B e f o r e :
HER HONOUR JUDGE ATKINSON
|LONDON BOROUGH OF REDBRIDGE
|- and -
MR. P. CREGAN, (instructed by MLC Solicitors) appeared on behalf of the Local Authority.
MISS E. WEE, (Solicitor Advocate, Eskinazi & Co.) appeared on behalf of the Parents.
MR. M. MICHAELS, (Solicitor, Michaels & Co.) appeared on behalf of the Paternal Grandmother.
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- On 10th July 2012 the London Borough of Redbridge issued care proceedings in relation to a child, E, a boy born on 26th December 2006. The first interim care order was made in the proceedings on 17th July 2012. E had already been separated from his parents by then following the arrest of the mother on 19th November 2011. Police had found him in the care of his father, apparently living in a store cupboard; they took him into police protection. The parents then agreed to have him accommodated and he was moved into a placement. He has since moved from that foster placement and has been in the care of his current foster carers from the end of last year, 2013.
- This case has a long history and has been proceeding at a pace which cannot have been conducive to E's welfare. Quite apart from the multitude of assessments, some of which were considered poor and inadequate, all as yet untested, and in spite of the apparent lack of urgency with which the case proceeded through the FPC, delay was further invited when the case was finally (though properly) transferred from the FPC on 29th January 2014 on the basis of "international elements". By that time the case had been running for 18 months. The potential for international elements in the case to justify transfer were, on my reading of the papers, obvious from the start but if I am wrong about that certainly from late 2012 and early 2013 when another member state – Lithuania – was directly involved in the assessment of the grandmother who resides in that country and in respect of whom I am now invited to make a special guardianship order.
- I do not intend to carry out an analysis of how it was that such an obvious and significant factor was missed. Indeed, I am told by Mr. Cregan that the parties and the court were aware that possible issues of jurisdiction and/or transfer might arise. I simply rehearse as a reminder that cases involving such international elements should be transferred to the appropriate level of judge sooner rather than later and in this case it was 18 months later.
- That said, the matter finally comes before me in order that I can consider the jurisdictional issues under Brussels II Revised (Council Regulation (EC) 2201/2003) which have now been properly considered by all concerned. If I considere that there has been jurisdiction all the while and that there is no argument here at such a late stage for an Article 15 transfer, I am also invited to consider making a final order in the case by all parties. The order I am invited to make is a special guardianship order in favour of the paternal grandmother.
- Let me set out this short background. The parents are Lithuanian; I will refer to them as mother and father. I understand that they are not married. They have been in a relationship for some years although they are now separated. Indeed, I understand that they separated in 2013, so during the course of these proceedings. The father arrived in the UK in 2007 and the mother came with E in 2008.
- The parents have a significant history of heroin and cocaine use, leading to frequent arrests, occasional periods in prison, instability in terms of accommodation and neglectful living conditions. They have failed to constructively engage with various local authorities involved with them and other agencies. A core assessment of them was completed in January 2012. I am reminded that that came some months after E had been placed into foster care under s.20. That core assessment highlighted the deficits in the parents' care of their son and the improvements that they needed to make, but they have never really engaged with the process. They failed to engage with Redbridge Drug and Alcohol Service to address their drug misuse. I am told they attended only 18 out of 31 appointments. They have both accepted a caution for child cruelty.
- By 27th September 2013 both parents had also accepted that they were not in a position to care for E and they were then asking that he should be placed in the care of his paternal grandmother under an SGO. It is recorded in the order of the same date, 27th September 2013, that the parents accepted the threshold, which I have summarised, and the matter should proceeded on that basis. There has subsequently been a composite threshold document dated 25th April 2013.
- During the course of the proceedings there have been, a multitude of assessments, almost all of them assessments of one person - the paternal grandmother and not of a multitude of people coming forward. The original viability assessment carried out on the instruction of the local authority was considered by the guardian to be inadequate. As a result of that a further assessment was carried out in Lithuania by Children and Families Across Borders (CFAB as they are known). That, too, in due course was considered to be defective, the guardian being particularly exercised as to whether or not the paternal grandmother had insight into the problems that had beset the parents and their ability to parent E.
- An IRH was first listed in April 2013 and indeed a final hearing was first listed for 4th July 2013, but the matter obviously did not proceed to a final order on that occasion. It was a further six months before the matter was transferred out of the Family Proceedings Court to what would have been the PRFD.
- Since then there have been other assessments of the paternal grandmother; I count at least two with an addendum. The further assessments have generally followed on from criticisms made by the guardian as to various elements in the assessment; it has taken the guardian some considerable time to come round, it seems to me, to the view that the paternal grandmother was an appropriate placement for this child. That may or may not be right; I have not looked in enough detail at the sequence of events to determine that particular issue. However, I do express a certain amount of surprise that nobody considered putting the many assessments to the test at a hearing at which the guardians concerns could be flushed out. I take it no further than that.
- In January 2014 the matter was transferred to the PRFD (as it was) and some time after May of this year there was a further delay caused by the transfer of the case out of the Central Family Court to the newly created East London Family Court. I have no idea why it had not been heard by the time it was transferred. The matter was listed before HHJ Sapnara for a final hearing as soon as we could manage which was by then 7th July.
- The matter did not proceed to a final order on that occasion. By then not only had the jurisdictional issue been identified and considered, but there was active involvement by the Lithuanian authorities. The local authority, pursuant to a direction on 26th March 2014, had written to the Lithuanian Embassy on 7th April 2014 and at this stage the Embassy was notified of the proceedings and the final hearing date. A response was received on 22nd May 2014. The essential parts of that response are set out in the skeleton argument prepared on behalf of the local authority by counsel Mr. Cregan.
- What the Lithuanian Embassy said was this:
"With regard to the jurisdiction of E, both Lithuanian State Child Rights Protection and Adoption Service and the Embassy are of the opinion that the child has a particular connection with Lithuania, taking into account the fact that the minor is a citizen of Lithuania, his relatives and paternal grandmother (who have been recognised as appropriate to be appointed as a guardian) resides in the Republic of Lithuania. Therefore it is in the child's interests for a court in Lithuania to assume jurisdiction in this case."
The Embassy rounded off the letter by asking the court to consider accepting transfer of this matter to Lithuania. That information was first brought to the attention of the court when the matter came before HHJ Sapnara and hence her adjournment of this case, listing the matter before me, extending an invitation to the Lithuanian Embassy to attend to make representations or to put their arguments in a skeleton form if they so wished. Provision was also made for the filing of skeleton arguments by all of the other parties.
- That is how the matter comes before me. I have before me Mr. Cregan representing the local authority, whose skeleton argument and bundle of authorities is quite excellent and extremely helpful on these issues. I have had a skeleton argument from Miss Wee who represents the parents, neither of whom attend here today. I am grateful for her skeleton argument also. Finally I have a position statement and skeleton argument filed on behalf of the guardian for which again I am grateful. I have had no argument from the Lithunian Embassy and no-one attends pursuant to the invitation extended by Judge Sapnara.
- The first thing I am going to do is deal with the jurisdictional issues because logically I must. I can do so fairly swiftly because there is in fact little dispute regarding this issue.
- Article 8 of Council Regulation (EC) 2201/2003 (referred to in this Judgment as "Brussels II Revised") provides that:
"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"
Thus the jurisdictional basis for the making of public law orders under Part 4 of the Children Act 1989 derives from the habitual residence in the UK of the child or children in question.
Further, Article 13 provides that:
"where a child's habitual residence cannot be established…the court of the member state where the child is present shall have jurisdiction."
Thus, in circumstances in which the habitual residence of the child in question cannot be established, this court would have jurisdiction based on presence under Article 13.
- In the very focussed and erudite skeleton argument produced by Mr. Cregan I am referred to A v. A and Another (Children: Habitual Residence)  UKSC 60 on "habitual residence". The principles are summarised by Baroness Hale of Richmond at paragraph 54 of the Supreme Court judgment. In particular:
(a) habitual residence is a question of fact and not a legal concept such as domicile;
(b) the test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned;
(c) this depends on numerous factors, including the reason for the family's stay in the country in question;
(d) the social and family environment of an infant or young child is shared with those on whom he is dependent – hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned;
(e) the essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce;
(f) it is possible that a child may have no country of habitual residence at a particular point in time.
- It is agreed by everyone that E's father moved to the UK in 2007; his mother and E joined in 2008. They have remained in this country ever since; their settled intention was to remain in this country. They put down roots here before the local authority became involved and it seems to me that it is absolutely evident that E is habitually resident in this jurisdiction. Accordingly, pursuant to Article 8(1) I have jurisdiction to deal with this application.
Article 15 transfer request
- The real issue in this case is whether or not I should transfer the case to Lithuania, that is into the jurisdiction of another member state in accordance with the request that has been made by the Lithuanian Embassy in the letter which I have already set out.
- I ought to mention that the Lithuanian Embassy are not here today. I am satisfied that they are aware of this hearing because the local authority's solicitor an email in which they indicated that essentially they have nothing more to add than that which is set out in the letter of 22nd May. They have filed no more argument than that which I have already rehearsed and that which was set out in their letter of 22nd May.
- The test to be applied in relation to the transfer is contained in Article 15 which deals with transfer. Article 15(1) provides;
"By way of exception, the courts of a member state having jurisdiction as to the substance of the matter may, if they consider that a court of another member state, with which the child has a particular connection, will be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member state in accordance with paragraph 4; or
(b) request a court of another member state to assume jurisdiction in accordance with paragraph 5."
- However, most significantly for the purposes of this case, pursuant to Article 15(2) a transfer by the court of its own motion or on application by court of another member state must be accepted by at least one of the parties. In this case it is the Lithuanian authorities that appear to seek a transfer. However, no party to these proceedings accepts the request made by Lithuania; neither the local authority nor the parents, nor the guardian. Each of those parties invites me to refuse that request.
- That is an end to the matter it seems to me and would form the basis for refusing the request. However, if I am wrong about that for the sake of completeness I am going to go on to consider whether I would have made such a request in any event.
- Article 15(3) sets out a list of the factual instances in which a child shall be considered as having "a particular connection" with another Member State such that a request could be made. For the purposes of this case it is significant that one of those instances is that the Member State in question "is the place of the child's nationality".
- Article 15(5) provides;
"The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seizure in accordance with paragraphs (1)(a) or (1)(b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with articles 8 to 14".
- The issue of making a request for transfer pursuant to Article 15 was considered in AB v JLB (Brussels II Revised: Article 15)  1 FLR 517 at paragraph 35, by Munby J., as he then was. In that case, the route to the exception of Article 15(1) was distilled into three essential questions:
"(1) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various maters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))?
(2) Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
(3) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."
- For completeness, Article 15 has been considered more recently by the Court of Appeal in the case of Nottingham City Council v LM  EWCA Civ 152 . This was an appeal from a decision by Mostyn J to make a request to the courts of the Czech Republic to assume jurisdiction. I distil from that authority the following:
(a) The Article 15 exception to the general rule of jurisdiction only comes into play when all three of the essential questions to which I refer in the paragraph above are answered in the affirmative (per Ryder LJ para 15);
(b) The question of whether a court of another Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed having considered all the circumstances of the case and that evaluation is "intimately connected" with the question of the best interests of the child (per Ryder LJ para 19);
(c) The starting point for the evaluation of whether the other Member State is better placed to hear the proceedings is one of "comity and co-operation" between Member States and we are reminded that "the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent"
(d) Factors which may inform the courts evaluation of whether one court is better placed to hear a case are factors such as – the availability of witnesses of fact, whether and by whom assessments can be conducted, the necessity for assessors to travel, whether one courts knowledge of the case (perhaps through judicial continuity) provides an advantage.
(e) the best interests question asked by Art 15(1) is whether it is in the child's best interests for the case to be determined (or a specific part of the case to be determined) in another jurisdiction.
- Applying this to the facts of this particular case, I first need to consider whether or not E has a particular connection with the relevant member state. I have to bear in mind those matters set out in Article 15(3). It seems to me, having done that, that he does have a particular connection with Lithuania. He was born in Lithuania; I understand he has been re-issued with a Lithuanian passport; his parents are Lithuanian nationals and he resided in Lithuania until he was over a year old. The first limb is therefore satisfied.
- Turning to the second question, it is submitted on behalf of the local authority (joined in this submission by the other parties) that in this case it cannot be said that the other member state would be better placed to hear the case or indeed would be in the best interests of the child.
- Those two matters are linked though they require me to look at the facts from slightly different angles in the sense that I have to evaluate the circumstances of the case in the more limited context of the issue of transfer. However, I bear in mind those considerations which are set out at paragraph 50 of the skeleton argument of Mr. Cregan, and very powerful they are indeed. I choose just some of them: these proceedings have been up and running for over two years and are now at the point of a final determination; E has been placed in a foster placement in the UK since November 2011 and he has been in his current placement since November 2013; if the matter was transferred to Lithuania there would necessarily be a period of delay. What is more, the chances are that he would be required to leave his placement precipitously and move from the jurisdiction immediately. A precipitous move, according to everybody, would be contrary to his welfare. The local authority in the meantime, in planning the move that he will make in any event to Lithuania, have been particularly focussed on ensuring that it is a planned move and that he is properly prepared for that move. Arguably the reason the case has taken quite so long has been that that has been negotiated carefully as between the guardian and the local authority. The paternal grandmother is in support of the case remaining in this country, in spite of the fact that it will delay the child's move, largely because she agrees that the things that the local authority have committed to do in order to prepare E for that move are necessary in order that he makes the proper transition into her care and he makes a successful transition into her care, which I think speaks very highly of her and also speaks highly of the local authority who are prepared to do these things.
- Accordingly I consider that neither the second nor the third limb of the test that I have to apply have been made out and so had I been able to move beyond the hurdle created by Article 15(2) I should not, in any event have considered this a case in which it was appropriate to make a request under Article 15 for the case to be transferred to the other member state.
- That leads me onto the second issue that I have to determine. The threshold in this case has been crossed some time ago. I now move on to the welfare decision. At this stage of the hearing I have E's welfare as my paramount consideration. I have to apply the welfare checklist that is set out in s.1(3) of the Children Act. I am not going to painstakingly refer to each section of the test. That checklist has been considered fully so far as I can see by the local authority, arguably by the parents and certainly by the guardian, all of whom are satisfied that E's welfare is best met by being placed into the care of his paternal grandmother pursuant to a special guardianship order and after the local authority have completed the preparatory work that they have committed to carry through at the invitation of the guardian.
- To be absolutely accurate, the guardian has not formally indicated that he is content that an order ought to be made today. However, he has set out very fully what his concerns were about the previous plan and the London Borough of Redbridge - who I think should be congratulated – have dealt with every single point very fully indeed. They have bent over backwards, it seems to me, to ensure that all of the essentials have been dealt with. For example, they have ensured that E has increased his language lessons so that when he moves to Lithuania he will have the best chance of being able to communicate in the local language which has been lost to him presumably in the time that he has been here. They have committed to supporting the grandmother as best and as fully as they can in ensuring that she embarks upon the process of registration of the special guardianship order which will be required in order to guard his position and safeguard his position in Lithuania. They have committed to ensuring the smooth progress of the transition by ensuring continuing contact and, most notably, making very complicated arrangements for him to visit Lithuania over the summer holidays for five days, I think in the company of a social worker, to ensure that he is able to make as smooth a transition as is possible. I am quite satisfied that they have answered all of the questions that have been raised by the guardian.
- In those circumstances it seems to me absolutely right that these proceedings should finally come to an end. I will make, by consent, a special guardianship order in favour of the paternal grandmother.