London Borough of Barking & Dagenham v SS [2014] EWHC 3338 (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 children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No ZE1400018

[2014] EWHC 3338 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15 October 2014

Before

MR JUSTICE COBB

Between

London Borough of Barking & DagenhamApplicant

SSRespondent

Sarah Branson (instructed by Local Authority Solicitor) for Applicant

Deirdre Fottrell (instructed by Creighton & Partners) for Respondent

Hearing Hearing dates: 7 October 2014

Judgment

The Honourable Mr. Justice Cobb:

[1]These proceedings concern a young person, SS, who is Romanian by birth, a Roma by background and culture, and who is currently believed to be 15 years old. She has, it appears, lived for most of her life in Spain with her mother and siblings, but has now been living in this jurisdiction for over eighteen months. On the evidence available to me, it appears that she is a victim of child trafficking having been brought here, away from her family, for the purposes of sexual and/or criminal exploitation.

[2]On 29 April 2014, the London Borough of Barking and Dagenham (“the Local Authority”) applied for a care order in respect of SS. The proceedings were allocated to Her Honour Judge Sapnara at the East London Family Court, but were subsequently transferred to the High Court for a determination of two inter-related jurisdiction questions, appropriately raised (see Re K (A Child)

[2014] 1 FLR 749

) as preliminary issues.

[3]Those questions are: i) Where was SS habitually resident at the time the court was seised? The answer to this question is likely to determine whether the English Court has jurisdiction to make such an order in relation to SS; and ii) If I conclude (in answer to [3(i)] above) that the English Court does have jurisdiction in relation to SS, should this Court nonetheless exercise its powers to request the court of another member State to assume jurisdiction – either Spain or Romania?

[4]This hearing was set up by direction of Bodey J (9 June 2014) and Roderic Wood J (30 July 2014). There has, regrettably, been a disappointing level of compliance by the Local Authority with orders made by this court in this case (notwithstanding the recent warnings of Sir James Munby P in Re W

[2013] EWCA Civ 1177

), but by the conclusion of the hearing, I was satisfied that the relevant material, and arguments, had been placed before the court.

[5]The facts of the case are relatively unusual, and required careful review of the relevant authorities (some of which I cite below). For that reason, I reserved judgment, having indicated at the conclusion of the hearing that: i) I had reached the conclusion on the facts that SS was, on the balance of probabilities, habitually resident in England at the time the court was seised (29 April 2014) thereby founding jurisdiction under Article 8 Council Regulation 2201/2003 (‘BIIR’); see, in relation to this, [36-37] below; ii) Even if she was not habitually resident in this jurisdiction on that date, I am satisfied that she was not habitually resident in either Spain or Romania; she was physically present here on 29 April 2014 thereby founding jurisdiction on an alternative basis, namely under Article 13 of BIIR; see [38] below; iii) That while SS has connections with Spain and Romania, the courts of this country are demonstrably better placed to hear the case, and it is in the best interests of SS that the courts here should determine her future per Article 15 of BIIR; see specifically [44-45] below.

[6]For the purposes of determining these jurisdiction questions, I received statements of evidence from the Local Authority and from SS; I was provided with a transcript of an interview conducted with SS (on 25 June 2014) under the ‘Achieving Best Evidence’ Guidance (2011), and the notes of another such interview (8 July 2014); I was able to review exchanges of correspondence passing between the Central Authorities of the relevant countries, and had access to various police records. At the outset of the hearing, SS requested to meet with me; I discussed with counsel the arrangements for and purpose of such a meeting in accordance with the Guidelines for Judges Meeting Children subject to Family Proceedings (April 2010); once we were all agreed as to the format and timing of the meeting, I spoke with SS, in the presence of her guardian with a lawyer’s representative making a note. The meeting took place before the substantive hearing got underway. SS then stayed for part of the hearing, to hear legal argument.

Background facts

[7]The principal evidential source for the background history is SS herself. She has given her account to social workers, informally and through ABE interviews, also to her guardian and police; she has further set it out in summary in a statement to the court. I have of course exercised caution when reviewing her version of events, given that(a) there are reasons why she may choose to give a false account of her history, and in any event

(b) English is (after Romanian and Spanish) her third language. I have particularly looked for internal consistency within her accounts and have searched for independent corroboration from within the documents generated by the official and public bodies which have knowledge of SS and her life. The following account is, on the evidence currently available, the most reliable ‘working account’ of SS’s life.

[8]SS was born in Romania. Her birth was registered on 10 May 1999. Her Birth Certificate records her birth as 5 May 1998 but the manuscript entry of the year ‘1998’ gives a strong impression of having been altered. Other records (including from Romanian and Spanish social services, and the school in Spain which SS briefly attended) disclose her year of birth as 1999. Given that the registration of birth clearly took place in 1999, I consider it more likely (on the current evidence) that she was in fact born in 1999, making her 15 years old now.

[9]SS is the middle of five children born to her mother (“MD”) and father (“SO”); she has two older brothers, and two younger sisters. She also has half-siblings. SS was raised for her early life by her paternal grandmother while her mother and father lived in Spain. When SS was approximately three or four years old, her father died. At or about that time, her mother returned to Romania and removed SS and her siblings to Spain; while in Spain the mother entered into a new relationship with a man (“ME”) who physically abused SS and some years later attempted to sexually abuse her. SS lived in Spain for approximately 8-10 years, apart from one or two short return trips to Romania, possibly in 2010, when repatriated by the Spanish authorities &/or shortly before SS left Spain for the last time, in order to renew her passport. It is reported (by a social worker in Spain who for a time had responsibility for the family) that the family had lived in a squat in the outskirts of Madrid, which was “not fit for habitation” (per SS’s teacher in Spain) and plainly in very poor circumstances. For a period of time (possibly three months) the sibling group was received into institutional care in Spain given the significant concerns about their “neglectful” (per Spanish social worker) upbringing by their mother.

[10]In or about December 2012, when SS was approximately 13 years old, her mother ‘sold’ her to a young Roma man (“DW”), and almost immediately he brought her from Spain, via Paris (“for a few months”), to England. It is not clear from the accounts which I have received precisely when SS arrived here, but I infer from all that I have read that this was in early 2013 (SS says February/March 2013 in her 8 July 2014 interview, which tallies with her more recent witness statement). SS and DW initially moved in with extended members of DW’s family. SS maintains that she was repeatedly raped and abused by DW; she further alleges that he forced her to steal for him. DW is reportedly being investigated by the police in relation to these alleged offences. SS has described how she then formed a relationship with an 18 or 19 year old young man (“AX”) whom she met in London; she left DW and went to live with AX (and his cousin) for a period of time (unspecified).

[11]SS has not apparently had any contact with her mother, MD, since last year (2013). MD is currently unaware of these proceedings, having not yet been located in Spain.

[12]There is some (at present unconfirmed) suggestion that SS was apprehended by the police during 2013: a reference on the Metropolitan Police Merlin database contains details of her “aggressively begging” in Central London in July 2013. She is said to have received a police caution at one time (although the police have not produced any record of this, it may be that SS gave false identification details at that time – she admits to having done this when finally apprehended). She was arrested on 22 November 2013, and charged with being involved in the stealing of mobile telephones. At that time, she told the Young Offenders Team worker that she did not want to return to the address where she lived, as she was being forced (it is unclear whether this was by DW or AX) to offend every day. She was initially remanded by the Youth Court to the care of the local authority, but absconded from her foster placement (allegedly stealing the foster mother’s phone as she left) after only a few days. She evaded detection for several months, being finally apprehended (for alleged fare evasion) by the Transport Police in April 2014. Care proceedings were then launched, as were proceedings for a Secure Accommodation Order. While the jurisdictional issues with which I am concerned remained unresolved, the Family Court exercised its powers (notionally under Article 20 of BIIR) to make interim care and secure accommodation orders.

[13]When interviewed at the time of her final arrest in April 2014, SS initially stated that she had enjoyed her independence, informing the Youth Court worker that she had been working long hours in a restaurant (probably unlawfully, given her age) and had used her earnings to support herself. She said that she wanted to continue working and enjoying her independent life, and wished to return to her life with her boyfriend (AX). She was clear that she did not wish to return to Spain or to her mother given that her mother had forced her into ‘marriage’ with DW.

[14]Notwithstanding her stated wishes, SS consented to the secure accommodation order, and co-operated with the police into their enquiry relating to potential trafficking offences. Indeed, during the period of the secure accommodation order, appeared to thrive in the structured environment, forged relationships with the staff and residents, and enjoyed the education on offer; she described herself as ‘being in a family’, and her self-esteem was observed to grow. When the secure accommodation order expired in July 2014, SS was placed with foster carers where she remains.

[15]Information from the Romanian authorities suggests that SS’s siblings have now been repatriated to Romania, but I am told that SS’s mother, MD, is still living in Spain. Although the Romanian authorities are aware of MD’s whereabouts, the Local Authority here does not, and she has so far not been served with these proceedings. The Romanian authorities report that the mother wishes SS to be returned to her.

[16]On the information provided, it appears that the criminal charges against SS will not be pursued given the acknowledgement by the National Crime Agency that she is likely to have been the victim of trafficking. She has not been in trouble with the law since April 2014.

[17]SS has filed a statement in these proceedings. She concluded her written statement as follows:

“I am now in a foster placement in which I am extremely happy and content and I have been in placement since [July 2014]. The foster carer is lovely and I respect her and want to stay with her. I have now started a college course in Hair and Beauty. I consider the UK as my home and I would be devastated if I had to move back to Spain. I would be frightened for my wellbeing and safety. I do not wish to re-establish a relationship with my mother and step-father. I would be afraid that the physical abuse would start. I would not agree to return to Spain or Romania, my life is now in the UK, this is my home. I feel safe and happy here and I would urge the Court not to transfer the proceedings to Spain or Romania.”

[18]SS told me herself that her foster mother is “a good woman … she shows me all her love”; she told me that “I love her more than my mum”. SS told the recent Child in Care Review (30 September 2014) that she would “kill herself” or “run away” if she were forced to return to Romania, Spain and/or the care of her mother or any family member.

Habitual residence

[19]Article 1(2)(d) of Council Regulation (EC) No 2201/2003 (“BIIR”) provides that the scope of the regulation relating to “the attribution, exercise, delegation, restriction or termination of parental responsibility” includes public law proceedings and in particular “the placement of a child in a foster family or institutional care”. In the circumstances, and for the purposes of determining jurisdiction under BIIR, I must first consider (for the purposes of Article 8 ibid.) the issue of habitual residence.

[20]Article 8 of BIIR provides:

“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

[21]Note that the question of habitual residence has to be assessed “at the time the court is seised”, which in the instant case is 29 April 2014.

[22]The term ‘habitual residence’ under BIIR corresponds to the place which reflects some degree of integration by a child in a social and family environment; the CJEU described it thus in Mercredi v Chaffe

[2011] 1 FLR 1293

, as follows: “The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant” [53] (emphasis added) “As a general rule, the environment of a young child is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.” [54] “That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent” [55]

[23]At [56] the CJEU makes the important point:

“such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.”

This formulation of course draws from Re A (Area of Freedom, Security and Justice) (C-532/01)

[2009] 2 FLR 1

at [44] CJEU.

[24]The CJEU test of habitual residence reflecting some degree of integration by a child in a social family environment has been adopted by the English Courts – specifically by the judgment of the Supreme Court in Re A (Jurisdiction: Return of Child)

[2014] 1 FLR 111

in which Baroness Hale said at [54]:

“(i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents. (ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. BIIR must also be interpreted consistently with those Conventions. (iii) The test adopted by the European court is ‘the place which reflects some degree of integration by the child in a social and family environment' in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question. (iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention. (v) In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from Shahshould be abandoned when deciding the habitual residence of a child. (vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. (vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. (viii) As the Advocate General pointed out in para AG45 and the court confirmed in para [43] of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time. When considering the integration of a mature or adolescent child the court can and should take account of the child’s own perceptions.”

[25]In public law proceedings, just as in private law proceedings, the court is expected to examine the evidence to establish whether or not the subject child has a habitual residence here. As Sir James Munby P in Re E

[2014] EWHC 6 (Fam)

said at §24:

“… the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a European dimension is, therefore, an inquiry as to where the child is habitually resident”

In the event that it is not possible to determine a child’s habitual residence at the time the court is seised, recourse is had to the provisions of Article 13 of BIIR: “Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction”.

[26]This approach was confirmed by the President at §28 in Re E:

“it will be seen that the courts of England and Wales have jurisdiction in a care case involving a child only if either (i) the child is habitually resident in England and Wales (Article 8(1)), or (ii) the habitual residence of a child "present" in England and Wales "cannot be established" (Article 13(1)).”

[27]The President re-inforced and amplified the point in his subsequent judgment in Re F

[2014] EWCA Civ 789

in which he said at §11:

“(i) Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident. (ii) In determining questions of habitual residence the courts will apply the principles explained in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. For present purposes the key principles (para 54) are that the test of habitual residence is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned and that, as the social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent, it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. (iii) Jurisdiction under Article 8(1) depends upon where the child is habitually resident "at the time the court is seised." (iv) Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others [2014] EWCA Civ 152, paras 47, 58. (v) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36. (vi) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.”

[28]These authorities make clear the importance of the factual enquiry with the focus on the ‘integration’ of the child. In relation to an adolescent child, or mature child (as here), there is a further consideration – namely the child’s own perception of habitual residence. In this respect, the Supreme Court in Re LC (Reunite: International Child Abduction Centre Intervening)

[2014] UKSC 1

[2014] 1 FLR 1486

specifically considered whether the court, in making the habitual residence determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, may have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence. The Supreme Court answered this question unanimously in the affirmative, with Lord Wilson (speaking for the majority) explaining at [37]:

“where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may – possibly – have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the ‘wishes' ‘views' ‘intentions' and ‘decisions' of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mindduring the period of her residence with that parent.”

(emphasis by underlining added)

[29]Baroness Hale and Lord Sumption in the same case considered that Lord Wilson’s approach could be extended to younger children.

[30]Baroness Hale discussed the habitual residence test as requiring an answer to the question: “has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual?” ([59]) (emphasis added) Adding “An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so.” [59] Going on to say “the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para [37]) that ‘wishes', ‘views', ‘intentions' and ‘decisions' are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed ‘habitual'” [60]

[31]Later she refers to the fact that each child must be considered very much on their own circumstances “Each child is an individual with his own experiences and his own perceptions.” [62] Further adding: “The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another” [63].

Habitual Residence of SS

[32]Assessing SS’s habitual residence now, that is to say at the date of this hearing, has been relatively straightforward. Since April 2014 she has had a settled, structured life in the care of the local authority; in July 2014 she moved into a foster home where she gives every impression of being ‘at home’. She appears to have formed a trusting and loving relationship with a foster carer who she refers to as “Mum” and who she believes loves and cares for her as a mother. She enjoys the family life of her foster home (there are three younger foster children). She has tentatively embarked on education here, aspiring to develop her artistic skills; she has a few friends here. She perceives England as her home, and plainly, indeed emphatically, wishes to remain here, having made this clear to all. In these circumstances, she has in my judgment acquired the relevant degree of integration into life here in England now as to justify a finding that she is habitually resident here.

[33]But for the purposes of BIIR her habitual residence has to be tested as at 29 April 2014.

[34]On the evidence available, it is more difficult to conclude with confidence that SS was ‘habitually resident’ in England as at 29 April 2014. There is no doubt that she had not integrated into life here in the conventional or traditional sense in which a 15-year old child may be expected to, as contemplated the CJEU in Mercredi and the Supreme Court in Re LC. Not for SS were the routines of a school curriculum, family life with a parent or parents, a social network of like-minded peers, stimulating extra-curricular pastimes. SS’s situation does not readily fall to be considered as “integration …in a social and family environment” as may more generally be contemplated or understood for a child of her age. The hand-to-mouth existence which characterised SS’s life here in the 14 months or so prior to April 2014 does not give a strong impression of ‘stability’; I acknowledge “that the fact that the child's residence is precarious may prevent it from acquiring the necessary quality of stability” (see Supreme Court judgment at §26 in Re KL (Abduction: Habitual Residence: Inherent Jurisdiction)

[2013] UKSC 75

[2014] 1 FLR 772

[35]The precariousness of her position is illustrated by the fact that she appeared to arrive in this country as a trafficked child – in the company of a man who had the intention of exploiting her for criminal activity and sexual fulfilment. At the time she arrived here, she probably had no automatic right to reside here (though by the time of the Part IV CA 1989 application her legal entitlement to remain had in fact changed). She had no permanent or settled home as such; she lived a life largely as an outlaw and in the months immediately prior to the inception of proceedings, as a fugitive from criminal justice and an absconder from local authority care.

[36]But that does not in my judgment, mean that she has not acquired a habitual residence in this jurisdiction as at the date the court was seised. Even though her daily life had features which were undoubtedly ‘precarious’, I find as a matter of fact that there are sufficient factors pointing the other way to establish a sufficient degree of integration, most notably (and taken in combination): i) The duration of her time in this country; I find that by 29 April 2014 she had been in this country for at least 14 months; ii) By 29 April 2014 (indeed from 1 January 2014) as a Romanian national she was lawfully here, having acquired the same rights as other EEA (European Economic Area) nationals to live (and work) in the UK (the transitional controls on free movement included in the accession treaties and adopted by the UK and seven other Member States when Romania joined the EU in 2007, ended on 1 January 2014); iii) She had, by April 2014, ceased to be “looked after or taken care of” by her family (see Mercredi v Chaffe [54], paragraph [22] above); she was living a quasi-adult (and in that sense at least, independent) life. Indeed, she told the police (ABE interview) that she used to feel she “was about a 25-year old woman”, by which I infer she felt that her life experiences were more consistent with an adult; iv) I accept that SS had obtained work in a restaurant (even though this may have been unlawful employment if it was full-time as a person under 16, and/or without a permit for some of that period); she enjoyed this; v) SS had formed an intimate relationship with a young person (AX) whom she had met here; vi) SS had a social network, even if it included numbers of those who made their business by breaking the law; vii) Although SS’s mother (the only person with parental responsibility for SS) was/is probably habitually resident in Spain, SS’s mother had (on my finding) ‘sold’ her daughter, and had effectively ceased to exercise any parental responsibility for her. SS’s mother appears to have accepted that her daughter would be travelling abroad, and so far as I can tell, believed this to be indefinite; viii) For her part, SS had explicitly rejected her mother and her life in Spain; ix) SS appears by April 2014 to have ‘perceived’ England as her home, and showed every sign of wanting to remain in this jurisdiction. Although she had been trafficked here, and abused, when she separated from the man who had trafficked her to this country, she nonetheless remained here. At no time has she intimated that she wanted to leave; I am satisfied that she perceived that England had become her ‘home’.

[37]The fact that SS’s life was in many respects unconventional, occasionally lawless and generally unstructured did not mean that she had not in her own way – and to a significant degree – integrated into that society in which she lived in England. That someone lives on the fringes of society (as SS had done here in the 14 months or so prior to April 2014) does not mean, in my judgment, that they are not members of that society. Nor does it therefore mean that they cannot acquire habitual residence in the country in which they have settled and made their home.

[38]For the avoidance of doubt, I should add that had I reached the conclusion on the facts that SS was not habitually resident in England & Wales as at 29 April 2014, I would have nonetheless declared that the Courts of England and Wales could assume jurisdiction in respect of her under Article 13 BIIR. What is abundantly clear is that at the critical date she was not habitually resident in either Spain or Romania; in so concluding, I draw upon the fact that: i) she had not been in Spain for well over a year; ii) her mother had not just abandoned her, but ‘sold’ her to a trafficker, thereby abrogating her responsibility for her; iii) she had not spent any significant time in Romania since she was about 4 years old.

Transfer of proceedings

[39]Having concluded the first question, the jurisdiction question, in favour of England & Wales, a question then arises as to whether the proceedings should be transferred to another jurisdiction – namely either Spain or Romania.

[40]Any potential transfer has to be considered under Article 15 of BIIR which provides as follows: “(1) By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. (2) Paragraph 1 shall apply: (a) upon application from a party; or (b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties. (3) The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State: (a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or (b) is the former habitual residence of the child; or (c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property”. (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. (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) 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”.

[41]At an earlier stage of the proceedings, the Local Authority actively proposed a transfer of these proceedings to Spain. This is not their current position. Nonetheless, and entirely appropriately, the authorities of Spain and Romania have been asked to consider whether they would seek a potential transfer under Article 15.

[42]The Spanish authorities have helpfully confirmed in general terms that:

“Spain complies with the Brussels II Rules as a matter of course, and the Spanish authorities will assist as appropriate if requested to do so.”

[43]The Romanian authorities have also helpfully provided an Individual Protection Plan (28 July 2014) in relation to SS in the event that she is returned (and the proceedings transferred) to Romania. The objective of the plan was to rehabilitate her to the care of her natural family. The Directorate for International Law and Judicial Co-operation, Ministry of Justice, Bucharest initially responded (undated letter) indicating that:

“… we believe that in the absence of a Romanian court already seized with the child’s matter it is up to the parties and to the East London Family Court to decide whether or not Article 15 of the Brussels IIA Regulation should be applied.”

In a recent e-mail from the legal adviser to the Directorate for International Law and Judicial Co-operation (6 October 2014) the Romanian authorities have further indicated that they do not actively seek a transfer of the proceedings: “As long as the child is in England, the Romanian child protection authorities cannot take any protective measures towards her. According to the documentation already provided … if the English Court will decide the repatriation of the child, then she will be taken into a specialised centre within the Ialomita social services, until the clarification of her legal status”.

[44]I am satisfied that although SS has a clear and ‘particular connection’ with Spain and Romania, neither State is even as well placed, let alone ‘better’ placed to hear the case than the Courts of England and Wales. It is, on the information available to me, more than ten years since SS lived in Romania. Her enduring connection with Spain is limited to the physical presence of her mother there – yet SS wishes to have no contact with her mother for reasons I well understand.

[45]Having established that SS is now habitually resident in England, and is anxious to remain here, it would not be in her best interests to transfer the proceedings.

Conclusion

[46]In line with the President’s direction in Re E (supra; see §35), I therefore confirm explicitly by way of conclusion: i) That the Courts of England and Wales assume jurisdiction in relation to SS because, pursuant to the provisions of Article 8, at the time this Court was seised of proceedings, SS was habitually resident in England. ii) That while SS has connections with Spain and Romania, I am not satisfied that the courts of either State would be better placed to determine SS’s future, and it would not be in her interests that I should transfer the proceedings (particularly given my finding about her current habitual residence). In any event, at this hearing no party actually agrees to such transfer.

[47]That is my judgment.