England and Wales Family Court Decisions (High Court Judges)

Neutral Citation No [2018] EWFC 38

IN THE FAMILY COURT SITTING AT DERBY

 

 

 

 

His Honour Judge Clifford Bellamy

sitting as a Deputy High Court Judge

 

 

Re P (A Child: Jurisdiction)

(judgment handed down on 8^th June 2018)

 

 

 

Miss Kaye Howells for the local authority

Miss Dee Khankhuna for the Children’s Guardian

 

 

 

 

This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the child, the adult members of his family and their location must be strictly preserved.

JUDGE BELLAMY:

1.             On 19^th April 2010 Derby City Council (‘the local authority’) issued care proceedings in respect of a baby boy, P. P was born on 14^th March 2018. He was 5 weeks old when the local authority issued these proceedings. He is now 12 weeks old. Notwithstanding that it has issued care proceedings the local authority’s position is that P is habitually resident in Slovakia and that this court therefore has no jurisdiction. The local authority issued these proceedings in order to enable it to provide interim care for P who had been abandoned by his mother shortly after his birth. The case comes before me today for determination of the issues of habitual residence and jurisdiction.

Background

2.             The mother is a Slovakian national. She is 17 years old.

3.             The mother came to England in early March 2018. She has said that she came here on holiday. She came with her mother. They stayed at her brother’s home.

4.             In her dealings with the local authority the mother has at all times been clear that she intends to return to live in Slovakia.

5.             At the time the mother arrived in England she was 33 weeks pregnant. She went into early labour. P was born at 34 weeks gestation. The mother has indicated that she did not received any antenatal care prior to leaving Slovakia.

6.             The mother has identified P’s father as O. She says that she was raped by O and that P was conceived as a result of that act of rape. She did not report the rape to the Slovakian police.

7.             The day after the mother gave birth the local authority received a referral from the hospital where P was born. The mother had indicated to staff at the hospital that she did not wish to care for P.

8.             The mother left the hospital three days after P was born. She left P in the care of hospital staff. She agreed to him being accommodated by the local authority pursuant to s.20 of the Children Act 1989.

9.             The mother has at all times made it clear to the local authority that she does not wish to care for P and that she wants him to be placed for adoption.

10.         The mother attended a LAC review meeting on 18^th April. Whilst attending that meeting she was able to spend 20 minutes with P. That is the only contact she has had with him since she left hospital. She has not wished to have any more contact with him.

11.         The local authority has endeavoured to engage with the mother but she has been unresponsive.

12.         Maternal grandmother and the mother’s brother have made it clear to the local authority that they do not wish to be considered as carers for P. No other potential kinship carers have been proposed by the mother.

13.         The local authority believes that maternal grandmother has returned to live in Slovakia. Though she has continued to say that she intends to return to Slovakia it is believed that the mother is still in England living with her brother.

14.         The allocated social worker says that she informed the mother of her entitlement to legal aid to be represented in the care proceedings. The mother said that she did not wish to have legal representation.

15.         The case was listed for a first case management hearing on 3^rd May. The mother did not attend and was not represented. P was made the subject of an interim care order. That order was made in reliance upon the provisions of Article 20 of Council Regulation (EC) 2201/2003 (Brussels IIA).

16.         The court listed the matter for a further case management hearing on 7^th June to deal with the issues of habitual residence and jurisdiction. The local authority was ordered to inform the mother verbally and in writing of that further hearing and of the issues to be determined at that hearing.  The allocated social worker had a conversation with the mother, with the assistance of an interpreter. The local authority also wrote to the mother though it overlooked the need for that letter to be translated into Slovak.

17.         The court is satisfied that the mother is aware of the hearing today. She has not attended. She remains unrepresented.

18.         In March 2016 the local authority entered into a bilateral agreement with the Slovakian authorities. The purpose of the agreement is to ensure cross border cooperation in children cases and to strengthen cooperation, to gain an understanding of procedures in each jurisdiction and communicate information on national laws and procedures, and to establish practical arrangements for assessments and return of children where appropriate.

19.         In accordance with its legal obligations and in compliance with the bilateral agreement, the local authority has been in contact with the Slovakian authorities concerning P.

20.         On 24^th May the Slovakian Centre for International Legal Protection of Children and Youth responded to the local authority. The letter states that,

‘According to the enclosed assessment of the Central Office of Labour, Social Affairs and Family…O has stated he is the father of the minor child and he is willing to take care of the minor child due to his family and social obligations. The social workers instructed him how to file an application to the competent court for establishing his paternity.’

 

It is not clear whether O has yet made that application.

21.         The letter goes on to say that,

‘In view of the above, seeing there are no relatives living in the territory of the Slovak Republic, who are willing and especially able to provide the child with proper personal care, the competent OLSAF is of the opinion that the competent authority for social and legal protection of children and social guardianship is ready to provide the minor child with adequate protection of his rights and legitimate interests through the implementation of social protection measures for children and social curatorship in the facility for the enforcement of the court decision – the children’s home in Slovak Republic.’

 

22.         The letter ends with the following request:

‘The Centre for International Legal Protection of Children and Youth hereby request the Court to consider the transfer of jurisdiction to the Slovakian court under Article 15 of the 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…The reasons for this suggestion are the following:

·         The child is a Slovak citizen and his relatives and family live in Slovakia and

·         the Slovak Republic is able to provide the adequate social as well as medical care for the child.’

 

23.         Against the background described, the local authority submits that P is habitually resident in Slovakia and that this court therefore has no jurisdiction in respect of P. It seeks a short extension of the interim care order to enable arrangements to be made, in consultation with the Slovakian authorities, for P to be taken to Slovakia and placed in the care of the Slovakian authorities.

24.         Within the care proceedings a Children’s Guardian has been appointed for P. The Children’s Guardian agrees with the local authority that P is habitually resident in Slovakia and that he should therefore be placed in the care of the Slovakian authorities.

25.         On 7^th June I received both written and oral submissions on behalf of the local authority and the guardian. I granted a declaration that P is habitually resident in Slovakia. I extended the interim care order until 12^th July whilst arrangements are made for P to be taken to Slovakia. I ordered that the move shall not take place until after the expiration of the time for appeal against my decision. I ordered the local authority immediately to inform the mother of the court’s decision, of her right to apply for leave to appeal against that decision and of her right to apply for legal aid to enable her to have legal assistance in pursuing an appeal. I also ordered the local authority to provide the mother with a copy of this judgment translated in Slovak.

The law

26.         The following provisions of Council Regulation (EC) No 2201/2003 are of particular relevance to the present case:

Article 1

Scope

(1) This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: … (b) the attribution, exercise, delegation, restriction or termination of parental responsibility …

 

Article 8

General jurisdiction

(1) 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.

2) Paragraph (1) shall be subject to the provisions of articles 9, 10 and 12.

 

Article 15

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 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.

 

Article 17

Examination as to jurisdiction

Where a court of a member state is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another member state has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

 

Article 20

Provisional, including protective, measures

(1) In urgent cases, the provisions of this Regulation shall not prevent the courts of a member state from taking such provisional, including protective, measures in respect of persons or assets in that state as may be available under the law of that member state, even if, under this Regulation, the court of another member state has jurisdiction as to the substance of the matter.

(2) The measures referred to in paragraph (1) shall cease to apply when the court of the member state having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

 

27.         There is a significant body of jurisprudence on the issue of habitual residence. In Re B (A Minor)(Habitual Residence) [2016] EWHC 2174 (Fam), counsel distilled a number of propositions which, it was contended, can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered between 2013 and the date of that judgment. Hayden J adopted those propositions with his own amendments . They are set out in §17 his judgment:

i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).

ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, Re KL).

iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46).

iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent ( Re R);

v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her ( Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration.

vi) Parental intention is relevant to the assessment, but not determinative ( Re KL, Re R and Re B);

vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one ( Re B); (emphasis added);

viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move ( Re B - see in particular the guidance at para 46);

ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi);

x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident ( Re R) (emphasis added);

xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day ( A v A; Re B). In the latter case Lord Wilson referred (para 45) those ' first roots' which represent the requisite degree of integration and which a child will ‘probably' put down ' quite quickly' following a move;

xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R).

xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" (Re B supra).'

28.         Save for one exception, it is unnecessary for me to go to the primary sources from which those thirteen propositions are distilled. These propositions are, in my judgment, sufficient to guide my evaluation of the issue relating to habitual residence in this case. I am reinforced in that view in light of the decision of the Supreme Court in Re C (Children) [2018] UKSC 8. Lord Hughes (with whom Lady Hale and Lord Carnwath agreed) said that in that case the judge’s findings,

‘56. …need to be considered alongside the judge’s decision as to the habitual residence of the children. He reviewed a body of evidence from Mother, relatives, neighbours and the playschool manager, to the effect that the children were, by the Summer of 2016, firmly integrated into the social and family environment of the part of England in which they had lived for a year, and, in the case of the younger child, for somewhat longer than he had lived in Australia. By reference to the decision of Hayden J in In re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam); [2016] 4 WLR 156, he directed himself correctly as to the test of habitual residence and the factors relevant to the integration necessary to establish it.’

 

29.         Proposition (v) requires further elaboration. It is founded on a passage from the judgment of Lord Wilson in Re LC (Children) [2014] UKSC 1. Lord Wilson said,

‘33. I doubt whether, even by reference to the former English concept of habitual residence, Cobb J was entitled to have stated so categorically that, having sole parental responsibility for them, the mother in July 2012 "had the right to determine" the habitual residence of T, then aged almost 12, and of L, then aged nine. It is true that in In re P (GE) (An Infant) [1965] Ch 568, 585-586, Lord Denning MR had been similarly categorical about "the ordinary residence of a child of tender years who cannot decide for himself where to live, let us say under the age of 16". But in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 579, Lord Brandon had said that "where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers". J was aged two and in In re M (Minors) (Residence Order: Jurisdiction) [1993] 1 FLR 495, 500, Balcombe LJ therefore took Lord Brandon's proposition to apply only to young children. In my view even our old law left open and ajar the door to a conclusion that, no doubt in rare circumstances and perhaps particularly following the adoption by an older, mature, child of a residence in a different country with one parent, the latter's habitual residence there might not necessarily render the child's residence there habitual.’

 

30.         The point there being made is that although it will usually be the case that the habitual residence of a very young child will be the same as his parents, that will not inevitably be so in every case. Whether it is in fact so will depend upon an evaluation of all of the relevant facts in the particular case. In undertaking that evaluation the court must have in mind all of the propositions identified by Hayden J in Re B (A Minor)(Habitual Residence).

31.         I noted earlier that the Slovakian authorities seek transfer of these proceedings to Slovakia pursuant to the provisions of Article 15. I have set out Article 15 in full. In Proceedings brought by A [2010] 2 WLR 527, the Court of Justice of the European Communities made the point that,

’72. …only article 15 of Council Regulation (EC) No 2201/2003 provides for a case to be transferred to a court which is better placed to hear it. Under that provision, however, only a court with jurisdiction over the substance of the matter is empowered to order such a transfer. In relation to a court which has ordered a provisional measure under its own national law in accordance with article 20(1) of the Regulation, there is no provision for transfer to a court with jurisdiction over the substance of the matter.’

 

32.         The power to transfer a case to a court better placed to hear the case only arises if the transferring court has jurisdiction over the substance of the matter.

 

 

Discussion

33.         The determination of jurisdiction for the purpose of Article 8 must relate to the state of affairs at the time the proceedings are issued. That is the date when the court becomes ‘seised’. In this case the relevant date is 19^th April 2018.

34.         At the time these proceedings were issued P was 36 days old. The first few days of his life were spent in hospital. The mother left hospital before he did. The mother has played no part in his care since she herself left hospital.

35.         P was discharged from hospital into the care of local authority foster carers. Although it is the stability of P’s residence as opposed to its permanence which is relevant, and that is qualitative and not quantitative, it would in my judgment be artificial to describe that four-week (as it was when these proceedings were issued) placement in foster care as achieving ‘stability’ in the real sense of that word.

36.         In light of the background history set out earlier, in my judgment it cannot seriously be contended that at the time these proceedings were issued P was integrated in a social and family environment in England to any significant degree. Apart from the fact that at the time of these proceedings P had spent 36 days living in England, it is difficult to identify any other facts which could reasonably be advanced in support of a proposition that he was habitually resident in England at the time these proceedings were issued.

37.         It is clear that when she arrived in England the mother was habitually resident in Slovakia. She has at all times been clear that she is only in England on holiday (although, as it now appears, a longer holiday than was perhaps originally intended). There is no evidence that would justify a finding that by the time the local authority issued these proceedings the mother had made a conscious decision to change her place of habitual residence to England. Indeed, there is no evidence at all of parental intention so far as concerns the issue of habitual residence whether in respect of herself or P. P, of course, was not and is not of an age at which he can have any intention so far as his habitual residence is concerned.

38.         A finding that on the relevant date P was habitually resident in Slovakia, the place where his mother, grandmother and father were then habitually resident, resonates more realistically with the facts.

39.         If, at the time the court was seised, P was habitually resident in Slovakia, that has two consequences. First, that this court does not have jurisdiction over him for the purposes of Article 8. Second, that because this court does not have jurisdiction over him for the purposes of Article 8 the court has no power, whether under Article 15 or otherwise, to transfer these proceedings to Slovakia.

40.         I find that on the relevant date P was habitually resident in Slovakia. It follows, therefore, that this court does not have jurisdiction to determine the local authority’s application for a care order.

41.         The view taken by the local authority is that in the circumstances described, it is for the Slovakian authorities now to take whatever steps it considers appropriate under its own laws to safeguard and promote the welfare of this child, a Slovakian citizen, and that it should assist the Slovakian authorities by facilitating the early transfer of P to Slovakia and into the care of the Slovakian authorities. I agree.