Re B (Children: Care Proceedings: Jurisdiction: Transfer of Proceedings)
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 20 May 2022 |
| Neutral Citation | [2022] EWHC 1494 (Fam) |
| Docket Number | Case No: RG21C01173 & RG21C01174 |
| Court | Family Division |
In the matter of;
[2022] EWHC 1494 (Fam)
HHJ Moradifar
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: RG21C01173 & RG21C01174
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
In the first proceedings
Nick Goodwin QC (instructed by the Joint Legal Team) for the applicant local authority Sheila Phil-Ebosie (instructed by All Family Matters) for the mother (in the first proceedings)
Christopher Poole (instructed by Rayat & Co) for the father (in the first proceedings)
Andrew Norton QC and Jasbinder Dail (instructed by and the latter of Rowberry Morris) for the child LB through her Guardian.
In the second proceedings
Nick Goodwin QC (instructed by the Joint Legal Team) for the applicant local authority
Andrew Norton QC and Jasbinder Dail (instructed by and the latter of Rowberry Morris) for the mother LB (a minor)
Aidan Vine QC and Paul Murray (instructed by Barrett and Thomson) for the father AB (a minor)
Paternal grandparents (in person and did not attent this hearing)
Tom Harrill (instructed by Griffiths Robertson) for the child S through her guardian.
Hearing dates: 20 May 2022
Judgment Approved by the court for handing down
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There are four applications before me that concern two children in connected proceedings. Both children are Romanian nationals. The first set of proceedings concerns a sixteen year old child whom I will identify as LB. The second set of proceedings concerns LB's young child who is six months old. I will identify her as S. In September 2021, when LB was fifteen years old, she presented unaccompanied to a hospital where S was born.
Concerns about both children's circumstances caused the police to exercise their protective powers. Subsequently, the local authority applied to the court for public law orders in respect of both children. The local authority's concerns included child trafficking and the possibility of LB being forced to marry. Both children were placed in a ‘mother and baby’ foster placement pursuant to an interim care plan that was approved by the court on 1 October 2021 when the court made each of the subject children subject to an interim care order.
On 3 November 2021, LB left the placement, leaving S behind. The local authority asserts that LB was wrongfully removed from the jurisdiction and this was facilitated by her family. LB's whereabouts have been uncertain, although more recently there is evidence to suggest that she is residing in Romania with her parents. She wishes to remain living in Romania and for S to join her. The local authority contends that in circumstances in which it is unable to exercise its shared parental responsibility for LB, she should be made a ward of the court and the court should continue to demand her return to England (‘this jurisdiction’) until at least the conclusion of the provisional fact finding hearing that is listed to commence in September of this year. Finally, S's father (‘AB’), who has been seeing his daughter remotely, wishes to progress his contact to face to face meetings. He invites the court to order that contact should progress as soon as possible.
Therefore, the applications that are before me are;
a. An application by the local authority that LB is made a ward of the court,
b. Applications by LB;
i. To challenge the court's jurisdiction to continue to hear her case on the grounds that she is not habitually resident in this jurisdiction, and
ii. If the court finds that it has jurisdiction, both sets of proceedings are transferred to the Romanian courts pursuant to Art. 8 of the Convention on Jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children (1996) (‘the 1996 Convention’), and c. AB's application for contact with S.
The applications by LB are supported by the family that includes LB's parents and AB. These applications are also supported by LB's guardian in the first proceedings, although latterly, it is conceded that the guardian has no say in respect of the proceedings concerning S where S is separately represented through her own guardian. S's guardian opposes the applications for transfer in respect of S. The local authority asserts that this court has jurisdiction over LB and opposes the applications for the transfer of the proceedings.
The broad issues
Given the nature of the applications before me, the first issue to address is the question of the court's jurisdiction. This turns on the question of habitual residence. If I am satisfied that this court has jurisdiction to conduct proceedings in relation to LB, then I must next consider LB's application for transfer of the two sets of proceedings. Finally, if I refuse the applications, I must consider the local authority's application to make LB a ward of the court. Finally, subject to my decision on the first two issues, I must consider the issue of contact. Therefore, I must address the applications in the following order;
a. Jurisdiction and habitual residence of LB,
b. Transfer of LB's proceedings,
c. Transfer of SB's proceedings,
d. Wardship, and
e. Contact
The law
Jurisdiction and habitual residence
These proceedings are brought under Part IV of the Children Act 1989 (the ‘Act’). Following the United Kingdom's exit from the European Union, issues of the jurisdiction of the courts of England and Wales over nationals of a contracting member state in proceedings that are initiated after 11 pm on 31 December 2020 are governed by the 1996 Convention (see Warrington Borough Council v T and Others [2021] EWFC 68, [2022] Fam 107). The exercise of jurisdiction by the courts of England and Wales in proceedings under Parts I and II of the Act are governed by the Family Law Act 1986.
Art. 5 of the Convention provides that;
“(1) The judicial or administrative authorities of the contracting state of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.
(2) Subject to article 7, in case of a change of the child's habitual residence to another contracting state, the authorities of the state of the new habitual residence have jurisdiction.”
These provisions clearly provide for the habitual residence of the subject child to be determinative of the court's primary jurisdiction.
The contracting member states cannot assert jurisdiction or acquire jurisdiction outside the terms of the Convention. The Lagarde Explanatory Report (1997) provides as follows
“ 38. This article in its first paragraph entrusts to the authorities of the Contracting State of the habitual residence of the child the principal jurisdiction to take measures of protection of his or her person and property, and it sets out in its second paragraph that, subject to Article 7 (wrongful removal or retention of the child), in case of a change of the child's habitual residence to another Contracting State, the jurisdiction passes to the authorities of the State of the new habitual residence. The question of the survival of measures taken in the first State is dealt with in Article 14 (see below).
39. Article 5 is based on the supposition that the child has his or her habitual residence in a Contracting State. In the contrary case, Article 5 is not applicable and the authorities of the Contracting States have jurisdiction under the Convention only on the basis of provisions other than this one (Art. 11 and 12). But nothing prevents these authorities from finding themselves to have jurisdiction, outside of the Convention, on the basis of the rules of private international law of the State to which they belong.
…
42. Where the change of habitual residence of the child from one State to another occurs at a time when the authorities of the first habitual residence are seised of a request for a measure of protection, the question arises as to whether these authorities retain their competence to take this measure (perpetuatio fori) or whether the change of habitual residence deprives them ipso facto of this jurisdiction and obliges them to decline its exercise. The Commission rejected by a strong majority a proposal by the Australian, Irish, British and United States delegations favourable to the perpetuatio fori. Certain delegations explained their negative vote by their hostility to the very principle of perpetuatio fori in this field and wanted jurisdiction to change automatically in case of a change of habitual residence, while other delegations thought that it would be more simple for the Convention not to say anything on this subject thereby abandoning to the procedural law the decision on perpetuatio fori. The first opinion appeared to be the more exact in the case of a change of habitual residence from one Contracting State to another Contracting State. Indeed it is not acceptable that in such a situation, which is located entirely within the interior of the scope of application of the Convention, the determination of jurisdiction be left to the law of each of the Contracting States. Moreover this solution is one which currently prevails for the interpretation of the Convention of 5 October 1961. On the other hand, in the case of a change of habitual residence from a Contracting State to a non-Contracting State, Article 5 ceases to be applicable from the time of the change of residence and nothing stands in the way of retention of jurisdiction, under the national law of procedure, by the authority of the Contracting State of the first habitual residence which has been seised of the matter, although the other Contracting States are not bound by the Convention to recognise the...
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