Walsall MBC v KK & Anor [2013] EWHC 3192 (Fam)

2013] EWHC 3192 (Fam)Case Nos. VO12C0009 & VO11C00030
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY, Birmingham Civil Justice Centre,
Bull Street,
Venue Birmingham.Date 7 th October 2013
Before
THE HONOURABLE MR JUSTICE HOLMAN__________________
Between
WALSALL MBCClaimantKK & JKDefendantWALSALL MBCKK & JK_________________(Transcribed from the Official Tape Recording by Cater Walsh Transcription Ltd.,1 st Floor, Paddington House, New Road, Kidderminster. DY10 1AL. Tel: 01562 60921.Fax: 01562 743235. Official Court Reporters and Tape Transcribers.)info@caterwalsh.co.uk_________________MISS GALLAGHER appeared for Local Authority.MISS CARTER appeared for Parents.MISS SWANCOTT appeared on behalf of Children._________________J U D G M E N T
[1]This is an application in public law care proceedings which concern three children who are citizens of Slovakia. The application is made by the Centre for the International Legal Protection of Children and Youth, in Bratislava in the Slovak Republic, for a transfer of the proceedings, and indeed the children themselves, to Slovakia pursuant to the provisions of Article 15 of Council Regulation (EC) No. 2201/2003, known as Brussels II Revised.[2]There is now a growing body of English legal authorities on the interpretation and application of Article 15. However, it seems to me that the facts and circumstances of the present case are such that my decision is entirely fact-specific, and it is not necessary to make reference to any authorities at all.[3]The essential factual background may be very shortly stated. The parents of the children concerned are KK, whom I will call “the mother”, and JK, whom I will call “the father”. The mother has three elder children by a different father. Those children, as I understand it, have always lived and now continue to live in Slovakia with their own father.[4]In 2007 these parents were apparently trafficked to England from Slovakia. They have, in fact, resided in England ever since. They remain citizens of Slovakia and neither of them has British Citizenship. They have since given birth to three children aged respectively four and three-quarters; almost three; and one and a half. All these three children were born here in England and have never lived anywhere else. Indeed, they have never ever visited Slovakia. However, they are all citizens of Slovakia because that is the citizenship of their parents. None of them is a citizen of the United Kingdom.[5]Initially each of the children lived with their parents, who remain a united couple. However, the local authority in Walsall were very concerned about the care being given to the children. The upshot was that the two elder children were removed from their parents in February 2012, and the youngest child not long after her birth in March 2012. Since May 2012 all three children have lived continuously together in a single foster placement with people to whom I will refer as “the foster family”.[6]There has been considerable assessment of the parenting capabilities of the parents. At the moment the care proceedings are very strongly contested. It is the position of the local authority that the threshold criteria under the Children Act 1989 are well established, and that these parents are unable either singly or jointly adequately to care for any of their children. The parents, however, strongly dispute that and seek the return of all of their children to them.[7]At the moment it is envisaged that there will have to be a court hearing of five days’ duration, involving the presence of about ten witnesses to give oral evidence, before the issue between the local authority and the parents can be resolved. Since all the facts and circumstances in relation to the upbringing of these children have arisen here in England, it follows, of course, that all those witnesses, both medical witnesses, other professional witnesses and lay people, reside here in England.[8]There was a time when very active consideration was being given both here in England and also in Slovakia to whether or not some or all of these children might be able to live with their paternal grandmother in Slovakia if they cannot return to live with their own birth parents. The request by the paternal grandmother to be able to care for some or all of the children has been the subject of considerable investigation and assessment by authorities both in Slovakia and here. At one stage, indeed, it did seem that quite a promising outcome might be for all or some of the children to move to Slovakia to be brought up there by their paternal grandmother. That might, indeed, have had a further advantage that they might have been able to grow up with some contact with the three elder children of the mother, whom I have mentioned.[9]However, more recently it has become clear that the paternal grandmother is simply unable to provide any accommodation in which she and all these children could live together. As I understand it, she currently lives in accommodation owned or provided by other members of her family, and they are not agreeable to these children moving to live there; so in effect, the paternal grandmother has had to abandon her request that the children live with her. So far as I am aware, there is not currently any proposal that these children could live with any other member of their birth families, either maternal or paternal, in Slovakia.[10]Being aware of these proceedings and the situation concerning these children, the Centre for the International Legal Protection of Children and Youth in Bratislava has made a formal request to this court for a transfer of the children and of these proceedings to Slovakia, pursuant to Article 15 of the Regulation, as I have mentioned. That Article is headed “Transfer to a court better placed to hear the case”. Paragraph 1 of Article 15 provides as follows:
“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: . . . (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. ”
[11]Paragraph 2 of Article 15 provides that paragraph 1 shall apply upon application from a party, or of the court’s own motion, or upon application from a court of another member state with which the child has a particular connection. In the present case the application, strictly speaking, is not from “a court” of another member state but, rather, from the Centre for the International Legal Protection of Children and Youth, but there has been no suggestion by or on behalf of any party that that is not an application that I should formally and conscientiously consider.[12]Paragraph 3 of Article 15 provides the circumstances in which a “child shall be considered to have a particular connection to a Member State”. Those include where the member state “is the place of the child’s nationality”. As I have said, all these three children are citizens of Slovakia, and accordingly these children clearly do have “a particular connection” to Slovakia for the purposes of Article 15.[13]Before exercising a discretion under paragraph 1 of Article 15 to transfer the proceedings, however, I next have to consider whether the courts of Slovakia “would be better placed to hear the case or a specific part thereof”, and if so, whether “this is in the best interests of the child”. Frankly, the facts that I have already recounted clearly speak for themselves. There has not yet been any decision in this case or these proceedings on the most fundamental issue of all, namely whether or not either or both these parents can resume the care of all or some of these children. As I have already said, all the evidence in relation to their parenting capabilities is here locally in England. Further, they themselves have now lived in England since 2007 and do not themselves have any desire to return to Slovakia. I have been told this morning by their counsel, Miss Rosalyn Carter, that if ultimately these children end up living in Slovakia, then the parents might follow them to Slovakia in order to retain as much contact and connection with their children as they may; but unless and until it transpires that these children move to live in Slovakia, the parents themselves are resolved to remain living here in England.[14]So there is, frankly, no question of the courts of Slovakia being “better placed to hear the case”. Indeed they are not even as well placed to hear the case as the courts of England and Wales locally here where the parents live, where the children live, and where all the relevant evidence exists. So that criterion is patently not satisfied on the facts of this case at this stage. If -- I stress if -- the stage was reached when the court ruled out that the children could live with their parents, and if the court ruled out that the children could live long term with the present foster family, then the issue of whether an alternative home or family for these children should be found here in England or in Slovakia might again arise for lively consideration. At that point consideration would clearly have to be given again to whether or not, at that stage, the outcome stage of these proceedings should then move to Slovakia with a view to finding a long term home for the children there. But at the moment that possible stage is a long way off.[15]The third and final matter that has to be considered, if one were to get this far, is whether transfer “is in the best interests of the child”. The formal request of the Centre for the International Protection of Children and Youth dated 6th September 2013 addresses the issue of the best interests of the children as follows:
“The current carers of the children are not permanent carers or adoptive parents. Further moves of the children would have to take place in any event. A disruption is therefore inevitable. However, we would like to underline that any disruption to minors in moving them to Slovakia is manageable as the process of removal (relocating) of the children to Slovakia and their treatment in Slovakia would be monitored by competent Slovak authorities. . . .”
[16]That premise may well have been the state of understanding of the Centre for the International Legal Protection of Children and Youth when they formulated their request during September. However, I have been assured today that the proposition that the current carers -- that is, the foster family -- “are not permanent carers” of the children, is not correct. It is correct that the foster family do not seek or propose that they might currently or in the foreseeable future adopt these children, but they have made quite clear that if the children cannot return to live with their birth family then they, the foster family, do seek to care long term for the children throughout their childhood. That is, in fact, the outcome and care plan that the local authority currently propose.[17]The guardian of the children has not yet concluded her enquiries or formulated her position. It may indeed be that she will support that one or more of these children return to live with their birth family, but my current understanding is that if any child or children cannot live with their birth family then it is likely, to put it no higher, that the guardian will support that they do remain long term with the present foster family. As I understand it, the possibility of the foster family applying to be appointed special guardians of the children is under active consideration. That, of course, would require considerable further assessment, and it is too soon to say whether or not the foster family would make the formal application, nor, if so, whether the local authority would support it. But at any rate, it is certainly foreseeable at the present stage that, although they would not adopt these children, the foster family would seek to become and would become special guardians of them.[18]It thus follows that in fact this request, made in the utmost good faith by the Centre for the International Legal Protection of Children and Youth in Slovakia for a transfer of the children and the proceedings now to Slovakia, is based on a fundamental misunderstanding. Clearly, if it were to be the case that the children cannot return to live with their birth parents, and if it was the case that the current carers are not permanent carers, whether on an adoptive basis or at all, so that the children would have to move in any event, then very active consideration would have to be given to whether long term they should not be relocated to Slovakia, of which they are citizens. But in the actual circumstances as I have described them, it could not possibly be in the best interests of any of these children currently to transfer any of them or these proceedings to Slovakia. They have lived now for about eighteen months with the foster family who, I am told, care for them extremely well. If they can return to live with their birth family, that is one thing; but if they cannot, then any decision to move them on from the foster family is one that would have to be made with a great deal of hesitation.[19]So for those reasons I refuse the present application. ________________________