[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Bristol City Council v AA & Anor [2014] EWHC 1022 (Fam) (28 March 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/1022.html Cite as: [2014] EWHC 1022 (Fam) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
IN THE MATTER OF HA (A CHILD) AND IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003 BRISTOL CITY COUNCIL |
Applicant |
|
- and - |
||
AA (1) HA (by his children's guardian) (2) |
Respondents |
____________________
William Seagrim (instructed by Hopkins) for the First Respondent
Hannah Wilshire (instructed by Kelcey and Hall) for the Second Respondent
Hearing dates: 27th March 2014
____________________
Crown Copyright ©
The Honourable Mr. Justice Baker :
(a) habitual residence is a question of fact and not a legal concept such as domicile;
(b) 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;
(c) this depends on numerous factors, including the reason for the family's stay in the country in question;
(d) the social and family environment of an infant or young child is shared with those on 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;
(e) the essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce;
(f) it is possible that a child may have no country of habitual residence at a particular point in time.
"she stated if it doesn't work out I will return home". The social service record also quotes mother as saying that she came over here on March 2nd, that her partner was already over here but she "came for a better life not necessarily to be with him".
"I wish for H to return to my care, and it is my plan to remain in the UK with him. I would like to live in the Bristol area and it is my goal to undertake a course to improve my English and therefore my employment prospects."
"before I left I told my mother that I intended to go, I informed everyone that this was not a permanent move. I told them I was only going to work. I also told H that we were going to live in the UK for me to work but this was not permanent. I never had any intention to reside in the UK permanently and only intended it to be for a short period to work. I had no specific idea of how long I would stay in the UK, however then I thought 6 months would be enough. I simply wished to earn some money and then return home. It is possible to earn more money in the UK than it is in Lithuania."
"this was from approximately November to January and I did inform the social worker of my wish to stay. However this has now changed again. I do not feel comfortable in the UK and I wish to return home. I am pregnant with my second child and it is my intention to return home for my child to be born. I wish to return home with H, however I will not do so whilst H remains in foster care in the UK. I accept my boyfriend lives in the UK, however this will not prevent my decision on returning. We have spoken together about this and he is planning to return with me. However, should he change his mind, I will return regardless."
"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, will 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."
"The courts of that other member state may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seizure in accordance with paragraphs (1)(a) or (1)(b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with articles 8 to 14".
"(1) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various maters set out in Art 15(3) as bearing on theis 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))?
(2) 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.
(3) 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."
"The Art 15 power is, as is stated on its face, an exception to the general rule of jurisdiction in Art 8 which is grounded in the habitual residence of the child. The power may only be exercised when all three questions can be answered in the affirmative….The corollary of that principle is that a court in England and Wales cannot divest itself of jurisdiction in respect of a child who is habitually resident in England and Wales simply because she is a national of another Member State or where one or more of the Art 15(1) questions cannot be answered affirmatively."
"19. The question of whether a court of another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child, given the construction of the regulation and the logical connection between the questions. That said, the starting point for the enquiry in the second question is the principles of comity and co-operation between Member States of the European Union enshrined in the European Union Treaty which the provisions of BIIR were designed to reflect and implement (see, for example [2], [21] and [23] of the preamble to BIIR). In particular, the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent: Re K (A Child) [2013] EWCA Civ 895 at [24] per Thorpe LJ.
20. It is entirely proper to enquire into questions of fact that might inform the court's evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate court), and whether one court's knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on.
21. The evaluation of a child's best interests under Art 15(1) is limited in its extent to the issue of forum i.e. the best interests question asked by Art 15(1) is whether it is in the child's best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction. In relation to the same question asked in analogous circumstances, namely the language of Art 12(3), whether it is in the child's best interests for a case to be determined in this country rather than elsewhere, the Supreme Court of the United Kingdom held in Re I (A Child) (Contact Application:Jurisdiction) [2010] 1 AC 319 (per Lady Hale at [36]) that:
"this question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings will be in the best interests of the child?" It will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum"
22. This court has previously determined that the construction of the best interests test in Art 15 (1) is the same as that in Art 12(3): Re K at [25] and [26] and accordingly the test to be applied to the third question is that described by Lady Hale in Re I."