Leicester City Council v S & Ors [2014] EWHC 1575 (Fam)

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of his family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is complied with strictly.   Failure to do so will be a contempt of court.Case No LK13C01145[2014] EWHC 1575 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Tuesday, 8 April 2014
Strand,
London WC2A 2LL
Before
MR JUSTICE MOYLAN
Between
LEICESTER CITY COUNCILApplicantSRespondentOthersRespondentLEICESTER CITY COUNCILApplicantSOthersRespondents
Digital Transcript of Wordwave International, a Merrill Corporation Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7421 4046  Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR R. BARDA (instructed by Leicester City Council) appeared for Applicant.MISS H MARKHAM (instructed by RP Robinson Solicitors) appeared for Mother;The Father was neither present nor represented;MISS K KABWERU-NAMULEMU (instructed by N/A) appeared for Guardian
JudgmentTuesday, 8 April 2014J U D G M E N T
[1]In this case I must decide whether I should request the relevant authority in Hungary to accept jurisdiction pursuant to Article 15 of Council Regulation 2201/2003, namely Brussels II Revised (“BIIR”). This issue has been raised of the court’s own motion. The mother supports, and indeed argues for, the making of such a request. The making of such a request is opposed by the local authority, and that position is supported by the guardian.[2]The proceedings concern a very young child, DS, who was born in England on 26 March 2013. His mother is BS. She is a Hungarian national and resides in Hungary. The child’s father is believed to be ZF. He is also a Hungarian national and resides in Hungary. The mother arrived in England, for reasons and in circumstances which are not clear, on 18 September 2012. She left England without DS on about 21 April 2013, and returned to Hungary.[3]The child has been accommodated by the local authority since 12 April 2013, following his being abandoned by his mother, when she left the property where she and DS were then living in England. The child was left in the care of the other occupants of the home, who were also Hungarian nationals, but none were related to the child. The reasons for, and the circumstances in which, the mother came to leave this property and England are also not clear.[4]The local authority did not commence care proceedings until 10 October 2013 in circumstances I will describe later in this judgment. It has always been the local authority’s care plan that DS should be adopted by a family in England.[5]The mother was not represented in the proceedings until a hearing on 21 January 2014. She has been represented at the hearing before me by Miss Markham. The mother has never herself been present at any hearing. The father has not participated in the proceedings at all. He has been notified of the proceedings and served with at least some of the documents via an email address which he provided to the local authority. The local authority, Leicester City Council, is represented by Mr Barda. The child, through his guardian, is represented by Miss Kabweru-Namulemu.[6]Before dealing with this case, I propose to make a few general observations. Timing of Jurisdictional Decisions and Commencement of Care Proceedings[7]I am confident that, if this case had been commenced since the decision of Sir James Munby P in Re E (A Child) [2014] EWHC 6 (Fam), the court would have considered at a much earlier stage whether to make a request under Article 15.[8]There is, however, a broader issue, which applies with force when a case concerns a newborn or very young child but which can also apply to older children, depending for example, on how long they have been living in this jurisdiction. This is that, the longer the determination of any jurisdictional issue, including under Article 15, is delayed, the more established the child’s situation becomes. The more established the child becomes in one jurisdiction, the more that fact in itself will gain in weight and significance. At one extreme, it might, of itself, become determinative. This is in addition to the general principle that delay in the determination of proceedings is likely to prejudice the welfare of the child.[9]Accordingly, 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. This is consistent with, and in accordance with, the need for Article 15 to be considered at “the earliest opportunity”, as referred to by the Court of Appeal in its decision Nottingham City Council v LM and Others [2014] EWCA (Civ) 152, paras 32 and 58.[10]I would also draw attention to Theis J’s decision of Kent County Council v C and Others [2014] EWHC 604 (Fam), in which she referred to the importance of the court grappling with jurisdictional issues at a much earlier stage, and also to Baker J’s decision of Bristol City Council v AA and HA [2014] EWHC 1022 (Fam). Issues Relating to Care Cases with an International Connection[11]In Re E, Sir James Munby P also referred to the sharp rise in the number of care cases involving families and children who are nationals of another Member State of the European Union. Such cases will frequently necessitate information and evidence being sought from that other Member State. It is my experience, as demonstrated in part by the present case, that such enquiries are often not pursued in a structured way which has regard to the framework created by the relevant regulations, in particular BIIR. This case demonstrates the need for a more structured approach when information or evidence is being sought from another jurisdiction and when local authorities, courts, or others are communicating with, or seeking to obtain the cooperation of, the relevant authorities in another Member State.[12]In order to understand the relevant structure, parties will need to consider the provisions of BIIR, the Evidence Regulation (namely Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters) and the Service Regulation (namely Council Regulation (EC) No 1393/2007 on the service in Member States of judicial and extrajudicial documents in civil or commercial matters). The last of these regulations deals, among other matters, with service by post under Article 14.[13]I do not propose to address the latter two Regulations in any detail in this judgment, but they contain important procedural rules dealing with cross-border evidence and service.[14]I do address, during the course of this judgment, some procedural issues which can arise in care proceedings involving a child who is and/or whose parents/family members are nationals of or resident in another EU Member State. These include international communications under BIIR and specifically Article 55. This is not for the purpose of providing answers to these issues but to bring attention to the need to address them and to give some guidance on how they should be addressed. The important features to which I am seeking to draw attention are:(a) The need to consider, before they commence such work, whether English social workers are permitted to undertake work directly in another EU Member State;(b) The agency given primary responsibility for cooperation and communication under Chapter 4 of BIIR is the Central Authority;(c) Central Authorities (or other foreign State Agencies, including Embassies) are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England. This includes “courts” of another Member State, as defined by BIIR, which are under no obligation to make a request under Article 15, the obligation being on the courts of England and Wales as set out in Re E (A Child) and Nottingham City Council v LM and Others;(d) Embassies and consular officials are given no role in BIIR (or the 1996 Hague Child Protection Convention) and should not be used as proxies for Central Authorities;(e) Requests under BIIR for information (under Article 55) must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation. Background History[15]Turning now to the background circumstances of this case; as I have described, DS’s mother is BS. She is aged 20 and is a Hungarian national. She does not speak English. When the mother was aged approximately 6 months, she was placed in foster care in Hungary by the relevant Hungarian authority. In 1996 the mother was apparently adopted in Hungary. She remained living with her adoptive parents until 2012, when she went to live with her biological father. The history is incomplete, but it appears that in May 2012 the mother was admitted to a psychiatric hospital after an alleged incident of violence by her birth father.[16]In September 2012 the mother and her birth parents arrived in England. The mother alleges that they lived with others who tried to force her to engage in prostitution and who were themselves engaged in criminal activities.[17]DS’s father is ZF. He is aged 25. He is also a Hungarian national and speaks no English. There is very little information available about him. He appears to have spent approximately 6 months in England at or about the time of DS’s birth, although he was not living with the mother at any time during that period in England. He lives in Hungary. The father does not have parental responsibility under English law, because his name does not appear on the birth certificate. I do not know what the position is under Hungarian law.[18]The wider maternal and paternal families all live in Hungary.[19]After DS was born, the mother says that she and her birth father (it is not clear where her birth mother was by then) decided to flee the property where they and DS were living, following threats. She also says that she felt she had no choice but to leave DS at the property. The mother says that she then spent two weeks in Nottingham with a Hungarian charity that deals with the trafficking of people. It was this charity which, she says, arranged for her and her father to return to Hungary. It appears (although this is not agreed) that the mother and her father were interviewed on or about 21 April 2013 by the United Kingdom Border Agency, during the course of which (again it appears) they did not refer to DS.[20]The health visitor had made his first home visit on 10 April 2013. During this visit he identified a number of health concerns. It is also recorded that, when he was at the property, the mother was surrounded by a number of the other residents who said they were her relatives and who would not really let him speak properly to the mother. The health visitor next went to the home on 12 April 2013. The mother was not there, and DS was being looked after by the other female residents, all Hungarian and none of whom were related to DS. The health visitor was told that the mother and her birth father had left the property very early that day without telling anyone they were going, and without providing any contact details.[21]A social worker and police officer then went to the property. They felt that the occupants of the property were not telling the truth. Given the circumstances, the local authority decided to accommodate DS under section 20 of the Children Act 1989. The local authority’s “Record of s. 47 enquiry”, dated 17 April 2013, refers to court intervention being required “for an interim care order to be obtained to gain parental responsibility” - an astute observation, which was not followed for reasons which have not been explored. Further, the record states, even at this very early stage, “Baby will need to be twin-tracked, as potentially adoption is the outcome”.[22]Although I have not explored the situation, it is difficult to understand why, in these circumstances, care proceedings were not immediately issued.[23]On 23 May 2013 what is called a “hearing” took place in Hungary, conducted by the relevant guardianship authority. There has been no specific enquiry into what this hearing constituted, but it is clear that the mother was seeking the return of DS to her care. Further, during the course of this hearing, the social worker is recorded as saying, “We request the child’s official transfer to Hungary”.[24]The social work chronology records that, also on 23 May, the local authority received a response from the Hungarian Embassy that “they” (it is not clear who “they” are) and the mother propose the child is returned to the mother. The documents in the bundle prepared for this hearing contain no record of this communication, unless the chronology is referring to the hearing which took place in Hungary on 23 May.[25]Notwithstanding these requests, there is no reference to any consideration being given as to whether the courts in this jurisdiction or the courts in Hungary would be better placed to deal with proceedings.[26]On 3 June 2013 the local authority received from the Hungarian Central Authority a translation of the information or evidence given at the hearing on 23 May 2013.[27]On 27 June 2013 the local authority sent a request to the Hungarian Central Authority for a considerable volume of information and documents. The local authority also sought the assistance of the Hungarian Central Authority for the purposes of a proposed assessment of the mother and other family members to be undertaken by two social workers from England travelling to Hungary. No response was received to this email but, nevertheless, two English social workers went to Hungary from 30 June to 4 July 2013 for the purposes of carrying out assessments of the mother, the father and extended family members.[28]Before this took place, no other enquiries were made and no investigation undertaken to ascertain whether this was permissible or lawful under Hungarian law. I acknowledge that, when in Hungary, the social workers spoke to a number of Hungarian professionals, none of whom appear to have raised any concerns. Nevertheless, CFAB (Children and Families Across Borders), for example, refers on its website to it being illegal for a social worker to undertake social work assessments in some foreign jurisdictions. This is an important issue which must be addressed before a social worker from this jurisdiction undertakes any professional work in another country.[29]When in Hungary, the social workers met with the mother and the father, and also, as I have said, with a number of Hungarian professionals. Reference is made to the fact that the mother has had regular contact with key workers, a psychologist and counsellors. In the somewhat sparse written record of the assessment of the family, there is reference to information being provided by “professionals”, who are not specifically identified. The assessment concludes by saying that DS’s “need for stability and permanency would best be met by identifying an adoptive family for him in the UK”.[30]This assessment was completed by the social worker on 15 July 2013. As I have said earlier in this judgment, there is no reference anywhere to consideration being given to whether it might be in DS’s best interests for his future to be determined in Hungary. Further, despite the conclusion reached in the assessment, care proceedings were not instituted for another 3 months.[31]By an email dated 12 July 2013 to the Hungarian Central Authority, the local authority sought the provision of the parents’ health, police and social work records. This request was based on the parents having provided written consents for their disclosure to the local authority. Social workers had apparently attempted to obtain these records whilst in Hungary, but had been told that they were only available from the Ministry of Justice.[32]I do not know, and it is clear that the local authority does not know, how such information or evidence can properly be obtained under Hungarian law, and whether, for example, it would have to be obtained pursuant to a request made under the Evidence Regulation. This is not a matter of mere formality. State authorities have to act in accordance with their respective laws, including those which apply, as referred to in Article 55 of BIIR, “in matters of personal data protection”. In England and Wales, for example, the provisions of Article 55(a)(i) of BIIR have been implemented by the Parental Responsibility and Measures for the Protection of Children (International Obligations) Regulations 2010. Perhaps as a result of the way in which the request referred to above was formulated but, in any event, none of the requested records have yet been provided.[33]In the same email, dated 12 July 2013, to the Hungarian Central Authority, the local authority also stated that they would “now” be issuing an application seeking the court’s approval for the permanent placement of DS outside the family. The local authority sought “an early indication of whether your office/other agency representing the Hungarian authority” would consider becoming an intervener in the proposed proceedings.[34]Pausing there, it is not clear what this question was designed to achieve, or on what basis it was considered that some Hungarian agency could become a party in the proposed proceedings. If the positions were reversed, I am not aware that the English Central Authority, or, say, any local authority, would have the ability to seek generally to intervene in care proceedings in Hungary. Perhaps the question was intended to establish whether the Hungarian court (which would include all Hungarian authorities with relevant jurisdiction pursuant to the definition of “court’ in Article 2 of BIIR) proposed itself making a more formal request, under Article 15 for jurisdiction to be transferred to Hungary, than those which had previously been made in this case.[35]Whatever the intention, this question and others in a similar vein give the impression that the local authority, and subsequently possibly also the court, have acted as though, in the absence of the relevant Hungarian authorities either raising any issue about this court exercising its jurisdiction or raising any concerns about the nature of the local authority’s application, they could be assumed to have accepted that England is the appropriate forum and that determination here is in the best interests of the child. This, with respect, is not the right approach.[36]Article 15 provides that a court of another Member State can request a transfer. However, the existence of such a right does not in any way diminish the obligation placed on this court, as the court with primary jurisdiction, to address Article 15 as referred to in Re E. This is not affected by the limitation appearing in Article 15(2), namely that a transfer can only be made of the court’s own motion or at the request of a court of another Member State if accepted by at least one of the parties.[37]There is no obligation on the authorities of another Member State to request a transfer. The structure of the regulation (BIIR), and also reasons of comity, might affect their decision as to whether or not to do so. Again, if the positions were reversed, I would not expect the English Central Authority to seek to intervene, or to seek to interfere, with the exercise by another court of its jurisdiction. By not doing so, it could not in any way be taken to be indicating the English authorities’ view of the merits of jurisdiction or Article 15. The only way in which that could happen would be by way of a formal request under Article 15.[38]The local authority continued to communicate with the Hungarian Central Authority along similar lines. On 20 September 2013 the local authority sought confirmation of, “The relevant agencies involved with the mother, or who would have an interest in the child’s future as a Hungarian national as to your response to our proposals, confirmation of any updating circumstances/events we should be aware of, and details of mother’s or father’s current whereabouts. If we do not hear from you by 4 p.m 27 September, we shall assume you have no further information and are not opposing the local authority’s plans for DS”.[39]On 12 December 2013, the Hungarian Embassy made clear that it was acting only as an intermediary, as the relevant Hungarian Authority in this case is the Ministry of Human Resources, Department of Child Protection and Guardianship Affairs. The Embassy also pointed out that service of documents in civil proceedings is governed by the Service Regulation. This was in response to the local authority’s request for assistance in serving the mother.[40]By letter dated 17 December 2013 to the Hungarian Central Authority, the local authority again sought disclosure of Hungarian police and social services records. For the first time this letter seeks, in addition, information about what would happen if DS was to be returned to Hungary.[41]Throughout this period, apart from the communication received on 3 June 2013, with the record of the hearing in May, the local authority has received no response from the Hungarian Central Authority.[42]After the social workers’ return to England on 4 July 2013, they attempted, without success, to contact the mother. They made enquiries of the hostel where the mother had been living, of other family members, and of professionals. They also attempted to telephone the mother on her mobile. Neither the mother, nor the father, nor any other family member made contact with the local authority. Care Proceedings[43]Turning now to the proceedings; following the commencement of care proceedings on 10 October 2013 and an application for a placement order issued on 17 October 2013, the court, on 25 October 2013, made an order for substituted service on the mother and the father. This followed the local authority apparently seeking an order dispensing with service of their applications.[44]On 2 December 2013, the court made a further case management order, on that occasion being satisfied that the parents had notice of the proceedings. The court ordered that the Hungarian Embassy should be provided with a copy of the order and informed that final orders might be made by the English court, providing for the child to be placed for adoption. The Embassy was also, itself, ordered to file a response within 14 days. A similar order was made on 23 January 2014.[45]During the course of the hearing, Mr Barda, on behalf of the local authority, rightly accepted that the orders directed against the Embassy should not have been made. This is because, simply stated, the Embassy is not amenable to orders made by this court. Further, as the email from the Hungarian Embassy of 12 December 2013 had made clear, the Embassy was only acting as an intermediary. I will return to this below.[46]As referred to above, the mother was represented for the first time at a hearing which took place on 23 January 2014. The matter was next listed for hearing on 30 April 2014. Directions were given as to the filing of evidence, including that the local authority should file its final evidence by 13 February 2014. This has not yet happened.[47]The case was then brought to my attention by the allocated Judge through the Family Division Liaison Judge. It was listed before me on 17 March 2014. I directed that, at this hearing, the court would consider whether to make a request under Article 15. I should also add that, in its order of 23 January 2014, the court had provided that if the mother wished to pursue a request under Article 15, she should issue her application by no later than 20 March 2014. Role Of Embassies/Central Authorities[48]Returning to the role of an Embassy, I have already referred above to the orders made against the Hungarian Embassy and that they should not have been made. The circumstances in which notice should be given to an Embassy or consular officials as a matter of good practice have been addressed by Sir James Munby P in Re E. Re E makes clear that such notice does not obviate the need for this court to address the provisions of Article 15. Further, having regard to what has happened in the present case, it is important to note that an Embassy and consular officials are not included within the provisions of BIIR (or for that matter the 1996 Hague Child Protection Convention). They are not a designated authority for the purposes of cooperation or communication under BIIR.[49]The core provisions dealing with cooperation in BIIR are contained in Chapter 4 under the heading “Cooperation between Central Authorities in Matters of Parental Responsibility”. Articles 54 and 55 make plain the pivotal role of central authorities. The specific duties of central authorities are listed in Article 55. There are other provisions, for example, Article 15(6) which provides that:
“The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.”
However, the Practice Guide drawn up by the European Commission refers to the vital role of central authorities in the application of the Regulation (Chapter X, p. 42). This is not exclusive, as the Guide also refers to cooperation between courts and to communication between judges, both through the European Judicial Network and otherwise, and to the experience of judicial liaison in the context of the 1980 Hague Child Abduction Convention. However, although not exclusive, it is, to repeat, Central Authorities which have the vital role.[50]I would also draw attention to the fact that the word used in Article 55 is “information” and not “evidence”. Evidence is governed by the Evidence Regulation. Member States appear to have different approaches to what information can be supplied pursuant to a request under Article 55 (and how that can be achieved) and what can only be supplied under the Evidence Regulation (and pursuant to the specific procedure required by that Regulation). It may be (as referred to above) that, for example, the request in the present case for the health, police and social services records should have been made under the Evidence Regulation, and was accordingly not being made appropriately.[51]Central Authorities are also typically small agencies, and are not equipped to deal with a broad range of enquiries. They are not enquiry agents or general evidence gatherers. Any requests made pursuant to the provisions of BIIR must be focused on a specific provision within that Regulation.[52]I do not propose to undertake a detailed analysis of the provisions in BIIR relating to cooperation and communication. The important features to which I am currently drawing attention are, to repeat:(i) that the agency given primary responsibility for cooperation under Chapter 4 of BIIR is the Central Authority;(ii) that Embassies and consular officials are given no role in BIIR (or the 1996 Convention) and should not be used as proxies for central authorities; and(iii) that Article 55 relates to the provision of information.[53]Dealing with point (ii) in a little more detail, both the Hungarian Embassy in this case, and the Lithuanian Embassy in Bristol City Council v AA, made clear that they were only forwarding correspondence and had no other role. Given the structure and the provisions of BIIR, it is not appropriate to expect, let alone seek to require, an Embassy or consular officials to play any part in care proceedings other than at their request as set out in Re E.[54]Very helpful guidance is provided by the Department for Education in its October 2012 “Cross-Border Child Protection Cases: the 1996 Hague Convention Departmental Advice for local authorities, social workers, service managers and children’s services lawyers”. Although this Advice deals with the 1996 Convention it contains information which is equally useful to cases under BIIR. For example, at p. 6 it says:
“Certain types of request have to be made via Central Authorities, while in some cases local authorities can deal directly with their counterparts abroad. Further advice on this issue is provided on the 'Making requests for information or action to other contracting states' page. It is recommended, however, that local authorities consult ICACU in the first instance for advice about the most appropriate way to make their request. The Central Authority holds useful information about authorities in other countries, and has a wealth of practical experience of cross-border cooperation on child protection cases. The English Central Authority also monitors the volume and effectiveness of cases handled under the Convention. If local authorities decide to deal directly with their counterparts in other contracting states it is recommended that they notify the Central Authority so they can build as complete a picture as possible of the work arising from the Convention.”
The Advice then refers to other agencies including CFAB’s national advice line on inter-country casework. Article 15[55]Article 15 provides “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... 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.”[56]In order to determine whether to make a request under Article 15, I must consider three questions: 1. Does the child have a particular connection with Hungary, as defined by Article 15(3)? 2. Are the courts of Hungary better placed to hear the case? 3. Is a transfer to the courts of Hungary in the best interests of DS?[57]Addressing the first of these issues, DS clearly has a particular connection with Hungary, as defined by Article 15(3), because he is a Hungarian national. In addition, Hungary is the state in which the mother (a holder of parental responsibility) is habitually resident.[58]Turning to the latter two questions, both of these entail a broad evaluation of the circumstances of the case and are interconnected. In Nottingham City Council v LM and Others, Ryder LJ, at para. [19], refers to the former question being “intimately connected with the question of the best interests of the child”. The connection between these two issues was also noted in Advocate General Eleanor Sharpston’s opinion in Purrucker v Perez C-256/09 when she referred, at para. [97], to the need to identify which court “seems better placed, having regard to all the circumstances, in particular the child’s best interests”.[59]Similarly, the court’s assessment of best interests is directed towards the issue of forum – see Nottingham City Council v LM, per Ryder LJ at para. [21], where he refers to what Lady Hale said in Re I (A Child) (Contact Application: Jurisdiction) [2001] 1 AC 319 at para. [36]. Lady Hale was there dealing with the meaning of “best interests” in the context of jurisdiction under Article 12 of BIIR. The question which she identified must be asked is: in which court is it in the best interests of the child for the case to be determined? She said:
“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.”
Submissions[60]The local authority opposes the transfer of jurisdiction to Hungary, submitting that it would not be in the child’s best interests for this to occur because it would lead to the resolution of the child’s long-term care arrangements being further delayed. Mr Barda also raised questions, about how quickly the process might be achieved and what would happen to DS if jurisdiction was transferred, because of the lack of response hitherto from the Hungarian authorities in this case.[61]As to this last point, I was able during the hearing to inform the parties that I have experience in another case, with similar (albeit not identical) facts, of the Hungarian authorities acting with expedition in accepting an Article 15 request and in making arrangements for the child to be received by the Hungarian Guardianship Office pending determination of the child’s future. Nevertheless, I agreed to three further questions being sent to the Hungarian Central Authority, namely, in summary,(a) how long might an Article 15 request take to be determined;(b) what immediate arrangements for DS’s care would be provided in Hungary in the event of an Article 15 request being accepted; and(c) is it permissible under Hungarian law for an English social worker to conduct a professional assessment in Hungary. No reply has yet been received to those questions. However, given my previous experience, I am satisfied that, if the court does make a request under Article 15, it would be likely to be determined expeditiously. I am further satisfied that, if it was accepted, arrangements for DS’s care in Hungary would also be implemented expeditiously.[62]Mr Barda also pointed to the fact that the child was abandoned at the age of 2 weeks, and has no relationship with his parents. He submits that to transfer jurisdiction to Hungary could cause significant disruption and upheaval for DS. He submits that the Hungarian court is not better placed to hear this case. This again seemed to me to be a submission based substantially on the lack of response from the Hungarian authorities to the local authority’s communications.[63]In his written submissions, Mr Barda contends that it is not possible for this court to conclude that the Hungarian court is better placed as there is no evidence as to how they would hear it, when they would and, indeed, whether they would. In my view, this submission, certainly in respect of the first two elements, raises potentially inappropriate questions, as it seeks effectively to challenge the judicial and social care arrangements in Hungary in a way rejected in the judgment of Thorpe LJ in Re K (A Child) [2013] EWCA (Civ) 895 at para [24]. As Sir James Munby P said in Nottingham City Council v LM and Others:
“[54](v) 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.”
In my view, there is no reason to suppose that the Hungarian authorities will unduly delay dealing with this case. Additionally, the final limb of this submission will, inevitably, be answered if a request under Article 15 is made to the relevant Hungarian authority.[64]The guardian supports the local authority’s opposition to an Article 15 request being made. Miss Kabweru-Namulemu submits that England is the appropriate forum. DS has lived here throughout his life, having been abandoned by his mother. He should not be moved until there is a final determination of what is in his long-term best interests. The current assessments have been undertaken by social workers from the applicant local authority. Accordingly, Miss Kabweru-Namulemu submits that any further assessments should also be undertaken by the same social workers.[65]As with Mr Barda, she submits that the Hungarian authorities’ silence should be understood as conveying that they do not wish to play any part in these proceedings, and that they are satisfied with this court being seised and determining what orders should be made in DS’s best interests. I have dealt with this point earlier in my judgment.[66]The guardian submits that there is no benefit to DS in the courts in Hungary assuming jurisdiction. At an earlier hearing, the guardian also advanced the argument that the likely outcome of proceedings in Hungary would not be an acceptable one. A similar submission was rejected in Nottingham City Council v LM and Others, paras 33-39; and see also Re K (A Child).[67]The mother submits that the Hungarian court should be requested to assume jurisdiction. Miss Markham submits that there are significant gaps in the local authority’s evidence, and specifically in the assessments undertaken by the social workers in Hungary. The mother’s circumstances are said to have changed substantially in that she has been living with her current partner since July 2013. A further full assessment will be sought. Miss Markham also points to there being a substantial volume of historical evidence in Hungary which would be more easily accessed by, and understood by, the Hungarian court.[68]Miss Markham relies on the following factors: the parents and all family members are Hungarian nationals and live in Hungary; they do not speak English; the local authority has not carried out an assessment which would satisfy the test of necessity and proportionality; the evidence does not contain a full reasoned recommendation - it does not address the mother’s current circumstances nor what support she and her partner have, nor what access they might have to local social services, nor what other local resources are or might be available.[69]Miss Markham submits that the Hungarian court and Hungarian professionals are better placed to undertake an assessment of the mother’s abilities as a parent, including her insight. Accordingly, she submits that a proper assessment and proper or sufficient evidence can be better obtained through Hungarian social workers or other local professionals. This, she submits, is the means by which the requirements of, for example, Re BS (Children) [2013] EWCA (Civ) 1146, In re W (A Child) In re H (Children) [2013] EWCA (Civ) 1177 and W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA (Civ) 1227 can be met. Determination[70]2. Are the courts of Hungary better placed to hear the case? I have already dealt with the first of the three issues referred to in paragraph 56 above. I now turn to the second issue, namely whether the English courts or the Hungarian courts are better placed to hear this case.[71]The further proceedings in England would be the determination of the care proceedings and of the application for a placement order. If these orders were made, they would then be followed by an adoption application which would be unlikely to be initiated until at least, say, three months after the conclusion of the care proceedings. Depending on the circumstances as they then were, the mother and/or the father might make an application for permission to oppose the making of an adoption order under section 47(5) of the Adoption and Children Act 2002.[72]Although some evidence has been adduced in these proceedings, it is, in my view, quite limited in its nature. The local authority has been seeking, unsuccessfully, to obtain further evidence from Hungary, namely the health, police and social services records. It seems reasonably clear that the mother’s current circumstances will have to be assessed. There are references in the papers to information being given to the local authority’s social workers by unnamed professionals in Hungary. The extent of that information and the records on which it is based are not currently known.[73]I agree with Miss Markham that the English court would be likely to need evidence about the support or services which could be provided in Hungary. The mother’s case clearly does not start from a good position. However, at the final hearing the English court will have to ensure, as submitted by Miss Markham, that the evidence is such as to enable the court to comply with its obligations as identified in Re B (Care Proceedings: Appeal) [2013] 2 FLR 1075, and Re BS (Children) and W (A Child) v Neath Port Talbot County Borough Council.[74]In Re B, at para. [105], Lord Neuberger referred to the assessment of the parents’ ability to discharge their responsibilities having, (his word was must), to take into account the assistance and support which the authorities would offer and that, “before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities or others providing the requisite assistance and support”. I can see very significant obstacles and the potential for very significant delay in the necessary evidence being assembled when the bulk of the relevant evidence is either in, or will have to be obtained through enquiries undertaken in, Hungary. I appreciate that evidence about the circumstances in which the mother left DS in England might be more readily available to this court, but all the other evidence in this case, both historic and current, is much more readily available to the Hungarian authorities.[75]During the course of this hearing, I was concerned that the local authority and the guardian were approaching the case from what seemed to me to be a somewhat limited perspective, including that little additional evidence would be required before the proceedings could be finally determined. That perspective seemed limited to me because, in my view, it underestimates the nature of the evidence which would be required in order for this court (I paraphrase Lady Hale in Re B at para [198]) to determine whether “nothing else than adoption will do”. How is the court to explore alternative solutions? How is the court to assess the mother’s ability to discharge her responsibilities to DS, taking into account “the assistance and support which the authorities would offer”: Lord Neuberger at para [105]? How is the court to determine that there is “no practical way of the authorities (or others) providing the requisite assistance or support”? This applies to all agencies, and in this case applies to Hungarian agencies, because that is where the mother and all other family members are living, and realistically the only country in which they might be expected to live.[76]In summary, in my view the important features which point towards Hungary being better placed to hear this case are as follows:(a) The mother and father and all other extended family members live in Hungary;(b) The mother and father and all other extended family members speak Hungarian and do not speak English.(c) The mother and the father have always lived in Hungary, save for a very short period of months in England.(d) There is a substantial body of historic evidence in Hungary (obviously in Hungarian) held by public authorities which will be more readily available to, and more easily understood by, the courts in Hungary. It is clear from the enquiries made by the local authority that there is a considerable body of evidence in Hungary which could be relevant, and some of which is likely to be relevant, to any welfare determination. The mother, and perhaps other members of the child’s more extended family, have been involved with state authorities and professionals in Hungary over a significant period of time. This includes medical, police and social care agencies. There is reference to the mother having a key worker from the Hungarian Human Trafficking Organisation, and a key worker at the hostel where she was living for a period in 2013.(e) Any further assessments of the mother or any other family members (and my initial view is that a further assessment of the mother is likely to be necessary) will have to take place in Hungary.(f) The Hungarian court is better placed to obtain evidence of, and is better placed to evaluate, the assistance and support which the authorities or others might be able to provide.[77]What connects the case to England is self-evident. DS was born here, was left here by his mother, and has been living here since then.[78]I would suggest that, if the court had been considering with which country this case was most closely connected not long after DS’s birth, the answer would clearly have been Hungary. The balance has changed as a result of the way in which this case has progressed. But, in my judgment, it has not changed to the extent submitted on behalf of the local authority and the guardian. In the circumstances set out above, I am satisfied that the courts of Hungary are better placed to hear this case. In my view, Hungary is the more appropriate forum. It is better placed to obtain and assess the relevant evidence for the purposes of deciding what steps should be taken to secure DS’s best interests. It is more suitable in the interests of the parties and for the ends of justice: justice for DS and justice for his family.[79]3. Is a transfer to the courts of Hungary in the best interests of DS? I turn now to the third question, namely: is it in DS’s best interests for the Hungarian courts to assume jurisdiction? Having concluded that the Hungarian court is better placed to hear this case, in my judgment the same factors support the conclusion that it is in DS’s best interests for the Hungarian court to assume jurisdiction. As referred to above, best interests in this context is primarily focused on the issue of forum. Because the two questions are “intimately connected”, the circumstances of this case lead me also to conclude that it is in the child’s best interests for the better placed court to determine this case.[80]There might be some additional delay, but given the further evidence which will be required if this case were to proceed in England, I do not consider that this will be substantial. Indeed, given the considerable evidential advantages which the Hungarian court will have, there may be no additional delay at all.[81]A transfer to Hungary will involve the child moving to Hungary unless the Hungarian authorities decide otherwise (which would appear unlikely). This will be a move to a new and unknown environment and culture for the child. However, DS is very likely to have to move to a new home in any event, so that the potential for greater disruption arises from the fact that the move is to a new country. Having regard to the child’s age, in my judgment this is a move which will not have enduring consequences. Further, he is moving to the country where all members of his birth family live.[82]In conclusion, having regard to the answers I have given to the three questions raised by Article 15, and in the exercise of my discretion, I consider that I should request the courts of Hungary to assume jurisdiction in this case.[83]In summary, I consider that:(1) the courts of Hungary are better placed (a) to collect the necessary evidence, (b) to analyse that evidence and the issues raised, and (c) to determine what outcome is in DS’s best long-term interests, and are therefore better placed to hear this case; and(2) it is in DS’s best interests for his future to be determined in Hungary. Accordingly, I direct that a request be sent immediately to the Hungarian Central Authority for that court to assume jurisdiction. The parties must prepare an agreed summary of the background circumstances of this case, without going into the merits, which can be sent with the request to the Hungarian Central Authority. I will also give permission for the papers in this case to be sent to the Hungarian Central Authority. All this must be done via the English Central Authority. Postscript The Hungarian authorities signified their agreement to accept jurisdiction within 2/3 weeks of the above request with immediate steps being taken for DS to be placed with foster carers in Hungary.

Cited in 14 later judgments

and 5 more of the most senior