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Cite as: [2015] EWHC 1310 (Fam)

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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 child and members of his 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.

Neutral Citation Number: [2015] EWHC 1310 (Fam)
Case No: BS14C01135

IN THE FAMILY COURT
AT BRISTOL
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)

Royal Courts of Justice
Strand, London, WC2A 2LL
08/05/2015

B e f o r e :

THE HONOURABLE MR JUSTICE BAKER
____________________

Between:
BRISTOL CITY COUNCIL Applicant
- and -
AA (1)
SA(2)
HA (by his children's guardian( (3) Respondents

____________________

Marcus Scott-Manderson QC and Stuart Fuller (instructed by Local Authority Solicitor) for the Applicant
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

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    The Honourable Mr Justice Baker :

  1. In this judgment, I consider whether this court has jurisdiction to determine an application for a care order in respect of an eight-year-old boy, hereafter referred to as "H". These are the second set of care proceedings concerning H. The first were transferred to the courts of Lithuania pursuant to Article 15 of Council Regulation (EC) 2201/2003, commonly known as Brussels II Revised, following a judgment delivered by this court in March 2014 and reported as Re HA (A Child) [2014] EWHC 1022 (Fam). The subsequent history, as set out below, illustrates a number of significant practical difficulties that can arise when a court makes an order or request under that Article.
  2. Summary of Facts

  3. The proceedings concerned a boy, H, born 12th December 2006 and therefore now aged 8 years 4 months. H and his mother are from Lithuania and lived in that country until 2013. It is the mother's case that she became pregnant with H as a result of a one-night stand with a man whom she knew only by his first name and who was never aware of the pregnancy. While she was pregnant, the mother married another man, hereafter referred to as "Mr A". When H was born Mr A was registered as his father, and H grew up believing that Mr A was indeed his father. For much of their marriage, Mr and Mrs A and H lived in shared accommodation with other members of Mr A's family. On occasions, H stayed with his maternal grandmother with whom he formed a close relationship. The mother now states that Mr A was increasingly violent towards her during the marriage and that H witnessed this violence over a period of time, including one occasion when the mother was knocked unconscious to the floor. H himself has disclosed that he has seen the mother being hit by boyfriends in the past.
  4. It is the mother's case that, as a result of the violence inflicted by her husband, she eventually decided to leave Lithuania and bring H to the United Kingdom. They arrived in this country in March 2013. After arriving, the mother and H lived in accommodation in Bristol with ten other adults, all Lithuanian. It is the local authority's case that the mother was a victim of people trafficking and that she, like all the adults in the property, was working for a criminal network. After arriving in this country, the mother started a relationship with another Lithuanian man, hereafter referred to as Mr S, who also lived in the property in Bristol, sharing a room with the mother and H. H has been heard to refer to Mr. S as "Dad". In May 2013, H started school and returned there at the start of the Autumn term. On several occasions in the Autumn of 2013, however, H was found in the care of the mother when she was under the influence of alcohol. On other occasions, he was found in the care of other adults who were also under the influence of alcohol. Following a referral to social services by his school, H was made the subject of a child protection plan on 8th November 2013. Ten days later, he failed to attend school and, when the police arrived at his home, he was again found to be in the care of his mother when she was in a state of extreme intoxication and was therefore placed under police protection. Subsequently the mother agreed that he should be accommodated pursuant to section 20 of the Children Act 1989. H has remained in foster care since that date.
  5. On 4th December 2013, the local authority started care proceedings which were subsequently transferred to the county court and allocated to HH Judge Wildblood QC. In the document filed at the outset of the proceedings, the local authority indicated that it would seek findings that H had been exposed to his mother's alcohol abuse and chaotic lifestyle and as a result had suffered neglect. On 16th January 2014, the local authority wrote to the State Child Rights Protection and Adoption Service in Lithuania (hereafter "SCRPAS", which also serves as the Lithuanian Central Authority for the purposes of international family cases), requesting that the Lithuanian authorities carry out a viability assessment of the maternal grandmother and asking for help in contacting Mr. A. At a case management hearing on 17th January 2014, Judge Wildblood made an interim care order and directed that a parenting assessment be carried out to assess the mother's ability to provide care for her son. The order recorded that the maternal grandmother had been identified as an alternative carer and that the local authority had written to the Lithuanian authorities requesting a viability assessment. The order also recorded that the mother had disclosed to her representative for the first time that morning that Mr A was not H's father.
  6. The local authority's proposal was that the mother and H would be admitted to a mother and child placement for the purposes of this assessment. At that point, the mother was living in a women's refuge in Cardiff, having stated that Mr S, her partner, had returned to Lithuania. Shortly afterwards, however, the mother was reported as missing from the refuge and it emerged that Mr S had in fact relocated to another property in Swindon linked to the same alleged trafficking network. When the mother was found at this property in Swindon on 5th February 2014, she stated that she did not intend to return to the refuge and planned to carry on living with Mr S. In the circumstances, the local authority concluded that it was too great a risk to H to place him with his mother in the proposed placement.
  7. The issue of jurisdiction had not been considered at the outset of the proceedings, but was first raised by Judge Wildblood himself at the hearing on 17th January. Specifically, the learned judge identified two legal issues: (1) whether the court had jurisdiction in respect of H and if so (2) whether the proceedings should nonetheless be transferred to the courts in Lithuania pursuant to Article 15 of Brussels II Revised. The learned judge adjourned the matter for a fortnight to give the parties an opportunity to consider the legal position. At the next hearing on 31st January, the proceedings were transferred to the High Court and subsequently listed before me on 27th March 2014 to determine the jurisdictional issues.
  8. On 12th February, Ms Teresa Roscinska of SCRPAS sent an email to Mr. Campbell, the local authority social worker, enclosing a brief report prepared by the Child Rights Protection Service in Vilnius confirming that the maternal grandmother had indicated that she would like to take care of H, stating that she was attending the training for prospective carers and that after that had been completed she would be assessed by the responsible social worker.
  9. The hearing as to jurisdiction duly took place before me on 27th March. In my judgment, delivered the following day on 28th March and subsequently reported as Re HA (A Child) [2014] EWHC 1022 (Fam), I considered the mother's inconsistent accounts as to the circumstances in which she came to this country, and the intention she had both before and after her arrival, and concluded, at paragraph 28, having regard to her evidence as a whole, that, when she came to this country, her plan was to stay indefinitely. I therefore found that H had been habitually resident in the UK at the start of the care proceedings and that this court therefore had jurisdiction pursuant to Article 8 of Brussels II Revised. I then turned to consider whether there should be a transfer under Article 15. That Article, and the case law that it has engendered, are considered further below. Suffice it to say at this point that, in deciding whether the case should be transferred, the Court was required to consider three questions: (1) whether H had a particular connection with Lithuania; (2) whether the Lithuanian court would be better placed to hear the case, or a specific part thereof, and (3) whether a transfer was in H's best interests. The first question was straightforward – H manifestly had a particular connection with Lithuania having been born there and lived there until March 2013. My judgment continued (at paragraphs 39 to 45):
  10. " 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."
  11. I therefore made an order stating inter alia:
  12. "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.

  13. With hindsight, I regret that the terms of my order were unclear. As is plain from the last sentence of paragraph 45 of the judgment, the request under Article 15 was made "with a view to facilitating the transfer of the proceedings". The terms of the order left a regrettable ambiguity as to whether the transfer being requested was in respect merely of the proceedings or of a wider jurisdiction.
  14. On 23 April 2014, Ms Roscinska informed the English Central Authority ("ICACU") by email that the judge in Lithuania, Judge Daina Knezeviciene, had made an order accepting the transfer of H's case to Lithuania and that a translation of the order into English was awaited. At the next hearing on 6th May, upon the court being informed that the Lithuanian judge had accepted jurisdiction pursuant to the request made under Article 15 but that no order confirming this had yet been received, I directed the matter remain in the list before me on 23rd May and further directed, pursuant to Article 20 of Brussels II Revised (which permits the courts of a Member State to take protective measures even if courts of another Member State have jurisdiction as to the substance of the matter) that in the interim H should remain in the care of the local authority. On 8th May, the local authority received via ICACU a translation of the order made by the Lithuanian judge on 14th April stating inter alia that this court had applied to the District Court of Vilnius City "due to the takeover of the jurisdiction in solving the issue of determination of the custody" of H pursuant to Article 15; that "the request is to be satisfied"; that the maternal grandmother had agreed to become H's "guardian"; that Mr A had indicated that H was not his son in an "explanation" submitted to the Child Rights Protection Division in the District of Trakai on 29th January and therefore did not intend to take care of the child; that in the circumstances the Lithuanian court "would be a better place for hearing the case as it would correspond most to the interests of the minor" and that therefore "the District Court of Vilnius City assumes the jurisdiction with regard to the solution of the issue of the determination of the custody of H".
  15. On 21st May, this court, having received the translation of the order of the Lithuanian judge, adjourned until 6th June a hearing that had been listed for 24th May. Further emails were then exchanged between Ms Roscinska and the local authority and the Judicial Office for International Family Justice in England and Wales. On 5th June, Ms Roscinska stated in an email;
  16. "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.

  17. On 14th July, however, Ms Roscinska emailed the local authority stating that the grandmother had decided that she could not take over care of H because of her financial situation and her obligations to care for her elderly infirm mother. She expressed a wish to remain in contact with her grandson.
  18. On 15th July, Mr Campbell replied by email:
  19. "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."
  20. On 18th July, having read this exchange of emails, this court adjourned the proceedings for further consideration on 31st July and directed that there be updating social work evidence and position statements as to the future conduct of the proceedings. Following the further hearing on the 31st July, this court made an order reciting the advice given by Ms Roscinska in the email dated 16th July, expressing the firm view that after almost 8 months in proceedings there was an urgent need in H's best interests for a decision to be made about arrangements for his future care and recording that it appeared to the court from the information provided by Ms Roscinska that there were no current court proceedings in Lithuania regarding H's welfare or matters pertaining to parental responsibility. The court therefore requested that the Lithuanian court by 28th August either, pursuant to Article 15, transfer back to this court jurisdiction that it has in respect of parental responsibility in respect of H or declare of its own motion, pursuant to Article 17, that there was in Lithuania no jurisdiction in respect of such matters regarding the child, this court having previously ruled that H was habitually resident in this country. Alternatively, in the event that the court in Lithuania decided that it should retain jurisdiction, it was requested to indicate to this court what steps will be taken to make decisions as soon as possible about H's long term future. The court ordered that the request should be made via ICACU to the Lithuanian Central Authority and thence to the appropriate Lithuanian court. The order further recorded that at all times I was prepared to engage in judicial communication with the Lithuanian judge.
  21. The matter was listed again on 2nd September but on that date, no further communication having been received from Lithuania, I adjourned the matter to 2nd October. Further exchanges of emails then took place between Ms Roscinska and the local authority concerning the provision of documents in respect of H. On 1st October, Ms Roscinska sent a further email to the local authority stating:
  22. "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.

  23. On 21st October, Ms Roscinska sent an email to the local authority stating inter alia:
  24. "…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.

  25. At the further hearing on 27th October, the local authority informed the court of these developments and the fact that it now proposed to apply for an order inviting the court to resume jurisdiction notwithstanding the previous Article 15 request. I therefore gave directions for the filing of such an application, plus a skeleton argument in support, for the translation of the documents and delivery to Ms Roscinska and Mr A and for any response from the Lithuanian authorities or Mr A to be sent to ICACU by 8th December, to be followed by a further hearing on 15th December.
  26. On 3rd November, Ms Roscinska emailed the local authority stating:
  27. "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. "
  28. On 5th November, the local authority filed a further application for a care order in respect of H under section 31 of the Children Act 1989. This application, together with the skeleton argument prepared by leading counsel on behalf of the local authority, were duly translated and served on the Lithanian authorities and Mr A.
  29. On 1st December, Ms Roscinska informed the local authority by email that she understood Mr A was preparing with a solicitor all necessary documents in order to make an application to the court. No further communication was received from Lithuania prior to the hearing on 15th December. At that hearing, the local authority and the mother were represented by both leading and junior counsel. Detailed skeleton arguments were prepared concerning the jurisdictional issues. On behalf of the local authority, Mr Marcus Scott Manderson QC and Mr Stuart Fuller contended that the court should either seek to resume jurisdiction under the original proceedings, by application to the Lithuanian court pursuant to Article 15(2)(c) of Brussels II Revised, or alternatively exercise jurisdiction under the new proceedings under Article 8. On behalf of the mother, Mr Henry Setright QC and Mr William Seagrim submitted that there had been an unequivocal transfer of subject matter jurisdiction to Lithuania, that there was no clear evidence that there had been a determination of that subject matter jurisdiction, and that therefore this court "should not attempt to assert a substantive jurisdiction in respect of H". I concluded that the court should not resolve the issues without attempting to obtain further information from Lithuania. I therefore made an order requesting that Ms Roscinska (or such other officer as maybe appointed by the SCRPAS), the Lithuanian Ministry of Justice, and the District Court of Vilnius City to reply by 30th January 2015 via ICACU to a series of questions designed to elucidate whether the Lithuanian court had indeed "closed the case" concerning the custody of H or determined the issues concerning his custody and if so on what terms; whether there were any ongoing proceedings concerning H and if so the details of those proceedings; whether Lithuania considered that it retains jurisdiction to deal with matters regarding H's custody and, in the event of H being returned to Lithuania by this court, what practical arrangements would be put in place upon his arrival. I further requested that Ms Roscinska, or another officer of the SCRPAS, and a lawyer of the Lithuanian Ministry of Justice, attend the next hearing by video link.
  30. This order was duly served by the local authority on Ms Roscinska and by ICACU on the Lithuanian Ministry of Justice. Further communications took place between the local authority and the Lithuanian authorities. It emerged that, by that stage, Ms Roscinska had left SCRPAS and communication thereafter was conducted with Ms Sandra Bobinaite. On 23rd January, Ms Bobinaite replied to the local authority stating:
  31. "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.

  32. On 17th February, therefore, the court had no answers to the questions identified in the earlier order of 15th December. I therefore made an order repeating the earlier request to the Lithuanian authorities but further directing the parties directly to obtain an opinion from a suitably qualified Lithuanian lawyer addressing the following questions.
  33. (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?

  34. The following day, on 18th February, the local authority received an email from the Trakai Child Protection Division, stating that
  35. "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."
  36. Also on 18th February, a letter was received by the local authority from the Lithuanian Ministry of Justice stating inter alia that the Ministry was not authorised to collect information regarding this specific case or otherwise intervene in the activities of the courts and therefore had no information on the proceedings regarding A.
  37. "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.

  38. On 27th February, the District Court of Vilnius replied to the earlier requests stating inter alia:
  39. "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."
  40. On 6th March, an expert's report was filed by Mr Algirdas Gostautas in answer to the question posed by the parties as set out above. The court is very grateful to Mr Gostautas for his prompt assistance in this matter. He set out a detailed response to all the questions. At this stage, I record the following points arising from his opinion which are relevant to the issues now before me.
  41. (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.

  42. Mr Gostautas added that in December 2014, the laws of the Republic of Lithuania regulating the implementation of the provisions of Brussels II Revised were amended. Before the changes were made, there was a lack of clarity as the laws did not provide specific rules for assuming jurisdiction under Article 15. But from 24th December 2014, all requests for assuming jurisdiction under Article 15 must be examined by the Court of Appeal of Lithuania. When this court accepts a request for a transfer of jurisdiction, it then proceeds to identify the competent court in Lithuania to examine the case. The case launched in the foreign court is then transferred to that competent court in Lithuania for a substantive examination of the issue. The court identified as the competent court shall if necessary determine the procedural position of the parties participating in the case.
  43. On 10th March, after hearing legal argument, I declared that this court has jurisdiction to hear the local authority's application for a care order issued on 5 November 2014. This judgment sets out the reasons for making that declaration. I adjourned the matter for a further directions hearing on 18th March, directing that the local authority ensure that Mr A was made aware in writing (in Lithuanian) of the hearing on 18 March, of the nature of the proceedings, of his status as a party to the proceedings and of his right to be present and to be legally represented.
  44. Before turning to the reasons for making the declaration, I record that, since the hearing on 10th March, the following developments have occurred.
  45. First, at the hearing on 18th March 2015, (which Mr. A did not attend, having only received notice a day earlier) I gave further directions in these proceedings, including that there be scientific testing by DNA sample to establish whether Mr A is or is not the biological father of H. At a further directions hearing on 17th April, I gave further directions, including provision for assessments of family members in Lithuania to enable a decision to be made as to H's long-term future.
  46. Secondly, on 20th March, Ms Bobinaite informed the local authority that according to the local authority in Trakai, Mr A has now started proceedings in Lithuania to establish H's place of residence with him. Subsequently, on 20th April, Ms Bobinaite wrote by email to the English Central Authority, copied to the local authority, asserting that the Lithuanian courts have jurisdiction to handle questions about H's further custody and guardianship, that it was up to the Lithuanian authorities to make decisions whether the potential guardian is an appropriate carer for him, that there were no concerns that Mr. A was his biological father, or about his ability to care for the child, that his living conditions and way of life did not appear to be inappropriate, that all possible social services will be provided to H upon his return to Lithuania, that the issue of accommodating a child with other relatives would only be considered where the rights of both parents were restricted and in this case the question of a restriction of Mr. A's rights had never been discussed, and that all questions relating to H's care would be resolved after he had been returned to Lithuania. Ms Bobinaite said that her Service had not received an answer why, even when jurisdiction had been transferred, it was not possible to arrange the child's return.
  47. Thirdly, H's foster placement has unfortunately broken down. He had formed a secure attachment with his foster carers who were able to provide him with a consistent and positive environment. However, his behaviour at school and in the foster home was at times challenging and aggressive. He told his carers that he was copying actions he had witnessed in Lithuania, and described acts of violence he had witnessed there. Although there was some improvement as a result of the patient and sensitive parenting he received from his foster carers, his behaviour remained a matter of concern. His social worker became concerned that he was suffering from post-traumatic stress disorder. Despite receiving some intensive professional support, his behaviour in the foster home, in particular towards other children, deteriorated to a level that his carers were unable to sustain the placement and he has therefore moved to another placement outside Bristol.
  48. The Law

  49. Recital (12) of the preamble to Brussels II Revised states:
  50. "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".
  51. Thus, Article 8(1) of Brussels II Revised provides:
  52. "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."
  53. The subsequent Articles 9 to 15 set out exceptions to this basic rule. The provisions of Articles 9 to 14 are not directly relevant to the issues arising in this case. Article 15 reads as follows:
  54. "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.
  55. In AB v JLB (Brussels II Revised Article 15) [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:
  56. "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."
  57. Further guidance as to interpretation on an application under Article 15 is set out in a series of recent cases – in chronological order: Re K (A Child) [2013] EWCA Civ 895, (Court of Appeal); Re E (A Child) [2014] EWHC 6 Fam, (Sir James Munby P); Nottingham City Council v LM [2014] EWCA Civ 152 (Court of Appeal); Leicester City Council v S & Ors [2014] EWHC 1575, (Moylan J); Re IB [2014] EWFC 16 (this court) and Re A and B (Children: Brussels II Revised: Article 15) [2014] EWFC 40 (Pauffley J) . In short, the principles are as follows .
  58. (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.
  59. Article 16 provides inter alia:
  60. "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 …."
  61. Article 17 provides:
  62. "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."
  63. Article 19, headed "Lis pendens and dependent actions", sets out the rules to be followed where proceedings are started in two jurisdictions. For the purposes of this case, the relevant provisions of Article 19 are paragraphs (2) and (3):
  64. "(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."
  65. Article 20 provides:
  66. "(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."

    Submissions

  67. As set out above, it was initially the case on behalf of the local authority that there were two routes by which the court could exercise jurisdiction in respect of H, namely by either seeking to resume jurisdiction under the original proceedings, by application to the Lithuanian court for a re-transfer under the proceedings pursuant to Article 15(2)(c), or alternatively by exercising jurisdiction in the new proceedings under Article 8. In the event, the local authority has not pursued the first option, resting its case solely on the second. In summary, the arguments advanced by Mr Scott-Manderson and Mr Fuller on behalf of the local authority, which are substantially supported by Mr Samuels QC and Mr Ker-Reid on behalf of the guardian, can be summarised as follows:
  68. (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) [2010] Fam 42, Mercredi v Chaffe (Case C-497/10) [2012] 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) [2012] 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."
  69. Both the local authority and the guardian argued that it is manifestly in H's best interests for this court to retain jurisdiction in respect of the current proceedings. The arguments are summarised by Mr Samuels and Mr Ker-Reid on behalf of the guardian as follows.
  70. (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.

  71. In their written submissions, Mr Samuels and Mr Ker-Reid advanced a further reason in support of this court retaining jurisdiction. They asserted that H was settled with his foster carers who were able and willing to offer him a long term home. Most regrettably, that placement has now broken down and this factor is no longer an argument which can be advanced in favour of this court retaining jurisdiction.
  72. On behalf of the mother, Mr Setright QC and Mr Seagrim prepared written submissions in which they argued that, following the Article 15 request for transfer of the original care proceedings, it was not easy to justify the continued existence of the substantive English jurisdiction in public law proceedings relating to H. In their written submissions, Mr Setright and Mr Seagrim argued that, as of 14th April 2014, the Lithuanian court was seised with the exclusive exercise of the subject matter jurisdiction in respect of the exercise of parental responsibility over H. Furthermore, they contended that there was no evidence before the court that there had been any determination of that subject matter jurisdiction. No order had been produced to demonstrate that the order had been closed as asserted by Ms Roscinska in her email of 16th July 2014. They suggested that it may be that all that was meant was that the Article 15 transfer process had been completed and it was now for the subject matter litigation to be dealt with by another judge. They added that, given the unsatisfactory and incomplete evidence as to the position in Lithuania, this case may raise issues relating to the operation of Brussels II Revised and in particular of the nature and limits of any jurisdiction conferred by Article 15 that had not thus far been definitely resolved and may ultimately be a matter for the CJEU. In the alternative, Mr Setright and Mr Seagrim identified in their written submission a number of arguments in opposition to a transfer to Lithuania of these second care proceedings, concluding that, even if this court has a substantive jurisdiction, it should not exercise it.
  73. However, by the time of the hearing before me on 10th March 2015, the mother had changed her instructions. Given her steadfast opposition towards the placement of H with Mr A, whom she claims is not the father and further alleges to have been violent towards her during the marriage, she now opposed the transfer of jurisdiction in the light of the indications from the Lithuanian authorities and, therefore sought to support the local authority's position. Mr Setright therefore did not deploy any oral arguments against the local authority at the hearing, whilst being careful to stress that jurisdictional matters were for the court to determine.
  74. Discussion and Conclusion

  75. As Mr Setright indicated in his written submissions, the nature of the jurisdiction transferred by Article 15 has not yet been considered by the CJEU or, for that matter the English Court of Appeal. The only authority on the point drawn to my attention is that of another judge of the Family Division sitting at first instance, Cobb J, in Re S (Jurisdiction: Prorogation) [2013] EWHC 647, [2013] 2 FLR 1584. In that case, a mother accepted that she had prorogued the jurisdiction of the Spanish court pursuant to Article 12(3) of Brussels II Revised and then applied to the Spanish court for a declaration that the Spanish court lacked jurisdiction or, alternatively, for an Article 15 transfer of jurisdiction to the courts of England and Wales. The Spanish court ruled that, since a final judgment had been delivered in the proceedings in Spain, there was no need to declare a lack of jurisdiction. Subsequently, the English court had to determine whether the Spanish court continued to exercise jurisdiction relating to the child notwithstanding the conclusion of the proceedings there. Cobb J held that the court of England and Wales could properly assume jurisdiction under Article 8, holding that prorogation of the jurisdiction endures until there has been a final judgment in the proceedings but does not persist beyond that point. Cobb J also considered the alternative argument concerning Article 15. In paragraph 36 of his judgment he said:
  76. "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."
  77. The Court of Appeal stayed the proceedings and referred the following questions to the CJEU for a preliminary ruling.
  78. "(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?"
  79. In its judgment, E v B, (supra), the CJEU agreed with Cobb J on the first question, holding at paragraph 49 that:
  80. "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.

  81. In my judgment, however, Cobb J's analysis is correct. I accept the submissions of Mr Scott-Manderson and Mr Samuels and their juniors that the jurisdiction transfer under Article 15 is confined to the specific case, or part of case, before the court, and not the general jurisdiction in respect of the exercise of parental responsibility for the child. I have reached this conclusion for the following reasons.
  82. (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 because

    a) H remains habitually resident in England and Wales;
    b) proceedings transferred following the earlier request have come to an end; and
    c) 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.
  83. I therefore find that this court has jurisdiction in respect of the application for a care order made by the local authority issued on 5th November 2014.
  84. Although no party invites the court to request a transfer of these latest proceedings to Lithuania, the question of jurisdiction is, as Mr Setright reminds me, a matter for the court. I have to consider, therefore, whether one ought to make a request pursuant to Article 15(2)(b) ("of the court's own motion").
  85. In considering this, I must address the three questions identified by Munby J in AB v JLB, (supra). I accept that H has a particular connection with Lithuania, but I am not satisfied on the evidence at present available that the Lithuanian courts will be better placed to hear that case, or any specific part thereof, or that it is in the best interests of H for the case to be transferred. I reach that conclusion for the following reasons:
  86. (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.

  87. I accept that the starting point is the principles of comity and co-operation between states of the EU. For the reasons set out above, however, I conclude that it is not established at this stage that the Lithuanian courts are better placed to hear this case, or any specific part thereof, or that a transfer of the case would be in the best interests of H. I stress that this is my view at this stage. In due course, it may be that circumstances will justify the transfer of this case, or a part thereof. To that end, I note Mr. Gostautas's comments about the reformed procedures in Lithuania for the consideration of requests under Article 15. At this stage, however, I do not propose to make any request for transfer of these proceedings, and I have accordingly given directions leading to a final hearing of the local authority's application, so that this court can determine H's future care.
  88. Final Observations

  89. With hindsight, it can be seen that the approach of this court when making requests to the Lithuanian in court in March 2014 was insufficiently clear and precise. The following lessons have been learnt by this court, and it is respectfully suggested may be applied elsewhere.
  90. (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) [2013] 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.


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URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/1310.html