G And H (Children: Article 15 Brussel II Revised Regulation) (Rev 1) [2018] EWFC 60

[2018] EWFC 60
IN THE FAMILY COURT
Before His Honour Judge Clifford Bellamy
(Judgment handed down on 17 January 2018)
Re G and H (Children: Article 15 Brussels II Revised Regulation)
Mr Gordon Semple, counsel for the local authority
Miss Joan Campbell, counsel for the mother
Mr Christopher Sedgwick , solicitor for the children
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 and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the children, the adult members of their family, their location and the location of the court must be strictly preserved.
Judge Bellamy:
Date 2018-01-16
[1]A local authority applies to the court for care orders in respect of two Latvian children, G, a girl now aged 12 and H, a boy now aged 8. I have before me an application issued by the Latvian Orphan’s Court seeking transfer of these proceedings to Latvia. I heard the application on 5th January 2018. I refused the application. I now give my reasons for arriving at that decision.

Background

[2]In April 2010 the children and their mother came from Latvia to join their father who was already living in England. G was then aged 5. H was then aged 1. The family settled in England. The father found work and housing. G was enrolled in a local school. H was not then of school age.[3]In February 2012 G presented at school with a bruise on her left leg. She said that her father had hit her with a stick. A referral was made to Children’s Social Care. Children’s Social Care continued to be involved in the life of this family until May 2015.[4]The father became involved in criminal activity. In the period from 2011 to 2012 he was convicted on seven occasions. His last conviction, in 2012, was for burglary and theft. He was sentenced to a term of imprisonment of two years. Upon his release from prison, the father was deported to Latvia. He continues to live in Latvia.[5]Whilst the father was in prison the mother was the sole carer for the children.[6]On 17th April 2014 the local authority issued care proceedings. Interim care orders were granted. The children were removed from their mother’s care and placed in foster care.[7]The mother conceded that the threshold set by s.31(2) of the Children Act 1989 was met. The agreed threshold document refers to concerns around physical and emotional abuse.[8]In his final report the Children’s Guardian noted that, ‘The court has already determined, accepted by the mother, that the weight of the evidence means that she is unable to care for the children safely at this time. Consequently, the issue of whether the children are able to return to the care of their mother is resolved with return ruled out, a position, which in the welfare interests of the children, I support.’[9]Maternal grandmother lives in Latvia. She was assessed as an alternative carer for the children. The assessment was positive. It was agreed that the most appropriate outcome for the children was that they should return to live in Latvia in the care of maternal grandmother.[10]The Children’s Guardian supported this placement, though in his report he sounded a note of caution. He said, ‘At the last hearing, outline plans by maternal grandmother, to take over the permanent care of the children in Latvia, were to some extent put in question by a suggestion (translated from Latvian to English) that she may be looking upon this as a temporary measure, or that she was not proactive in her motivation to do so. Some further clarifying questions were asked of her via the relevant social care agency in Latvia.’[11]On 31st March 2015, by consent, a child arrangements order was made which provided that the children should live with their maternal grandmother. The order contained the certificate required by Article 39 of Council Regulation (EC) No. 2201/2003 (‘the Regulation’).[12]The grandmother came to England to collect the children. They returned with her to Latvia on 1st April 2015. The local authority closed its case file.[13]On 13th April 2015 grandmother applied to the court in Latvia for an order appointing her as guardian for the children. That order was made on 28th April.[14]In July 2015 the mother returned to live in Latvia. Following her return to Latvia she lived with her mother (maternal grandmother) and the children.[15]It is clear from documents disclosed by the Latvian authorities that the mother hoped that the children would be returned to her sole care so that she and they could return to live in England. Almost immediately upon her return to Latvia the mother issued an application for the guardianship order to be discharged.[16]On the 22nd December 2015 the Latvian Orphan’s Court dismissed the mother’s application. The judgment states that the court ‘was not convinced that [the mother] will be able to provide adequate care and supervision to her children’[17]In April 2016 the mother made a second application to the Orphan’s Court requesting the court ‘to consider the possibility for her to take care of her own children G and H’.[18]The mother’s application was heard on 3rd May 2016. Her application was successful. In its judgment the court found that, ‘[The mother] has developed childcare and educational skills, has reduced the financial problems of the family, initiated the solution of housing and employment issues, has been working on her emotional problems as a result the social problems and risks in the family have reduced and are not influencing the performance of the parental role. With the further social support, [the mother] can take care of the children independently… Establishing documents held in the case and hearing the participants of the administrative process, the Orphan’s court has concluded that [the mother] will be able to provide full care and supervision of the children independently and in case of necessity will be able to ask for help.’ The court decided that, ‘[the grandmother] has to be dismissed as Guardian because the conditions that caused her appointing as a Guardian have been resolved.’[19]The effect of this order appears to be that the mother became solely responsible for the care of the children.[20]Ten days later, on 13th May 2016, the mother returned to live in England with the children. The children returned to their former school.[21]A referral was made to Children’s Social Care. An initial child protection conference was convened. That conference took place on 16th June 2016. The children were made subject to child protection plans.[22]The local authority remained concerned about the mother’s care of the children. Despite the local authority’s intervention there was no improvement and concerns persisted.[23]On 17th August 2017 a child protection medical was undertaken with respect to G. The report prepared by the doctor who undertook that examination raised concerns about her physical health.[24]The mother agreed to both children being accommodated by the local authority pursuant to the provisions of s.20 of the Children Act 1989. The children were placed in foster care where they have remained.[25]On 29th September 2017 the local authority issued care proceedings. In its threshold document the local authority seeks findings of neglect and emotional harm. For the purpose of this short judgment it unnecessary to set out the details.[26]By the time these proceedings were issued the children had been living in England for some sixteen months. All parties agreed that the children are habitually resident in England and that this court therefore has jurisdiction to determine the local authority’s application for care orders. That is recorded in an order made by the court on 1st November.[27]On 17th October the court granted interim care orders. The proceedings have been timetabled through to an issues resolution hearing on 5th March 2018. Permission has been granted to the parties jointly to instruct a consultant paediatrician to undertake a paediatric assessment of G and to instruct a psychologist to undertake a psychological assessment of the children.

The application by the Latvian authorities

[28]The local authority notified the Latvian authorities that these proceedings had been issued and, from the outset, has kept the Latvian authorities aware of the progress of the proceedings.[29]A recital set out in a case management order dated 30th November 2017 noted that the Latvian authorities ‘had been invited to consider whether to apply to transfer these proceedings under Article 15 of Council Regulation (EC) No 2201/2003 pursuant to Article 15(2)(c)’.[30]On 4th December, following a request from the Ministry of Justice of the Republic of Latvia, a regional Orphan’s Court applied by letter addressed ‘To the Competent Authority of the United Kingdom’ for these proceedings to be transferred to Latvia. The letter concludes as follows:
‘Taking into account the fact that [the father] and his children G and H are the nationals of Latvia, the permanent place of residence of the father of the children is in Latvia, he has showed his readiness to undertake care for his children of minor age G and H, the children have been born and before arrival to the United Kingdom has lived in Latvia, considering the circumstance that it is possible to ensure family environment for the children in the Republic of Latvia, providing care and supervision for the children in the family of the father or delivering to guardianship of relatives, or placing in the foster family, according to the opinion of the Orphan’s and Custody Court, there are no grounds to doubt that the best interests of the minors G and H may be provided also in the Republic of Latvia. Taking into account the above mentioned and in particular the official position of the Republic of Latvia with regards to the protection of children, being nationals of the Republic of Latvia, abroad, in order to maintain the ethnic, culture and language identity of the nationals of Latvia living abroad, the Orphan’s and Custody Court, on the basis of the 5th and 7th consideration as well as provisions of Article 15 of Council Regulation (EC) No 2201/2003…asks the competent authority of the United Kingdom to transfer the jurisdiction in relation to the court proceeding regarding the minors G and H and to return the children to the Republic of Latvia.’
[31]The application made by the Latvian Orphan’s Court was listed for hearing on 5th January 2018. The local authority notified the Latvian authorities by email of the date of that hearing. On 19th December a lawyer from the Latvian Ministry of Justice acknowledged receipt. In a further email sent on 2nd January 2018 the same lawyer informed the local authority that ‘the competent Custody Court in Latvia has informed me that it does not has apportunity to attend the Court hearing on 5 January 2018’.

The father’s position

[32]The father has parental responsibility for the children. He is, therefore, a respondent.[33]The final order in the earlier care proceedings contained a recital that, ‘although [the father] has not been served with all documentation the indication from the Orphan’s Court by the Latvian Central Authority is that he has received some paperwork, is aware of these proceedings via communication with the Orphan’s Court and has not sought to contact this Court or seek legal advice nor to engage fully with the Orphan Court about his children.’[34]With respect to these proceedings, the local authority social worker has spoken to the father by telephone. The local authority has not yet been able to serve the proceedings on the father. Although it appears that the father has made contact with the Latvian authorities once again he has not taken steps to play any part in these care proceedings.

Maternal grandmother

[35]The first care proceedings ended with the making of a child arrangements order in favour of maternal grandmother. Section 12(2) of the Children Act 1989 provides that, ‘Where the court makes a child arrangements order and a person who is not a parent or guardian is named in the order as a person with whom the child is to live, that person shall have parental responsibility for the child while the order remains in force so far as providing for the child to live with that person.’ It follows, therefore, that as a consequence of the child arrangements order the grandmother acquired parental responsibility for the children.[36]As a matter of law, in light of the orders made by the Latvian Orphan’s Court, does the grandmother still have parental responsibility for the children or has the order made by this court on 31st March 2015 ceased to have effect? This is not simply an academic point. Rule 12.3(1) of the Family Procedure Rules 2010 provides that ‘Every person whom the applicant believes to have parental responsibility for the child’ is an automatic respondent to care proceeding relating to that child. In its application for a care order the local authority did not name maternal grandmother as a respondent. Should the local authority have done so? Is the grandmother an automatic respondent? On behalf of the local authority, Mr Semple contends that she is not. The mother and the children’s guardian agree.[37]The grandmother has not been given notice of these proceedings. Her views on this issue are, therefore, not known. Notwithstanding Mr Semple’s very able submissions, I have come to the conclusion that it would not be appropriate for me to determine the point at this juncture. The local authority accepts that the grandmother should be given notice of the proceedings. She should be informed of her entitlement to apply for party status and of the fact that it is possible she may be entitled to automatic party status. If the grandmother wishes to be a party to these proceedings she can make an application. If she makes an application it is open to her to contend that she is entitled to automatic party status. Then and only then does it become necessary for the point to be determined.

The law

[38]Article 15 of Council Regulation (EC) No 2201/2003 is headed ‘Transfer to a court better placed to hear the case’. So far as is material, Article 15 provides that, 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.[39]Those provisions require the court to consider three questions. Firstly, whether the child has ‘a particular connection’ with another Member State. Secondly, if the child does have such a connection, whether that other Member State is ‘better placed to hear the case, or a specific part thereof’ and, thirdly, whether transfer ‘is in the best interests of the child’.[40]As for the first question, Article 15(3) provides all the guidance that is needed to assist the court in determining whether a child has ‘a particular connection’ with another Member State and does not require further comment.[41]As for the second question, in AB v JLB [2008] EWHC 2965 (Fam) at §28, Munby J (as he then was) said that the determination of whether the court of another Member State is ‘better placed to hear the case’ is ‘an exercise in evaluation, to be undertaken in light of all the circumstances of the particular case’. That approach was followed by Ryder LJ in Re M [2014] EWCA Civ 152. He said that, ‘19. The question of whether a court of another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child, given the construction of the regulation and the logical connection between the questions. That said, the starting point for the enquiry into the second question is the principle of comity and co-operation between Member States of the European Union enshrined in the European Union Treaty which the provisions of B2R were designed to reflect and implement (see, for example [2], [21] and [23] of the preamble to B2R). In particular, the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent: Re K (A Child)[2013] EWCA Civ 895 at [24] per Thorpe LJ. 20. It is entirely proper to enquire into questions of fact that might inform the court's evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court's knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on.’[42]As for the third question, whether transfer ‘is in the best interests of the child’, the correct approach to that issue has been set out by the Supreme Court in Re N (Children)(Adoption: Jurisdiction)(AIRE Centre intervening) [2016] UKSC 15. At §44, Lady Hale said, ‘44. The question remains, what is encompassed in the “best interests” requirement? The distinction drawn in In re I remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it “attenuated”. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.’[43]Three further points need to be highlighted. The first is that whilst Article 15 gives the court of another member state the right to apply for the proceedings to transfer it does not mandate ‘the courts of a Member State having jurisdiction as to the substance of the matter’ to order that the proceedings be transferred. It is clear from the use of the word ‘may’ in Article 15(1) that that court has a discretion.[44]The second point is that it is clear from the wording of Article 15(1) that unless all three questions are answered in the affirmative the power to order transfer does not arise.[45]The third point arises from the final words of Article 15(2) which provide that ‘A transfer 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.’ It would appear to follow that even if the court answers in the affirmative all three of the questions posed by Article 15(1), unless at least one of the parties accepts that the proceedings should be transferred the court is not entitled to order transfer; the discretion does not arise.

Discussion

[46]There are four parties to these proceedings: the local authority, the mother, the father and the children. The local authority, the mother and the Children’s Guardian on behalf of the children all oppose transfer of these proceedings to Latvia. The father has not engaged in these proceedings. His views are, therefore, unknown. Pursuant to Article 15(2) it could be argued, therefore, that as no party has accepted that the proceedings should be transferred the court has no power to transfer these proceedings to Latvia even if the three questions raised by Article 15(1) are answered in the affirmative. Notwithstanding that point, in my judgment, out of respect for the position taken by the Latvian authorities, it is appropriate that I should determine the issue by answering the three questions raised by Article 15(1).[47]These children are Latvian children of Latvian parents. They were born in Latvia. They are Latvian nationals. Until April 2010 they had lived in Latvia all their short lives. They returned to live in Latvia in April 2015 and remained living there until May 2016. During that period they lived with their maternal grandmother and also, from July 2015, with their mother. They still have both maternal and paternal family members living in Latvia. In my judgment it is plain that they have ‘a particular connection’ with Latvia for the purposes of Article 15(1).[48]Would the Latvian court be ‘better placed to hear the case, or a specific part thereof’? In light of the extent of the children’s connection with Latvia’ described in the previous paragraph’ coupled with the involvement of the Latvian social services and the Latvian court in 2015 and 2016, to which I referred earlier, I accept that it is arguable that the Latvian court is ‘better placed to hear the case’. However, there are factors that point the other way. In particular,(a) the witnesses required to prove the local authority’s threshold allegations are all based in England;(b) there is an ongoing police investigation; that investigation may be handicapped if G and H and the proceedings themselves were transferred to Latvia;(c) the concerns about G’s health are the subject of expert assessments by two very experienced and highly regarded experts; the experts are likely to be key witnesses in the care proceedings both as to issues relating to threshold and as to issues relating to welfare;(d) the children are settled in foster care; the foster carers understand and are addressing the issues relating to G’s health issue; transfer of the proceedings to Latvia would lead to a change of placement which, in the particular circumstances of this case, could be detrimental to G’s progress;(e) G is receiving appropriate medical treatment for her health issue; transfer of the case to Latvia could be detrimental to her development and progress;[49]On balance, I am not persuaded that the Latvian court is ‘better placed to hear the case’.[50]As I noted earlier, it is clear that all three of the questions raised by Article 15(1) must be answered in the affirmative before the court may conclude that the proceedings should be transferred. Having determined that the Latvian court is not ‘better placed to hear the case’ I do not have the discretion to transfer the proceedings. However, lest I am wrong on that point, it is appropriate that for the sake of completeness I should go on to determine the third question which is whether it is in the best interests of these two children that the proceedings should be transferred.[51]In my judgment the factors set out at §45(a) to (e) above are also relevant factors to take into account when assessing whether it is in the best interests of these children that the proceedings should be transferred. In my judgment those factors make it very clear indeed that it is not in the best interests of these children to transfer these proceedings to the Latvian Orphan’s Court.[52]For all of these reasons I dismissed the application for transfer of these proceedings to Latvia.