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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC 1310 (Fam),  1 FLR 966
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IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF HA (A CHILD) (NO.2)
Strand, London, WC2A 2LL
B e f o r e :
|BRISTOL CITY COUNCIL||Applicant|
|- and -|
|HA (by his children's guardian( (3)||Respondents|
Henry Setright QC and William Seagrim (instructed by Hopkins Law) for the First Respondent
The Second Respondent was not present nor represented
Leslie Samuels QC and John Ker-Reid (instructed by Kelcey and Hall)) for the Third Respondent
Hearing dates: 10th March 2015
Crown Copyright ©
The Honourable Mr Justice Baker :
Summary of Facts
" 39. I therefore turn to the second and third questions under Article 15, namely whether the Lithuanian court would be better placed to hear the case or a specific part thereof and, finally, whether transfer of the proceedings to the Lithuanian court is in the best interests of H. The parties disagree as to the answers to these two questions. The mother and the children's guardian say that the answer to both questions is yes. The local authority say that the answer is "no, or at least not yet".
40. The issues in the case, as in all care cases under Part 4 of the Children Act, can be summarised as (1) whether the threshold criteria under section 31 are satisfied (that is to say, whether at the date on which proceedings started H was suffering or likely to suffer significant harm as a result of the care given by his mother not being what it would be reasonable to expect a parent to give) and, if so, (2) what order should be made in the interests of H's welfare.
41. It emerged in the course of legal argument that there was unlikely to be much disagreement over the issue as to threshold under section 31. The evidence concerning the factual matters on which the local authority relies is straightforward. If any witnesses of fact are required to give evidence, their evidence will be brief. It should be possible for the evidence to be facilitated (by video link if possible) in either England and Wales or Lithuania.
42. The principal focus of the case will be the second issue. Assuming the threshold is satisfied, what order should a court make concerning H's future? At present, there seem to be three options (1) a return to mother; (2) placement with the maternal grandmother or (3) permanent placement outside the family. Clearly, there is a strong argument that any permanent placement outside the family should be in Lithuania. The mother and the guardian would support that option, if H cannot be returned to his family. The local authority is uncertain about that at present. If it is right that any placement outside the family would be in Lithuania, all options for H's future will lie in that country. In those circumstances, Lithuania is manifestly better placed to weigh up the options and made the decision as to his future. All the evidence will be in Lithuania and given in the Lithuanian language. A knowledge and understanding of the cultural context will be crucial to the ultimate decision. The court must always consider the importance of judicial continuity when deciding whether or not to transfer proceedings to another jurisdiction, but, unlike Nottingham City Council v LM (supra) this case has not yet got to the stage where judicial continuity is a significant factor.
43. In those circumstances, it seems manifestly clear that the Lithuanian court would be better placed to hear this case.
44. As to the third question under article 15(1), which is, as Ryder LJ acknowledged in the Nottingham case, intimately connected with the second, the court must take into account that the process of making a request under Article 15 may cause delay. The procedure laid down in Article 15 obliges the court and the country to whom the request is made to respond within 6 weeks after being seised. If a request is made now, that will run alongside the time when the assessments of the mother (by the local authority in this country) and the maternal grandmother (by the Lithuanian Service) will be completed. Accordingly, with good will and diligence on all sides, both here and in Lithuania, it should be possible to avoid further delay. If I accede to the suggestion by Mr Fuller on behalf of the local authority, and wait to see if the third question is satisfied, there is a likelihood of further delay. As a general rule, the longer a court waits before making an Article 15 request, the greater the likelihood that a transfer will not be appropriate because of considerations of delay and judicial continuity. To my mind, delay may undermine the whole purpose of the Article 15 procedure.
45. In view of H's close connection with Lithuania, and the fact that all the options for his future are based in that country, and the fact that Lithuania can fairly resolve all issues in these proceedings, I consider that it is manifestly in his interests for this court to make a request under Article 15 with a view to facilitating the transfer of the proceedings to Lithuania as soon as possible."
"Upon the court concluding
(1) That at the time this court was seised of these proceedings the child H…was habitually resident in England and Wales and that, pursuant to Article 8 of [Brussels II revised] this court therefore has jurisdiction in matters of parental responsibility concerning H including jurisdiction in respect of these proceedings, but
(2) that (a) the child has a particular connection with the state of Lithuania, (b) a court in Lithuania will be better placed than this court to hear this case and (c) it is in the child's interests for a court in Lithuania to assume jurisdiction
It is ordered that:
(1) pursuant to Article 15.1(b) or [Brussels II revised] a request shall be made to a court of the state of Lithuania for that court to assume jurisdiction;
(2) the said request shall be sent to the Central Authority for the State of Lithuania via the Central Authority for England and Wales;
(3) pursuant to Article 15(4) of [Brussels II revised], the court of State of Lithuania shall be seised no later than 11th April 2014;
(4) There be liberty to apply for an extension of the date upon which the court of the State of Lithuania shall be seised."
I continued by giving further directions, including permission for the Office of the Head of International Family Justice for England and Wales to disclose all information relating to these proceedings to the International Network Judge for the State of Lithuania to facilitate consideration of the request made pursuant to Article 15. Shortly afterwards, the order and a transcript of the judgment were sent to the Lithuanian Central Authority.
"According to the relevant social worker, H's grandmother has successfully finished a special training course for prospective guardians and her court assessment should be completed in a two weeks period. As soon as I received this assessment I will forward to you."
In the light of this information, the hearing on 6th June was adjourned to 27th June. On 25th June, Ms Roscinska informed the local authority and my clerk that she had received no further information. At the hearing on 27th June, I therefore adjourned the case again until 18th July, further directing that in the interim H should remain in the care of the local authority pursuant to Article 20. The Lithuanian court was requested to inform this court and the local authority as soon as possible of the arrangements for transporting H to Lithuania.
"This was certainly a big surprise for us and changes things for H significantly. H is very settled and happy with his present foster carers, however it will be helpful in our decision making to have some understanding of the care system in Lithuania for children like H. Do you have a fostering system where children are fostered by another family? Or do children go into children's homes? If so, what are these like (size etc)? Any relevant information will be very helpful as we want to make sure that the best possible decisions are made for H and his long term future."
On 16th July, Ms Roscinska replied as follows:
"Please be informed that according to the local authority H has no other relatives who will take care of him so in the case of his return to Lithuania he will be placed in the children's home. Currently we do not know where we will place H, I mean the exact place of the children's home. Probably it will be somewhere in Vilnius district …. The size of the Lithuanian institutions where our placed children varies from ten children to one hundred and eighty. The children are living in the children's home until they reached the age of majority. Also please note that there is not yet clear which judge will be dealing with the case of H's care. The judge Knezeviciene (who decided to accept the jurisdiction H's case) has closed H's case. The relevant Child Rights Protection Service should apply to the court once again in order to establish institutional care for H. I suppose that the other judge will be responsible for H's case.
However you wrote that the boy is settled and happy in the foster family in UK and probably it makes no sense to return him to Lithuania and to place him in the children's home."
"Please be informed that our local authority has found a foster family which would like to take care for A. In the light of this we will be seeking to return him to Lithuania where the child could be closer to his extended family."
At the hearing on the following day on 2nd October, I adjourned the matter again to 27th October and made a further order providing inter alia that Ms Roscinska be requested to notify the local authority by email no later than 23rd October as to what steps are to be taken in Lithuania for decisions to be made about the future care arrangements, including information regarding to which court any application about the child has been or will be made, when the application was or will be made and when it will be considered by the court. I further directed the English local authority to file and serve a statement by the social worker setting out updating information as to H's welfare and providing an outline of the likely care plan were he to remain in this jurisdiction. I further gave permission to the local authority to translate the statement into Lithuanian and to provide copies to ICACU for forwarding to the Lithuanian authorities with the intention that such information will be brought to the attention of any Lithuanian court considering the arrangements to be made for the child.
"…today we have received the information that H's father has changed his opinion and he interested in returning child to his care. Mr A has applied to the local authority in order to take care of H. I will provide you with more detailed information tomorrow."
On 23rd October, Ms Roscinska emailed the local authority again enclosing a copy of Mr A's application and a letter from the Child Rights Protection Division of the Trakai District where Mr A, and it seems H and the mother, had previously lived. Ms Roscinska continued:
"The parental authority of Mr A was not restricted, so according to the Lithuanian law regulation Mr A has a custody in respect of his son. According to the responsible social worker, Mr A's living conditions are appropriate to raise the child. The responsible social worker will monitor the family after A would be returned."
The documents attached to the email were subsequently translated. Mr A's document, (headed "Explanation") dated 24th September 2014, stated:
"I have found out from the Child Rights Protection Division that [the mother] is not looking after my son H. I intend to take the child and look after him myself. I am employed and I have a place to live. I will take the child to school and I have a person who will be able to look after the child after his school when I am at work. I will bring up the child myself, if he agrees to live with me. I had only two contacts with the child when he left because my wife does not give me any opportunities to communicate with him. I want to bring him up because I miss him and love him."
The letter from the Child's Rights Protection Division in Trakai provided some details about Mr A's circumstances, including that he lived in a wooden house with two bedrooms belonging to his mother; that the property was suitable for bringing up the child; that Mr A was in employment: that his partner, with whom he has been living for a year, would be able to look after the child with assistance from his sister who has a child living in the same house of a similar age; that the family had been known to the Division since an email was received on 22nd November 2012 stating that alcohol was abused in the family and the child was neglected; that social services had therefore decided to observe the family and if necessary put them on the list of "social risk families" but that soon afterwards the mother and child moved abroad; and that, when H was returned to the care of Mr A, the family would be observed by social workers.
"Please be informed that H's father is consulting with the relevant solicitor. Mr. A will apply to the competent Court in order to establish H's place of residence with him. "
"The relevant local authority informed our service that H's father is willing to take care [of] the minor. As the jurisdiction has already been transferred to Lithuania, the last UK court's decision will be forwarded to the competent Lithuanian court and the Ministry of Justice. The Service [ie SCRPAS] is not involved in the court proceedings."
On 26th January, the local authority solicitor replied, enquiring whether Ms Bobinaite would be able to join the hearing by video link and whether she would be answering the questions posed by the court or whether answers would be provided by the Ministry of Justice or a Lithuanian court. She also asked whether Mr A was pursuing any application in respect of H in the Lithuanian courts. After a further exchange of emails, Ms Bobinaite replied on 3rd February reiterating that SCRPAS was not involved in H's custody proceedings in the Lithuanian court and indicated that the local authority should direct the questions posed by the court directly to the court or Ministry of Justice, providing contact details for those bodies. The local authority duly made contact via those addresses. On 10th February, the Vilnius District Court indicated that it was not able to answer the questions because there were no current proceedings in respect of H, adding that under Lithuanian law if proceedings have not started the court was not able to take any actions in respect of the child, and therefore the court would not participate in the proposed video hearing. On 12th February, the Lithuanian Ministry of Justice indicated that it too would not be participating in the forthcoming hearing.
(1) In Lithuania, what are the powers and responsibilities of (a) a public or local authority and (b) a court in respect of a child, including H?
(2) What authority or court is exercising or possesses the power or responsibility today in respect of H?
(3) How is that power or responsibility being exercised if at all?
(4) Is it necessary for (a) children generally, (b) children subject to a incoming Article 15 transfer to Lithuania and (c) H to be physically present in Lithuania for the powers and responsibilities in respect of the child to be exercised by (a) a public authority or (b) a court?
"Upon his arrival [in] Lithuania will be met by his father Mr A…the child will live together with his father at the father's place of residence at the indicated address, the father will raise his son himself. The child's family will be observed by the Child Rights Protection Service."
"Only a court hearing the case is authorised to make a decision of which information on the proceedings can be disclosed and under what circumstances."
The letter added that the Ministry was unauthorised to attend any proceedings in any court concerning children and will therefore not be participating by video link as requested.
"The issue of jurisdiction transfer was solved by the judgment of 14th April 2014 by the District Court of Vilnius City. This case is closed in the District Court of Vilnius City. Having decided on jurisdiction, in accordance with the laws of the Republic of Lithuania, regarding the interim care, the issues in relation to monitoring and arrangement of care are decided by the Department of Children's Rights' Protection of the municipalities in which the persons wishing to care for H are residents, therefore the Court shall not continue the proceedings. Due to the above, the District Court of Vilnius City shall not collect, organise or store information related to the arrangement of care of the underage child, it shall also not make any decisions of who should be or intend to be the carers of H….We would like to note that, accordance with the laws of the republic of Lithuania, the Court does not decide and is not able to take any procedural actions regarding the care of the underage child unless the proceedings for determination of permanent care are commenced in court…All information available to the District Court of Vilnius City has been submitted to Bristol Court."
(1) Despite the fact that the District Court of Vilnius City under the ruling of 14th April 2014 had assumed jurisdiction in respect of the determination of custody of H, the court was not empowered to solve that issue without an application being made or without proceedings being launched.
(2) Under Lithuanian law, where a married woman gives birth to a baby the man identified as her spouse in the marriage record is also identified as the baby's father in the record of the baby's birth. Such a record may only be contested by a court process. The paternity of a child born to a married couple or within 300 days of the dissolution of marriage may be contested only be proving that the person cannot be the father. The limitation period for filing a suit for contested paternity is one year as from the day when the applicant became aware of the disputed data in the record of the child's birth or of certain circumstances giving reason to believe that the data was not correct. Therefore, until the data contained in the record of H's paternity is contested in court, Mr A shall be considered as his father.
(3) Under Lithuanian law, where parents fail in their duty to bring up their children, or abuse their parental authority or treat their children cruelly, a court may make a temporary or unlimited restriction of parental power. An action for a temporary or limited restriction of parental authority may be brought by one of the parents or close relatives of the child, or the state institution responsible for the protection of the child's rights, or a public prosecutor, or the guardian (curator) of the child. In this case, an action for a temporary or unlimited restriction of parental authority may be brought by Mr A, or the relevant Child Rights Protection Department, or a public prosecutor.
(4) In the absence of any evidence that Mr A was incapable of taking care of H, or that he might harm the child, in the absence of any other restriction on his parental authority, there were no grounds for terminating his guardianship of the child. In the event that he refused to take care of H, or evidence was produced proving his "negative influence", this would give rise to a reason for examination of whether his guardianship of H should be terminated.
(5) The child's physical presence in Lithuania is not required where the only issue before the court is one of the transfer of jurisdiction. In other cases, where proceedings are brought regarding the rights and interests of the child, the physical presence of the child might be necessary.
(6) In making the decision on the appointment of a child's guardian, or a child's adoption, the child's wishes shall be given paramount consideration.
"The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility".
"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". It follows that this court has jurisdiction in respect of these care proceedings if H was habitually resident at the time when the proceedings were issued on 4th December 2013.
As the CJEU has stated in E v B (2014) Case C-436/13, in accordance with [recital (12)], Article 8(1)
"… provides that the general jurisdiction in matters of parental responsibility is to be established on the basis of that residence."
"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 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.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seizure in accordance with paragraph 1(a) or 1 (b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.
"First, it must determine whether the child has, within the meaning of Article 15(3), 'a particular connection' with the relevant other Member State. . . . .Given the various matters set out in Article 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 Article 15(3)(b)) or the place of the child's nationality (see Article 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."
(1) The power to transfer a case or part of the case to the courts of another Member State is an exception to the general jurisdictional rules under the regulation.
(2) The Article 15 power may only be exercised where all three questions identified by Munby J in AB v JLB are answered in the affirmative.
(3) The question of whether a court or 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.
(4) The starting point for the enquiry into the second question is the principles of comity and co-operation between Member States of the European Union.
(5) The child protection services and the justice system of other Member States are to be taken as no less competent than those in this jurisdiction. As Pauffley J observed in Re A and B (at paragraph 41), "there is no room for 'chauvinism' under Article 15".
(6) The different approach taken by Member States to measures designed to meet the needs of children – for example, as to non-consensual adoption – is not relevant to the determination of an application under Article 15.
(7) Questions that might inform an evaluation of whether a court is better placed to hear a case include the availability of witnesses of fact, whether assessments can be conducted and if so by whom, and whether one court's knowledge of the case provides an advantage, for example through judicial continuity.
(8) The child's welfare is not the paramount consideration when considering whether to transfer a case under Article 15. The evaluation of a child's best interests under Article 15(1) is limited in its extent to the issue of forum. It will not depend upon a profound investigation of the child's situation and upbringing but upon the sorts of considerations which come into play when deciding upon the most appropriate forum
(9) The question of whether there should be a request under Article 15 should be considered alongside other jurisdiction issues at the earliest opportunity. The longer the delay the more damaged the child's situation will become.
(10) In any case with a European dimension the Court should set out quite explicitly, both in its judgment and its order (i) the basis upon which, in accordance with the relevant provisions of Brussels II Revised, it is either accepting or rejecting jurisdiction, and (ii) the basis upon which it either has or has not decided to exercise its powers under Article 15.
"A court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent …."
"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."
"(2) Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
(3) Where the jurisdiction of the court first seised is established the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised."
"(1) In urgent cases, the provisions of this regulation shall not prevent the courts of a Member State from taking 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."
(1) The jurisdiction which is transferred following a request made under Article 15 is not the whole subject matter jurisdiction in respect of all aspects of parental responsibility, but, rather, merely jurisdiction in respect of the specific case before the court. Mr Scott-Manderson submits that this is consistent with the policy underpinning the regulation as set out in recital (12) of the preamble.
(2) Thus, where the subject child remains habitually resident in the original Member State which requested the transfer, that court retains jurisdiction in those matters of parental responsibility that were not included in the case or specific part thereof transferred pursuant to the request.
(3) At all material times, H has remained habitually resident in England and Wales, applying the test for habitual residence laid down by the CJEU in Proceedings brought by A (Case C-523/07)  Fam 42, Mercredi v Chaffe (Case C-497/10)  Fam 22, and corresponding to the place which reflects some degree of integration in a social and family environment.
(4) At the time when this court was seised of these current proceedings, namely when the application was lodged on 5th November 2014, there were no other proceedings extant in the Lithuanian courts in respect of H, the Vilnius District Court having "closed the case" in July 2014. According to Ms Roscinska, Mr A had at that point approached the local authority and was intending to apply to the court in Lithuania but had not started proceedings before 5th November.
(5) Furthermore, this is a case when the English court, through the Central Authorities and through an earlier suggestion of judicial communication, has done all it reasonably could to promote jurisdictional clarification of the child. It is inappropriate for matters to be delayed any further. Mr Scott-Manderson cited the decision of the CJEU in Purrucker v Valles Perez (No 2) (Case C-296/10)  1 FLR 925 and in particular the observation at paragraphs 82-3 of the judgment:"82 If, notwithstanding efforts made by the court second seised, it has no information supporting the existence of an action brought before another court which enables it to determine the cause of that action and serves, in particular, to demonstrate the jurisdiction of the other court seised in accordance with [Brussels II revised], it is the duty of that court, after a reasonable period of time when answers to questions raised are awaited, to proceed with the consideration of the action brought before it.83. The duration of that reasonable waiting period must be determined by the court having regard above all to the interests of the child."
(1) H has now been living here for two years. The court has already determined that he is habitually resident in England and Wales.
(2) H has been in the care of the local authority since November 2013. The social workers understand his needs, which are complex. This local authority is now the best agency to assess and plan for his future and to provide advice to the court about the various placement options.
(3) The guardian has also had considerable time to get to know H and she too is now in a better position than she was in the earlier proceedings to advise the court.
(4) The court has also been involved in determining issues relating to H for a year and the principle of judicial continuity favours this court retaining jurisdiction.
(5) There is now a clearer picture of the alternative options for care in Lithuania which can be assessed alongside those that exist in this country.
Discussion and Conclusion
"There was discussion in the hearing as to whether Article 15 applies to a general 'territorial jurisdiction' or to 'jurisdiction established by the institutional proceedings'. I have considered the language of the Article with care and believe it to be the latter. The Article refers to a court of a Member State hearing 'the case or a specific part thereof' (Article 15(1)); there is further reference in Article 15 (1)(a) to 'staying' the 'case' in my judgment, the transfer arrangements described in Article 15 have been designed to apply to specific current (ie 'live') proceedings before a court or a Member State, not to its territorial jurisdiction generally."
"(1) Where there has been a prorogation of the jurisdictional court of a Member State in relation to matters of parental responsibility pursuant to Article 12(3), does that prorogation of jurisdiction only continue until there has been a final judgment in these proceedings or does it continue even after the making of a final judgment?
(2) Does Article 15 allow the courts of a Member State to transfer a jurisdiction from circumstances where there are no current proceedings concerning the child?"
"It must accordingly be held that a prorogation of jurisdiction, on the basis of Article 12(3)…is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end, in favour of the court benefitting from a general jurisdiction under Article 8(1)…following the final conclusion of the proceedings from which the prorogation of jurisdiction derives."
In view of its reply to the first question, the CJEU found it was unnecessary to rule on the second question concerning Article 15. Thus, the authority for the proposition relied on by Mr Scott-Manderson, Mr Samuels and their juniors is the observations of Cobb J at first instance.
(1) The general basis for jurisdiction is set out in Article 8. The policy justifying this general rule is summarised in recital (12) of the preamble to the regulation. Article 15 makes it clear, in its opening words, that its provisions are 'by way of exception' to the general rule.
(2) As Cobb J observed in Re S, the words used in Article 15 demonstrate that the request and transfer are in respect of a case or part thereof. The power to make a request arises if the court of the Member State having jurisdiction considers that the court of another Member State "would be better placed to hear the case or a specific part thereof [my emphasis] and whether this is in the best interests of the child". In these circumstances, the court having jurisdiction may 'stay the case or the part thereof in question'.
(3) As is clear from my judgment delivered on 28th March 2014 (but not, regrettably, from the order made on that date), the request made to the Lithuanian court was to accept transfer of the proceedings [again, my emphasis] – that is to say, the application for a care order made by the local authority on 4th December 2013, to which the mother and H were respondents. The court had no power to transfer a wider, subject-matter jurisdiction beyond the case currently before it.
(4) After accepting jurisdiction, the court in Lithuania 'closed the case'. Although no judgment or order to that effect has been produced, I am satisfied from the repeated statements made by the Lithuanian authorities that this is what happened. Thereafter, there were no proceedings in Lithuania in which the local authority's application for a care order, or indeed any matter relating to the exercise of parental responsibility over H, could be determined. For several months, there was no clear indication of how the Lithuanian authorities intended to proceed. In those circumstances, the court of England and Wales retained jurisdiction under Article 8 to deal with matters concerning the exercise of parental responsibility over H, who remained habitually resident in this country.
(5) Prima facie, it seems that the Lithuanian court does not have jurisdiction to entertain any application by Mr A in respect of H becausea) H remains habitually resident in England and Wales;b) proceedings transferred following the earlier request have come to an end; andc) prior to Mr A starting any proceedings in Lithuania, the local authority in this country filed its second application for a care order on 5th November 2014.
(1) At present, I am not satisfied that the Lithuanian court would be better place to hear these English proceedings. Indeed, it seems that the issues arising these proceedings – that is to say, between the English local authority, H's mother, Mr. A and H himself through his children's guardian – might not be litigated in Lithuania at all. In these proceedings, the local authority is seeking a care order and the court must decide whether the statutory threshold for making such an order under s.31 of the Children Act is satisfied and, if so, what order should be made for H's care and welfare. Within these proceedings, the mother proposes that H be returned to her care or alternatively placed with another member of her family. She is strongly opposed to his being placed with Mr. A. Furthermore, the mother makes the assertion that he is not H's father and, according to the order made by the Lithuanian judge on 14th April, Mr. A has himself stated in the past that he is not the father. If this is correct, he does not have parental responsibility for H under English law. Within these current care proceedings, such rights as Mr. A has have been restricted by the making of interim care orders. On the other hand, the current position of the Lithuanian authorities is that H should now be placed forthwith in the care of Mr. A because, under Lithuanian law, Mr. A's rights of custody and guardianship have not been restricted. In several respects, therefore, there appears to be a lack of congruence between the ways in which the issues in this case would be treated under English and Lithuanian law. In these circumstances, I am not at present satisfied that the Lithuanian court is better placed to hear the English case.
(2) In contrast to the situation that existed at the time of my earlier judgment in March 2014, it is not the case that every option for H's future care lies in Lithuania. H has lived in this country for over two years. He was, until recently, extremely settled in the foster home where he had lived since being received into care in November 2013. The fact that this placement has now broken down makes the option of placement outside the family in this country less advantageous. Nonetheless, the English local authority and/or the children's guardian may wish to contend that, if H cannot be placed with family member in Lithuania, a permanent placement should be found for him in this country. Whichever court hears the case, it will be necessary for assessments to be carried out in both countries.
(3) Furthermore, in contrast to the situation at the time of my earlier judgment, the same court in this country has now been seised of the case for over a year. As a result, principles of judicial continuity now carry greater weight.
(4) It is the mother's case that Mr. A is not H's father, and that he was violent towards her during their marriage, on occasions in H's presence. It is for these reasons that she opposes a placement of H in his care. The proposed immediate placement with Mr. A is also opposed by the English local authority, which has parental responsibility for H under the interim care order, and by the children's guardian appointed to represent H in these proceedings. The local authority is concerned that H may be suffering from post-traumatic stress disorder as a result of his past experiences, including his experiences and treatment in Lithuania. At present, it seems that a transfer of these proceedings would be accompanied by an immediate placement of H with Mr. A. I am in no position to reach any conclusion as to whether any of the mother's assertions about Mr. A are true, but there are reasonable grounds for believing that it would not be in H's interests to be placed in his care. In these circumstances, therefore, I am not satisfied at this stage that a transfer of jurisdiction would be in H's best interests.
(1) When considering whether or not to make a request under Article 15, the court with jurisdiction must identify precisely the case or specific part thereof in respect of which it is inviting the court of the other Member State to assume jurisdiction.
(2) Before making a request, the court must be satisfied, inter alia, that the courts of the other Member States will be better placed to hear the case or the specific part thereof. This requires the court to be given appropriate information about the processes and legal principles to be applied in the other Member State.
(3) When considering whether to make a request under Article 15, consideration must be given as to whether to proceed under Article 15(1) (a) or (b) – that is to say, whether the request should be introduced by the parties or made by the court of the Member State with jurisdiction.
(4) In public law cases, the case in this country is brought by the local authority. Before making an Article 15 request, it is necessary to consider whether the English or Welsh local authority will be able to conduct proceedings in the other Member State. If, as is likely, it will not be possible for the local authority to conduct proceedings in the other Member State, careful thought needs to be given as to how the issue which forms the subject matter of the case or specific part thereof that is being transferred could be litigated in the other Member State.
(5) In public law cases, a more nuanced and complex approach may be necessary if the best interests of the subject children are to be protected. This is illustrated by the recent series of cases between England and Wales and the Republic of Ireland, in particular by the decision of the President in Re HJ (A Child)  EWHC 1867. As Mr Setright pointed out in the course of the hearing, the two matters in the earlier proceedings over which this court retained no control following the transfer to Lithuania were (1) the process of starting proceedings in Lithuania and (2) the physical transfer of H. The processes adopted in the cases between this country and the Republic of Ireland address these lacunae and could perhaps usefully be adopted in transfers between this court and other jurisdictions. The common language, the physical closeness of the countries, and the similarities between the legal systems in England and Wales and the Republic of Ireland facilitate close co-operation in these cases. These factors are not present to the same degree in cases between England and Wales and other EU countries, but the principles of comity and co-operation apply to relations between all states of the EU. This court remains able and willing to explore ways in which, through greater co-operation, processes can be devised which improve the operation of the jurisdictional rules for the benefit of the children like H entrusted to the care of the courts.