Nottingham City Council v LM [1] and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Lewison |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] EWCA Civ 152 |
| Docket Number | Case No: B4/2013/3710 AND 3710A |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2014 |
[2014] EWCA Civ 152
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
Mr Justice Mostyn
OG12C01703
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Lewison
and
Lord Justice Ryder
Case No: B4/2013/3710 AND 3710A
and
and
Mr Alistair MacDonald QC with Ms Rachel Rowley (instructed by Nottingham City Council Legal Services) for the Appellant
Mr Clive Newton QC with Mr William Metaxa (instructed by Bhatia Best Solicitors) for the First Respondent, LM
Ms Rachel Langdale QC with Mr Steven Veitch (instructed by Tallents Solicitors) for the child, M, by his Children's Guardian
This is an appeal concerning a child whose parents live in the Czech Republic. The child, who I shall call M, is and has always been habitually resident in England and Wales. The appeal raises important points of principle relating to how the courts in England and Wales determine family cases that involve nationals of other countries, in particular Member States of the European Union and for that reason, permission to appeal was granted by Mostyn J in accordance with CPR 52.3(6) (b).
The appeal arises out of a decision made on 18 December 2013 by Mostyn J to request the district court in Novy Jicin, that is the court exercising public child protection responsibilities in the relevant part of the Czech Republic, to assume jurisdiction in relation to a child who is the subject of public law children (care) proceedings under the Children Act 1989 and placement for adoption proceedings under the Adoption and Children Act 2002. The request was made in accordance with the provisions of Art 15(1) of Council Regulation (EC) No 2201/2003 'concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility' [Brussels 2 Revised or B2R]. The request, if accepted, would have the effect of bringing to an end the proceedings in this jurisdiction, that is if the court in the Czech Republic accepts jurisdiction, the court in England and Wales is required to decline jurisdiction in accordance with Art 15(5) leaving the court in the Czech Republic with sole responsibility for any proceedings thereafter. The request has been stayed pending the hearing of this appeal.
The history behind the request is as follows. M is a young boy who is now 19 months old. He was conceived out of a relationship between his mother [LM] and his mother's stepfather [SD] when his mother was 17 years old. His maternal step-grandfather is therefore his father. Care proceedings were commenced by the local authority, Nottingham City Council, on 7 August 2012. On 30 November 2012 Mostyn J gave judgment on the facts. There is an agreed summary of those findings sufficient for this appeal to which I shall return in due course. After the finding of fact hearing, Mostyn J raised the question of whether there had been or was intended to be a B2R request. On 27 November 2013 LM made a request for the transfer to Novy Jicin.
The concurrent care and placement order applications were timetabled to a final hearing which was listed for two days beginning on 17 December 2013. Mostyn J considered the Art 15 request as a preliminary issue and gave judgment leading to the order which is the subject of this appeal and which is as follows:
"The District Court of Novy Jicin is requested to assume jurisdiction to decide upon the future of the child [M], but such request shall not formally be issued until and unless the intended appeal against this order is dismissed. In that event the request shall be issued within 14 days of the date of the dismissal of the appeal"
The request was opposed by the local authority and the children's guardian on behalf of M. They maintain their opposition in this appeal which is brought by the local authority with the support of the children's guardian. There is a Respondent's Notice filed on behalf of the children's guardian in which it is submitted that there are additional or alternative grounds upon which the appeal should be granted, namely the asserted advantage that the court in England and Wales would have over the court in the Czech Republic because of a) the judicial continuity that would be provided for between the fact finding and welfare determinations and b) the English court's obligation to ensure that adequate protective arrangements are made in respect of the child.
The court is very grateful to the advocates for the parties for the high quality of their written and oral submissions.
The background circumstances are these. SD and his then wife, M's maternal grandmother, DD, moved to the United Kingdom in 2004. They were accompanied by DD's daughter, LM. SD raised LM as a child of the family and had two further children with DD. When LM was aged 17 SD began a sexual relationship with her. Their son, M, was born on the 27 June 2012.
The local authority began care proceedings in respect of M on 7 August 2012. The first interim care order was made on 8 August 2012 and M has been residing with foster carers ever since. The local authority also began proceedings in respect of the two children of SD and DD in respect of whom final orders have been made. On 15 August 2012 the local authority was granted an order under section 34 of the Children Act 1989 permitting it to refuse contact between M and his father, SD. There has been no contact between M and SD since M's removal into care. M's mother, LM, had twice weekly direct contact with her son until she left the jurisdiction in August 2013. Since then she has had direct contact on the occasions that she has returned to the jurisdiction.
Between 16 and 23 November 2012 Mostyn J conducted the fact finding hearing. On Monday 19 November 2012, while in the middle of being cross-examined, SD failed to attend court. It became clear he had returned to the Czech Republic. In circumstances I shall describe, M's mother and father now live in the Czech Republic with their new child who was born last year.
Mostyn J's findings of fact can be summarised as follows:
i) SD's relationship with DD was 'a toxic mixture of love, hatred, domination and submission' and involved a history of sustained abuse and deliberate cruelty by SD;
ii) SD had been convicted in the Czech Republic in 2000 of the offences of causing a girl under the age of 15 to be a prostitute, the unauthorised production and keeping of psychotropic drugs and poisons, the rape of a girl under the age of 15 and endangering the moral upbringing of a minor;
iii) SD was 'deeply involved' in the offence of human trafficking in respect of which a conviction was entered against DD in 2001;
iv) SD committed a serious sexual offence of sexual activity with a child family member contrary to the Sexual Offences Act 2003 ss25 and 27 having raised LM as his step-daughter from the age of 10 and then when she was 17 and after 'a period of wooing and seduction', engaging in a sexual relationship with her;
v) SD introduced LM to illicit drug use and gave her drugs (on occasion by way of intravenous injection) on each occasion of sexual intercourse, including while she was pregnant with M;
vi) SD was a 'Svengali' figure and an extremely dangerous and depraved individual who by his malign powers of influence and domination to a large extent robbed DD and LM of their autonomy;
vii) By their continued association with him both DD and LM failed to protect their children and exposed them to significant risk;
viii) All three children, including M, suffered significant harm and were at risk of suffering significant harm at the time proceedings were commenced;
ix) Whether that risk continues depends in large part on whether SD re-enters the children's lives.
Following the finding of fact hearing LM said that she intended to separate from SD and to care for M on her own. In December 2012 LM returned to the Czech Republic and again became pregnant by SD. She returned to this jurisdiction in January 2013 and departed again for the Czech Republic in August 2013. She now lives with SD and their new child in Novy Jicin. Czech child protection services are involved in supporting the family.
Brussels 2 Revised:
As my Lord, the President recently articulated in In the matter of E (A Child) [2014] EWHC 6 (Fam), the jurisdiction of the courts of England and Wales in relation to public law children (care) proceedings is modified by B2R. The basic principle, set out in Art 8(1), is that jurisdiction under B2R is dependent upon habitual residence:
"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 is settled law that B2R applies to care proceedings in this jurisdiction: Re C ( Case C-435/06) [2008] 1 FLR 490 ECJ at [53] and [26] to [35]. By parity of reasoning the same must apply to placement for adoption proceedings which are a 'civil matter relating to the attribution, exercise, delegation, restriction or termination of parental responsibility' and 'the placement of a child against the will of a child': [26] and [35]. Accordingly the starting point in every care or placement order case with a European dimension is a consideration by the court whether B2R applies and that will involve an inquiry into the habitual residence of the child.
It is not necessary for this court to articulate the principles to be...
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