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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Barking & Dagenham v SS  EWHC 3338 (Fam) (15 October 2014)
Cite as:  EWHC 3338 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| London Borough of Barking & Dagenham
|- and -
(By her Guardian, Trudy Jordan)
Deirdre Fottrell (instructed by Creighton & Partners) for the Respondent
Hearing dates: 7 October 2014
Crown Copyright ©
The Honourable Mr. Justice Cobb:
i) Where was SS habitually resident at the time the court was seised? The answer to this question is likely to determine whether the English Court has jurisdiction to make such an order in relation to SS;
ii) If I conclude (in answer to [3(i)] above) that the English Court does have jurisdiction in relation to SS, should this Court nonetheless exercise its powers to request the court of another member State to assume jurisdiction either Spain or Romania?
i) I had reached the conclusion on the facts that SS was, on the balance of probabilities, habitually resident in England at the time the court was seised (29 April 2014) thereby founding jurisdiction under Article 8 Council Regulation 2201/2003 ('BIIR'); see, in relation to this, [36-37] below;
ii) Even if she was not habitually resident in this jurisdiction on that date, I am satisfied that she was not habitually resident in either Spain or Romania; she was physically present here on 29 April 2014 thereby founding jurisdiction on an alternative basis, namely under Article 13 of BIIR; see  below;
iii) That while SS has connections with Spain and Romania, the courts of this country are demonstrably better placed to hear the case, and it is in the best interests of SS that the courts here should determine her future per Article 15 of BIIR; see specifically [44-45] below.
"I am now in a foster placement in which I am extremely happy and content and I have been in placement since [July 2014]. The foster carer is lovely and I respect her and want to stay with her. I have now started a college course in Hair and Beauty. I consider the UK as my home and I would be devastated if I had to move back to Spain. I would be frightened for my wellbeing and safety. I do not wish to re-establish a relationship with my mother and step-father. I would be afraid that the physical abuse would start. I would not agree to return to Spain or Romania, my life is now in the UK, this is my home. I feel safe and happy here and I would urge the Court not to transfer the proceedings to Spain or Romania."
"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."
"The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant"  (emphasis added)
"As a general rule, the environment of a young child is essentially a family environment determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of." 
"That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent" 
"such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State other than that of her habitual residence to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case."
This formulation of course draws from Re A (Area of Freedom, Security and Justice) (C-532/01)  2 FLR 1 at  CJEU.
"(i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
(ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. BIIR must also be interpreted consistently with those Conventions.
(iii) The test adopted by the European court is 'the place which reflects some degree of integration by the child in a social and family environment' in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.
(iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
(v) In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from Shah should be abandoned when deciding the habitual residence of a child.
(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
(vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
(viii) As the Advocate General pointed out in para AG45 and the court confirmed in para  of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time. When considering the integration of a mature or adolescent child the court can and should take account of the child's own perceptions."
" the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a European dimension is, therefore, an inquiry as to where the child is habitually resident"
In the event that it is not possible to determine a child's habitual residence at the time the court is seised, recourse is had to the provisions of Article 13 of BIIR:
"Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction".
"it will be seen that the courts of England and Wales have jurisdiction in a care case involving a child only if either (i) the child is habitually resident in England and Wales (Article 8(1)), or (ii) the habitual residence of a child "present" in England and Wales "cannot be established" (Article 13(1))."
"(i) Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident.
(ii) In determining questions of habitual residence the courts will apply the principles explained in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  UKSC 60,  AC 1. For present purposes the key principles (para 54) are that the test of habitual residence is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned and that, as the social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent, it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
(iii) Jurisdiction under Article 8(1) depends upon where the child is habitually resident "at the time the court is seised."
(iv) Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others  EWCA Civ 152, paras 47, 58.
(v) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.
(vi) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36."
"where the child is older, in particular one who is an adolescent or who should be treated as an adolescent because she (or he) has the maturity of an adolescent, and perhaps also where (to take the facts of this case) the older child's residence with the parent proves to be of short duration, the inquiry into her integration in the new environment must encompass more than the surface features of her life there. I see no justification for a refusal even to consider evidence of her own state of mind during the period of her residence there. Her mind may possibly have been in a state of rebellious turmoil about the home chosen for her which would be inconsistent with any significant degree of integration on her part. In the debate in this court about the occasional relevance of this dimension, references have been made to the 'wishes' 'views' 'intentions' and 'decisions' of the child. But, in my opinion, none of those words is apt. What can occasionally be relevant to whether an older child shares her parent's habitual residence is her state of mind during the period of her residence with that parent." (emphasis by underlining added)
"has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual?" () (emphasis added)
"An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so." 
Going on to say
"the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para ) that 'wishes', 'views', 'intentions' and 'decisions' are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed 'habitual'" 
"Each child is an individual with his own experiences and his own perceptions." 
"The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another" .
Habitual Residence of SS
i) The duration of her time in this country; I find that by 29 April 2014 she had been in this country for at least 14 months;
ii) By 29 April 2014 (indeed from 1 January 2014) as a Romanian national she was lawfully here, having acquired the same rights as other EEA (European Economic Area) nationals to live (and work) in the UK (the transitional controls on free movement included in the accession treaties and adopted by the UK and seven other Member States when Romania joined the EU in 2007, ended on 1 January 2014);
iii) She had, by April 2014, ceased to be "looked after or taken care of" by her family (see Mercredi v Chaffe , paragraph  above); she was living a quasi-adult (and in that sense at least, independent) life. Indeed, she told the police (ABE interview) that she used to feel she "was about a 25-year old woman", by which I infer she felt that her life experiences were more consistent with an adult;
iv) I accept that SS had obtained work in a restaurant (even though this may have been unlawful employment if it was full-time as a person under 16, and/or without a permit for some of that period); she enjoyed this;
v) SS had formed an intimate relationship with a young person (AX) whom she had met here;
vi) SS had a social network, even if it included numbers of those who made their business by breaking the law;
vii) Although SS's mother (the only person with parental responsibility for SS) was/is probably habitually resident in Spain, SS's mother had (on my finding) 'sold' her daughter, and had effectively ceased to exercise any parental responsibility for her. SS's mother appears to have accepted that her daughter would be travelling abroad, and so far as I can tell, believed this to be indefinite;
viii) For her part, SS had explicitly rejected her mother and her life in Spain;
ix) SS appears by April 2014 to have 'perceived' England as her home, and showed every sign of wanting to remain in this jurisdiction. Although she had been trafficked here, and abused, when she separated from the man who had trafficked her to this country, she nonetheless remained here. At no time has she intimated that she wanted to leave; I am satisfied that she perceived that England had become her 'home'.
i) she had not been in Spain for well over a year;
ii) her mother had not just abandoned her, but 'sold' her to a trafficker, thereby abrogating her responsibility for her;
iii) she had not spent any significant time in Romania since she was about 4 years old.
Transfer of proceedings
"(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 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.
(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".
"Spain complies with the Brussels II Rules as a matter of course, and the Spanish authorities will assist as appropriate if requested to do so."
" we believe that in the absence of a Romanian court already seized with the child's matter it is up to the parties and to the East London Family Court to decide whether or not Article 15 of the Brussels IIA Regulation should be applied."
In a recent e-mail from the legal adviser to the Directorate for International Law and Judicial Co-operation (6 October 2014) the Romanian authorities have further indicated that they do not actively seek a transfer of the proceedings:
"As long as the child is in England, the Romanian child protection authorities cannot take any protective measures towards her. According to the documentation already provided if the English Court will decide the repatriation of the child, then she will be taken into a specialised centre within the Ialomita social services, until the clarification of her legal status".
i) That the Courts of England and Wales assume jurisdiction in relation to SS because, pursuant to the provisions of Article 8, at the time this Court was seised of proceedings, SS was habitually resident in England.
ii) That while SS has connections with Spain and Romania, I am not satisfied that the courts of either State would be better placed to determine SS's future, and it would not be in her interests that I should transfer the proceedings (particularly given my finding about her current habitual residence). In any event, at this hearing no party actually agrees to such transfer.