The Mayor and Burgesses of the London Borough of Camden v Pura Caratt and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Baker |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2336 (Fam) |
| Docket Number | Case No: IL13C00144 |
| Court | Family Division |
| Date | 31 July 2013 |
[2013] EWHC 2336 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: IL13C00144
In the Matter of the Children Act 1989
And in the Matter of YC, PC and KM (Minors)
and
Sarah Forster (instructed by Local Authority Solicitor) for the Local Authority
Victoria Green (instructed by Steel and Samash) for the 1 st Respondent
Alison Easton (16 th July) and Jane Drew (18 th July) (instructed by Powell Spencer and Partners) for the 2 nd Respondent
Anne Spratling (instructed by TV Edwards) for the 3 rd, 4 th and 5 th Respondents, by their children's guardian
Hearing dates: 16 th and 18 th July 2013
This judgment is being handed down in private on 31 st July 2013. It consists of 7 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
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.
Introduction
This judgment addresses the question whether the provisions of article 15 of Council Regulation(EC) Bo 2201/2003, commonly known as Brussels II Revised and hereafter "BIIR", may be used to facilitate a transfer of proceedings between jurisdictions within the United Kingdom.
Background
The issue arises in care proceedings brought by Camden social services in respect of three girls, Y (aged 11), P (10) and K (4). Their mother lived originally in Venezuela where she gave birth to Y and P. According to the mother, the girls' father died when she was expecting P, and in about 2005 she took the girls to Spain where she was allowed to stay as her grandmother came from Catalonia. In 2007, she started a relationship with a Scotsman, GM, who was living in Spain and the following year they were married, and the family moved to Nairn in Scotland.
The mother alleges that, after she became pregnant again in 2009, her relationship with GM deteriorated and she was subjected to abuse and violence. The couple separated and, following K's birth, a sheriff in Inverness granted the mother a residence order and permission to remove K from Scotland to Spain. In the event, the mother stayed in Scotland living initially in the former matrimonial home, but in 2011, having been evicted from that property, which was apparently owned by her former mother-in-law, she moved with the girls to Edinburgh where they were accommodated with the assistance of the National Asylum Support Service.
In February 2013, however, they travelled to London, and applied to Camden Council for emergency housing. They were placed temporarily in a refuge but the following week the mother returned to Scotland, allegedly to attend a court hearing, leaving the girls in the care of another resident at the refuge. The children were taken into police protection and placed in foster care.
On 18 th February, the local authority started care proceedings and the following day the family proceedings court placed the children under interim care orders. The mother returned to London, and had supervised contact with the children during which she seemed very tired and in a low mood. Assessments disclosed concerns about the mother's mental health and parenting capacity. She made a series of allegations that the children had been ill-treated in foster care. In April, the mother moved back to Scotland and has not seen the children for three months. Meanwhile, K's father has contacted social services wishing to care for his daughter and alleging that he had a residence order in his favour made by a Spanish court in 2009.
In June, the mother's solicitor filed an application in the care proceedings seeking transfer of the case to Scotland. On 4 th July, District Judge Harper sitting in the Principal Registry directed that her application be listed before a judge of the Family Division, and at the same time gave directions timetabling the case though to an issues resolution hearing in the Registry in September.
The relevant provisions of BIIR
Jurisdiction to make orders under Part IV of the Children Act – placing a child in the care of or under the supervision of a local authority – is now derived from the rules set out in Chapter 2, Section 2 of BIIR, which, as an EU regulation, is directly applicable in Member States and prevails over domestic law. The basic rule is set out in article 8.1 which provides that "the courts of a Member Stare 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". Article 13.1 provides: "where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of article 12 [prorogation], the courts of a Member State shall have jurisdiction." It is accepted by the mother that the courts of England and Wales currently have jurisdiction in this matter.
Article 15, headed "Transfer to a court better placed to hear the case", provides as follows:
"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 in accordance with paragraph 4, or
(b) request the court of another Member State to assume jurisdiction in accordance with paragraph 5.
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 the 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 the 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 accordance with paragraph 1.
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