In the Matter of A And B (Children: Brussels II Revised: Article 15)

An urgent decision is required as to whether to request the district court in [specified town], Czech Republic to assume jurisdiction in relation to two Czech children, A who is almost 5 and B, just over 1 year old. Since April 2014, the children have been subject to care proceedings. The application for a transfer request is made by the father of the older child, fully supported by the mother but opposed by both the local authority and the Children’s Guardian, Carol Vicarage.

The background is as follows. The mother and her family is “well known” to the Department for Social Care and Protection of Children (OSPOD) in the Czech Republic. There was agency involvement between 1998 and 2011. She lived with her grandmother, A’s great-grandmother – W – during his infancy.

In May 2011, OSPOD was about to initiate court proceedings when the mother’s family – but not W – fled to the UK.

In March 2012, the mother and X, A’s father, separated. She travelled to the Czech Republic with A but returned here in August that year by which time she was in a relationship with Y, who is B’s father.

In early 2013, the family came to the attention of the local authority because of reports of serious domestic violence between the maternal grandparents in the home where the mother and both children were living. In addition, there was reported violence as between the mother and Y.

At the initial child protection case conference in August 2013, A and B became the subject of child protection plans under the category of emotional abuse. It is suggested there had also been a level of general neglect.

In about January this year, Z and the mother separated. He may have returned to the Czech Republic having applied for an emergency passport to facilitate travel. His current whereabouts are unknown.

By March 2014, a pre-proceedings family assessment had concluded that significant concerns remained about the mother’s ability to keep the children safe, in part because of her lack of engagement and dishonesty.

X is currently serving a prison sentence. He is due for release and deportation to the Czech Republic in March 2015. It may be that he will be released to serve the remainder of his sentence in the Czech Republic as early as December.

The local authority began care proceedings in early April. The proceedings are allocated to Her Honour Judge Jakens and District Judge Pollard for case management and hearing.

Interim care orders were made at the first hearing on 9^th April. Thus far, there have been seven case management hearings dealing with a variety of issues.

On 16^th April, Judge Jakens very properly deliberated in relation to the question of jurisdiction. Her order relates that she heard from Antonin Hradilek, Minister-Counsellor and Deputy Head of Mission at the Embassy of the Czech Republic. His views, as recorded, were that there was “no live issue as regards jurisdiction.” Judge Jakens’ order reflects that she had given active consideration to the children’s habitual residence as well as the principles set out in Articles 8 and 15 of B2R. She decided the children were habitually resident in the UK and that she should accept jurisdiction.

The order of 16^th April also records that “the fathers of the children have not yet been spoken to about possible carers due to their whereabouts being uncertain.”

It is unclear to me as to when it was that X was sent to prison. He was certainly known to the probation service by December 2013. Be that as it may, X did not participate at any court hearing prior to 17^th September 2014 although he wrote to the court with the assistance of the prison service in late May and at the beginning of August. On no fewer that four occasions, production orders failed to result in his presence. Eventually, towards the end of August, as the result of direct communication between Judge Jakens and the prison governor, X was able to secure legal representation. His application for consideration of an Article 15 transfer request was issued on 10^th September.

On 1^st October, the proceedings were listed before Judge Jakens to consider X’s application as well as the local authority’s request for the setting down of an Issues Resolution Hearing. The mother indicated that she, too, wished to apply for an Article 15 transfer request. Judge Jakens decided, altogether understandably, to list the matter before Mrs Justice Theis for directions on 14^th October.

For good reason, the dispute was listed before me for substantive hearing on 21^st October.

The parties’ positions within the care proceedings both on paper and as they have been explained at this hearing are these. The local authority’s final evidence and care plans are unequivocal. They recommend placement of both children for adoption in England, without direct contact to any parent. That was the position in the period leading to this hearing according to both Mr Taylor’s Skeleton Argument dated 30^th September and also the 3^rd October letter of Alison Newbold, Solicitor for East Sussex County Council to the Czech Embassy.

Assessment of W, the children’s great grandmother, is dealt with in this way in the final statement evidence of Helen Osborne, the allocated social worker. She states that “CFAB (Children and Families Across Borders) was requested to undertake a viability assessment; that the great grandmother had only offered to care for the children with the assistance of the mother and only because she wants to prevent the children being in foster care. She would only care for them in the Czech Republic and would not move to the UK.” Ms Osborne relates that W “has no concerns for the children in their mother’s care and does not accept the concerns of the local authority. She is therefore unable to protect them from the risk posed to them by their mother.”

During the course of the hearing, the local authority altered its position significantly and now suggests that a further focussed assessment of W should be undertaken by CFAB. Inquiries over the lunchtime adjournment on 21^st October revealed that such an assessment could be completed within 6 weeks of a letter of instruction. It would be similar in content, I was told, to a kinship assessment of the kind undertaken in English court proceedings.

X’s position is this. He supports the mother’s claim to be reunited with the children “in all respects.” She hopes to swiftly return to the Czech Republic where she has W’s support. She would intend to apply to the Czech court for the equivalent of a s.38(6) residential assessment “under the watchful eye of the maternal great grandmother.” Mr Vine realistically accepts – notwithstanding the more expansive possibilities contained within his Skeleton Argument – that X’s case is centred upon the need for proper exploration of (i) the potential for placing the children with their mother, supported by their great grandmother and her partner, or with the great grandmother and her partner on their own; and, in the alternative (ii) the potential for finding suitable long term foster parents reflecting the children’s Roma heritage in the Czech Republic.

The mother explains that she only remains in this country because the children are here. Her wish is to return to the Czech Republic to look after them there. She would intend to live in W’s home who would assist her in looking after the children and make sure she “did not make any mistakes” in the same way as before.

Though she is not a party, W’s position is reflected in the communications she has had with the court as well as from her responses to the Czech authorities. On 7^th July in a letter, W made clear her support for the mother as a parent with good parenting abilities. But she also emphasised her willingness with her partner’s assistance to offer the children a home. In her most recent correspondence, dated 14^th October addressed to Judge Jakens, W asks for the children’s immediate return to her “care and upbringing where they will receive loving care.”

The Children’s Guardian, Ms Vicarage, has not filed documentation from which it is possible to divine her overall position within the care proceedings. However, Ms Hancock maintained in oral argument that Ms Vicarage had been supporting further assessment of W “for some weeks” though that fact does not emerge from any Practice Direction documentation filed on her behalf.

The attitude of the Czech authorities and the materials thus far supplied shed light upon a number of issues which have a bearing upon my eventual decision. Mr Vine’s guide to the chronological sequence was invaluable, given that the documents were scattered across two large sections of the court bundle.

On 28^th April, Mr Hradilek reported that the Czech Embassy did not “see any compelling reason to suggest transfer of jurisdiction to the Czech court.” He also relayed that in the opinion of local social services the mother was a good parent, had a good and loving relationship with her son and looked after him well – albeit that she was living with W.

On 5^th May, the legal department of the Office for International Legal Protection for Children (the Czech Central Authority) sent a translated report from Social Services in [specified town]. The opinion of the professionals then was that the great grandmother would not be able to look after the children without help. It was assumed that the best course would be to return the children to their mother but “the Social Service does not have complex information about the current care of the mother.” The letter concludes with this in relation to Article 15 – OILPC “is open to take all the steps to facilitate communications between courts. The decision whether to transfer the case depends at first on the Court of the habitual residence of the child. … in case the mother states that she would like to move with the children to the Czech Republic … the court can consider this as one of the reasons for the transfer of the case pursuant to Article 15 … Therefore, our Office can provide you with all assistance if needed with co operation of the competent Czech Court and the Social Service in the Czech Republic.”

On 6^th June a Social Inquiry Report was filed by OSPOD in [specified town] for the Czech Central Authority. It relates that W believes she would be able to take care of the children with the help of the mother but only because she wants to prevent them from being placed in foster care. She would not move to England and intended to remain in the Czech Republic.

On 17^th September in an email, a lawyer from the Czech Central Authority reiterated that the maternal great grandmother is willing to help her granddaughter to “take care of the minors, the assessment of the grandmother by Social Services … was very good and it was recommended to return the minors to the care of the mother while the grandmother could help her with care and let her stay at her apartment…” The message ends with a question as to whether there should be any additional assessments of W.

On 23^rd September, the Director of OILPC wrote to Judge Jakens saying his Office was “highly concerned about the best interests of the minors.” He drew attention to the rights of the children arising from a number of international conventions – the European Convention on Human Rights as well as the United Nations Convention on the Rights of the Child. He referred to a number of European Court of Human Rights decisions supportive of the principles that children should, save in cases of necessity, be entitled to an upbringing by their biological parents and that the State must act to enable the development of family ties including measures to enable reunification between parent and child.

Towards the end of his letter, the Director acknowledged that the children are habitually resident in the UK and that the courts here have jurisdiction. “Nevertheless” he continued, “if the Court considers that it is in the best interest of the children to proceed under Article 15 and / or Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its assistance…”

On 24^th September, a lawyer from the Czech Central Authority sent an email to outline its position. She said in terms, “we support the return of the mother and children to the Czech Republic under … Article 15. …The mother would be provided by a large support of her family members who were tested by our LA and found as able to take care of the children (specifically the great grandmother) and the children have an obvious tie with the Czech Republic.”

On 2^nd October, the OILPC responded to a series of questions about the abilities of W and her partner to care for and protect the children from harm. The answers were positive.

Finally, on 8^th October, the Director of OILPC provided a further set of responses to explicit questions. He indicated how to implement the request for transfer, should one be made. He suggested the children should stay in England until the Czech courts accept jurisdiction and issue a preliminary ruling as to how and with whom the children should return to the Czech Republic. The Director clarified that Czech law does not permit an English social worker to carry out assessments of the children’s relatives in the Czech Republic. However, there is the potential for additional assessments to be requested pursuant to Article 55 or the Taking of Evidence Regulation (EC) 1206 / 2001. It was also indicated that the court would primarily consider placing the children within their extended biological family. If there are no suitable family members, then the children would be placed in temporary foster care. Finally, the Director emphasised that because X did not declare paternity at the relevant office and he is not mentioned on A’s birth certificate, he is not regarded as A’s father, has no legal rights and no legal relationship with him.

Mr Vine’s analysis of the legal principles to be applied resulting from the Regulation, the case law and other related materials is exemplary. What follows is a replication of his masterly analysis adjusted only slightly and for the sake of brevity.

The legal framework is provided by Article 15 of Council Regulation (EC) No. 2201/2003 which regulates jurisdiction in respect of care proceedings as between Member States. The United Kingdom and the Czech Republic are also Contracting Parties to the 1996 Hague Convention on the Protection of Children (providing a similar jurisdictional code to the Council Regulation but extending to administrative authorities, such as social work authorities, as well as to courts).

Article 15 of the Council Regulation permits requests to transfer proceedings and Article 8 of the 1996 Hague Convention permit transfer of responsibility for child protection measures in defined circumstances, in whole or in part.

An Article 15 request is available at any stage in the proceedings: Bush v Bush [2008] 2 FLR 1437, Thorpe LJ at §42; Re T (Brussels IIA Revised, Art 15) [2014] 1 FLR 749, Thorpe LJ at §28 (upholding an Article 15 request made as a preliminary issue at final hearing). B2R and Article 15 considerations should be explicitly considered in every judgment and in every order, in particular at the CMH stage: In Re E (A Child) [2014] EWHC 6 (Fam), Sir James Munby P at §35; and Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Sir James Munby P at §57 and §58.

The Article 15 procedure is a summary one and a preliminary, not a substantive, question: Re T (Brussels IIA Revised, Art 15) [2014] 1 FLR 749, Thorpe LJ at §25 and §26; Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Sir James Munby P at §54(vii).

Any Article 15 transfer request is ‘by way of exception’ to the general jurisdictional rules under the Council Regulation: Art 15(1). Applying AB v JLB (Brussels II Revised) [2009] 1 FLR 517, Munby J at §35; Re T (Brussels IIA Revised, Art 15) [2014] 1 FLR 749, Thorpe LJ at §14 and §19 and Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Ryder LJ at §15 and Sir James Munby P at §54(ii), three questions must be answered in the affirmative under Article 15(1) before the court can exercise its powers (my emphasis):

That the child has a ‘particular connection’ with the other Member State – Article 15(3) provides further guidance as to what should be considered in respect of ‘particular connection’;

That the court of the other Member State would ‘be better placed’ to hear the case or a specific part thereof;

That transfer is ‘in the best interests of the child’.

The welfare of the child is not the ‘paramount’ consideration under Article 15, although it comes within the ‘attenuated welfare’ consideration raised in the third Article 15(1) question: Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Ryder LJ at §24 and §37 and Sir James Munby P at §54(iv). Specifically, it is irrelevant to the Article 15 question that the other court may not have the full list of options available to the English court – for example the ability to order non consensual adoption: Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Sir James Munby P at §54(vi).

There is no room for ‘chauvinism’ under Article 15: In Re E (A Child) [2014] EWHC 6 (Fam), Sir James Munby P at §18 and §21. Principles of ‘international comity and co-operation’ apply and ‘comparative evaluation’ of domestic social working practice or law in other EC Member States is ‘impermissible’: Re T (Brussels IIA Revised, Art 15) [2014] 1 FLR 749, Thorpe LJ at §24, In Re E (A Child) [2014] EWHC 6 (Fam), Sir James Munby P at §20 and Nottingham City Council v M (A Child) [2014] EWCA Civ 152, Ryder LJ at §19 and §38 - §39 and Sir James Munby P at §54(v).

In terms of procedure, and for the reasons identified in Leicester City Council v S [2014] EWHC 1575 (Fam), Moylan J at §14 ((un)lawfulness of English social workers undertaking assessments in other EC Member States; proper limits of role of consular authorities and necessity of using the Taking of Evidence Regulation (EC) 1206/2001 procedure to obtain evidence from other EC Member States) assessments and enquiries undertaken in the Czech Republic at the request of this Court are likely to be cumbersome, may well be incomplete and are likely to be outside the direct control of this Court.

Article 10 of the Taking of Evidence Regulation, for example, affords the requested Member State 90 days from receipt of the request. FPR 2010 r.24.16 and PD24A require undertakings as to the other Member States costs and the preparation of defined written questions. Moreover, in Re B (A Child) [2013] EWCA Civ 1434, McFarlane LJ at §67, makes clear the exchange of information in that case through the European Judicial Network is not a substitute for binding judicial decisions in the other Member State. Finally, given Article 56(1) of the Council Regulation (and Article 33(1) of the 1996 Hague Convention), any eventual decision here to place the children in the Czech Republic would require the prior consent of the relevant Czech authorities if the placement decision is to be recognised in the Czech Republic under Article 23(g) of the Council Regulation (and Article 23(2)(f) of the 1996 Hague Convention).

Each party produced helpful Skeleton Arguments; each has had the opportunity to develop submissions during the course of the hearing. I was taken to a wealth of jurisprudence on the subject of Article 15, most of it for reasons of noting and comparing those factors which influenced judges at first instance in reaching decisions that requests for Article 15 transfer should be made.

It is unnecessary to set out in anything other than summary form what each party maintains in relation to the dispute. On behalf of X, Mr Vine suggests that all three of the Article 15 questions should be answered in the affirmative and points to a number of factors which should guide me to that conclusion. He emphasises that the proceedings in Brighton have not advanced beyond case management, there has been no substantive hearing and there is already a composite threshold document which will result, almost certainly, in there being no need for fact finding. Mr Vine has made explicit inquiries of X to establish whether he wishes to proceed with his application given his lack of legal status in relation to the children in the Czech Republic and he does.

On behalf of the mother, Mr Denman candidly acknowledged that “it had not dawned upon anyone” at the time of the April hearing that there might be scope for applying under Article 15. He accentuates that amongst family members, W is the “front runner” and the best way of determining whether she and the mother will be able to meet the children’s needs will be to request the Czech courts to assume jurisdiction.

Mr Taylor who represents the local authority emphasises that all the parties are currently habitually resident here; that the very same issues which now confront me were dealt with in April and there has been no change in circumstances; that the courts in the Czech Republic are not better placed to assess the parents; that CFAB has recommended placement with the mother supported by the grandmother nothing else; that the court here is better placed to assess the children; and that all witnesses of fact and professional assessors are resident in the UK.

In relation to ‘best interests’ Mr Taylor suggests it is likely there would be a substantial delay if the case were to be transferred; and that there would be uncertainty as to the plans for the children in the Czech Republic. He suggests there would be losses for the children in that their social worker and guardian both of whom have undertaken a great deal of work would no longer be available to them; and finally that the children are becoming established in England after living here for a considerable period.

Ms Hancock on behalf of the guardian says Ms Vicarage cannot see how it would be better for the proceedings to be transferred to the jurisdiction of the Czech courts. She cites delay, that the proceedings have been in existence for 26 weeks already and that all of the hearings thus far have been conducted by the allocated judge(s) ensuring continuity and consistency of approach. Ms Vicarage seeks further assessment of W and her partner but considers that could most conveniently be achieved by CFAB. Ms Hancock submits that the only person of significance to the proceedings who remains in the Czech Republic is W (and her partner); and a change of jurisdiction is likely to disadvantage X, the father of A because of his lack of status.

In relation to ‘best interests,’ Ms Hancock adopts the local authority’s submissions adding that the uncertainty of what would befall the children is of particular concern to the guardian. In addition, it is suggested there is no evidence that the children’s Roma heritage needs would more likely be met in the Czech Republic than in the UK.

The first question is as to whether the children have a ‘particular connection’ with another Member State within the meaning of Article 15(3). As to that there could be no dispute. A was formerly habitually resident in the Czech Republic; both children are Roma Czech nationals as are the mother, X and Z. It is true that a number of maternal family members are living in the UK currently but that does not detract from the irrefutable fact that both children have a ‘particular connection’ with the Czech Republic as the result of nationality and in A’s case former habitual residence. It is also a relevant consideration that by order of a Czech court, legal guardianship in relation to A was conferred upon W at a time when the mother was herself a minor.

The answer to the first question is most definitely in the affirmative.

In relation to the second, as to whether the Courts in the Czech Republic are ‘better placed’ to determine the issues, I start by considering the comparative involvements of the authorities in each Member State. In [the specified town], there was intervention with maternal family spanning some 13 years from 1998 until 2011 when the family fled to England. The local authority here is a relative newcomer having first received referrals in about January 2013. It is fair to assume there is a depth of knowledge and experience of the family dynamics in the Czech Republic, hinted at within the documents from the authorities there, which is very largely unavailable to the authorities here.

It is relevant that the proceedings in the Brighton Family Court are still at the stage of case management. No judge has heard evidence still less made any finding of fact or resolved a disputed issue of any magnitude. Moreover, on any assessment of the likely issues, it is entirely straightforward to predict that there will be no need for any fact finding arising out of recent events. The mother and X either accept or do not admit much of what is alleged against them as to the threshold criteria – the way in which it is said the children have suffered significant harm attributable to parental care or failures.

It seems to me to be of extremely limited relevance that the proceedings in Brighton have benefited from judicial continuity in circumstances where there has been nothing other than case management thus far. The same judges dealt with the hearings; but their exposure to the case has been restricted to listening to the advocates and observing the mother as well as, more recently, X across the court room. The situation here is markedly different to that which confronted Mostyn J and then the Court of Appeal in the Nottingham case.

Moreover, it does not impress me at all that objection is raised as to an Article 15 request on the basis that the issues which confront me now were dealt with in April. As a matter of natural justice, X was entitled to have a voice in the debate as to whether an Article 15 request should issue. His curiously unexplained absence in April, the subsequent intolerable difficulties in ensuring his participation at court and his prompt action so soon as he had the advice of an excellent legal team are more than sufficient reason for reconsideration of the issue.

The overwhelming likelihood is that the proceedings, wherever they occur, will centre upon assessments of the available long term possibilities for the children. On the basis of the material thus far available, the maternal great grandmother and her partner will be at the forefront either as a couple on their own or as supporters for the mother. Any assessment undertaken on behalf of the local authority here would suffer from at least two disadvantages. First it would be burdensome to transmit questions in as complete a form as the authority would wish, particularly if there were to be a need for follow up inquiries and further information. Second, the international procedures for obtaining such assessments may fail to achieve their stated aim to the satisfaction of the authority and possibly also the court.

It is also highly material that the mother’s stated aim is to align herself with W, the great grandmother, with whom she plans to live once she returns to the Czech Republic. But there is no local authority proposal for any assessment of mother and great grandmother together; and the current geographical distance between them (and the children) would place almost insuperable obstacles in the way of any such evaluation.

By contrast, the Czech authorities could initiate an assessment as to the viability of whichever placement proposals arise as between the mother and great grandmother without delay. There would be no language barrier; the individuals concerned would all be within a narrow geographical area; there would be complete understanding on the part of the assessor(s) as to events of significance arising from the history as well as knowledge of the available local agency support mechanisms, as considered necessary.

I disagree with Mr Taylor’s submission that assessment of the children would be better undertaken here. How I ask myself would any professional from this jurisdiction be capable of observing the interactions between the great grandmother, mother and children? Such an evaluation would be quite simply impossible given the locations where those individuals are living and the legal constraints applying to social workers from foreign States in the Czech Republic. Assessment of that kind would only become possible if jurisdiction is accepted by the Czech court and the children as well as the mother travel there.

It strikes me as singularly unimportant to suggest that because the mother and X are currently habitually resident in the UK, the courts here are better placed to retain jurisdiction. The bald reality is that X will be deported, in accordance with his own wishes, within a matter of months. Z may already be in the Czech Republic though his whereabouts are unknown. The mother only remains in this country because of the children. If they return to the Czech Republic so, too, will she.

In similar vein, I cannot agree that it is a factor contraindicating a transfer request that the English allocated social worker and guardian would be lost to the children.

To the extent that the children are becoming settled in the UK, I reflect upon that fact that they are Czech Roma children with a proud heritage and that accordingly the courts in the Czech Republic would be better placed to decide their futures.

It is also significant that the unambiguous indications from the Czech Republic are that the authorities there stand ready to respond to a transfer request without delay.

Lastly in relation to this question, there is no reason to believe that any of the assessment work undertaken here by a psychologist and social worker as well as all of the other material collated by the local authority would be wasted. That material could be made available to the Czech court without delay. Mr Hradilek, unless I am mistaken, has already had access to some of the documents.

My overall conclusion in relation to the second question, by a wide margin, is that the courts of the Czech Republic would be much better placed than the court here to determine the issues.

In relation to the last of the three questions, I have considered but rejected the arguments deployed by the local authority and the guardian in relation to unacceptable delay. The Article 15 request process is time limited. The Czech court has only 6 weeks in which to respond. Current indications suggest the response as well as interim placement proposals may come a good deal sooner than that. In relation to those matters, it has been immensely helpful that Mr Hradilek has maintained so close an interest in the proceedings, attending hearings in Brighton as well as here in the London.

It was only during the course of argument at this hearing that the local authority accepted the need for further and better assessment of the great grandmother. With the best will in the world it seemed to me to be extremely optimistic to expect all the outstanding work to have been completed within six weeks.

Whether in this court or in the Czech Republic, final decision making would appear to be some way off. Of course there is an element of uncertainty as to what precisely would happen to the children if the Czech court accepted jurisdiction. Two distinct possibilities arise from the material supplied – either there will be a move into the home of the great grandmother or, if no family member is considered suitable, a temporary foster home will be found.

It is also of considerable significance to the ‘best interests’ question that the ‘last resort’ proposal amongst family members, particularly X and probably the mother as well, is that the children should be found a foster family in the Czech republic within the Roma Czech community. A cursory consideration of the family finding potential as between the two Member States adds to the conclusion that it would be in the children’s best interests for a transfer request to be made.

As Mr Vine so persuasively argues, in ‘best interests’ decisions under the United Nations Convention on the Rights of the Child, Baroness Hale has emphasised the importance of ‘identity,’ ‘nationality’ and ‘citizenship:’ see ZH ( Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4. Those considerations, to my mind, deserve weight in the Article 15 ‘best interests’ balance and contribute to the overall conclusion.

The question is whether transfer will be in the children’s best interests not what outcome – either in the short or long term – will best serve their welfare needs. Inextricably linked as it is with the question as to whether the Czech courts would be ‘better placed’ to hear the case, and for the reasons given I find it straightforward to respond to the third question in the affirmative.

That is my judgment.