989 but the father quickly changed his mind. The local authority agreed to pay for bed and breakfast accommodation for 7 days. The parents expressed a wish to return to Hungary. The local authority supported them in seeking assistance from the Hungarian Embassy. The local authority mistakenly believed the family had returned to Hungary.[9]On 21st May 2012 the local authority closed its case file. The guardian expresses concern that the file was closed so quickly given the family’s accommodation problems. At the very least the guardian would have expected the local authority to have made J the subject of a child in need plan. In the event, this family completely disappeared from the local authority’s radar for the next twelve months. In his closing submissions on behalf of the local authority, Mr Twomey accepted that the local authority’s response had been inadequate and that this had led to significant delay in the local authority engaging appropriately with this family.[10]Later that year the mother became pregnant with her second child. Once again she did not seek any antenatal care. A few weeks before E was born the mother travelled to Hungary leaving J with the father. Her mother and grandmother were concerned that she had not seen a midwife. She received some ante-natal care in Hungary. She returned to England a couple of months before E was born. She had wanted to return so she could be with J. E was born on 6th May 2013.[11]The mother knew that she was returning to live in very poor conditions. The parents had for some months been living in a multi-occupancy house, sharing facilities with other families of different nationalities. Their living space comprised a single room which was described as ‘squalid’. The shared kitchen was filthy. They had almost no food – the fridge contained one packet of custard creams. There were no clothes for either child. There was no bed or cot for J and no Moses basket for E.[12]During the early hours of the morning of 6th May 2013 the mother went into labour. A neighbour called an ambulance. By the time the ambulance arrived E had been delivered but the placenta had not. The mother needed to be taken to hospital. The ambulance crew considered that the father was being obstructive. They summoned the police. The father was arrested but was not charged.[13]Mother and children were taken to hospital. The police exercised their powers of protection under s.46 of the Children Act 1989. J was placed with emergency foster carers.[14]On 9th May the local authority applied for emergency protection orders. The parents agreed to both children being accommodated by the local authority under s.20 of the Children Act 1989. No order was made on the local authority’s applications.[15]On being discharged from hospital on 14th May, E was placed in foster care. She was placed separately from J. Two weeks later, the local authority moved J into the same foster placement as her sister.[16]An assessment undertaken by the local authority in May/June 2013 records that, ‘J is 15-months old, J is of White Hungarian Roma origin. Her parents and their network speak Hungarian and so far it is not thought that she has been exposed to English speakers.’[17]The foster placement was with a white English family. The foster carers have two birth children (both teenagers) and two adopted children of junior school age. Although the placement has proved to be a very positive placement for J and E as the guardian noted in her initial analysis the placement is not a cultural match and the children ‘are therefore learning and understanding only English with their current carers’. One of the most concerning consequences of this is that mother and daughters are unable to converse with each other during contact save through an interpreter.[18]Since the children’s placement in foster care the parents have had supervised contact with them. Because of concerns about father’s aggression, the contact was supervised by two workers. The room in which contact has taken place is far from ideal as a venue for contact with two small children. It is very small. It has no natural light. There are always at least 7 people present (the parents, the children, two supervisors and an interpreter). It may have been adequate as a short-term arrangement. Contact has been taking place at this venue for over eighteen months.[19]The parents proved to be unreliable in taking up the contact available. Although contact was initially fixed to take place for four hours three times per week, the parents failed to attend several of the contact sessions. Even when they did attend they often arrived late and/or left early. This led to the frequency of contact being reduced.[20]Although the contact notes contain some positive comments about the parents’ interaction with the children, there are more negative comments than positive. The contact notes also provide some evidence of the father’s aggression.[21]On 9th July 2013 the local authority sent the parents a pre-proceedings letter. This letter set out the local authority’s concerns and also indicated the steps the local authority intended to undertake. The local authority has not done all that it said it would do. For example, the pre-proceedings letter indicated that the local authority would ‘Undertake a culturally appropriate assessment with a social worker who is a Hungarian speaker’. The local authority says that despite its best efforts it was unable to identify a Hungarian speaking social worker. The local authority instructed an independent social worker (‘ISW’), Susan Clark. Ms Clark has past experience of assessing parents from Hungary, Romania, Slovakia and the Czech Republic, including those from a Roma background. Ms Clark considered that, with the assistance of an interpreter, she had the skills and experience required to undertake this piece of work.[22]On 7th August there was an incident whilst the parents were out together. The father had been drinking. They had an argument. The father tried to get on a bus but the driver refused to allow him on board. The father was angry. He ripped off the nearside wiper blade, cutting his hands. He then head-butted the windscreen, causing it to shatter. He was charged with an offence of criminal damage. He pleaded guilty.[23]The pre-proceedings letter was followed by a pre-proceedings meeting held on 12th August. The parents were legally represented. The pre-proceedings letter indicated that the local authority intended to arrange a family group conference. That intention was repeated at the pre-proceedings meeting. There has not been a family group conference.[24]The ISW, Ms Clark, attempted to meet with the parents on 2nd, 9th and 30th September. The parents did not keep the first two appointments. In her first report, dated 4th October 2013, Ms Clark says that she had been unable to complete the assessment because of the parents’ lack of co-operation.[25]In the course of the one meeting which did take place the parents disclosed to Ms Clark that they were homeless and were sleeping in an open garage. They also disclosed that the mother was pregnant with her third child.[26]The local authority instructed Ms Clark to make a further attempt to engage with the parents. Four meetings were arranged. The mother kept one of these appointments. The father did not keep any of them. Ms Clark observed one session of contact. She describes the contact as ‘poor’, saying that neither parent was able to engage with the children and long periods passed in silence. She was concerned that both parents ‘look unkempt and increasingly impoverished’. She records that, ‘Overall, [the parents] do not accept the concerns of the Local Authority and have given no indication that they are willing or able to address them in any way. Their solution is to return to Hungary.’[27]Ms Clark’s second and final report is dated 30th December 2013. Handicapped as she was by lack of parental engagement, it is unsurprising that her assessment was negative.[28]The local authority has explored some possible family placements. It instructed Children and Families Abroad (‘CFAB’) to undertake an assessment of maternal grandmother. The brief report, which appears to have been prepared by a worker based in Romania, indicated that the grandmother accepted that her accommodation was unsuitable in that as she is already caring for her 15 year old son and a grandson she simply does not have the space to accommodate J and E.[29]The CFAB report raised the possibility of placement with maternal grandmother (J and E’s maternal great-grandmother). The report says that great grandmother had said that, ‘she will give to AM a part of her house, but only with the condition that ZN will never put foot in there…the great grandmother agrees to give not only accommodation support, but also financial support and support in taking care the children helping her granddaughter to register the children within doctor family, kindergarten and of course to help her in all procedures which imply the state allowance from Hungary government. The whole family expresses their wish that [the mother] should separate from ZN as ZN has brought her a lot of unhappiness and she was physically abused by him and that on long term, ZN will “destroy” her…’ The mother agreed that that is still her grandmother’s position.[30]The local authority did not finally issue care proceedings until 24th January 2014. By then the children had been in foster care for eight months. The guardian is critical of the local authority for this delay. Her criticism is fully justified. In his closing submissions on behalf of the local authority, Mr Twomey accepted that there had been unacceptable delay in issuing these proceedings.[31]It is appropriate to note in passing the comments made by Moylan J in Leicester City Council v S & Ors [2014] EWHC 1575 (Fam) – a decision handed down after this local authority had issued proceedings relating to J and E – that, ‘…where it appears that jurisdiction (including under Article 15) is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in the child's life.’

History from issue of proceedings

[32]The proceedings were issued in the South West London Family Proceedings Court. From there they were immediately transferred to the Care Centre. At a case management hearing on 11th February, the proceedings were transferred to the High Court.[33]The proceedings came before Moor J on 26th February. His order records that, ‘The mother seeks the return of the subject children to her and the father’s care. She proposes to care for the subject children in Hungary. She intends to travel to Hungary within the next two weeks in time for the birth of her third child whom she intends shall remain in Hungary with family members; the mother wishes to make an application for the transfer of these proceedings and for the removal of the children to Hungary pursuant to Article 15 of BIIR.’ The case was listed for hearing on 18th March ‘to consider jurisdictional issues and the parents’ applications to transfer the proceedings to Hungary’.[34]The mother says that she left England on 10th March and arrived in Hungary the next day. On 15th March she gave birth to a son, X. The mother and X stayed with the mother’s grandmother.[35]On 18th March the case came on for hearing before Holman J. He held that at the date of the commencement of these proceedings both children were and are habitually resident in England and Wales and that for the purpose of Article 8 of BIIR this court therefore has jurisdiction to deal with these proceedings.[36]Prior to this hearing the mother had issued an application for transfer of the proceedings to Hungary. Holman J adjourned that application. The order records that the reason for the adjournment was ‘because of the need for further liaison with, and information from, the Hungarian authorities’. This is spelled out more clearly in the judge’s judgment:
‘11. It seems to me, however, that full consideration of transfer of the proceedings under Article 15 cannot be given without some concurrent consideration also of what arrangements might be made for the physical transfer of the children themselves to Hungary. 12. …the present application is one for the transfer of the proceedings themselves and, as I have said, it does not seem to me, at any rate on the facts and in the circumstances of this case, that that can sensibly be considered without some clearer understanding of what arrangements might exist for the transfer of the children themselves to live, whether long term or even during the course of the proceedings, under suitable arrangements in Hungary.’
[37]Holman J also made the point that, ‘10. The fact of the matter is that, although they were born here as a matter almost of accident and although they are currently habitually resident here, these children are Hungarian children by citizenship and not British children, and their ethnicity is clearly that of the Hungarian Romany group.’[38]The adjourned hearing of the mother’s application under Article 15 took place on 9th and 12th May before Sir Peter Singer sitting as a Deputy High Court Judge. The judge refused the application. He also ordered that there should be a finding of fact hearing.[39]It is clear both from Sir Peter Singer’s judgment and from his order that his refusal of the mother’s Article 15 application was not intended necessarily to be a final determination. He said:
‘24. …I do not propose to make an order inviting the Hungarian court to take the case over. There is an issue as to whether I should adjourn the application so that it can be raised more conveniently at a later stage or whether I should dismiss it… 25. …it seemed to me that if the outcome is that the threshold criteria are established so that the Local Authority is able to advance the case for an order [under s.31 of the Children Act 1989] that it would not be perhaps unreasonable to reopen the art 15 application’
. Paragraph 11 of his order states that:
‘The Mother’s application is today refused. The application may be reconsidered following the fact finding hearing.’
There was no appeal against that order.[40]The finding of fact hearing took place on 25th June before Hogg J. Neither parent attended. The mother was still in Hungary following the birth of X, though she gave instructions to her counsel by telephone. By then the father, too, had returned to Hungary. He, too, was represented at the fact finding hearing though it appears that his counsel was unable to obtain instructions.[41]Hogg J was informed by the mother’s counsel that the mother agreed to all but one of the 11 findings sought by the local authority. The findings agreed by the mother were, in summary, that: 1. The parents failed to make any or any adequate plans for the birth of E and failed to secure any ante-natal care or any timely medical advice and/or assistance with the birth. 2. The mother failed to seek any ante-natal care prior to the birth of J and failed to keep her immunizations up to date or register her with a GP. 3. The mother had not delivered the placenta when the ambulance arrived at the family home and was in need of medical assistance which the father attempted to prevent. 4. At the time of E’s birth, the family home was in an extremely poor condition and unsuitable for children to occupy. 5. There was no food or clothes available for either child at the time of E’s birth. There was no cot, child’s bed or Moses basket available for either child. 7. The parents are likely to cause the children significant emotional harm and/or place them at risk of physical harm as a result of likely exposure to domestic abuse by reason of the history of domestic abuse in their relationship. 8. The father is likely to cause the children significant emotional harm as a result of his aggressive and volatile personality. 9. Each parent has caused the children significant emotional harm by abandoning them in an unplanned way by either leaving the jurisdiction to travel to Hungary (in the mother’s case) or by disappearing (in the father’s case) such that there could be no contact with the children. 10. Prior to abandoning the children the parents’ attendance at contact was inconsistent. When they did attend contact they failed to engage with the children whether by playing, changing nappies or other usual parental interaction. 11. The parents have no insight into the local authority’s concerns, continue to deny any parental deficits and have failed to co-operate in attempts to assess them thereby frustrating and/or delaying effective care planning for the children. The judge did not hear any oral evidence. She made the findings I have just outlined. Although I am told that the judge gave a short judgment, no transcript has been obtained. It is accepted by all parties that those findings are sufficient to satisfy the threshold set by s.31(2) of the Children Act 1989. The final welfare hearing was listed to take place on 22nd September.[42]On 15th July the parents informed the allocated social worker that the paternal grandmother wished to be considered as a carer for J and E. This represented a change of position. According to the social worker, the mother had consistently said that she wanted the children to be cared for by her family in Hungary and the father had been clear that he did not want his mother to care for the children. The father had said that before he came to England his mother had had a problem with alcohol.[43]In late July and early August 2014 the local authority undertook what the allocated social worker describes as ‘an eligibility assessment’ of the paternal grandmother. This assessment was conducted by telephone with the assistance of an interpreter. The grandmother was not provided with any advance information setting out the local authority’s concerns. The only detail she was given about the local authority’s concerns was given to her by the social worker during their telephone discussions.[44]Although the social worker had telephone conversations with the paternal grandmother on 24th and 29th July, they appear to have been brief. The most detailed conversation took place on 5th August. In her written assessment the social worker sets out at length the information gleaned during that conversation. She concludes her assessment by saying that, ‘It is clear from the interview that on the one hand [the paternal grandmother] values her family and cares deeply for her son and AM. However, she exhibited in the course of her discussions with me a strength of support for [her son] so absolute that it leads her to dismiss any concerns regarding his parenting and prevents her from considering (or asking questions) about what her grandchildren E and J have experienced to date whilst in the care of her parents.’[45]The local authority’s final care plans are dated 13th August. They are supported by a final statement from the social worker, Ms H. It is appropriate to highlight one short passage which appears in that statement under the heading ‘Physical, emotional and educational needs’. Ms H reports that, ‘When J was first placed in her current foster placement she presented with challenging and difficult behaviours. This included, screaming, throwing tantrums, an inability to play, an inability to show or receive affection and a fear of men that meant she would go out of her way to avoid them.’ Although the social worker goes on to say that since J has been in foster care, ‘most of these behaviours are no longer visible in J’s presentation’, it is appropriate to note that more than a year earlier, in its pre-proceedings letter, the local authority had said that it intended to, ‘Undertake a psychological assessment of J, including age appropriate therapy.’ There is no evidence before me to suggest that that assessment has been undertaken or that any therapy has been provided.[46]On 27th August, the mother renewed her application under Article 15. In her written statement in support she says that, ‘12. In the event the children cannot be placed in the care of the paternal grandmother or me and my family’s care, then I would like the children to be placed in foster care in Hungary as I believe this is in their best interests.13. I returned to the UK on 16 August and intend to attend the final hearing listed in September 2014.14. It was always my intention to return to Hungary with the children, not settle here in the UK, and therefore we should not be prevented from returning to Hungary. My ultimate wish is for the children to be returned to Hungary.’[47]A few days later the father filed his written evidence. In his final paragraph he says, ‘I ask that the Court agree to return the children to Hungary and that the case is transferred to Hungary but if it is not, that the Court adjourns the case in order that full assessments can be undertaken of family members, my mother and AM’s grandmother, and if an adjournment is not agreed, that the Court refuse the Local Authority’s applications for care orders and placement orders on the basis that the children should remain in the care of their mother and I or their mother on her own.’[48]The mother’s renewed application under Article 15 was listed for directions before Russell J on 4th September. It was timetabled through to be heard on 22nd September along with the final hearing of the local authority’s own applications.[49]The final hearing came on before His Honour Judge Mark Rogers, sitting as a Deputy High Court Judge. On the first day of the hearing no interpreters were present. On the second day only one interpreter attended. The hearing could not proceed. A new hearing date was set for 3rd November with a time estimate of five days. The order notes that the timetable for the proceedings is now 41 weeks.

The Hungarian Central Authority

[50]Since September 2013 the local authority has engaged in dialogue with the HCA. Since proceedings were issued that dialogue has been overseen by the court.[51]On 20th September 2013 the HCA wrote to the local authority indicating that it had informed ‘our competent local authority in [City B] to investigate the living circumstances of [the] grandmother and respond to your request. As soon as I have the result I will inform you immediately.’[52]That work was completed promptly. A letter from the Regional Guardianship Office to the Department of Child Protection and Guardianship Affairs dated 3rd October confirmed the maternal grandmother had said that her accommodation is not large enough to enable her to care for J and E but that she had said the children’s maternal great grandmother ‘was willing to accommodate AM and the minor children’.[53]The HCA confirmed the outcome to the local authority social worker by letter dated 9th January 2014. The penultimate paragraph of the HCA’s letter is of particular note. It reads:
‘At the moment our department has no knowledge about the present situation of the family in the United Kingdom, but our point is, in case the parents did not visit regularly their children and keep the contact with them it would be the solution on behalf of the children if the Hungarian authorities bring back them to Hungary as they are Hungarian citizens, their relatives could keep the contact with them in Hungary. And last but not least if they would be adoptive, only the Hungarian authorities have the right to adopt Hungarian citizen minors.’
[54]On 26th February 2014, Moor J approved six questions to be put to the HCA. The HCA responded the next day. The HCA’s answers to the following questions are particularly pertinent:
‘(2) If AM stays in England to have her baby…does the HCA intend to apply to have the children moved to Hungary and the proceedings transferred to that jurisdiction?’
Answer:
‘If AM stays in England to have her baby, then the Hungarian Central Authority take into consideration to move the children into Hungary depending on the choice of AM whether to stay in England.’ ‘(3) If AM has her baby in Hungary (as is her stated intention) will the HCA apply to transfer the proceedings about J and E pursuant to Article 15, or would the HCA support an application by one or both of the parents, to do so?’
Answer:
‘If AM takes her child to Hungary, then the Hungarian Central Authority will apply for the transfer of the proceedings about J and E pursuant to Article 15, and will support an application by one or both parents.’ ‘(4) Is the Hungarian Central authority’s position different if the London Borough of Hounslow’s final care plan is for adoption (against the wishes of the parents) within the jurisdiction of England and Wales?’
Answer:
‘The Hungarian Central Authority cannot accept the London Borough of Hounslow’s final care plan, since according to the Hungarian law a Hungarian Citizen can only be adopted by the Hungarian authorities.’ ‘(5) Would the HCA agree to carry out an assessment of the father’s cousin G…and if so, who would carry out the assessment and what is the timescale for such an assessment?’
Answer:
‘The Hungarian Central Authority supports an assessment of G, the father’s cousin. The assessment (the family’s declaration, determination of their capability, core assessment), will be carried out by the geographically responsible Hungarian administrative bodies. We are intended to offer a comprehensive brief for the English authorities, within two weeks after the recognition of the family’s identification data (full names, addresses).’ ‘(6) If the children move to Hungary, what plans does the HCA have for their care in the short and long term? What are the foster care arrangements likely to be?’
Answer:
‘If the children are moved to Hungary, the following options will be considered regarding short and long term care: 1. Children will be placed at G, the father’s cousin. 2. In case they are not suitable for the care of the children, then the children will be placed at foster care, in this case the sisters/brothers will be placed together. 3. If, in the future, the children are suitable for adoption according to the Hungarian law, then we will take the necessary steps for adoption.’
After the assessment had begun, as a result of a change in his circumstances, G withdrew his offer to care for the children.[55]In April 2014, as a result of arrangements made through the HCA, the allocated social worker made a visit to Hungary. She met with HCA officials in Budapest and with social care professionals in City B (where the grandmothers and great grandmother live). She was also able to meet with the mother and her recently-born son, X. She notes that X was being well cared for by the mother.[56]Soon after this visit the social worker filed a statement detailing the visits and conversations she had had. It is clear from that statement that the HCA have a good understanding of the local authority’s concerns. The HCA gave details of the process that would be followed if the proceedings were transferred to Hungary.[57]In the social worker’s statement the local authority’s position is made very clear. Ms H, says that, ‘6.5 Having made the enquiries detailed above, it is my recommendation that J and E are returned to Hungary only once the requisite assessment work has been commissioned by the HCA and this work has been completed. There will then be a clear recommendation from the Guardianship office about the appropriate placement for the children… 6.6 …Detailed placement and contact plans will enable me to provide final comment upon whether the arrangements for a move to Hungary are appropriate and in the children’s best interests. 6.7 The Local Authority is beginning the preparation of the girls for their return to Hungary…’[58]In an e-mail dated 30th May a social worker from City B informed Ms H that the father had returned to Hungary where he had been arrested and imprisoned. The e-mail says that ‘as far as we know’ the father intended to return to England with the mother but without X whom they intended temporarily to place with paternal grandmother. The father admits that was he imprisoned from 23rd April to 24th May for driving a vehicle without a licence.[59]On 4th June the local authority wrote to the HCA enquiring whether it intended to undertake an assessment of paternal grandmother as a carer for X. The letter also asked whether, if paternal grandmother wished to be assessed as a potential carer for J and E, the social work team in City B intended to undertake an assessment of her and whether the HCA intended to commission them to do so.[60]The HCA responded on 10th June. Regrettably, it did not deal with the questions raised by the local authority on 4th June. However, the HCA did confirm that if J and E were returned to Hungary they would be placed in foster care. The letter went on to say that, ‘The children’s best interest is at the moment to be in a safe place with adequate carers while they have the possibility to keep the connection with their parents and the new born baby, as the original family (mother and father, too) are staying in Hungary.’[61]The local authority wrote to the HCA on 5th September to confirm that the final hearing was listed to take place on 22nd September and to confirm its final care plan of adoption. In its response the HCA sets out its position very clearly:
‘ …given that AM, the Mother of the Children did not stay in England, and gave birth to her youngest child in Hungary, the Hungarian Central Authority – as noted in our letter from February – will request the transfer of J’s and E’s case under Section 15 and will support any such request from the parent(s)… The Hungarian Central Authority still doesn’t agree with the submission of the London Borough of Hounslow stating that the Children would become adoptable in the UK. Under Hungarian Law Hungarian nationals may only be adopted by the Hungarian Authorities. Given that the Mother of the Children is now living in Hungary, the Children could only maintain contact with their mother here, if it serves the Children’s best interests, so we recommend that Hungarian professionals bring the Children home and place them with foster parents. If under Hungarian Law the Children become adoptable, we will take action for the adoptive placement of the Children…’
[62]On 24th September, after the hearing before Judge Rogers had begun, the local authority contacted the HCA extending a further invitation to participate in the final day of the hearing on 26th September. The HCA responded the next day. Once again the HCA set out its position very clearly:
‘Unfortunately on 26 September we cannot participate personally on the court however I inform the court about the next steps we do in case. As there is no suitable family member of the children in Hungary, who can rear the children and be their guardian, our local competent authority…make a decree in which the office appointed a guardian and a foster parent for J and E. It takes only a few days, we send you the decree as we get it. In case it is needed I inform our consulate in London to prepare passports for J and E. As the children are living in the care of foster parents in the United Kingdom at the moment, we inform our local competent Child Protection Professional Service to arrange the travelling at least two professional colleagues to bring the children into Hungary into the care of the appointed foster parent. As our colleagues can discuss the practical details of their travelling with your colleagues it would not take a long time to bring back the children. In our opinion the best interest of the children is to live in Hungary in the care of a foster parent. In this way they can keep the connection with their parents in case the parents are suitable to meet with them. In case the parents do not accomplishment their obligation in connection with their children, according to Hungarian national law only the Hungarian authorities has the right to adopt them.’
[63]With respect to the statement that ‘there is no suitable family member of the children in Hungary, who can rear the children’, as I noted earlier the HCA did not respond to the local authority’s letter dated 4th June asking whether it intended to undertake an assessment of paternal grandmother as a carer for X and also, if she expressed an in interest, for J and E. It appears that the only assessment of paternal grandmother is Ms H’s ‘eligibility assessment’ of her.[64]On 24th September the HCA also wrote to the Head of Judicial Office for International Family Justice for England and Wales stating that pursuant to Article 15(5) the HCA was taking action ‘for the repatriation and placing of minor J and minor E as this is their best interest. On behalf of bringing the minors to Hungary as soon as it is possible, please inform us about the competent authority or person with whom the Hungarian child protection experts can discuss the details.’[65]A preamble to Judge Roger’s order of 26th September stated that the HCA’s letters of 25th September were deemed to amount to a formal request by the HCA, pursuant to Article 15(2)(c), for these proceedings to be transferred to Hungary. The preamble went on to provide that the HCA should be informed about the various ways in which they could participate in the adjourned final hearing listed for 3rd November. The local authority sent a copy of that order to the HCA on 17th October.[66]The HCA responded by letter dated 21st October stating that, ‘Unfortunately it is not possible for us to attend the hearing on 3 November 2014 and seeking to make oral submissions on the hearing. Our authority does not intend to apply for party status within these proceedings. The Hungarian Central authority intends to send you a written submission in English language as soon as it is possible.’[67]Those written submissions were sent to the local authority in a letter dated 7th November, the final day of this hearing. They were not seen by counsel or by the court until 10th November. So far as is material, the letter states that, ‘As – according to the investigation of Ms H and our local authority, it seems there is no suitable family member of the children in Hungary, who can rear the children and be their guardian. In case the minors J and E would be repatriated to Hungary our local competent authority, Guardianship Office of [City B] will make a decree immediately in which the office appointed a guardian and a foster parent for J and E. In case it is needed I inform our consulate in London to prepare passports for H and E. As the children are living in the care of foster parents in the United Kingdom at the moment, we inform our local competent Child Protection Professional Service to arrange the travelling at least two professional colleagues to bring the children into Hungary into the care of the appointed foster parent. As our colleagues can discuss the practical details of their travelling with your colleagues it would not take a long time to bring back the children. In our opinion the best interest of the children is to live in Hungary in the care of a foster parent. In this way they can keep the connection with their mother. In case the parents do not accomplishment their obligation in connection with their children, according the Hungarian national law only the Hungarian authorities has the right to adopt them.’

Article 15 – the law

[68]Before I consider the merits of the mother’s application it is appropriate first to set out the relevant law. I begin by setting out the provisions of Article 15:
‘1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, 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: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. 2. Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court’s own motion; or (c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties. 3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or (b) is the former habitual residence of the child; or (c) is the place of the child’s nationality; or (d) is the habitual residence of a holder of parental responsibility; or (e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property. 4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.’
[69]The approach to the application of those provisions has been considered in a number of recent authorities. Those authorities make it clear that applications under Article 15 are fact-sensitive. Some of the authorities to which I have been referred are in reality no more than helpful illustrations of how the principles have been applied to a particular set of facts (see Coventry City Council v A [EWHC 2033 (Fam), Re A and B (Children: Brussels II Revised: Article 15) [2014] EWHC 3516 (Fam) and Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure [2014] EWFC 41).[70]In terms of elucidation of the underlying principles themselves, I am satisfied that for the purposes of my decision in this case it is unnecessary to look further than the decision of the Court of Appeal in Nottingham City Council v LM and SD and M (A Child) [2014] EWCA Civ 152. The relevant principles are succinctly set out in the judgment of Sir James Munby P: '54. I need not rehearse what I said in AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517, recently approved by this court in Re K (A Child) [2013] EWCA Civ 895, or what I said very recently in Re E [2014] EWHC 6 (Fam). The relevant principles can be summarised as follows: i) Article 15 operates "by way of exception" to the principle, which is the starting point under B2R, that jurisdiction is vested in the courts of the Member State where the child is habitually resident (Article 8), not the courts of the Member State of which the child is a national. ii) Article 15 requires the court to address three questions:(1) Does the child have, within the meaning of Article 15(3), "a particular connection" with another Member State?(2) Would the court of that other Member State "be better placed to hear the case, or a specific part thereof"?(3) Will a transfer to the other court be "in the best interests of the child"? The first is, in essence, a simple question of fact which goes to the jurisdiction of the court to consider making an order under Article 15. The other two each involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case and the particular child. iii) 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 or not to make an order. I repeat in this context what I said in AB v JLB, para [36]: "Given the use in Article 15(1) of the word "may" rather than the mandatory "shall", the court must exercise its discretion in deciding whether or not to direct a transfer. That said, the ambit of the discretion is likely to be limited in most cases, for the court cannot direct a transfer – see the use in Article 15(1) of the words "if" and "and" – unless all three conditions are met while, on the other hand, since the discretion is exercisable only if the court has satisfied itself both that the other court is "better placed" to deal with the case than it is and that it is in the best interests of the child to transfer the case, it is not easy to envisage circumstances where, those two conditions having been met, it would nonetheless be appropriate not to transfer the case." iv) In framing these questions I have deliberately tracked the language of Article 15. The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child's interests. Judges should focus on the language of Article 15: will a transfer be "in the best interests of the child"? That is the relevant question, and that is the question which the judge should ask himself. v) In relation to the second and third questions there is one point to be added. In determining whether the other court is "better placed to hear the case" and whether, if it is, a transfer will be "in the best interests of the child", it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is "territory into which I must not go." I refer in this context, though without quotation, to what I said in Re E, paras [17]-[21]. vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child's best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, "what outcome to these proceedings will be in the best interests of the child?" vii) Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 "will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.’

Article 15 – discussion

[71]With those principles in mind I now turn to consider the mother’s application for transfer. I begin with some general points.[72]The first point arises from a recital to the order made by Russell J on 4th September. That recital was in the following terms:
‘Upon the Court considering that, subject to the contrary view of the trial Judge, the Mother’s application should be dealt with as a preliminary issue on submissions at the start of the final hearing in time, should the application not be granted, for the proceedings to be completed by 23rd September 2014.’
Although the order made by Judge Rogers on 26th September does not contain a similar recital I am told that it was understood that that provision should continue to apply. In the event, I decided to determine the Article 15 point after hearing the evidence. There were two reasons for this: (1) On the first day of this hearing counsel for the father told me that she was unaware of the recital to which I have referred and was unprepared to present her submissions that day. She requested that I hear submissions on the Article 15 point at the conclusion of the evidence. She was supported by the mother. The local authority and the guardian were content for me to proceed in that way though it is right to record that the local authority’s agreement was more reluctantly given. (2) In the HCA’s letter dated 21st October, it had indicated an intention to make written submissions to this hearing. They had not arrived by the first day of this hearing. It would have been disproportionate and inappropriate to have adjourned the hearing. At the same time, given the level of engagement and co-operation from the HCA over the last fourteen months, it seemed to me to be discourteous to proceed to determine the Article 15 point on the first day of a five day hearing without giving the HCA further opportunity to file its submissions.[73]The second point relates to the timing of the mother’s renewed application under Article 15. In Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure) [2014] EWFC 41, Pauffley J said that, ‘4.5 In the final analysis, the following might be drawn from the case law, the revised Practice Direction, the Guidance and other related materials. That it is vital to confront Brussels II Revised jurisdictional issues as early as possible. They should be regarded as urgent and requiring of decisions within a matter of days, not weeks. By no stretch of the imagination could it be regarded as acceptable practice to leave the jurisdiction question in “cold storage” until the final hearing.’ Notwithstanding that timely reminder, in that case the chronology of events was similar to that which confronts me. The final hearing was listed before Pauffley J beginning with a reading day on 27th October 2014. Upon considering the papers it became clear to the judge that there was an Article 15 point which needed to be addressed. Urgent arrangements were made for the point to be dealt with as a preliminary issue. The point was argued and judgment handed down on 29th October. An order for transfer was made. The welfare hearing, which would have followed on seamlessly had the Article 15 application been refused, did not take place. I refer to that case because it makes it clear that although a determination under Article 15 should normally be made at an early stage the court may determine an Article 15 point even at final hearing.[74]The third point relates to the unusual position in which the court finds itself as a result of the decision by Sir Peter Singer to refuse the mother’s earlier application under Article 15 but to leave open the opportunity for her to renew her application later. There was no appeal against the judge’s decision to refuse to order transfer under Article 15 – but, then, there did not need to be an appeal given that the door had been left open to the mother to renew her application. Upon hearing the mother’s renewed application, what is the approach that I should take? Should I, as Mr Twomey submits, confine myself to a determination based only upon a consideration of any change in circumstances since the date of Sir Peter Singer’s order? Or should I, as counsel for the parents submit, undertake a de novo analysis applying the principles outlined earlier?[75]I have come to the conclusion that the latter submission is to be preferred. I now have before me hearing bundles comprising five lever arch files. I have a fuller picture than that which was available to Sir Peter Singer. It seems to me right that I should determine the Article 15 point afresh. In so saying, I am very clear that I am not undertaking a review of Sir Peter Singer’s decision. That would be for an appellate court.[76]The fourth point relates to the point made by the HCA in its most recent letter that ‘according the Hungarian national law only the Hungarian authorities has the right to adopt them’. In short, it does not agree to its nationals being placed for adoption by another State. Mr Twomey submits that just as it is well-established that this court may not question the competence of the Hungarian courts, social services or child protection procedures in Hungary, it is surely not open to the HCA to advance an argument based on the undesirability of a remedy available to the courts in this jurisdiction, namely the adoption of children by strangers without parental consent. This, he submits, ‘does not afford due respect to the principles of comity of law and the competence of this jurisdiction. It is an argument that is not relevant (in that it is inadmissible) in relation to any application under Article 15.’[77]In Re E (A Child) [2014] EWHC 6 (Fam) Sir James Munby P made the following observations:'13. Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.14. In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children...15. It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent: see Re B-S (Children) [2013] EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another[2006] UKHL 36, para 34. Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child's non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child's best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.’[78]It is in my judgment appropriate that I should acknowledge the concerns repeatedly stated by the Hungarian Central Authority that it does not agree to its nationals being placed for adoption by another State. However, I accept Mr Twomey’s submission that those concerns are not relevant when determining whether the Hungarian court is better placed to hear this case or whether a transfer of these proceedings is in these children’s best interests. That was made clear by the President in Nottingham City Council v LM and SD and M (A Child) at §54(vi).[79]Having dealt with those general points, I come at last to the issues which arise for determination under Article 15.

Do these children have a particular connection with Hungary?

[80]Both of these children are Hungarian nationals. For that reason alone it is clear from Article 15(3)(c) that the answer to this first question is ‘yes’. No party challenges that proposition.

Is the Hungarian court better placed to hear this case?

[81]As the Court of Appeal made clear in Nottingham City Council v LM and SD and M (A Child) [2014] EWCA Civ 152, the approach must be evaluative. That involves weighing the arguments which point to the Hungarian court being better placed than the English court against the arguments which point to the English court being better placed. It requires a balance sheet approach. The points which follow include, but are not limited to, those factors identified by the parties as being relevant factors to weigh in the balance.[82]I begin by setting out the arguments which support a finding that the Hungarian court is the better placed:(i) Both parents are Hungarian nationals. The mother’s only language is Hungarian. The father speaks only a little English. Whereas in proceedings in England they require the support of an interpreter, that would not be so in proceedings in Hungary. In my experience it is invariably the case that when interpreters are used there is a risk of some points being lost in translation. There have been instances during this hearing when that has plainly been the case (for example, the interpreter’s concern that she was having difficulty translating the word ‘tease’).(ii) X is a full sibling. H and K are half-siblings. All three are Hungarian nationals. All three are habitually resident in Hungary. The Hungarian court has opportunities to promote inter-sibling contact in ways not open to the English court. Furthermore, the Hungarian court is likely to be better placed to assess whether the relationship between J and E and their baby brother can and should be established and maintained. In making this point I note the observations made by Pauffley J in Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure) who, faced with a not dissimilar situation, said that '55. If, by contrast, the English court were to retain jurisdiction and accede to the local authority's application to place J with adopters, the strong likelihood is that J would be denied, for all time, the prospect of any relationship with her siblings. During the course of argument, I speculated as to the probable impact upon J of such an outcome and how she might view such a decision in the years to come. Mr Larizadeh characterised the likely scenario as a "time bomb," an assessment which does not strike me as unduly alarmist. 56. The importance for J of sibling relationships cannot be overstated. This court would be impotent in securing their establishment and continuation. The Hungarian court would have no such problem. On its own, this factor tips the balance, decisively so, in favour of a transfer request.’(iii) If any further assessments are required they would be better undertaken in Hungary than in England. The Hungarian court is better placed to commission and evaluate professional assessments of family members. The children’s maternal great grandmother is Hungarian and their paternal grandmother is Hungarian Roma. There is evidence of willingness of both of them to care for or play a significant role in the care of J and E. I note the statement by the HCA in its most recent letter dated 7th November that ‘according to the investigations of Ms H and our local authority, it seems there is no suitable family member of the children in Hungary, who can rear the children and be their guardian’, a point which Mr Twomey seizes on. However, with respect to paternal grandmother, this statement appears to rely upon the ‘eligibility assessment’ undertaken by Ms H about which I have expressed concern. Earlier in this judgment I also expressed concern about the brevity of the CFAB assessment of the maternal great grandmother. I do not read this passage in the HCA’s letter as indicating that it has a closed mind to the possibility of further assessments being undertaken.(iv) When she was a child the mother was physically abused by her step-father. He was eventually convicted and imprisoned. The father spent time in foster care. H and K have been removed from the care of their mother and placed in foster care. The Hungarian authorities will have, and have access to, important background evidence concerning this family. All of that material will be in Hungarian.(v) The promotion of these children’s cultural and linguistic needs is important. There is a limit to the steps which this court can take to ensure that those needs are met – a limit which would not exist if the proceedings were conducted in Hungary. The final care plans for these children gave no indication of what, if anything, is to be done by this local authority to promote the children’s cultural heritage, including their ability to speak in and understand their native tongue. Section 31(3A) of the Children Act 1989 (as amended by s.15 of the Children and Families Act 2014) now provides that:
‘A court deciding whether to make a care order— (a) is required to consider the permanence provisions of the section 31A plan for the child concerned, but (b) is not required to consider the remainder of the section 31A plan, subject to section 34(11).’
Whilst that section limits the extent to which the court is required to scrutinise the care plan, it does not prevent the court from considering in detail other aspects of the care plan where, in all the circumstances, the court considers it appropriate to do so. In this case the local authority has accepted the appropriateness of the court’s concerns about the inadequate way in which the final care plan’s addressed this issue. After final submissions the local authority produced addendum care plans which state that, ‘The Local Authority recognises that [the children’s] identity needs are of significant importance and in promoting [their] heritage and cultural needs within a UK adoptive placement the Local Authority will encourage any adoptive placement to…’ The addendum plans go on to set out the steps the local authority proposes to take. Whilst that movement by the local authority is to be welcomed, it remains the case that once these children are adopted there will be no duty on anyone to monitor compliance and no mechanism for enforcing compliance. For the children, Miss Cover makes the additional point that as a result of recent amendments to s.1(5) of the Adoption and Children Act 2002 brought about by s.3 of the Children and Families Act 2014, the court is no longer required to ‘give due consideration to the child’s…racial origin and cultural and linguistic background’ when deciding whether adoption is in the best interests of ‘the child’s welfare, throughout his life’. Again, whilst that section no longer requires the court to take such matters into account it does not prevent the court from taking such matters into consideration if in all the circumstances the court considers it to be in the child’s welfare interests to do so. (vi) There may need to be a change of placement for these children. The local authority’s plan is that J and E should be adopted by their present foster carers. The foster carers must first surmount two hurdles. Firstly, they need to be approved by the local authority’s Adoption Panel. Secondly, they need to be matched to these children by the Adoption Panel. It would be inappropriate for me to speculate on their prospects. Should they be unsuccessful, the guardian suggests that Special Guardianship would be appropriate in order to maintain this placement. It is unclear whether Special Guardianship would be acceptable to these foster carers. If it would not then a change of placement may be necessary. (vii) Although the parents have spent much of the last three years living in England it is clear that they have not been able to establish themselves here. They were living in squalor when E was born. Over the course of the last eight months they have spent a significant amount of time in Hungary. Although both have been inconsistent in setting out their intentions and it is clear that the father, in particular, has a strong wish to remain in this country, there is good reason to believe that force of circumstances may compel them to return to Hungary. Indeed, I note that although the local authority has paid for the parents to stay in bed and breakfast accommodation until this judgment is handed down, thereafter their immediate destination appears to be Hungary. The local authority has agreed to pay their coach fares.[83]I turn next to the arguments against a finding that the Hungarian court would be better placed to hear the case:(i) For the reasons explained earlier in this judgment, the court has now heard the evidence on welfare issues. Depending upon the court’s evaluation of that evidence it is possible that the court may be able to make a final determination immediately. Further delay would be avoided, a matter of particular importance in this case given that these children have been in their present placement for some eighteen months.(ii) Assessments have been completed of the parents (by an ISW), of the maternal grandmother and great grandmother (by CFAB) and of the paternal grandmother (by the allocated social worker). The court also has the benefit of the assessment of a very experienced Children’s Guardian. No detailed assessments have been undertaken by the Hungarian authorities even though they have had the time to do so.(iii) Although the parents’ first language is Hungarian, they have available to them full legal representation in these proceedings including the services of interpreters.(iv) The present allocated social worker has been the allocated social worker for more than fifteen months. She has had the advantage of travelling to Hungary to make her own enquiries. She has a relationship with the children and a thorough knowledge of the background to the case.(v) To retain these proceedings in England would have the advantage of maintaining judicial continuity, not in the narrow sense (in this case there has been no judicial continuity in the narrow sense in that there have been 9 hearings conducted by 8 different judges) but in the broader sense of having access to all of the case papers (as I noted earlier, five lever arch files have been lodged for this hearing) and of having a full and complete picture of the development of the case over time (including the frequent changes in the parents’ position).(vi) The children were born in England, are habitually resident in England and have lived here all their short lives. Furthermore, although their ethnic, cultural and linguistic needs are of great importance, they must be weighed against the importance of these children growing up in an environment which is safe, stable and secure and free of the risks inherent in the threshold findings.[84]Mr Twomey raises a further point, concerning the issue of delay. This raises an interesting question about whether the court is entitled to take account of delay in determining an application under Article 15.[85]Mr Twomey submits that the provisions of s.1(2) of the Children Act 1989 apply to the determination of the question of whether the Hungarian court is better placed to hear this case. Section 1(2) provides that, ‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining that question is likely to prejudice the welfare of the child.’ (emphasis supplied).[86]I do not accept that submission. In my judgment a decision under Article 15, which is in essence a decision as to forum, does not raise a ‘question with respect to the upbringing of a child’. It is a decision about where that question is to be determined. Furthermore, as Thorpe LJ said in RE K (A Child) [2013] EWCA Civ 895, ‘19. …The construction of Article 15 must be uniform throughout the courts of the Member States. It cannot be dominated by a domestic law approach in cases brought under the domestic jurisdiction, whether it be statutory or inherent…’[87]Although I am against Mr Twomey on his submission concerning the applicability of s.1(2), that does not mean that delay is not a factor which may be taken into account. In my judgment, depending upon the facts of the case, delay may be a relevant factor to be weighed in the balance when determining whether another State is ‘better placed to hear the case’. Whether delay is relevant and, if it is, what weight should be accorded to it are issues to be determined on a case by case basis.[88]In this case, there are two components to the issue of delay. Firstly, there is the delay which has already occurred. Secondly, there is the delay which will arise as a result of an order for transfer under Article 15. They cannot be considered in isolation from each other.[89]As for the first, leaving to one side the delay which arose as a result of this local authority’s failure to act more decisively in the twelve months before E was born, since the children were placed in foster care the local authority has been responsible for further delay. Having applied for emergency protection orders the parents agreed to the children being accommodated under s.20 of the Children Act 1989. That should have been (and according to the guardian was expected to be) a short-term, temporary arrangement pending the issuing of care proceedings. It wasn’t. This local authority relied on the parents’ consent under s.20 to keep these children in foster care for eight months before finally issuing proceedings. That should not have happened.[90]There has also been delay since the proceedings were issued. At the time these proceedings were issued the revised Public Law Outline, then being piloted, required that cases should be completed within 26 weeks. Since 22nd April there has been a statutory requirement that care proceedings should be completed within 26 weeks. Eight week extensions may be granted but should only be granted if the court is satisfied that an extension is ‘necessary to enable the court to resolve the proceedings justly’ (s.32(5)). Although it would appear from previous orders that in this case no extensions have been formally granted, it is the case that this hearing took place during week 41 and that judgment is being handed down during week 43.[91]As for the second, it is inevitable that there will be some delay in settling the children’s future in the event that the proceedings are transferred under Article 15. I do not know what the timescale will be for concluding the proceedings in Hungary. What can be said with confidence is that any delay which may be occasioned by transfer will be exacerbated by the significant delay thus far, much of which is attributable to this local authority.[92]I accept that in this case delay is a relevant factor to weigh in the balance. However, the issue of delay must be seen in the context of the points made from §88 to §91 above. Put in that context, I am not persuaded that significant weight should be accorded to it.[93]Having set out arguments for and against the proposition that the Hungarian court is better placed to hear this case, where does the balance fall? The point made at paragraph 82(ii) is in my judgment a particularly significant factor. In Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure) Pauffley J said that ‘On its own, this factor tips the balance, decisively so, in favour of a transfer request.’ When that point is taken along with the other points to which I have referred I am satisfied that the arguments in support of the proposition that the Hungarian court is better placed to hear this case are persuasive. That is where the balance falls.

Is a transfer of the proceedings to Hungary in these children’s best interests?

[94]In his further written submissions in response to the HCA’s belated submissions, Mr Twomey says that, ‘It follows that the stark choice now facing the court on the Article 15 application is for the children to keep their long-term carers and preserve the status quo or be removed to foster care in Hungary.’ I do not accept that this is a point which the court may take into account in determining ‘best interests’ in this context. It is relevant to the determination of the question ‘what outcome to these proceedings will be in the best interests of these children?’; it is not relevant to the determination of the question ‘is transfer of these proceedings to the Hungarian court in these children’s best interests?’[95]The principal argument in support of a finding that transfer would be in these children’s best interests is that if I were to find (as I have) that the Hungarian court is better placed to hear this case then it must be in their best interests for the case to be determined by that court. That is a very persuasive argument and one which has been accepted in other cases. I, too, accept it. I am satisfied that it is in these children’s best interests that these proceedings are determined in the country better placed to hear the case, and that is in Hungary.

Discretion

[96]Before the court may invite another State to accept the transfer of a case pursuant to Article 15 it must first have given affirmative answers to each of the three key questions to which I have referred. I have given affirmative answers to each of those questions. However, the court still has discretion whether or not to request the HCA to assume jurisdiction.[97]In exercising my discretion it is important to have in mind the observation of Munby J (as he then was) in AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965, that ‘it is not easy to envisage circumstances where [questions (2) and (3) having been answered affirmatively] it would nonetheless be appropriate not to transfer the case’.[98]Having answered all three mandatory questions affirmatively, I am satisfied that there are no features of this case which would properly entitle me to exercise my discretion against requesting the Hungarian court to assume jurisdiction.

Conclusion

[99]I shall direct that a request be sent immediately to the Hungarian Central Authority for that court to assume jurisdiction.[100]A copy of this judgment, translated into Hungarian, should be sent to the Hungarian Central Authority within 7 days.[101]Article 15(5) provides that the Hungarian court now has six weeks within which to accept jurisdiction. If by the end of those six weeks either the Hungarian court has declined the request to assume jurisdiction or has failed to respond to the request, then this court must continue to exercise jurisdiction. I require the local authority to inform me promptly whether the request has been accepted.[102]I have already heard the evidence and submissions relating to the welfare decisions contended for by the local authority. I do not need to hear further evidence or further submissions. If this court should find itself continuing to exercise jurisdiction I will hand down a written judgment on welfare issues without delay.

Cited in 4 later judgments