T (A Child: Article 15 of B2R), Re [2013] EWHC 521 (Fam)

[2013] EWHC 521 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/03/2013
Before
MR JUSTICE MOSTYN
Between
The Local AuthorityApplicantThe Mother1 st Respondent
Between
The Father2 nd RespondentThe Child3 rd RespondentThe Central Authority of the Republic of Slovakia4 th Respondent
Mr Marcus Scott-Manderson QC and Miss Alison Hunt(instructed by the Local Authority Solicitor) for ApplicantMr Clive Newton QC with Miss Dawn Tighe (instructed by Parker Rhodes Solicitors) andMiss Jessica Pemberton (instructed by Harthills Solicitors) for 1 st and 2 nd RespondentsMr Charles Prest (instructed by Howells Solicitors) for 3 rd Respondent for The 4 th Respondent was not representedHearing Hearing date: 12 March 2013
Judgment
[1]I am concerned with a 10 month old boy called T, who was born in this country on 22 April 2012. His mother was born on 15 September 1995, and is therefore only 17. His father was born on 16 June 1992 and is therefore only 20. The mother and father are both Slovakian citizens. T was conceived in Slovakia when the father was just 19 and the mother not yet 16.[2]The mother and father come from the ethnic or racial group known by the exonym Romani. In the English-speaking world the Romani were known for generations as gypsies - a disparaging corruption of the word Egyptian. Fortunately that appellation has fallen into disuse. The Romani people migrated from the Indian subcontinent into Europe about 1500 years ago and for most of their history have been subjected to persecution and forced assimilation at the hands of, among others, the Byzantines, the Ottomans and ethnic Slavs. More recently they were subjected to the bestial genocidal practices of Nazi Germany and its vassal states. There are presently about 100,000 to 200,000 Romanis in Slovakia, about 2% to 4% of the population. Even following the war of 1939 – 1945 they were subjected to discrimination and forced assimilation by the communist regime, and it has only been since the fall of communism that they have been treated more equally. But deprivation and acute social problems for the community have endured and this has led to the migration of many Romani people to this country and elsewhere. Thus in July 2008 the mother's mother left Slovakia with the mother's siblings to join her husband, her children's stepfather, in Rotherham.[3]Shortly beforehand on 19 May 2008 a court in Michalovce, Slovakia ordered that the mother be placed in a crisis centre following certain allegations by her against her stepfather and mother. In July 2008 the relationship between the mother and father began. The mother was then aged 13, the father 16. On 14 January 2009 the Michalovce District Court made an order placing the mother in the children's home in that city. In July 2011 the mother fell pregnant and on 30 November 2011 the Michalovce District Court ordered that the mother be transferred to the children's home in Kosice which had a special unit for underage mothers. It was from there on 29 February 2012 that the mother ran away with the father and travelled to this country which she entered on false papers. The mother and father went to the town where her family were living, and it was there on 22 April 2012 that T was born.[4]It was not only on account of the mother's young age that the local authority was concerned for the newly born infant. Almost from the moment of their arrival here in 2008 protective measures had been taken in relation to the mother's siblings and this led to all or some of them being made the subject of care orders in 2010. I have not been given the details. At all events the local authority undertook a core assessment immediately following T’s birth and only allowed the mother to take him to her own mother's home on discharge from hospital on 4 May 2012 on the basis that the mother signed a "contract of expectations". Unfortunately as a result of various intra-familial disputes the placement broke down and ultimately on 18 May 2012 the mother and T moved to a Mother and Baby Unit for a 12 week period of assessment pursuant to an agreement made under section 20 of the Children Act 1989. However, on 23 May 2012 the mother left the unit leaving the baby behind, and although she returned the following day she left again finally on 27 May 2012, complaining that the place was like a prison.[5]Meantime on 25 May 2012 care proceedings were issued by the local authority. That application has since been augmented by an application for a placement (for adoption) order. There have since been 12 interlocutory orders made by the court including a final directions order by me on 5 March 2013 when I directed that the first day of the final hearing fixed for four days commencing on 11 March 2013 should be used to determine the question of which is the most convenient forum in which all issues concerning T’s future should be adjudicated, for the reasons which I will explain below.[6]On 19 July 2012 the Director of the children's home in Kosice wrote to the local authority stating "our interest is that the mother be returned to the children's home, as she is entrusted to our care by the courts". Later the authorities in Slovakia expanded this to seek the return of T also. On 27 September 2012 the children's home informed the Slovakian Central Office of Labour, Social Affairs and Family (which I take to be the relevant government Ministry) of the circumstances of the case and on 3 October 2012 the Slovakian Central Authority received a report from the Ministry about the mother and T. The Slovakian Central Authority contacted the Central Authority (ICACU) here on 5 October 2012. On 18 January 2013 a lengthy letter entitled “Intervention of the Slovak Central Authority” was received by the court authored by Andrea Cisarova. This has been supplemented by two further detailed submissions dated 21 February 2013 and 8 March 2013. In these documents the Slovakian Central Authority forcefully argues that under EU law, equally applicable in Slovakia and this country, the mother and T are both habitually resident in Slovakia; the mother is the subject of an order which is entitled to recognition and enforcement here; and that this is a case where a request should be made by this court under article 15 of Regulation Brussels II Revised Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 for a transfer to the Slovakian courts of the proceedings concerning T.[7]In the light of the stance of the Slovakian Central Authority I joined it as a party to the proceedings on 5 March 2013 although in the event it chose not to be represented at the hearing but preferred instead to rely on its written submissions.[8]I have heard detailed interesting argument concerning the correct interpretation of article 15 from Leading Counsel for the local authority and the parents and from counsel for T. Although article 15 has been in existence for nearly 10 years now there is no reported case either here or elsewhere in the EU on its interpretation by a court considering whether to make the request, with the exception of AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517, although as I will explain that decision is not in point here. Nor is there any official guidance about it from the Commission. Nor have counsel been able to identify any academic commentary about it.[9]So far as is material to this case article 15 provides:
"Transfer to a court better placed to hear the case 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 … ; or (b) request a court of another Member State to assume jurisdiction … 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."
[10]In AB v JLB Munby J (as he then was) was concerned with a case where a court in the Netherlands had jurisdiction over the substance of the matter and had declined a request to transfer the case to England and Wales. The question was whether the English court should invite the Dutch court to reconsider that refusal. Munby J considered that a stringent test should be applied in those circumstances and that the applicant did not meet it. It can be seen therefore that this decision is not directly in point. However, Munby J made some helpful observations about article 15 in general. In paragraph 34 he made the obvious point that the only court which can make a substantive decision under article 15 is the court "having jurisdiction as to the substance of the matter". In this case that is this court. Secondly, there were three questions under article 15 (1) to be considered:
“i) First, it must determine whether the child has, within the meaning of Article 15(3), "a particular connection" with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child's nationality (see Article 15(3)(c))? ii) Secondly, it must determine whether the court of that other Member State "would be better placed to hear the case, or a specific part thereof". This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case. iii) Thirdly, it must determine if a transfer to the other court "is in the best interests of the child." This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”
[11]In paragraph 36 Munby J pointed out that even if affirmative answers were given to all of the three questions there remains a discretion whether or not to request a transfer. However he observed that if all the questions were answered affirmatively it was difficult to envisage circumstances where it would nonetheless be appropriate not to transfer the case.[12]In this case there is no dispute that the first question is answered affirmatively since there can be no doubt that are the mother and (probably) the father are habitually resident in Slovakia. The habitual residence of T is less certain and will be addressed by me below. This goes to the question on which basis this court has jurisdiction to entertain these care and placement proceedings. There is no dispute that this court does have jurisdiction; the dispute in this regard relates to the basis.[13]The debate before me has centred on the second and third questions which give rise to quite challenging questions of law which can be summarised as follows: i) Is article 15 to be interpreted in isolation, and be given an independent autonomous explication in the same way that the concept of "habitual residence" has been given an autonomous definition to be applied uniformly across the European Union? ii) Or can some assistance be derived from domestic decisions concerning the grant of a stay in favour of a more convenient forum in children proceedings whether under section 5 of the Family Law Act 1986 or under the inherent jurisdiction? iii) Further, can assistance be derived from the decisions in this jurisdiction concerning the principles to be applied when considering an application for a summary return to a country which is not a subscriber to the Hague Convention on International Child Abduction 1980? iv) Inasmuch as there is a requirement under the third question to consider the best interests of the child: a) What scope of enquiry does this mandate? b) Should the concept of paramountcy be read into article 15?[14]It is certainly true that in relation to the concept of "habitual residence" it is now established that we must all apply the autonomous definition given by the Court of Justice of the European Union in Re A (Area of Freedom, Security and Justice) (C-523/07) [2009] 2 FLR 1 and Mercredi v Chaffe (C-497/10) [2011] 1 FLR 1293. In Marinos v Marinos [2007] EWHC 2047 (Fam) Munby J stated at para 17: Both Mr Allen and Mr Castle suggest that for the purposes of the Regulation "habitual residence" has an autonomous meaning, which is to be derived from the jurisprudence of the European Court of Justice and which is not necessarily the same as that familiar in our domestic or Hague Convention jurisprudence. That, in my judgment, is plainly so. As the ECJ said in Hagen v Einfuhr-und Vorratsstelle Getreide (Case 49/71) [1973] 12 CMLR 23, at para [6]:
"Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law."
[15]On the other hand this is not exactly uncharted territory. As is well known article 15 was a culmination of a campaign by certain member states, including the United Kingdom, to include within the regulation the ability to stay a children’s case in the country having substantive jurisdiction and to transfer it to a more convenient forum. It was a compromise between those states which operated a forum conveniens doctrine and those which did not. Plainly the framers of article 15 would have had in mind the principles of law used by those member states that operated the doctrine.[16]Those principles, as applied in children's cases, were succinctly summarised by Wilson J (as he then was) in M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam) [2006] 1 FLR 138 at para 6: “But, whether the jurisdiction is statutory or inherent, the same principles apply. Counsel agree that, written in terms of the facts of this case, they are as follows:(a) the burden is upon the father to establish that a stay of the Sunderland proceedings is appropriate;(b) the father must show not only that England is not the natural or appropriate forum but also that South Africa is clearly the more appropriate forum;(c) in assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses;(d) if the court were to conclude that the South African forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and(e) in the exercise to be conducted at (d), the welfare of the girls is an important, but not a paramount, consideration. Authority for the first four principles derives from Spiliada Maritime Corp v Cansulex Ltd The Spiliada [1987] AC 460. Authority for the fifth derives from Re S (Residence[17]These principles may be regarded as statements of the obvious and I consider it is inconceivable that the framers of the Regulation would not have had them in mind when drafting article 15. In particular it is significant that the concept of paramountcy did not find expression in the Regulation, and this of course is concordant with principle (e) above. Accordingly I do not derive any assistance in seeking to explicate article 15 from the decision of the House of Lords in Re J (A Child) [2006] 1 AC 80. This set out the principles to be applied on an application for a summary return of a child to a non-Hague country, in that case Saudi Arabia. The committee was unanimous that such an application has to be adjudicated by reference to the paramountcy principle expressed in section 1 of the Children Act 1989 although it recognised that on the particular facts of a given case the application of that principle could lead to "a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own" (see paragraph 41).[18]Accordingly it is my opinion that article 15 should be interpreted conformably with the principles in M v M set out above.[19]The next question concerns the scope of the best interests enquiry mandated by article 15. In his skeleton argument counsel for the child argued as follows “the High Court in E&W should not transfer jurisdiction to a court in Slovakia – indeed cannot properly do so – without first conducting the final hearing of [the local authority’s] application for a Care Order and Placement Order”. This argument was not supported by Leading Counsel for the local authority, and rightly so, as in my opinion it constitutes a remarkably counter-intuitive Catch-22. In essence it says that this court having jurisdiction over the substance of the case should hear the case to its conclusion in order to decide whether to transfer it to be heard to its conclusion in Slovakia. I simply do not accept this argument. And in any event it is contrary to authority which is to be applied by analogy.[20]In the case of Re I (A Child) [2009] UKSC 10 the Supreme Court was concerned with the proper interpretation and application of article 12 of the Regulation which is concerned with the Prorogation of Jurisdiction, that is to say the state of affairs where a party has accepted the jurisdiction of the courts of a particular state. That prorogation can be accepted under article 12(1) where it is in "the superior interests of the child" or under article 12 (3) where it is in "the best interests of the child". Nothing turns on the use of the different adjectives and indeed in some of the texts of the Regulation in languages other than English the same adjective is used. In para 36 Lady Hale stated:
“The final requirement in article 12.3 is that the jurisdiction of the English courts should be in the best interests of the child. Nothing turns, in my view, on the difference between "the best interests of the child" in article 12.3, "the superior interests of the child" in article 12.1 and "the child's interest" in article 12.4. They must mean the same thing, which is that it is in the child's interests for the case to be determined in the courts of this country rather than elsewhere. This question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings will be in the best interests of the child?" It 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. The fact that the parties have submitted to the jurisdiction and are both habitually resident within it is clearly relevant though by no means the only factor. (emphasis in original)”
[21]In my judgment it is obvious that the scope of any best interests enquiry when deciding whether to make a transfer request under article 15 should be the same as when determining jurisdiction under article 12. It should not involve any profound investigation of the child's situation and upbringing but rather should be an attenuated one which informs the considerations which come into play when deciding upon the most appropriate forum. Again, this chimes with principle (e) in M v M.[22]For completeness I note that pursuant to article 15(5) the court to which the transfer request is addressed will only accept jurisdiction if it is satisfied that to do so is in the best interests of the child.[23]Finally, I address the question whether Art 15 applies to public law cases. The difficulty is that the wording of Art 15 would suggest that the transfer is made so that the very same parties may litigate as parties the same lis in another EU jurisdiction. But by its very nature in a public law case the parties will alter if there is such a transfer. However, in Re S (Care: Jurisdiction) [2008] EWHC 3013 (Fam) [2009] 2 FLR 550 Charles J at para 60 considered that article 15, or alternatively the inherent jurisdiction, was the appropriate way forward in a jurisdictional issue of forum in care proceedings. Further, an Article 15 invitation was made where the court had no jurisdiction in Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741. Certainly the regulation can apply to institutional care cases: see Health Service Executive v SC & AC Case C-92/12 PPU at para 60. I am quite sure that article 15 applies to this public law case and nobody has argued to the contrary.[24]Therefore pulling the threads together it seems to me that the applicable principles are as follows: i) Article 15 applies to public law as well as private law proceedings. ii) As a precondition the court must be satisfied within the meaning of Article 15(3), that the child has "a particular connection" with the relevant other member state. iii) The applicant must satisfy this court that the other court would be better placed to hear the case (or a specific part thereof). In making this evaluation the applicant must show that the other court is clearly the more appropriate forum. iv) In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result. vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration. vii) In making the best interests analysis at (vi) the court will not embark on a profound investigation of the child's situation and upbringing but will dwell in an attenuated inquiry upon the sort of considerations which come into play when deciding upon the most appropriate forum.[25]I now revert to the facts of this case. At the present time the parents are having contact to T in a supervised setting once a week for one and a half hours. T is with short-term foster parents and no adoptive placement has been identified. Although the local authority states that it would investigate the possibility of a placement with Slovakian adopters none has been identified and it must be doubtful that one ever will be. Further it will probably be well nigh impossible to identify Slovakian adopters of Romani ethnicity. Therefore while this case is said to be ready to be determined that is true only in relation to the issues of care and placement – there is a long way to go before T is found an appropriate new set of parents.[26]When considering applications of this nature I always remind myself of the “momentous” nature of the decision which I have to make - that description derives directly from opening sentence of Baroness Hale’s opinion in the case of Re B (Children) [2008] UKHL 35 at para 20. I also remind myself of the words of Munby J (as he then was) in Re B(A Child) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para 101:
“it must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever. When a family judge makes a freeing or an adoption order in relation to a twenty-year old mother's baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks.”
[27]The case of the local authority in favour of these drastic orders is based on the mother having failed a viability assessment at the Mother and Baby Unit and on a later assessment carried out by a social worker on 21 September 2012 which was also negative. They state that neither the mother nor the father has been reliable in their attendance for contact. They state that this little boy reacts negatively to contact with the mother.[28]The applications are supported by the Guardian who in her report ventured the opinion that T’s apparent adverse reaction to contact with his parents derived from post-traumatic stress disorder which may have occurred when he was a foetus. In paragraph 7 of her report she stated:
“Descriptions of babies suffering from post traumatic stress disorder, which can in turn lead to an attachment disorder if not carefully managed, resonate particularly with my observations of contact. Traumatic stress makes for increased levels of cortisol; baby is prepared for a fight/flight response, the heart rate speeds up, there is a lack of oxygen, and the baby jumps to every stimulus, however neutral. There is a numbing of social responsiveness. Babies are described as having a fixed gaze which is disconcertingly empty. "The lights may be on, but there is no one at home". Contact notes describe T in these terms on more than one occasion. Babies become hyper vigilant and hard to settle, they are often surrounded by heightened anxiety and anger in the adults around them. The baby's muscle tone is perpetually rigid, something I have experienced in holding T attempting to sooth him. There is a sharp contrast to T’s presentation when in the care of his foster carer, with whom he has formed an attachment.”
[29]During argument I described this as amateur medical evidence. Counsel defended it saying it derived from standard social work texts. But I remain of the same view. If is to be suggested that for medical reasons this child is suffering from post traumatic stress disorder, possibly inflicted in utero, and that this is a strong reason for irrevocably severing the parental bond, then I would certainly insist on having both paediatric and psychiatric evidence to that effect.[30]Further, I do not believe that the assessment evidence is sufficiently thorough and impartial to warrant the drastic orders that are now sought and were this case to proceed I would have authorised a further assessment by an independent social worker fluent in the Slovakian language, given that the mother does not speak English and that the previous assessments were conducted in a foreign language translated to her. So if this case is to proceed here it seems to me that a further adjournment would be required with the obtaining of the further expert evidence to which I have adverted.[31]The Slovakian Central Authority, supported by the parents, argues for a transfer for the following reasons: i) Both parents and the child are Slovakian citizens. The habitual residence of the mother is Slovakia. The child's habitual residence is, she argues, Slovakia. ii) The parents only speak Slovakian. Any proceedings in Slovakia will be in their own language. Similarly any further assessments in Slovakia would be undertaken in their own language. iii) The mother has agreed to return to Slovakia and to the children's home to which she has been committed by a court order iv) T has not been put in a permanent placement and a further move for him will have to take place in any event.[32]The Slovakian Central Authority has outlined the plan for the mother and T were they to return to their native country. They will be placed in the children's home in Kosice where they will live in a small community with at most four other under-age mothers with their children. They will be cared for 24 hours a day by six child care professionals who will help them to provide care for their minor children. In this way the minor mothers learn to care for their children to create emotional bonds and to achieve parental skills. Psychological and special pedagogical care will be provided and the minor mother will have the opportunity of completing her education.[33]Of course it is accepted by all that this process is fundamentally one of assessment and that were a transfer to be made the court in Slovakia would have to decide whether reunification was possible in the long-term or whether T would have to be permanently placed with alternative parents.[34]In my opinion the plan I have outlined above best promotes the possibility of preserving this child’s Slovakian and Roma heritage. In his skeleton argument counsel for the child stated that "whilst of course there are additional welfare factors because of T’s Slovakian heritage, fundamentally he is a child like any other”. This struck me as a profoundly culture-blind statement. I do regard the promotion of this child’s heritage as being of great importance and I do not consider that the case of either the local authority or the Guardian has sufficient regard to that factor.[35]Additionally, I would observe that it is doubtful that either of these parents or indeed the child is lawfully present in this country under the terms of the Immigration (European Economic Area) Regulations 2006 S.I. 2006 No. 1003.[36]Leading Counsel for the local authority argues that the Slovakian plan would not be in the child's best interests because it represents but a single inflexible option. This was the central part of his argument and so in fairness to him I set out the relevant paragraphs of his skeleton (as modified in oral submissions) in full: The transfer of jurisdiction proposal carries with it only one plan, only one option. The type of assessment proposed under the Slovak plan has already been tried at the Mother and Baby Unit. The Mother left the unit to be with the Father. Previously she had run away from the Mother and Baby unit at the Kosice Children’s Home to be with the Father. She has consistently in Rotherham refused offers of accommodation on her own because she wants to live with the Father. The prospects of her remaining without the Father at the Kosice unit for assessment are not sufficiently good to make it in the Child’s interests to try this because of the damage that will be done to him in the process. The Child has a good, healthy attachment to his foster carer. He is at the age when he has the opportunity to transfer that attachment to another care-giver. If he is enabled to transfer this attachment to his new permanent carer, the prospects for his emotional wellbeing are good. If he is not able to do this successfully, the risk is that he will shut down emotionally and permanent damage will be done to the future prospects of any successful attachment to any carer. The Slovakian plan involves the Child being placed with his Mother as his primary carer, albeit with professional supervision. The observations of contact between the Child and his Mother show that he will be seriously distressed if he is placed in his Mother’s full-time care. Despite her best efforts, she is unable to soothe and calm him. He will often not accept care, such as feeding, from her. If the Mother and the Child are put in this position full-time, the distress caused to the Mother is likely to make her chances of caring successfully for the Child even less. The Mother herself believes that the best way forward would be for Child to be in foster care initially in Slovakia in order to build up contact with her. The Child suffers from herpes which flares up from time to time. The stress of leaving his foster carer and being placed in his Mother’s care is likely to cause his herpes to flare up. This will add to the difficulty of caring for him and the stress caused to the Mother. If he needed hospital treatment in Slovakia, the disruption to him and stress will be increased. The further assessment is, in any event, unnecessary given the assessment work which has been done with the parents already. There is already sufficient information before the Court to establish that the parents cannot offer the Child the care he needs. It is not in his best interests to take risks with his long term emotional welfare and ability to form attachments to a permanent carer and to cause delay in the final decision-taking for him. The prospects of success for the Mother/ Parents are not sufficiently good to warrant taking those risks.[37]It can be seen that this argument comes very close to the profound best interests enquiry concerning the child's future care which Lady Hale emphatically said should not happen in Re I. Basically, it is a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen. I completely disagree with this approach. The analysis of best interests only goes to inform the question of forum and should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.[38]It can fairly be said that the local authority witnesses on events in T’s short life are all here speaking of events here and that this militates in favour of this court being the more appropriate forum. However, it is obvious that if this case is transferred to Slovakia there will not be any substantive court case as the parents will surely accept the plan of the Slovakian authorities. Only if that further assessment and attempted reunification fails is there likely to be a contested case in Slovakia; and that case will surely be focusing on the most recent Slovakian assessment and the reasons for its failure rather than historical assessments over here.[39]I conclude that all the requirements of article 15 when read conformably with the principles set out by Wilson J are satisfied in this case and that the transfer request should be issued. The proceedings will be stayed but T will remain where he is under a sequence of interim care orders made administratively until the Slovakian court makes a decision about his interim arrangement. Of course in the event that the Slovakian court declines the request then the matter must be restored to this court for final determination.[40]Finally I deal with the question of the basis of jurisdiction here. This court has jurisdiction either under article 8 (child's habitual residence), article 12 (acceptance of jurisdiction by the parents) or article 13 (default jurisdiction based on child’s presence). The article 12 basis, although touched on in the skeleton arguments, was not developed orally and I shall say no more about it. The question, which is interesting in the abstract, but of no importance in practical terms, is whether this court has jurisdiction under article 8 or 13.[41]It is not disputed that the mother's habitual residence is Slovakia and this must be so in circumstances where she is subject to a Slovakian care order, came here on false papers, and intends to return. Were I considering the issue from first principles I would instinctively conclude that an infant's habitual residence derives from his mother. However, it is a fact that T has not spent a day of his existence in his homeland. In ZA & Anor v NA [2012] EWCA Civ 1396 the majority (Rimer and Patten LJJ) held that actual physical presence was a prerequisite, under both EU and domestic law, for a claim to have habitual residence in a given place. In so holding they overruled a decision to the contrary by one of our more experienced family judges, Charles J, and disagreed with the dissenting judgment in the case before them by Thorpe LJ. That decision is of course binding on me even if I respectfully disagree with it. Certainly the reading by the Slovakian Central Authority of the most recent decisions of the ECJ is not in accordance with the reasoning of the majority and I have to say that it is a strained interpretation of Mercredi v Chaffe that an infant who is born away from his homeland cannot be said to be habitually resident there until he returns. If this case hinged on whether or not T was habitually resident in Slovakia I would have no hesitation in making a reference to the ECJ.[42]However, that is not necessary in this case because if T’s habitual residence is not here then this court certainly has jurisdiction under article 13.[43]Applying as I must the binding authority of ZA & Anor v NA I conclude that T is not habitually resident in Slovakia. On the facts I am not satisfied that he has acquired habitual residence here. Therefore this is one of those rare cases where he has no habitual residence anywhere, a state of affairs expressly contemplated by article 13.

Order

Forum Conveniens) [1995] 1 FLR 314 at 325B per Thorpe J (as he then was).”

Cited in 15 later judgments

and 6 more of the most senior