Southampton City Council v A Mother & Ors

These care proceedings concerning I, born 24^th August 2005, and therefore now aged nine, nearly ten, brought by Southampton City Council, by application dated 27^th February 2014, are listed for an issues resolution hearing before Her Honour Judge Black in Portsmouth on 27^th June. The proceedings have been transferred to me however to consider an application on behalf of I’s mother for an order pursuant to Article 15 of Council Regulation EC 2201/2003 (commonly known as Brussels II Revised) requesting the Court of the family’s country, namely Latvia, to assume jurisdiction for this case. Such applications must, pursuant to the latest allocation guidance, be heard in the High Court.

The background is as follows. I was born in Latvia in 2005 and came to this country with her parents in 2007. She has lived here ever since. She has attended school here. She speaks good English and only limited Latvian and Russian.

In 2010 her father was convicted of offences of rape and assault occasioning actual bodily harm and received a custodial sentence. Upon his release in November 2013 he was deported back to Latvia, where he remains.

In 2010 I was referred to Social Services by her school, but following a section 47 investigation no action was taken. A further referral, made in 2010, when allegations were made that I was being neglected by her mother, was also investigated, but again no action was taken.

A third referral was made in September 2013, on this occasion by the police, who had attended the family home and found the mother to be expressing delusion of beliefs that I was being sexually abused by a celebrity via a computer. A case conference was convened on 10^th October 2013 and eventually I was accommodated under section 20 of the Children Act 1989 on the 11^th November. The Local Authority then decided to issue proceedings. At a pre-proceedings meeting on the 24^th February 2014 the mother said that she wished to resume care of I so that both of them could return to Latvia to live with the father.

Proceedings were then issued on the 27^th February, the Courts of England and Wales having jurisdiction to entertain those proceedings by virtue of I’s habitual residence in this country under Article 8 of Brussels II Revised.

Before and after the start of the proceedings, I has had contact with her mother twice a week. An interpreter was required for those contact sessions because the mother speaks little English and I speaks little Latvian and Russian.

Prior to the case management hearing a psychological assessment of the mother was carried out by Dr. North who found that her IQ was 61, placing her in the mild learning disability range. Dr. North identified that the mother had a number of problems with cognitive functioning. She found it difficult to express herself further, or provide instructions to other people, or understand verbally presented material, non-verbal reasoning, and verbal memory and thinking quickly. She was able to understand verbally presented material provided it was present in a simple format. Dr. North recommended a number of measures be taken to help the mother cope with these difficulties including the provision of a Latvian interpreter at all times and furthermore a consistent interpreter because the mother finds it difficult to cope with uncertainty. Dr. North recommended that information be presented to the mother as simply as possible in a concrete, calm and non-stressful environment. A stressful environment would have an adverse effect on mother’s cognitive abilities. Dr. North further recommended regular breaks in all interactions with the mother. Because of the mother’s history of mental health difficulties Dr. North was concerned that were her mental health to deteriorate that would inevitably have an adverse effect on her cognitive ability and her capacity.

Dr. North concluded, however, that, at the time of the examination, the mother was able to demonstrate that she understood the information relevant to the proceedings and furthermore to retain it and weigh it up in making decisions. He therefore concluded that she had the capacity to instruct lawyers for the purpose of these proceedings. He warned that any deterioration in her mental health may result in her losing capacity.

The issues identified at the case management hearing by Judge Black on the 4^th April were first whether the threshold criteria under section 31 of the Children Act were satisfied. Secondly, if they are satisfied whether I should be cared for by either parent, or with her extended family, or outside the family.

At that hearing Judge Black made a case management order which included inter alia the following provisions. Under paragraph 5:

“The father is to file and serve within 21 days of service of the documents identified in paragraph 4 a statement dealing with the following issues:

(a)

whether he wants to play any part in these proceedings;

(b)

whether he seeks the care of I either alone or with his wife;

(c)

does he want I to live with his wife alone;

(d)

does he want to propose any other family members to care for I if she cannot be cared for by either of her parents;

(e)

does he want direct or indirect contact with I;

(f)

his view as to whether these proceedings should be dealt with in this Court or be transferred to Latvia.”

Under paragraph 7 Judge Black provided:

“The mother is to file and serve by 4 p.m. on the 22^nd April a statement dealing with her response to the threshold, the Local Authority evidence to date, providing details of any family members she wishes to be assessed as carers for I.”

Paragraph 8 of the order stipulated:

“Any application by the mother to transfer these proceedings to Latvia to be filed and served by 4 p.m. on the 22^nd April together with a statement setting out the reasons for such an application.”

Paragraph 9 stated:

“Southampton City Council to file and serve a capacity to care assessment of the mother by 4 p.m. on 29^th May 2014.”

Paragraph 12 provided:

“Southampton City Council to notify the Latvian Embassy and the Central Authority of these ongoing proceedings by 4 p.m. on the 11^th April and do provide each with a copy of the initial analysis by the Guardian.”

Finally, under paragraph 13, Judge Black provided for a hearing on 27^th June.

Following that hearing, the Local Authority duly wrote to the Latvian Embassy, and the Central Authority. On 24^th April the Riga Orphans Court, which is apparently the court in Latvia with jurisdiction in respect of children, replied in the following terms:

“On 11^th April 2014 Riga Orphans Court received a letter from the Embassy of the Republic of Latvia to the United Kingdom of Great Britain and Northern Ireland (hereinafter ‘Embassy’) containing information on the Latvian citizen IB and requested to take part in the protection of the rights and interests of IB within the area of the authority of the Courts. We hereby inform you that so far the Riga Orphans Court has not received any complaints about violations within IB’s family and has not passed any resolution about removing the risks of custody from IB’s parents. Based on the information received from the Embassy it can be included that I has been residing in the United Kingdom since 2007. Having regard to the above mentioned and according to Article 8(i) of [Brussels II Revised] the Riga Orphans Court finds that in order to guarantee the best possible protection of IB’s rights for the United Kingdom the matters concerning the custody of IB are within the jurisdiction of the authorities of the United Kingdom.”

The letter was signed by the Chair of the Riga Orphans Court.

On 24^th April, in accordance with the order made by Judge Black at the case management hearing, the mother’s solicitors filed an application for the transfer of proceedings pursuant to Article 15 of Brussels II Revised. The order was served on the father but in fact service was not effected until 26^th April.

Following that an undated document was received apparently from the father in the following terms:

“I have learnt about an action concerning the custody of my daughter, I, brought before the Court on a question of referring the issue to Latvia. Since I and my relatives and friends, and the relatives and friends of my wife, the mother of I, all live in Latvia, and can help us in matters relating to the education of the child, I join the request of my wife and ask you to refer the custody case to Latvia for further review. We have no relatives in the United Kingdom. I have a permanent place of residence and job in Latvia so I believe my daughter and I should be together. There is a school and a medical facility not far away from my place of residence. I asked the school if they could enrol my daughter in the classes. I also contacted the medical facility and they assured me that my daughter would be registered with a family doctor as soon as she arrived and she would be provided with whatever medical services might be required. I am very sorry there was a delay to appeal but I was notified about the matter by the Latvian authorities very belatedly. I hereby request the honourable Court to refer the custody case of my daughter, I, to the Latvian authorities for review.”

Meanwhile, pursuant to Judge Black’s order, the capacity to care assessment was carried out on behalf of the Local Authority and filed on 22^nd May. The social worker carrying out the assessment, Neil Chandler, concluded that I should not be returned to the care of her mother either in England or Latvia and that it was in I’s best interests to achieve stability through the identification of a long term foster placement for her in Southampton.

Article 15(1) of Brussels II provides:

“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 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 a court of another Member State to assume jurisdiction in accordance with paragraph 5.”

Article 15 (2) provides:

“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.”

Article 15(3) provides inter alia that:

“The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State. . . . .

(c)

is the place of the child’s nationality; or

(d)

is the habitual residence of a holder of parental responsibility.”

In AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c)).

Secondly, it must determine whether the court of that other Member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

Further recent guidance as to interpretation on an application under Article 15 is embodied in a series of cases – in chronological order: Re K (A Child) [2013] EWCA Civ 895, Court of Appeal; Re E (A Child) [2014] EWHC 6 FAM, Sir James Munby, President; Nottingham City Council v L M [2014] EWCA Civ 152 Court of Appeal; and Leicester City Council v S & Ors [2014] EWHC 1575, a decision of Moylan J.

From these cases the following points emerge as being particularly relevant to this case:

(1)

“The power to transfer a case or part of the case to the courts of another Member State in exception to the general principle as the opening words of Article 15(1) make clear” (per Lewison LJ in Nottingham City Council v L M at paragraph 15.)

(2)

“The Article 15 power may only be exercised where all three questions identified by Munby J in AB v JLB are answered in the affirmative” (per Ryder LJ in Nottingham City Council v LM at paragraph 16).

(3)

“The question of whether a court or another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child” (per Lord Justice Ryder in Nottingham City Council at paragraph 19).

(4)

“The starting point for the enquiry into the second question is the principles of comity and co-operation between Member States of the European Union” (ibid).

(5)

“The child protection services and the judicial services of other Member States are to be taken as no less competent than those in this jurisdiction” (per Thorpe LJ in Re K at paragraph 24, endorsed by Ryder LJ in Nottingham City Council v LM at paragraph 19).

(6)

“The difference in practice and principle relating to the measures to be taken in different Members States to meet risk and/or to meet the needs of a child including the use of non- consensual adoption is not a basis under Article 15 to decide the second or third questions” (Per Ryder LJ in Nottingham City Council v LM at paragraph 39).

(7)

“Questions of fact that might inform the court’s evaluation of whether a court is better placed to hear a case. This might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court’s knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on” )per Ryder LJ in Nottingham City Council v LM paragraph 20)

(8)

The evaluation of a child’s best interests under Article 15(1) is limited in its extent to the issue of forum. The approach to be followed in this evaluation under Article 15 is the same as under Article 12(3) as described by Baroness Hale in Re I (A Child) (Contact Application : Jurisdiction) 2010 1 AC 319 at paragraph 36 namely that: ‘This question is quite different from the substantive question in the proceedings, which is “what outcome to these proceedings will be in the best interests of the child?” It will not depend upon a profound investigation of the child’s situation and upbringing but upon the sorts of considerations which come into play when deciding upon the most appropriate forum” (per Ryder LJ in Nottingham City Council v LM paragraph 21).

(9)

“The question of whether there should be a request under Article 15 should be considered alongside other jurisdiction issues at the earliest opportunity” (per Ryder LJ and Sir James Munby P in Nottingham City Council v LM at paragraphs 47 and 50 respectively). “The longer the delay the more damaged the child’s situation will become” (per Moylan J in Leicester City Council v S at paragraph 8).

(10 “It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the Court should set out quite explicitly, both in its judgment and its order:

(i)

the basis upon which, in accordance with the relevant provisions of Brussels II Revised, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii)

the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15” ([er Sir James Mumby, P in Re E at paragraph 35.)

All the parties accept that the first criterion identified by Munby J in AB v JLB is satisfied in this case. I plainly has a particular connection with Latvia, being both a national of that country herself, a child national of that country, and furthermore by reason of her father’s habitual residence in that country. The issue in this case is whether the second and third grounds identified by Munby J in AB v JLB are satisfied.

The mother’s case, as set out in her statement, is summarised in the following sections. At paragraph 11:

“I believe that I am prejudiced if this case is heard in this country. As I indicate above I do not speak any English and it is said that I have mental health difficulties. I cannot attend professional appointments for Court without an interpreter and a mental health support worker. I do not believe that accurate and fair assessments can be carried out which are not conducted in Latvian/Russian.”

Further, at paragraph 16 of her statement the mother said:

“The promotion of I’s Latvian cultural heritage is of great importance. If the decision is made to place I away from me and her father the court in Latvia is better placed to ensure an ethnically and culturally suitable placement for I. If the decision is that I is placed away from me and her father the court in Latvia is better placed to ensure that the family members are assessed as long term carers and that I has appropriate contact with her parents and members of her extended family.”

In his submissions put before this Court on behalf of the mother Mr. Bartlett has developed her case as follows. He submits first that the Latvian Court would be better because the mother’s psychological difficulties coupled with her language difficulties will make it difficult for her to engage in these proceedings. The Latvian Court would therefore be a more appropriate Court in order to ensure that the mother is able to participate in the process. Furthermore, he submits that the Latvian Court will be better equipped to carry out such assessment of possible kinship placements as may be required in this case. He acknowledges that the evidence as to threshold is based in this country but submits that such evidence as is required to recall on threshold matters can be dealt with via interpreters within the Latvian Court process. Finally, in contrast to other cases he submits that judicial continuity is not yet a material factor in this case as Judge Black has hitherto only been involved in giving case management decisions and has not conducted any substantive hearing.

In reply the Local Authority, supported by the Guardian, submits that the Latvian Court is not better placed to determine the issues in this case and furthermore that transfer of the proceedings to Latvia would not be in I’s best interests.

In their written documents both the Local Authority and the Guardian make some points that seem with respect to fall within the traps identified by Thorpe LJ and Ryder LJ in Re K and the Nottingham and LM cases respectively. I disregard the Guardian’s comments about the comparative merits of the Latvian and United Kingdom care systems. It must be emphasised that this Court is not at this stage determining whether I’s future lies in Latvia, but rather whether that question should be determined here or in Latvia. Considerations as to merits of the care systems of the two countries, or indeed of the merits of the placements proposed for the child, are irrelevant matters for the purpose of the questions this court has to determine.

The key questions are whether this court, or the Latvian Court, is better placed to determine the issues in the proceedings (which as set out above are: (1) whether the threshold criteria under section 31 are met and (2) if so, what order should be made for I’s future placement) and whether a transfer would be in I’s best interests.

The Local Authority and the Guardian are, in my view, on much stronger ground when they contend, as they do, that this Court is plainly better placed to determine the question of threshold. The family has been living here for seven years. Thus I has been here for the vast majority of her life to date. The history of alleged neglect and emotional abuse on which the care proceedings are founded derives entirely from events said to have occurred in this country as does the evidence of the mother’s mental health problems. The witnesses of events in the years leading up to the start of proceedings, involving no doubt those matters concerning not merely recent events, but also matters relating to the earlier referrals of I to social services, are all in this country. It is true that the options for a family placement, if I cannot be returned to the care of her mother, and/or father, are based in Latvia. Assessments of those options will undoubtedly have to be considered in these proceedings if the threshold criteria under section 31 are found to be satisfied. The English court is required to carry out a rigorous and holistic analysis of all the realistic options for I’s long term future, having regard to the principles emanating from the Supreme Court decision in Re B [2013] UKSC 33 and the Court of Appeal in the line of 2013 authorities culminating in Re B-S [2013] EWCA Civ 1146.

It may be that the Latvian Court could more easily commission those assessments, but I do not consider that there is or should be any insuperable obstacles to the English court obtaining all the evidence it requires, including assessments of family options in Latvia, in order to make a decision about I’s future. Latvia is an EU country and a properly drafted application for information under Article 55 of the Brussels II Revised, or for evidence under the Evidence Regulation (Council Regulation (EC) 1206/2001), ought to equip the English court so that it has all the information about the Latvian options before making any final decision.

The mother has listed possible family members who could care for I in Latvia. The Local Authority has approached two of those people, each of whom has been unable to help. The others so far have not been contacted because contact details are not available. I do not consider it an insuperable problem to obtain those details.

Article 15 should not be interpreted as meaning that any case where the options of family placements are in another country should normally be transferred to that country. Article 15 is, as the Court of Appeal has reminded us, an exception to the general rule.

A further point of some importance is that this issue is being considered 14 weeks after the start of proceedings and only less than three weeks before the issues resolutions hearing. An Article 15 request will inevitably cause considerable delay. That seems to me to be an important factor to be taken into account in this application.

I have carefully considered Mr. Bartlett’s arguments that his client, by reason of her psychological and language difficulties, will be more likely to engage with a Court process in Latvia. It is possible that this will be the case but I am far from convinced that her participation in the proceedings in Latvia will be more effective. Furthermore, I consider that by adhering to the advice given by Dr. North it ought to be possible for this mother to participate in the English proceedings, although I can see there will doubtless be difficulties for those who represent her.

To my mind the arguments advanced by Mr. Bartlett are plainly outweighed by all the other factors in this case. In particular, I conclude that whichever Court conducts these proceedings will require some evidence from the other country which will of course have to be interpreted. It cannot be said that the Latvian Court is better placed to determine all the issues in the case having regard to the range of issues still at large. Furthermore, although I is of course by background and heritage a Latvian child she has been living here for seven years. She is plainly settled here. She speaks good English but little Latvian. In those circumstances I do not consider that it can be said to be in her best interests to transfer this case to Latvia.

In this context it is notable that, in his letter dated 24^th April, the Chair of the Riga Orphans Court indicated that in his opinion jurisdiction should rest with the English Courts. It is true that he does not there refer at all to Article 15 but, for my part, if he was of the view that an application under Article 15 should be made, I would have expected him to have said so in that letter.

I therefore conclude that a request pursuant to Article 15 should not be made in this case because I am not satisfied that the Latvian Court would be better placed to determine the issues arising in this case, nor that transfer would be in I’s best interests.

I emphasise that I am not saying that I should not ultimately be placed with a family member in Latvia. That option is undoubtedly one which has to be considered in these proceedings and I am confident that Judge Black will consider it as part of her rigorous analysis of all the options in the event that she finds that the criteria under section 31 is satisfied.

At the suggestion of the parties however to facilitate Judge Black’s analysis I do propose to make a more focussed direction to the father requiring him to identify as soon as possible, and in any event within 14 days, that is to say by 23^rd June, the names, addresses, and contact details of any family members who he proposes should provide long term permanent care for I in the event that court concludes that she should not be returned to the care of either parent.