Kent County Council v C, G and AG
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis |
| Judgment Date | 06 February 2014 |
| Neutral Citation | [2014] EWHC 604 (Fam) |
| Docket Number | Case No. ME13C00460 |
| Court | Family Division |
| Date | 06 February 2014 |
and
and
[2014] EWHC 604 (Fam)
The Honourable Mrs Justice Theis DBE
Case No. ME13C00460
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Counsel for the Local Authority: Ms H Knott
Counsel for the Mother: Mr A Pidduck
Counsel for the Father: Ms R Amiraftabi
Counsel for the Guardian: Ms J Porter
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 children and members of their 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.
Introduction
This matter concerns a young child A who was born in June 2008 so is 5, nearly 6. His parents are the first and second respondents who I shall hereafter refer to as the mother and father. A has been in the care of foster parents since April 2013 following bruising seen on his face at school caused whilst he was in the care of the mother's then partner. Following investigation by the Local Authority they issued care proceedings and A was placed with foster carers pursuant to a series of interim care orders.
The issues that I have to determine during this hearing are as follows:
(1) The father's application under the Hague Convention for the return of A to Latvia. That application was issued on 15 th January 2014;
(2) If it becomes relevant, the father's contention that A was not habitually resident here pursuant to Article 8 of Council Regulation (EC) No 2201/2003 ('B2R') at the time the care proceedings were started in April 2013;
(3) If I do find this court does have jurisdiction the father seeks a transfer to Latvia as the better place to hear this case under the provisions of Article 15 B2R
Before I go on to deal with the background, there are a few preliminary matters I wish to set out.
This case has caused the court enormous concern and, regrettably, is another example of the need of the court to grapple with jurisdiction issues at a much earlier stage. As will become clear, the father in this case was not served with the papers, or given formal notice of these proceedings, until September 2013, some five months after care proceedings were started whereby his son was placed in foster care pursuant to interim care orders. This has come about due to a combination of the Local Authority, the Children's Guardian and the court not getting to grips with the issues.
As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.
No party had sought to restore the matter back to the court when they should have done. I, like Mr Justice Keehan in A Local Authority v DG & Ors [2014] EWHC 63, would like to associate myself with the observations made by the President, Sir James Munby, in the case of Re W (A Child) [2013] EWCA Civ 1177 at paragraphs 50 to 54, in particular when he makes the following observations in relation to compliance with orders:
"For present purposes the principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.
A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work.
Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority."
In the unhappy procedural history of this case I give, by way of example, the following orders that have not been complied with, the direct consequence that has had on A and the delay in determining these issues.
On 13th June 2013, some two months after proceedings had been issued, His Honour Judge Polden gave leave to the foreign process section of the Queen's Bench Action Department at the Royal Courts of Justice to serve the father out of England and Wales, namely in the Republic of Latvia. When I enquired in September as to what happened in relation to this and whether the father was, in fact, served, no information was provided and no-one had cared to make any enquiries. No party has taken issue with what the father has said that he was not served with these proceedings until September. Compliance with that order was left in abeyance and no further directions were sought by any party.
The matter came back to court in the intervening two months and by 9th August 2013 Her Honour Judge Cameron ordered the Local Authority to write to the father in Russian and notify him of the proceedings, to inform him of his eligibility for non-means tested non-merits legal aid and to ask him if he wishes to be represented and provide him with a list of local solicitors. As far as I am aware, that order was not complied with. I am told the Local Authority simply did not write the letter.
When the matter first came before me on 25th September I expressed my concern that five months after proceedings had been issued the father had still not been served or notified effectively of the proceedings. At the invitation of the court the father was contacted that day, as were solicitors who were able to take his case on (who he agreed to instruct) and by that afternoon counsel attended court on his behalf. Goodman Ray remained his solicitors. The court is extremely grateful to Goodman Ray, in particular Ms Hollmann, for being able to take this case on at such short notice.
This is a father who, as I understand it, has parental responsibility so he is an automatic respondent to these proceedings under Rule 12.3 Family Procedure Rules 2010 (FPR 2010). Even if he does not have parental responsibility, there is a mandatory requirement for him to be given notice of the proceedings. Proceedings involving the State in relation to the removal of a child from the birth family are one of the most serious interventions in family life there can be. For that action to be taken without the father being properly served, notified of the proceedings and/or given effective access to legal advice to advise him of his position is deplorable. It has caused unacceptable delays in decisions being made for the future care of this little boy.
In cases such as this, where one or both of the parents lives abroad, the following action should be taken:
(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent's whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made;
(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case;
(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court's jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party's legal representatives.
(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.
Background
Turning now to the background of this matter, the mother and father are both Latvian nationals. They were married in Latvia in 2007 where A was born in June 2008. The parties cohabited in Latvia and shared the care of A until their separation. The mother travelled to England to work for two periods of six months, between March and August 2011 and between February and September 2012. A remained in the care of the father during those periods, with the support of the maternal grandmother and paternal grandfather.
Following the mother's return to Latvia in September 2012 she removed A from the matrimonial home and moved him to the home of the maternal grandmother. The mother issued divorce proceedings in September 2012 and a final decree was made on 13 th November 2012.
After the divorce A...
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