Re CK (Children)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Moylan |
| Judgment Date | 06 August 2015 |
| Neutral Citation | [2015] EWHC 2666 (Fam) |
| Docket Number | Case No: NE15C00192 |
| Court | Family Division |
| Date | 06 August 2015 |
[2015] EWHC 2666 (Fam)
IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: CP (CHILDREN)
The Law Courts
The Quayside
Newcastle-upon-Tyne
NE1 3LA
The Honourable Mr Justice Moylan
Case No: NE15C00192
Counsel for the Local Authority: Mr Stonor QC
Counsel for the Mother: Mr Brown
Counsel for the Father: Mr Spain
Counsel for the Children: Mr Gray
These proceedings concern four children: A (aged 16); B (aged 9); C (aged 9); and D (aged 3).
The parties to the proceedings are the Local Authority, North Tyneside Council, represented by Mr Stonor QC; the children's mother, represented by Mr Brown; the father of the three younger children, represented by Mr Spain; and the children, through their guardian, represented by Mr Gray. The eldest child's father is deceased.
This hearing has been listed to determine whether his court has jurisdiction and, if it does, whether a request should be made to the Lithuanian authorities under Article 15 of Brussels IIA. At the conclusion of the hearing, I adjourned giving judgment in order to give further time for the Lithuanian authorities to communicate any additional matters they wished to make in respect of Article 15. They had in fact already sent a letter to the English Central Authority, in response to questions posed by this court, but this was not available to me until after the hearing.
The Lithuanian Central Authority has made it clear that they seek a transfer of jurisdiction under Article 15. It is their view that the Lithuanian authorities are better placed, and that it would be in the children's best interests for them, to hear this case. In summary, they point to the children's connections with Lithuania, to the connections which these proceedings have with Lithuania including in terms of potential placements and evidence and to the provisions of international instruments including Article 8 of the United Nations Convention on the Rights of the Child 1989 which requires State Parties to respect the right of a child to preserve his or her identity, including nationality.
The Local Authority, the mother and the guardian all submit that this court has jurisdiction under Brussels IIA because the children were habitually resident in England and Wales at the date when these proceedings were commenced, namely, 15 th April 201They also submit that it would not be appropriate to transfer jurisdiction under Article 1Despite the father's limited and only recent involvement in these proceedings, Mr Spain has made clear that he does not seek an adjournment of the hearing or of the determination of the above issues. Mr Spain does not actively oppose the cases advanced on behalf of the other parties in respect of those issues, saying that the father is keen for an early decision to be made for the benefit of the children.
Background
The children's mother is aged 35. The three younger children's father, who I will call 'the father', is aged 42. The father and mother are married. They and the children are Lithuanian nationals. They all lived in the family home in Lithuania until 25 th January 2014. On that day, in fact in the middle of the night when the father was at work, the mother left the family home with the children and they travelled to England.
The mother says that she was fleeing an abusive relationship. She had been told by a woman, "X", that she would be much better off living in England. There appear to be differing accounts as to how the mother came to be in contact with X. She seems to have been introduced to her through her brother (that is the mother's brother) who is in prison in Lithuania.
X sent the mother some money and helped make arrangements for the mother and the children to travel to England. When they arrived in England, they first stayed with X at her home. Also living in that home was a man, "Y", X's partner, a friend of X's and X's son, "Z".
In her statement, the mother says that she was not given truthful information by X as to the circumstances she would find in England and that, if she had known the truth, she would not have moved to England.
The mother says that, shortly after she and the children arrived in England, the father got in touch with her. She and the children then spoke to him via Skype.
On 7 th February 2014, the father contacted the Child Rights Protection Division ("CRPD") for his local district in Lithuania. He told them that the children had been taken abroad by the mother without his agreement or knowledge. The father expressed concern about the children's circumstances. He wrote again on 27 th February 2014.
The mother was contacted by email by the CRPD, in the course of which she was told that her removal of the three younger children from Lithuania without the father's consent was wrongful under the 1980 Hague Child Abduction Convention ("the 1980 Convention"). The mother replied on 7 th March 2014. She said that she had moved abroad with the children to escape psychological and physical abuse by the father.
The CRPD contacted the State Child Rights Protection and Adoption Service ("the State Service"). The State Service responded that further information was required before it would make any request for information under Brussels IIA. In addition, it pointed to the father's right to file an application under the 1980 Convention. The State Service is also the relevant Central Authority for Lithuania. Further details were given to enable the father to make such an application. This information was provided to the father on 9 th April 2014. It is clear that he has not made any application under the 1980 Hague Convention or indeed otherwise. He appears not to have contacted the State Service again until some time in 2015.
The CRPD has also stated that the family was known to them from August 2012. This followed the police reporting that the mother and the father had been drunk and arguing in the presence of B and that the father had dropped D, then aged 5 months. They were interviewed and the home was visited by social workers. The living conditions were determined to be very good, but the family remained subject to supervision. No more reports about child neglect were received by the CRPD.
The children have remained living in England, the father, as I have described, having taken no steps to seek to obtain their return to Lithuania. On some date in February 2014, the mother and Z decided to set up home together with the children.
Local Authority Involvement and Commencement of Proceedings
On 22 nd May 2014, B was seen collecting cigarette stubs at a metro station. This was referred to the police. The Local Authority carried out an assessment. This was completed on 2 nd June 2014. The children were not attending school and, it appears, had not been attending school since their arrival in England in January 2014. The mother was given advice about leaving the children in the care of the eldest child.
Despite the fact that the children had not been in school for nearly six months and despite the mother's apparent admission that B had often been sent to collect cigarette stubs by Z, the Local Authority decided that there was no further role for safeguarding services. I have not seen the June 2014 assessment, and this issue was not investigated during the course of the hearing, but I cannot but express surprise at this decision given the background circumstances. I would expect the Local Authority to review how this decision was made at that time.
At this stage, all four children were sharing one bedroom and the mother and Z were sleeping in the living room. It appears the family were dependent on State benefits. Arrangements were made by the Local Authority for the elder three children to attend school. Since then, the eldest child has attended a local secondary high school and the twins have attended a local primary school.
On 17 th November 2014, Z assaulted the mother. He called an ambulance and the police came to the property. The children and the mother were taken to a refuge. The children were spoken to by the police and social workers.
The mother reported that Z had assaulted her regularly and controlled all aspects of her life. She also reported that Y had exposed himself to the children and may have touched them inappropriately. The precise sequence of events is not clear to me, but it is clear that the eldest child told the police and social workers that Y had sexually assaulted his siblings and that he had told the mother about this.
The twins were ABE interviewed, although not until 2 nd December 2014. The reasons for this delay will also need to be considered during the course of the proceedings. The younger children reported that the mother had been told about the abuse they had suffered. They also reported witnessing domestic abuse between the mother and Z.
Y has been charged with a number of sexual offences and is due to stand trial in late October 2015.
On 3 rd December 2014 the mother agreed to the children being voluntarily accommodated under s.20 of the Children Act 1989. The eldest child and D are in one placement and the twins are in another. They have regular contact with the mother and with each other.
An Initial Child Protection Conference took place on 23 rd December 2014. It was decided that, although the threshold was met for the children to be made subject to a child protection plan, they would not in fact be made subject to such a plan. This decision appears to have been reached on the basis that the...
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