Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [Family Division]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 March 2013 |
| Neutral Citation | [2013] EWHC 521 (Fam) |
| Court | Family Division |
| Date | 13 March 2013 |
[2013] EWHC 521 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
and
and
and
Mr Marcus Scott-Manderson QC and Miss Alison Hunt (instructed by the Local Authority Solicitor) for the Applicant
Mr Clive Newton QC with Miss Dawn Tighe (instructed by Parker Rhodes Solicitor) and
Miss Jessica Pemberton (instructed by Harthills Solicitors) for the 1 st and 2 nd Respondents
Mr Charles Prest (instructed by Howells Solicitors) for the 3 rd Respondent
The 4 th Respondent was not represented
Hearing date: 12 March 2013
This judgment is being handed down in private on 13 March 2013. It consists of 43 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported in this anonymised form agreed between counsel and approved by the judge, as Re T (A Child: Article 15 of B2R).
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
I am concerned with a 10 month old boy called T, who was born in this country on 22 April 2012. His mother was born on 15 September 1995, and is therefore only 17. His father was born on 16 June 1992 and is therefore only 20. The mother and father are both Slovakian citizens. T was conceived in Slovakia when the father was just 19 and the mother not yet 16.
The mother and father come from the ethnic or racial group known by the exonym Romani. In the English-speaking world the Romani were known for generations as gypsies — a disparaging corruption of the word Egyptian. Fortunately that appellation has fallen into disuse. The Romani people migrated from the Indian subcontinent into Europe about 1500 years ago and for most of their history have been subjected to persecution and forced assimilation at the hands of, among others, the Byzantines, the Ottomans and ethnic Slavs. More recently they were subjected to the bestial genocidal practices of Nazi Germany and its vassal states. There are presently about 100,000 to 200,000 Romanis in Slovakia, about 2% to 4% of the population. Even following the war of 1939 – 1945 they were subjected to discrimination and forced assimilation by the communist regime, and it has only been since the fall of communism that they have been treated more equally. But deprivation and acute social problems for the community have endured and this has led to the migration of many Romani people to this country and elsewhere. Thus in July 2008 the mother's mother left Slovakia with the mother's siblings to join her husband, her children's stepfather, in Rotherham.
Shortly beforehand on 19 May 2008 a court in Michalovce, Slovakia ordered that the mother be placed in a crisis centre following certain allegations by her against her stepfather and mother. In July 2008 the relationship between the mother and father began. The mother was then aged 13, the father 16. On 14 January 2009 the Michalovce District Court made an order placing the mother in the children's home in that city. In July 2011 the mother fell pregnant and on 30 November 2011 the Michalovce District Court ordered that the mother be transferred to the children's home in Kosice which had a special unit for underage mothers. It was from there on 29 February 2012 that the mother ran away with the father and travelled to this country which she entered on false papers. The mother and father went to the town where her family were living, and it was there on 22 April 2012 that T was born.
It was not only on account of the mother's young age that the local authority was concerned for the newly born infant. Almost from the moment of their arrival here in 2008 protective measures had been taken in relation to the mother's siblings and this led to all or some of them being made the subject of care orders in 2010. I have not been given the details. At all events the local authority undertook a core assessment immediately following T's birth and only allowed the mother to take him to her own mother's home on discharge from hospital on 4 May 2012 on the basis that the mother signed a "contract of expectations". Unfortunately as a result of various intra-familial disputes the placement broke down and ultimately on 18 May 2012 the mother and T moved to a Mother and Baby Unit for a 12 week period of assessment pursuant to an agreement made under section 20 of the Children Act 1989. However, on 23 May 2012 the mother left the unit leaving the baby behind, and although she returned the following day she left again finally on 27 May 2012, complaining that the place was like a prison.
Meantime on 25 May 2012 care proceedings were issued by the local authority. That application has since been augmented by an application for a placement (for adoption) order. There have since been 12 interlocutory orders made by the court including a final directions order by me on 5 March 2013 when I directed that the first day of the final hearing fixed for four days commencing on 11 March 2013 should be used to determine the question of which is the most convenient forum in which all issues concerning T's future should be adjudicated, for the reasons which I will explain below.
On 19 July 2012 the Director of the children's home in Kosice wrote to the local authority stating "our interest is that the mother be returned to the children's home, as she is entrusted to our care by the courts". Later the authorities in Slovakia expanded this to seek the return of T also. On 27 September 2012 the children's home informed the Slovakian Central Office of Labour, Social Affairs and Family (which I take to be the relevant government Ministry) of the circumstances of the case and on 3 October 2012 the Slovakian Central Authority received a report from the Ministry about the mother and T. The Slovakian Central Authority contacted the Central Authority (ICACU) here on 5 October 2012. On 18 January 2013 a lengthy letter entitled "Intervention of the Slovak Central Authority" was received by the court authored by Andrea Cisarova. This has been supplemented by two further detailed submissions dated 21 February 2013 and 8 March 2013. In these documents the Slovakian Central Authority forcefully argues that under EU law, equally applicable in Slovakia and this country, the mother and T are both habitually resident in Slovakia; the mother is the subject of an order which is entitled to recognition and enforcement here; and that this is a case where a request should be made by this court under article 15 of Regulation Brussels II Revised 1 for a transfer to the Slovakian courts of the proceedings concerning T.
In the light of the stance of the Slovakian Central Authority I joined it as a party to the proceedings on 5 March 2013 although in the event it chose not to be represented at the hearing but preferred instead to rely on its written submissions.
I have heard detailed interesting argument concerning the correct interpretation of article 15 from Leading Counsel for the local authority and the parents and from counsel for T. Although article 15 has been in existence for nearly 10 years now there is no reported case either here or elsewhere in the EU on its interpretation by a court considering whether to make the request, with the exception of AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517, although as I will explain that decision is not in point here. Nor is there any official guidance about it from the Commission. Nor have counsel been able to identify any academic commentary about it.
So far as is material to this case article 15 provides:
" Transfer to a court better placed to hear the case
1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or
(b) request a court of another Member State to assume jurisdiction …
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in...
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