Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 15 July 2021 |
| Neutral Citation | [2021] EWHC 1970 (Fam) |
| Court | Family Division |
[2021] EWHC 1970 (Fam)
Mrs Justice Knowles
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Henry Setright QC and Mr Chris Barnes for the Applicant local authority
Mr Mark Twomey QC and Mr Alex Laing for the child, D, by his Children's Guardian
The mother was neither present nor represented
Hearing dates: 23 and 24 June 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
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 application concerns a little boy, D, now aged two years and six months. He has been living in Switzerland in a foster home since November 2019, this being the time when his mother was arrested and remanded in custody pursuant to a European Arrest Warrant. His mother was extradited to this jurisdiction in June 2020 to face serious criminal charges arising out of the care she gave to her elder child, a boy called F. Following her extradition, the mother was remanded in custody and was due to stand trial in April 2021. However, on 13 April 2021, the Crown Prosecution Service determined that the mother's prosecution should be discontinued, and she was subsequently released from custody, the Crown Court certifying that it had entered a verdict of not guilty in respect of each count on the indictment.
The issue before the court is whether I should, as D's Children's Guardian submitted, make a request to the Swiss authorities pursuant to Article 9 of the 1996 Hague Convention [“the 1996 Convention”], for the transfer to this jurisdiction of all matters relating to D's contact with F. That application was opposed by the local authority though I observe that, in autumn 2020, the local authority had originally invited a transfer of jurisdiction relating to all aspects of D's welfare pursuant to Article 9 of the 1996 Convention. Though neither present nor represented at this hearing, the mother made plain, in emails sent to the parties, her opposition to this court either requesting a transfer of jurisdiction from Switzerland or having authority to determine any matters relating to D's welfare. If I decline to make the Article 9 request sought on behalf of D, both the local authority and D were agreed that I should give permission to the local authority to withdraw both its original application for an Article 9 request and its application for a public law order with respect to D.
The local authority is represented by Mr Setright QC leading Mr Barnes and D is represented by Mr Twomey QC leading Mr Laing. I am very grateful to them for their comprehensive written and oral submissions. Though the mother was previously present and represented at earlier hearings, this was not so for the purposes of this hearing. I have read several recent email communications sent by the mother and will consider her position in further detail later in this judgment.
I have read a bundle of papers in the proceedings concerning D and been provided with a bundle of law and case-law relevant to the issues before the court.
Mr Setright QC informed me that this case may be one of the first occasions in which the courts of England and Wales have been invited to consider the provisions of Articles 8 and 9 of the 1996 Convention in the context of public law proceedings. Given that these provisions are likely to take on a greater degree of prominence as the United Kingdom has exited the transitional arrangements with the European Union, it is possible that this decision may assist future decision-makers.
Background
Proceedings concerning F
The background to the present proceedings is set out in the judgment of Mr Recorder Samuels QC dated 28 April 2017 in care and placement order proceedings concerning D's older sibling, F. In summary:
a) F was born in October 2014 and was understood to have been conceived following IVF treatment for the mother in Denmark. His paternity was, therefore, unknown;
b) Proceedings concerning F were commenced in the USA and came before the New York Family Court which resulted in a finding of neglect against the mother;
c) Following the dismissal of criminal proceedings brought against the mother in New York, she returned to this jurisdiction and sought the return of F to her care;
d) F returned to this jurisdiction, and public law proceedings were brought by a local authority (not the local authority presently involved). Pending a final determination, F was returned to the care of his mother pursuant to an interim supervision order with a number of conditions;
e) Within the care proceedings, the mother sought, and was given, permission to remove F temporarily to Denmark so as to pursue further IVF treatment;
f) A final hearing was due to take place in January 2017 with a plan for F to remain in the care of his mother, but this did not proceed following a referral to the police after the discovery of bruising on F in January 2017. F was subsequently placed under police protection, and then made the subject of an interim care order. It is understood that these events took place following the mother and F moving to reside in the area of the local authority presently bringing the proceedings concerning D;
g) The final hearing of the local authority's care and placement order applications came before Mr Recorder Samuels QC on 4 April 2017 and concluded with his judgment of 28 April 2017 following evidence and time for written submissions;
h) In the course of the final hearing, Mr Recorder Samuels QC reached a number of conclusions on factual matters, namely: (i) the findings made by the New York Family Court with respect to the mother's care of F's were upheld and found to cross the threshold set out in section 31 of the Children Act 1989; (ii) findings were made in respect of the mother's mental health, including a finding supportive of a diagnosis of hypomania; (iii) the mother was found to have caused a non-accidental injury (bruising and a cut) to F's penis; and (iv) a finding of non-accidental injury was not made in respect of a bruise on F's jaw;
i) The judge undertook a welfare analysis of the competing alternatives — a return to the mother, or adoption — and concluded that adoption was required.
An appeal brought by the mother against the decision of Mr Recorder Samuels QC was unsuccessful and F was placed for adoption. The mother sought to oppose the subsequent adoption order application but was, again, unsuccessful. Somehow, the mother appears to have become aware of details of F's prospective adoptive placement and acted on that knowledge.
D's background
Within the adoption proceedings concerning F, the mother filed a statement which noted that she was “pregnant with another child” and, from the dates provided, she was then about three months pregnant. She indicated that she may be outside the UK.
Information received from the Swiss authorities revealed the following:
a) D has a Barbados passport issued on 6 December 2018 which notes he is a Barbadian national, his place of birth is recorded as Barbados and a date of birth was given in 2018;
b) Investigations undertaken by the Swiss authorities identified that D was born in Barbados and that he was registered under a slightly different name compared to that of the mother. The Swiss authorities were awaiting a birth certificate from the Barbadian authorities;
c) The circumstances in which D came to be born in Barbados were not known but there did not appear to be any pre-existing connection of his mother to that place;
d) The Swiss authorities stated that they were not aware of the circumstances in which D came to be in Switzerland, noting that the mother had no permit or other legal permission to live permanently in Switzerland;
e) D was noted to have been brought to Switzerland by his mother undeclared and unregistered and he also had no residence permit;
f) The Swiss authorities stated that D was born by “medically assisted reproduction”, but it is not known whether this was independently corroborated or based solely on information provided by the mother;
g) Whilst in the care of the Swiss authorities, following the mother's arrest, it appears that D had some contact with his mother, but her access rights were suspended in the light of apparent concerns about the quality of D's attachment to her;
h) By way of an email sent to ICACU on 5 August 2020, the Swiss authorities noted that D was “developing well. However, he has been totally disconnected from his environment in terms of language, education, culture and we are concerned about his future”. On removal from his mother, D was placed in foster care and has remained in the same placement ever since;
i) On the assumption that D is the mother's natural child, it appears highly likely that D would have acquired British nationality by descent at birth.
Procedures in Switzerland relating to D
I have used the phrase “the Swiss authorities” to refer to the cantonal authority responsible for D's care in that jurisdiction. I have done so to avoid any identification of D and where he may reside.
There has been ongoing correspondence between ICACU, the local authority and the Swiss authorities since August 2020. Child protection procedures are considered by the Swiss authorities rather than...
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