Leicester City Council v S and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] EWHC 1575 (Fam) |
| Date | 08 April 2014 |
| Court | Family Division |
| Docket Number | Claim No: LK13C01145 |
[2014] EWHC 1575 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr Justice Moylan
Claim No: LK13C01145
Mr R. Barda (instructed by Leicester City Council) appeared on behalf of the Applicant.
Miss H Markham (instructed by RP Robinson Solicitors) appeared on behalf of the Mother; The Father was neither present nor represented;
Miss K Kabweru-Namulemu (instructed by N/A) appeared on behalf of the Guardian
Tuesday, 8 April 2014
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 complied with strictly. Failure to do so will be a contempt of court.
In this case I must decide whether I should request the relevant authority in Hungary to accept jurisdiction pursuant to Article 15 of Council Regulation 2201/2003, namely Brussels II Revised ("BIIR"). This issue has been raised of the court's own motion. The mother supports, and indeed argues for, the making of such a request. The making of such a request is opposed by the local authority, and that position is supported by the guardian.
The proceedings concern a very young child, DS, who was born in England on 26 March 2013. His mother is BS. She is a Hungarian national and resides in Hungary. The child's father is believed to be ZF. He is also a Hungarian national and resides in Hungary. The mother arrived in England, for reasons and in circumstances which are not clear, on 18 September 2012. She left England without DS on about 21 April 2013, and returned to Hungary.
The child has been accommodated by the local authority since 12 April 2013, following his being abandoned by his mother, when she left the property where she and DS were then living in England. The child was left in the care of the other occupants of the home, who were also Hungarian nationals, but none were related to the child. The reasons for, and the circumstances in which, the mother came to leave this property and England are also not clear.
The local authority did not commence care proceedings until 10 October 2013 in circumstances I will describe later in this judgment. It has always been the local authority's care plan that DS should be adopted by a family in England.
The mother was not represented in the proceedings until a hearing on 21 January 2014. She has been represented at the hearing before me by Miss Markham. The mother has never herself been present at any hearing. The father has not participated in the proceedings at all. He has been notified of the proceedings and served with at least some of the documents via an email address which he provided to the local authority. The local authority, Leicester City Council, is represented by Mr Barda. The child, through his guardian, is represented by Miss Kabweru-Namulemu.
Before dealing with this case, I propose to make a few general observations.
Timing of Jurisdictional Decisions and Commencement of Care Proceedings
I am confident that, if this case had been commenced since the decision of Sir James Munby P in Re E (A Child) [2014] EWHC 6 (Fam), the court would have considered at a much earlier stage whether to make a request under Article 15.
There is, however, a broader issue, which applies with force when a case concerns a newborn or very young child but which can also apply to older children, depending for example, on how long they have been living in this jurisdiction. This is that, the longer the determination of any jurisdictional issue, including under Article 15, is delayed, the more established the child's situation becomes. The more established the child becomes in one jurisdiction, the more that fact in itself will gain in weight and significance. At one extreme, it might, of itself, become determinative. This is in addition to the general principle that delay in the determination of proceedings is likely to prejudice the welfare of the child.
Accordingly, where it appears that jurisdiction (including under Article 15) is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in the child's life. This is consistent with, and in accordance with, the need for Article 15 to be considered at "the earliest opportunity", as referred to by the Court of Appeal in its decision Nottingham City Council v LM and Others [2014] EWCA (Civ) 152, paras 32 and 58.
I would also draw attention to Theis J's decision of Kent County Council v C and Others [2014] EWHC 604 (Fam), in which she referred to the importance of the court grappling with jurisdictional issues at a much earlier stage, and also to Baker J's decision of Bristol City Council v AA and HA [2014] EWHC 1022 (Fam).
Issues Relating to Care Cases with an International Connection
In Re E, Sir James Munby P also referred to the sharp rise in the number of care cases involving families and children who are nationals of another Member State of the European Union. Such cases will frequently necessitate information and evidence being sought from that other Member State. It is my experience, as demonstrated in part by the present case, that such enquiries are often not pursued in a structured way which has regard to the framework created by the relevant regulations, in particular BIIR. This case demonstrates the need for a more structured approach when information or evidence is being sought from another jurisdiction and when local authorities, courts, or others are communicating with, or seeking to obtain the cooperation of, the relevant authorities in another Member State.
In order to understand the relevant structure, parties will need to consider the provisions of BIIR, the Evidence Regulation (namely Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters) and the Service Regulation (namely Council Regulation (EC) No 1393/2007 on the service in Member States of judicial and extrajudicial documents in civil or commercial matters). The last of these regulations deals, among other matters, with service by post under Article 14.
I do not propose to address the latter two Regulations in any detail in this judgment, but they contain important procedural rules dealing with cross-border evidence and service.
I do address, during the course of this judgment, some procedural issues which can arise in care proceedings involving a child who is and/or whose parents/family members are nationals of or resident in another EU Member State. These include international communications under BIIR and specifically Article 55. This is not for the purpose of providing answers to these issues but to bring attention to the need to address them and to give some guidance on how they should be addressed. The important features to which I am seeking to draw attention are:
(a) The need to consider, before they commence such work, whether English social workers are permitted to undertake work directly in another EU Member State;
(b) The agency given primary responsibility for cooperation and communication under Chapter 4 of BIIR is the Central Authority;
(c) Central Authorities (or other foreign State Agencies, including Embassies) are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England. This includes "courts" of another Member State, as defined by BIIR, which are under no obligation to make a request under Article 15, the obligation being on the courts of England and Wales as set out in Re E (A Child) and Nottingham City Council v LM and Others;
(d) Embassies and consular officials are given no role in BIIR (or the 1996 Hague Child Protection Convention) and should not be used as proxies for Central Authorities;
(e) Requests under BIIR for information (under Article 55) must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation.
Background History
Turning now to the background circumstances of this case; as I have described, DS's mother is BS. She is aged 20 and is a Hungarian national. She does not speak English. When the mother was aged approximately 6 months, she was placed in foster care in Hungary by the relevant Hungarian authority. In 1996 the mother was apparently adopted in Hungary. She remained living with her adoptive parents until 2012, when she went to live with her biological father. The history is incomplete, but it appears that in May 2012 the mother was admitted to a psychiatric hospital after an alleged incident of violence by her birth father.
In September 2012 the mother and her birth parents arrived in England. The mother alleges that they lived with others who tried to force her to engage in prostitution and who were themselves engaged in criminal activities.
DS's father is ZF. He is aged 25. He is also a Hungarian national and speaks no English. There is very little information available about him. He appears to have spent approximately 6 months in...
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