London Borough of Islington v R & Ors

In every care case with a European dimension, the judge must consider whether to exercise her powers under Article 15 of Brussels II Revised (BIIR) to request the court of another Member State to assume jurisdiction where (a) the child has a particular connection (as defined in Article 15(3)) with that other State, (b) the other court would be better placed to hear the case, and (c) this is in the best interests of the child: see In the matter of E (A Child) [2014] EWHC 6 at § 31.

In these care proceedings, 27 October had been designated as a judicial reading day. In unusual circumstances, I became the allocated judge at the final hearing but without prior involvement, save for assisting the Clerk of the Rules with a listing difficulty in the middle of last week.

Arising out of my anxiety as to whether Article 15 considerations had been or would be featuring sufficiently prominently, I asked Counsel to appear briefly at 2 o’clock on 27 October. The indications from the papers were that although in earlier times there had been active debate as to whether an Article 15 transfer request should issue, more recently no party had been suggesting anything other than final determination by the English court.

On Monday afternoon, the indications from Counsel were positive. All accepted there was a need to confront and determine the issue as a preliminary matter. I reiterate my gratitude to them for voluntarily supplying, at very short notice, excellent Skeleton Arguments. Those documents resulted in a much shorter hearing than otherwise would have been the case.

The brief background is this. J is an infant born, in the UK, in November 2013. Her mother R is a Hungarian national; so, too, her father N. Currently, both are in London. The father is homeless. If she were not occupying a mother and baby foster home with J, the mother also would be homeless.

J has three siblings. There is an older brother, T, born of her mother’s relationship with H (also a Hungarian national); T is 13 years old. He lives with his maternal grandmother in Hungary. A is T’s younger sister. She is 8 and in the care of Hungarian Children’s Services. The mother’s third child is L. She is 3 years old. Her father is N. L is also in the care of Hungarian Children’s Services and, like A, subject to ongoing proceedings.

Hungarian Children’s Services had involvement with the family in 2012 arising out of what was said to be longstanding chronic neglectful parenting, repeated homelessness, domestic violence and lack of engagement with support services.

In August 2012, the mother left T with his maternal grandmother. The mother did not tell the grandmother, so it is said, of her intention to travel to the UK and settle here indefinitely.

Between March and May 2013, a number of child protection issues arose in this jurisdiction in relation to the mother’s ability to satisfactorily look after A and L. It is alleged there was a lack of educational provision, failure to seek out appropriate medical attention, failure to engage with ante-natal services, inadequate nutrition for the children and problems with sufficiently stable accommodation. Arrangements were made for the mother, A and L to return to Hungary at the very end of May 2013.

Upon their arrival, A and L were removed from the mother’s care by the Hungarian Authorities because, so it is believed, of chronic neglect and failure to engage with professional intervention. An interim decision was taken by the Hungarian court on 5 June.

Nine days later, the mother returned to the UK. She had not informed the Hungarian authorities or J’s older siblings of her intended departure.

Between July and August 2013, the parents came to the attention of no fewer than three London local authorities as the result of their unstable and unsuitable housing given the mother’s pregnancy.

After J was born, there was a referral from the hospital to the local authority in relation to an apparent lack of commitment to the baby. There was also anxiety about the mother’s ability to provide basic physical care as well as respond to the baby’s emotional needs.

In early February, N returned to Hungary without notice to the local authority and at a time when he was engaged in a parenting assessment.

In mid February, the mother began a new relationship with another man, B.

Throughout the course of these proceedings, the mother and J have lived together in mother and baby placements.

The litigation history reflects an early appreciation of the likely issue in relation to jurisdiction. At the allocation stage, following the suggestion made by the local authority in its Allocation Proposal, it was said that the reason for “transfer to a District Judge (was) international issues.”

On 13 March at a combined case management and interim care order hearing, District Judge Aitken identified that two of the “key issues” in the case were (a) whether the child is habitually resident in the UK and (b) jurisdictional issues between the UK and Hungary. Part of the learned judge’s order was to approve the transmission of an Article 55 BIIR request to the Hungarian Central Authority. A schedule of questions was annexed to her order. The view of the Hungarian Court / Central Authority was explicitly sought as to whether they considered they would be better placed to deal with the proceedings in relation to J. There was also a question about the practical arrangements for J in the event of a transfer of the proceedings from England to Hungary. Replies were requested by 4 April.

Pausing there, I observe that it is not permissible for this court to abrogate its decision making responsibility under Article 15 to the courts or Central Authority of another Member State. Irrespective of the answers to the questions posed, it was and is for the English court to grasp the Article 15 nettle.

Subsequent to the hearing on 13 March, there is scant mention of the jurisdiction issue within case management orders. It had disappeared from the list of ‘key issues’ in the order of 6 May. By then, the focus would appear to have shifted to ‘welfare’ considerations – assessments of the parents’ ability to look after J long term; and whether or not she and the mother should live together in a mother and baby home or be separated pending the final hearing.

On 11 August, however, this appears as a preamble to the order made by District Judge Aitken under the heading ‘Jurisdiction’ – (a) “The court is satisfied it has jurisdiction in relation to the child and the parties are of the view that the child is habitually resident in England and Wales; (b) the local authority shall liaise with the Hungarian consular authority in England and Wales or other competent authority in Hungary in relation to such information as may be relevant to determine issues of jurisdiction.”

In amongst the orders made on 11 August there was a listing of the final hearing on 27 October at the Royal Courts of Justice with a time estimate of 5 days and a recital that the matter would be “before a High Court Judge for final determination as there are no earlier dates available before a District or Circuit judge and the matter of jurisdiction will need to be considered at the final hearing.” It was also recorded that “the parties are of the view that J is habitually resident in England and Wales.”

I pause to observe that recitals as to habitual residence do not satisfy the requirement to consider a possible Article 15 transfer. No longer is it sufficient for judges to assume jurisdiction on the basis of findings in relation to habitual residence. More, much more, is needed as came to be accepted by all parties during the course of this hearing.

Reverting to the history of the proceedings, most unfortunately the Clerk of the Rules knew nothing of the listing arrangement made on 11 August until about the middle of last week. With commendable and characteristic dedication, she was able to force the case into the list on the basis that, as explained by the advocates at a brief hearing before Cobb J last Friday, it would occupy no more than two and a half days of court time.

The parties’ positions in the proceedings are as follows. The local authority, supported by the Children’s Guardian, Ms Cassel, proposes a care plan with the eventual aim of adoption by an as yet unidentified couple. There would be only indirect, ‘letterbox’, contact for the mother. Nothing is said about contact between J and her siblings.

The mother who accepts, in general terms, that the threshold criteria are established, opposes the care plan and asks the court to allow J to remain with her. She would accept a supervision order if the court considered it necessary and invites the making of a child arrangements order.

N’s position is that he opposes the local authority and supports the mother. He also puts himself forward to look after J long term if the mother is unsuccessful.

With commendable speed and industry, Miss Hopper on behalf of the local authority, Miss Rayson who represents the guardian and Mr Larizadeh on behalf of the mother filed Skeleton Arguments on the morning of 28 October. There had been, so I was told, discussion between the legal teams on Monday afternoon and a broad consensus reached as to the way forward. The local authority and the guardian were neutral indicating they would accept my decision. The parents would have preferred that a transfer request is not made. However, on an objective level their Counsel accepted there would be advantages in so doing.

Miss Hopper confirms that the Hungarian Central Authority knows of this final hearing. Recent communication over the telephone, now confirmed in writing, suggests that should an Article 15 request be made, the Hungarian court would accept the transfer. The Central Authority would determine whether it was necessary to send child protection workers to the UK to escort J to Hungary. The plan would be to find the best solution for J; she would be placed in the care of a foster parent and there would be consideration of the three sisters being placed together.

Having provided an analysis of the legal principles, Miss Hopper submits that the decision as to whether there should be a transfer request is one for the court. She adopts a position of neutrality but has also indicated that the local authority would accept a transfer request were I to make one, thereby satisfying the provisions of Article 15 (2).

Mr Larizadeh and Mr Beddoe on behalf of the parents make common cause. The mother’s key anxiety is that she and J would be physically separated if the transfer request were to succeed. Notwithstanding that concern and the mother’s view which is that she would prefer the proceedings to be concluded here, Mr Larizadeh conceded there would be “huge benefits” in the Hungarian court deciding the issues for J. He referred to the potential of the Hungarian authorities considering wider family placement which he suggests has not been exhaustively investigated by the authority here. He also pointed to the availability of family members in Hungary who might be able to assist the mother in her care of the children. Finally in support of his theme, Mr Larizadeh emphasised the importance for J of being afforded the opportunity if at all possible of an upbringing with her siblings. He concluded by suggesting that, on an objective level, there are “strong arguments” for the making of a transfer request.

Mr Beddoe outlined a very similar position on behalf of J’s father. Like the mother, he would prefer the decisions about J’s long term future to be made here. But Mr Beddoe accepts there are “enormously strong arguments” in favour of an Article 15 request.

Miss Rayson invites me to adopt a balance sheet or ‘pros and cons’ analysis to the evaluative exercise necessary in order to provide answers to the ‘better connected’ and ‘best interests’ questions comprised within Article 15, citing London Borough of Dagenham v C & M [2014] EWHC 2472 where Parker J did exactly that.

Miss Rayson helpfully drew my attention to a number of factors supportive of answers in each direction. Her final written submission concluded in these terms – that the required analysis of J’s best interests cannot properly be undertaken by the English court because there are significant gaps in the available information. During the course of argument, Miss Rayson emphasised the guardian’s anxiety about delay and the lack of clarity as to the practical arrangements for J if jurisdiction were to transfer to Hungary. But she also observed that the likelihood is that the mother who is ‘homeless’ in the UK would be better supported in Hungary both practically and financially.

Coincidentally, the legal principles applying to Article 15 decisions were considered by me, in some detail, just last week in the case of Re A and B (Children: Brussels II Revised: Article 15) [2014] EWFC 40 (Fam) particularly between § 35 and 43. In those circumstances, it is unnecessary to say more than that the framework is well established as the result of a number of cases including the relatively recent Court of Appeal decision Nottingham City Council v. LM and others [2014] EWCA Civ 152. In that case, the President of the Family Division, Munby P, summarised the relevant principles at §54 between (i) and (vii) – a lucid and concise analysis upon which practitioners and judges would do well to focus whenever an Article 15 issue arises.

Before I come to the three salient Article 15 questions, it may be helpful to make some observations about timing and the most appropriate tribunal. Mr Larizadeh explicitly suggests I may wish to remind practitioners of the President’s guidance in Re E (supra) and I do – see § 1 above. I also emphasise that although an Article 15 request may be made at any stage in the proceedings (see Bush v. Bush [2008] 2FLR 1437; and Re T (Brussels II Revised, Article 15) [2014] 2FLR 749) it must be overwhelmingly more efficient and accord with the welfare interests of children, for jurisdictional decision making to occur, as a matter of priority, during the initial stages of the proceedings.

As Munby P, observed in the Nottingham case, “It is … vital …that the Article 15 issue is considered at the earliest opportunity, that is … when the proceedings are issued and at the Case Management Hearing.”

As a direct result of the Court of Appeal’s decision in the Nottingham case, there were revisions to the Family Procedure Rules and in particular Practice Direction 12A – Care, Supervision and Other Part 4 proceedings: Guide to Case Management. Thus, since 22 April this year, pursuant to paragraph 1.3 of the PD …

The Public Law Outline was modified so that at the Issue and Allocation Stage, “Within a day of issue (Day 2) – Court considers jurisdiction in a case with an international element; – Court gives standard directions on Issue and Allocation including, identifying whether a request has been made or should be made to a Central Authority …in a case with an international element.”

In relation to Stage 2: Case Management Hearing – Not before day 12 and not later than day 18 … – Court gives detailed case management directions, including – Considering jurisdiction in a case with an international element …

By virtue of paragraph 2.4 of PD 12A “… It is anticipated that an urgent preliminary case management hearing will only be necessary to consider issues such as jurisdiction …”

Pursuant to the President’s Guidance of 22^nd April 2014 – Allocation and Gate Keeping for Care, Supervision and other proceedings under Part IV of the Children Act 1989 (Public Law) – the expectation is that cases to which Brussels II Revised applies will be allocated to a judge of district judge level: see Column 1 of the Schedule at §(18). However, the notes dealing with the scope of Article 15 within the Family Court Practice 2014 state that it is “advisable to consider placing the preliminary issue before a High Court Judge.” This anomaly may indicate there is a need for further clarification in relation to the allocation guidance.

In my role as Family Division Liaison Judge for London and Thames Valley, I know there are differences of view amongst Circuit Judges as to whether they should be dealing with these matters or seeking to transfer them to judges of the High Court. In parts of the South Eastern Circuit, notably Peterborough and the new East London Family Court, Circuit judges are unafraid to tackle Article 15 issues. The same, seemingly, is true in Leeds: see Leeds City Council v. A and others [2014] EWHC 2511 a decision of Her Honour Judge Nancy Hillier, sitting as a deputy High Court Judge.

It is also right to observe that judges who attend public law continuation courses run by the Judicial College now receive very considerable assistance in identifying and addressing Brussels II Revised cases. To my certain knowledge, David Williams QC a leader in the field delivers lectures of the highest quality.

In the final analysis, the following might be drawn from the case law, the revised Practice Direction, the Guidance and other related materials. That it is vital to confront Brussels II Revised jurisdictional issues as early as possible. They should be regarded as urgent and requiring of decisions within a matter of days, not weeks. By no stretch of the imagination could it be regarded as acceptable practice to leave the jurisdiction question in ‘cold storage’ until the final hearing.

As for the tier of the judiciary to which contested Article 15 cases should go, I advise the closest cooperation between judges in every part of the family court so as to ensure judicial attention at the most appropriate level. Some, perhaps the majority of, District Judges might consider the work should go to the Circuit judge in her / his court or indeed to a High Court judge. Almost invariably, I would suggest, individual judges will wish to discuss with the designated family judge and / or the Family Division Liaison Judge. Experience strongly suggests that the best allocation decisions are those arrived at collaboratively.

Turning from matters of procedure, I now confront the three Article 15 questions. First, as to whether the child has a ‘particular connection’ with another Member State as defined within Article 15(3)? As Munby P observed in the Nottingham case, this is in essence a simple question of fact. It is extremely straightforward here to provide an answer which is that J does indeed have a particular connection to Hungary. She is a Hungarian child, born to Hungarian parents who have decided, for now at least, to try to settle in this country. There could be no suggestion that question one should be answered other than in the affirmative.

As for the second, namely whether the courts of the other Member State would be ‘better placed’ to determine the issues, I begin by mentioning those factors which could be said to support this court retaining jurisdiction.

It is undeniably true that the proceedings have reached a comparatively advanced stage. Were I to conduct the final hearing, as was planned, a decision about J’s long term future would have been arrived at in the next day or two. Her proceedings have already exceeded the statutory time limit of 26 weeks. She is still a very young baby who deserves an early determination.

There has been considerable assessment of the parents’ ability to look after J – a chartered clinical psychologist, a consultant psychiatrist and an independent social worker of Hungarian origin have all reported within the English proceedings. However, none of that work would be lost if jurisdiction was accepted by the Hungarian courts. Without undue difficulty, the reports could be translated and transmitted to Hungary. Indeed, some of them may already exist in translation.

It might also be a factor suggestive of retaining the case here that, thus far, inquiries of maternal relatives in Hungary have revealed an absence of potential placements for J, in the event that her mother was seen as unable to provide for her long term. Whether that would remain the position if the Hungarian court were seised of proceedings is far from clear.

It is also relevant and should introduce a note of caution, that the information from the Hungarian authorities, generally, and as to the practical arrangements for J in the event of a successful transfer request is sparse. It is most unfortunate that the Schedule of Questions sent to the Hungarian Central Authority in mid March did not receive answers. However, on 27 October Miss Hopper was successful in making contact with a representative of the Hungarian Central Authority. A brief letter was received on 28 October clarifying to a certain extent what the practical arrangements would be if the Hungarian courts assumed jurisdiction.

As for the factors which would support a transfer request, the following are of considerable importance. The courts in Hungary have been and may still be seised in relation to J’s older siblings. It is fair to assume there is a degree of knowledge about the family, its dynamics and inter relationships amongst professionals in Hungary which is not available to the same extent here.

Perhaps of greatest significance is the undeniable fact that J’s three older siblings are in Hungary. Though Miss Rayson is correct in saying that currently there is no relationship between the baby here and the older children there, that is highly likely to change if the Article 15 request is successful. As the letter from Dr Csilla Lantai, Deputy Head of the Hungarian Central Authority makes clear, “consideration (would be taken) of the sisters living all together.” The gap which had existed as to the likely attitude of the courts in Hungary to the issues of sibling relationships and contact, to some extent at least, has been swept away.

If, by contrast, the English court were to retain jurisdiction and accede to the local authority’s application to place J with adopters, the strong likelihood is that J would be denied, for all time, the prospect of any relationship with her siblings. During the course of argument, I speculated as to the probable impact upon J of such an outcome and how she might view such a decision in the years to come. Mr Larizadeh characterised the likely scenario as a “time bomb,” an assessment which does not strike me as unduly alarmist.

The importance for J of sibling relationships cannot be overstated. This court would be impotent in securing their establishment and continuation. The Hungarian court would have no such problem. On its own, this factor tips the balance, decisively so, in favour of a transfer request.

Another factor strongly supportive of a decision that the courts in Hungary are ‘better placed’ is that neither the mother nor N speak English. Had the hearing been an effective final hearing, every word would have had to be translated, likewise every document. The parents’ participation in a court process conducted entirely in a foreign language cannot be as satisfactory as one at which their first language is used.

It is also relevant to consider the availability of maternal family relatives in Hungary not just as potential long term carers for J but also as potential providers of support for the mother. It might be, for example, that the court decided she could manage to look after J with assistance. In that regard, it should be noted that the mother’s intention, in the event that the Hungarian courts assume jurisdiction, is to travel there with J and participate in any litigation.

Ultimately in relation to the second question, I have decided without hesitation that the Hungarian courts would be ‘better placed’ than those here to decide the issues for J.

The third question, as to whether transfer will be in the ‘best interests’ of the child, is intricately connected with the second. I emphasise that the Article 15 question is whether it would be in the child’s best interests for the case to be determined in another jurisdiction which is quite different from the substantive ‘welfare’ question.

For the reasons already specified, in relation to the second question, I have concluded that it would be in J’s best interests for the Hungarian courts to decide the issues as to her long term future.

Weighing heavily in the balance and contraindicating a decision to retain the case here are the following –

J’s right to a relationship with her siblings (unless there are substantial welfare reasons for denying her that opportunity);

the absolute requirement of achieving the best possible ‘welfare’ solution rather than striving for speed;

J’s nationality and her cultural identity.

Accordingly, and having answered the three questions in the affirmative I turn to consider whether I should exercise my discretion and decide to make an order. As Munby J commented in AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam) at § 36 “…since the discretion is exercisable only if the court has satisfied itself both that the other court is ‘better placed’ to deal with the case … and that it is in the best interests of the child to transfer the case, it is not easy to envisage circumstances where, those two conditions having been met, it would nonetheless be appropriate not to transfer the case.” See also § 54 (iii) of the Munby P’s judgment in the Nottingham case.

It seems to me that the only rational decision, in the exercise of my discretion, is to make the order requesting the Hungarian courts to accept jurisdiction.