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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.
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MS JUSTICE RUSSELL
|| Hertfordshire County Council
|| RV & EV
|3rd & 4th Respondents
||L (A Child)
Sam Momtaz (instructed by Hertfordshire County Council) for the Local authority
Katharine Marks (instructed by Jane Kaim Caudle Solicitors) for the 2nd Respondent
RV and EV the 3rd and 4th Respondents appeared in person
George Lafazanides (solicitor from Fahri Jacob) for the 5th Respondent (by her Children's Guardian)
Hearing dates: 19th March 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Honourable Ms Justice Russell DBE:
- This is a judgment deciding the issue of jurisdiction within public law proceedings. The court heard the case on the 19th March 2015 and I told the parties of my decision on that date with full judgment and reasons to follow. The parties received the draft judgment on the 23rd March 2015.
- These are care proceedings issued on 26th September 2014. This case was transferred to the High Court from the Family Court at Watford by an order of His Honour Judge Wright on the 9th October 2014 for the discrete purpose of deciding jurisdiction as the subject child L (born 18th May 2006) is a Romanian national who had been habitually resident in Romania for all of her life until she came to live in the UK with RV and EV on 10th September 2013. Although she had come here with the agreement of her father, her sole surviving parent, he later tried to remove L and subsequently withdrew his consent to her remaining in this jurisdiction with the Vs. The local authority, the children's guardian and the Vs say that L is habitually resident in the UK and that any future decision should be made by the court here which has jurisdiction. The respondent/father disputes that L is habitually resident and, if the court finds that she is, seeks a transfer of proceedings under Art 15 of Brussels II R.
- This matter came before the court on the 19th March 2015. The parties were all represented except Mr and Mrs V who were in person and unrepresented. The 2nd Respondent had, after some difficulty, been served with documents related to the proceedings on 26th January 2015. At the previous hearing before me on the 30th January 2015 it appeared that he wanted to instruct solicitors in the UK and that he did not want L to remain living with Mr and Mrs V. It was ordered that the local authority serve a letter setting out his entitlement to public funding and describing the manner in which he could participate in proceedings.
- The 2nd Respondent was represented by counsel today. Unfortunately his solicitors had failed to take full instructions from him and failed to arrange any means of him participating in the proceedings. They had not found out whether there was a video link available which he could use. The use of telephone was hampered by the need for everything to be translated to him by an interpreter in London. The solicitors had not taken his instructions on the means by which he wanted to participate in the hearing. Counsel was not fully instructed by her client. Time was allowed for him to give his instructions to counsel. I was informed that he was content for the proceeding to go ahead in his absence as he had given his instructions to counsel.
- On the basis of the brief oral submissions by the parties legal representatives, their written position statements and the evidence filed in the statements and assessments carried out by the local authority, almost all of which was not a matter of dispute, I have decided that the child L is habitually resident in the UK and was at the time the local authority commenced proceedings on the 26th September 2014. It follows that this court has jurisdiction. I declined to order a transfer of proceedings under Art 15. The reasons for this decision are set out below. It should be noted that there was no dispute as to the law or as to its interpretation.
The background to the proceedings
- L is the second youngest of 12 siblings the oldest of whom is now 24 or 25. L's mother died of a heart attack on the 16th April 2013. Her father AC placed her in the care of RV and EV (who are themselves Romanian)and signed a declaration on the 9th September 2013 allowing the couple to bring L to the UK for at least 12 months. Quite properly they contacted Hertfordshire social services to tell the authorities that L was living with them because he mother had died and her father could not afford to care for her. The local authority carried out statutory assessments during which it came to light that L's older sisters had made allegations in Romania of sexual abuse of L and her sisters by their father. The girls had told their pastor in Romania. The allegations were passed on to the Romanian police but there was no prosecution. The local authority contacted the pastor who confirmed the story. L made further complaints to Mrs V in which she disclosed more about the sexual abuse she had suffered.
- In January 2014 a strategy meeting regarding the allegations attended by the police. No action was taken as the abuse had occurred in Romania where the alleged perpetrator was living. In March 2014 after speaking to the pastor the local authority wrote (translated to Romanian) to the 2nd Respondent/father to up-date him. The local authority followed this up with a phone call through an interpreter in May 2014 to enquire about the consent form that he had signed. The 2nd Respondent arrived in the UK in July 2014 when he tried to remove L by force, the police were called and a police protection order was made.
- The local authority initiated an s47 investigation. The 2nd Respondent did not attend the appointment arranged by the local authority, along with an interpreter to ensure he could participate fully in the meeting. He returned to Romania on the 8th July 2014 the day before the meeting was due to take place. The local authority then had some difficulty in contacting the 2nd Respondent and for some months his position was not known.
- At the strategy meeting held on the 9th July 2014 it was apparent that L did not want to return to Romanian and wanted to remain with the Vs in their home. It was clear that there was no-one in the UK with parental responsibility which caused difficulties for L's carers; with registering with a GP, for example. The allocated social worker was concerned about the 2nd Respondent withdrawing his consent for L to remain in the UK with her carers.
- It is not necessary for the purpose of this judgment for me to set out the proceedings to date in detail. Originally on the 2nd September 2014 Mr and Mrs V applied for a Special Guardianship Order however the have since decided to have L placed with them under a care order and were given permission to withdraw their application on 10th November 2014. On the 19th March 2015 this court directed that they should be joined as parties to the proceedings.
- There is no dispute about the law to be applied in this case as the principles for determining habitual residence were considered by the Supreme Court in A v A & Another (Children: Habitual Residence)  UKSC 60. The Court determined that habitual residence, in the context of BIIR, is: "the place which reflects some degree of integration by the child in a social and family environment." Baroness Hale  said that where the other jurisdiction is not an EU Member State, it is nevertheless: 'highly desirable that the same test be adopted and that, if there is any difference, it is that adopted by the Court of Justice.' The determination of residence is a question of fact and I shall keep in mind the summary of the principles derived from the judgments per Baroness Hale as follows:
"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. The Regulation 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…
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 proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time."
- With reference to the words of Lady Hale in  above the Court of Justice of the European Union in the cases of A, Proceedings brought by A Case (C-523/07)  Fam 42,  2 FLR 1; Mercredi v Chaffe  Fam 22; C v M Case C-376/14 PPU decided that Article 8 sets a factual test for habitual residence which takes account of all the circumstances of the case. The case of C v M sets out the CJEU position [paragraphs 50-56]:
"50 As regards the concept of 'habitual residence', the Court has previously stated, in interpreting Article 8 of the Regulation in the judgment in A (EU:C:2009:225) and Articles 8 and 10 of the Regulation in the judgment in Mercredi (EU:C:2010:829), that the Regulation contains no definition of that concept and has held that the meaning and scope of that concept must be determined in the light of, in particular, the objective stated in recital 12 in the preamble to the Regulation, which states that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, [my emphasis] in particular on the criterion of proximity (judgments in A, EU:C:2009:225, paragraphs 31 and 35, and Mercredi, EU:C:2010:829, paragraphs 44 and 46).
51 In those judgments the Court also held that a child's habitual residence must be established by the national court, taking account of all the circumstances of fact specific to each individual case (judgments in A, EU:C:2009:225, paragraphs 37 and 44, and Mercredi, EU:C:2010:829, paragraphs 47 and 56). The Court held in that regard that, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child's residence corresponds to the place which reflects some degree of integration in a social and family environment (judgments in A, EU:C:2009:225, paragraphs 38 and 44, and Mercredi, EU:C:2010:829, paragraphs 47, 49 and 56).
52 The Court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State (judgments in A, EU:C:2009:225, paragraphs 39 and 44, and Mercredi, EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that the intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child's habitual residence (see the judgments in A, EU:C:2009:225, paragraphs 40 and 44, and Mercredi, EU:C:2010:829, paragraph 50).
53 Further, in paragraphs 51 to 56 of the judgment in Mercredi (EU:C:2010:829), the Court held that the duration of a stay can serve only as an indicator, as part of the assessment of all the circumstances of fact specific to each individual case, and set out the factors which are particularly to be taken into account when the child is young.
54 The concept of the child's 'habitual residence' in Article 2(11) and in Article 11 of the Regulation cannot differ in content from that elucidated in the above mentioned judgments with regard to Articles 8 and 10 of the Regulation. Accordingly, it follows from the considerations set out in paragraphs 46 to 53 of this judgment that it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention and Article 11 of the Regulation, to determine whether the child was habitually resident in the Member State of origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case, using the assessment criteria provided in those judgments.
55 When examining in particular the reasons for the child's stay in the Member State to which the child was removed and the intention of the parent who took the child there, it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child's habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain, at the time of the removal, that the stay in that Member State would not be temporary.
56 Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the circumstances of fact specific to the individual case, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal, such as those mentioned in paragraph 52 of this judgment and, in particular, the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of origin. However, the time which has passed since that judgment should not in any circumstances be taken into consideration."
- The CJEU has considered the position regarding a child who is at school in Mercredi at 53-54:
"53 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.
54 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.
- In Re F (A child)  EWCA Civ 789 the Sir James Munby, President of the Family Division set out the principles to be derived from the authorities in respect of the application of the Regulation:
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)  UKSC 60,  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  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.
- In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions)  EWHC 6 (Fam) the President had made clear in the cases concerning children from another EU countries jurisdiction would be determined in accordance with the Regulation, Articles 8(1), 12, 13(1), 14, 17 and 20. A distillation of what he said is that except when Article 12 or Article 14 applies, jurisdiction to make orders in care proceedings will exist only if either (i) the child is habitually resident in the UK or (ii) the habitual residence of a child 'present' in this country cannot be established.
- Child's perception/state of mind. Following Re LC (Reunite: International Child Abduction Centre Intervening)  1 FLR 1486 the court will consider L's perception of her circumstances as part of the facts relating to her integration, for although she is not yet nine years old she had been living in the UK for over a year at the time proceedings commenced. The judgment of Lord Wilson at  makes reference to the need for the court to consider a child's environment in a manner that encompasses more that the surface features of her life; to consider evidence of her own state of mind. Notwithstanding the fact that Lord Wilson was referring to the state of mind of an adolescent I accept the local authority's argument that on the facts of this case L's state of mind is a relevant consideration. Indeed in Re LC Baroness Hale and Lord Sumption  and  considered that this approach could be extended to younger children.
- Article 15. The local authority have accepted that in the event that the court determines that it does have jurisdiction in these proceedings it must then determine whether the proceedings should be transferred to Romania pursuant to Article 15 as this is the Respondent/father's position. Counsel for the local authority reminded me that in Re M (A Child)  EWCA Civ 152, Lewison LJ said :
"It is clear, therefore, that the power to transfer a case (or part of a case) to the courts of another Member State is an exception to the general principle, as the opening words of article 15 (1) themselves make clear. One of the fundamental principles of community law is that of legal certainty. It is for that reason that the ECJ (now the CJEU) has consistently held that exceptions to general principles should be narrowly interpreted."
- I was also reminded by counsel of the case of AB v JLB (Brussels II Revised: Article 15)  1 FLR 517 Munby J, (as he then was) identified the three questions which fell to be considered by the court when deciding transfer :
"First, it must determine whether the child has 'a particular connection' with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))?
Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."
- I shall return to the three questions below and when I do so keep in mind the decision of Lord Justice Thorpe in Re K (A Child)  EWCA Civ 895, when he held that the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent
The factual enquiry and analysis regarding L's habitual residence
- Having set out the law I now turn to the facts upon which I must determine L's habitual residence. I keep in mind the intention of her father that she was not to remain in the UK in the care of Mr and Mrs V indefinitely, however the issue of a child's habitual residence is decided by carrying out the factual inquiry referred to by Baroness Hale and applying the principles as set out in Mercredi v Chaffe in respect of the particular child in each case and includes careful consideration of the integration of the child. The intentions of the parents are only one of the matters that are to be considered by the court and are not definitive.
- Child's integration. Most of the facts concerning L's integration in the UK are not a matter of dispute; As I have set them out here they are based on the investigation of her guardian and the assessments of the local authority which had been involved in her private fostering "placement" with the Vs shortly after her arrival in the UK at the instigation of Mr and Mrs V. The court has the advantage of a fairly fulsome and independent account of L's circumstances. By the time the local authority issued their application L had been living with Mr and Mrs V for just over one year.
- A case note from social services records dated the 23rd December 2013 describes L taking delight in showing the social worker Christmas cards she had received from her friends at school and the small Christmas tree and gingerbread house she had in her bedroom. Her English pronunciation and understanding were developing; she wrote a Christmas card for the social worker in English.
- The first social work statement dated 22nd August 2014 set out the fact that Mr and Mrs V had already undergone a successful private fostering assessment and the details of L's living arrangements and schooling. During this assessment it had come to the local authority's attention that L had told Mrs V that she had been sexually abused by her father when living with him in Romania. This disclosure was by the pastor at a church her late mother had attended. The disclosure of this information to the police (by the duty social worker) when her father tried to remove L from the Vs' care against her wishes led to the police making a PPO. The local authority became involved because no-one had parental responsibility and therefore no one could consent to medical or dental treatment or any other intervention, such as counselling, to support L with the loss of her mother, her home and her siblings or distress or trauma associated with the abuse she had said she had suffered.
- L was reported to have settled well into her school and her foster home. She said that she was looking forward to going into year 4 in September 2014 and that she enjoyed school and had a number of friends there. L attended church in Romania and now went to another 7th Day Adventist Church in the UK. She referred to Mr and Mrs V as her mother and father. L told the social worker that her father had not treated her well, was very aggressive and did not listen to her or to her siblings. She described some of the abuse that had taken place. She wanted to stay with the Vs and her affection toward them was reciprocated.
- A viability assessment under Regulation 24 of the Care Planning, Placement and Case Review (England) Regulations 2010 (a form completed when children's services are involved in arranging for a looked after child to be cared for in exceptional circumstances by a family member, friend or other person connected with the child) dated 20th October 2014 considered the private fostering arrangement in greater detail. The placement was considered to offer L a culturally familiar placement (the Vs are Romanian) with language, culture and food familiar to L. L had formed an attachment to the Vs and wanted to remain in their care. The Vs have said they look on themselves as L's parents.
- The second social work statement dated the 30th November 2014 set out further detail. L was said to have lived with three other families before she moved to the UK with Mr and Mrs V. L made further and more detailed disclosure about her abuse at the hand of her father. The social worker visited L at school in July 2014. L said she was happy living with the Vs and did not want to return to Romania and her father because he does bad things to her. L is reported as enjoying school where she is given appropriate additional support. L has a number of friends from school and friends from the church she attends. She is often described as a happy child. She was observed as very comfortable around her foster-mother and was heard referring to her affectionately as "mum". It may be that this is a somewhat superficial appearance masking a more troubled child but it is her own state of mind to which I have regard.
- There have been difficulties for L most clearly identified and set out by her guardian in her report dated 6th October 2014. L has emotional and behavioural problems and has acted out at school and at home and at times the Vs have struggled with her behaviour and how to manage it. However L is attached to the Vs and calls them mum and dad and by their first names. L is considered by the social workers to receive a good standard of care and to be settled in her school and placement. Following the allegations made by the 2nd Respondent about the Vs' care a section 47 (CA) 1989 investigation was carried out and the statement of the social worker dated the 19th February 2015 sets out the results of this investigation which concluded that L was receiving an appropriate standard of care from the Vs.
- Respondent/father's intentions. The local authority have endeavoured to keep in touch with the 2nd Respondent and had some contact with him in September and October 2014 as set out in a statement filed on their behalf dated 7th November 2014. In addition in the social worker's statement dated the 30th November 2014 she set out her own dealings with the 2nd Respondent. She contacted him by phone in March 2014 he accepted that he had given consent for L to live in the UK with the Vs and he agreed to sign a delegation of authority to allow L to receive medical and dental treatment. A translated form was sent to him and which he returned but only giving limited consents. After the incident in July 2014 when he tried to remove L by force from the Vs, which she resisted, the 2nd Respondent made allegations to the social worker about the care provided by the V's and said he wanted L to go back to Romania with him (these allegations were the subject of the s 47 investigation referred to above).
- There then followed a period when the local authority had difficulties in locating and communicating with 2nd Respondent. The telephone number they had previously used was answered by another man. As a result a case management hearing (CMH) in this court listed on 18th December 2014 could not take place because he had not been served. On the 26th January 2015 he was finally served by a process server in Romania. The local authority received a letter from the respondent on the 29th January 2015 which was translated and sent to the court on 30th January 2015 and which, amongst other matters, indicated that he wanted to instruct lawyers in the UK and apply for the case to be transferred to Romania. At the hearing on the 30th January the case was adjourned to allow for his representation and further communication with the Romanian authorities. The 2nd Respondent was represented and filed a statement before this court on the 19th March 2015.
- Communications with the Romanian authorities. The local authority has been assiduous in carrying out the court's orders directing them to communicate with Romanian authorities and have done so both through ICACU and the Romanian Embassy in London. The court orders dated 18th December 2014 and 30th January 2015 both recorded that the court was satisfied that the Romanian Central Authority has had sufficient opportunity, through email communication with ICACU concluding on 11th December 2014, to make any representations it wishes to make as to the court's jurisdiction and any transfer to Romania pursuant to Article 15. No such application has been made.
- The Children's Guardian suggested that there was a need to explore extended family members as possible long-term carers for L. To this end agreed questions have been sent to Children Across Borders (CFAB) and their report is due to be filed by 27th April 2015. The 2nd Respondent will put forward names of family members who wish to be considered as long-term carers.
Discussion and conclusion
- L had been attending school for a full academic year and had entered her second year at the school when these proceedings commenced. She is described as well settled in school. It is the independent evidence of the social workers who have seen her over the first year she lived here that L is settled with the Vs who are caring for her. L identifies herself as living with them and as her "parents". L attends church with them and has friends at the church she attends. L has friends at school and is integrated into the school and amongst her peers.
- If the family environment in which L had lived for over a year between the ages of 7 and 8 is determined by reference to the persons(s) with whom she lives and by whom she was, in fact, looked after and taken care of as set out in the Mercredi case then it must be her home with the Vs. Added to that is her integration into her church community and social environment through her school and her school friends. There is, in my view, a large degree of integration by this child into the social and family environment of the V family, the church and her school. Mr and Mrs V are themselves integrated into the social environment and community where they live in the UK and as her carers they share to a large extent that social and family environment with L.
- It is very clear, on the evidence before me, that L perceives as part of the V family. It is equally clear that she wishes to remain in that social and family environment. While it is not definitive it forms part of the nature and quality of her residence in the UK and adds to her integration. She sees herself as living here with Mr and Mrs V and this must be consistent with a significant degree of integration on her part.
- The 2nd Respondent originally agreed to L coming here to live with the Vs. I accept, as does the local authority and guardian, that he has changed his mind. While I have his intentions in mind those intentions are not of themselves determinative. It does not alter the degree of integration of L into her own social and family environment. The 2nd Respondent took no action through the Central Authorities or otherwise to commence proceedings in Romania. He contacted the General Directorate for Social Assistance and Child Protection but not until the 22nd December 2014 for help in repatriating L despite his attempt to abstract her from the country in July. It was not until the end of January 2015 at the behest of this court that he engaged with the authorities in the UK. The lack of action on his part could be seen as abandonment and I keep it in mind when considering what weight to give the withdrawal of his consent for L to remain with the Vs which was only confirmed at the end of January 3015; by that time L had been here for 16 months.
- I conclude that L is habitually resident in England and that as a consequence this court has the jurisdiction to make decisions about her future welfare.
- Article 15 transfer. The local authority is opposed to the transfer of these proceedings to Romania and made the following submissions in relation to any such transfer; any transfer under Article 15 is by definition exceptional rather than the norm. The Romanian authorities have not made any application for a transfer. The Romanian courts are not better placed to hear this case or any specific part of it. Although the alleged abuse which form part of the facts relied on by the local authority in relation to threshold took placed in Romania a number of the relevant witnesses are present in this country such as L herself, Mrs V and the social worker to whom L complained of the sexual abuse by her father. As the 2nd Respondent father is legally represented and is entitled to public funding he can participate fully in these proceedings either in person or by video link. In relation to the welfare stage of proceedings, the assessments have been completed here and CFAB are undertaking an assessment of family members in Romania. Finally, it is not in L's best interests for the proceedings to be transferred to Romania as this is likely to entail significant delay.
- The local authority accepts that L has a particular connection with Romania, which must be the case as she lived most of her life there, was habitually resident there and is a Romanian national. Turning to the second question I agree with the submissions of the local authority that the Romanian court would not be better placed to hear the case the subject of which is the child L. There are witnesses in both jurisdictions and there will be difficulties in holding a trial on the issue of abuse in either jurisdiction. L is at present in England as are the people to whom she has made her disclosure. The 2nd Respondent is represented and can participate in the proceedings here. It is not possible to evaluate the position of other possible witnesses (such as L's siblings) whose evidence, at this stage, has been neither sought or provided. On balance regarding the evidence currently extant the case can be more easily here and the Family Court in England is better placed to hear it.
- The transfer of the case is not in L's best interests. If delay were the only issue that alone would be inimical to her best interests. There would be delay as the Romanian authorities are not seised of the case and have not requested transfer. There are no proceedings nascent or otherwise in Romania. Delay is not the only issue. If the case is transferred where is L to go in the interim? She cannot be placed with her father as he may have seriously sexually abused and assaulted her. L is frightened of him and does not want to go there. There has been nowhere identified that is safe haven to receive L and no-one with whom this court could safely leave her while the authorities pick up this case and commence proceedings. I will not transfer this case as it is not in the interests of this child's welfare to do so.
- This is my judgment.
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