Norfolk County Council v V & Ors (a child: Art 15)

This matter concerns a young girl V who was born in early 2009 and is now 6 years old. I shall refer to her parents as the mother and father. They are now 25 and 26 years respectively. They are both Lithuanian nationals, the mother and V have lived here since 2012. The father remains living in Lithuania.

These proceedings concern care proceedings issued by Norfolk County Council (the Local Authority). They were issued in August 2014 as they considered V was at risk of significant harm due to marks seen on V’s face at her school in November 2013 which they alleged were caused by the mother together with emotional harm caused by the circumstances V was living in with her mother. The parties to these proceedings are the Local Authority, the parents and V. V is represented in these proceedings by her Children’s Guardian, Ms W.

V was born in Lithuania. Prior to being placed with foster carers in January 2014 she lived with her mother, initially in Lithuania and since 2012 in England. She has had limited contact with her father. According to the mother V has never seen her father, according to her father he saw her once when she was about 10 months old and a further time in late 2013 when she was staying with her maternal aunt.

The mother has parental responsibility for V. Although there is some uncertainty about whether the father has parental responsibility this court has worked on the basis that he has. There is reference in the papers to proceedings for financial support for V in Lithuania where there was an order that the father should have no contact with V. No papers or details of those proceedings have been seen.

V has been in the care of foster carers since January 2014 with the agreement of the mother pursuant to section 20 Children Act 1989. There is no interim care order in favour of the Local Authority, so the only people with parental responsibility are V’s parents. V has contact with her mother twice a week.

District Judge Royall held a fact finding hearing in February 2015. After hearing the evidence relied upon by the Local Authority, the mother and her partner he concluded that the Local Authority had established that V had suffered and was at risk of suffering significant harm in the way described at paragraph 2 above.

This case was listed before a High Court Judge to consider the question of a request for a transfer to Lithuania under Article 15 Council Regulation (EC) no 2201/2003 (BIIR). It was listed first before me on 27 March 2015. I heard legal argument on 31 March 2015 and made directions listing the matter for further hearing on 17 April 2015. Due to difficulties with court availability the matter was listed on 20 April 2015.

At the hearing on 31 March all parties agreed

The parties agreed that in the short term V should be placed in the care of ED and DD. They are the mother’s maternal cousin and his partner. They lived in Lithuania with their two children, age 12 and 6 years. They have been the subject of an assessment by an English independent social worker, Ranjit Mann, who supports placement of V in their care. The position of the father was somewhat equivocal as there has been difficulty in getting instructions, however he wished for V to be returned to Lithuania.

The mother plans to return to Lithuania and make an application to the courts there for consideration to be given to V being returned to her care. The father also plans to make an application to the courts in Lithuania seeking the placement of V in his care. It was accepted by the parents that the Local Authority should make the practical arrangements for V to be returned to Lithuania in the care of Mr and Mrs D and recognise that she should stay living with them until any further orders are made by the Lithuanian court.

Mr and Mrs D came to England in February 2015 and had contact with V. All parties agree that visit went very well.

At the hearing on 31 March the plan was for Mr and Mrs D to return here by 21 April, have further contact with V over a period of 5 – 7 days and then take her to live with them in Lithuania by the 30 April 2015. This would be pursuant to an interim Child Arrangements Order made by this court whereby V would live with them in the interim and they would have parental responsibility. The order would also give them permission to remove V from this jurisdiction to Lithuania in the interim.

On 31 March it was agreed that pursuant to Article 15.4 this court will set a time limit of 14 court working days from the email transmission of the Article 15 request to the Lithuanian Central Authority, by which time the Lithuanian court shall be seised.

At the hearing on 31 March the intention was to list the matter before this court on 11 June 2015 to consider either closing the case in the English jurisdiction in the event that the Article 15 request has been accepted by the Lithuanian court or, alternatively, making orders for the long term arrangements for V in the event that the Article 15 request is refused.

Mr and Mrs D came to this jurisdiction on 20 April together with their 7 year old daughter. They had the benefit of legal advice and Mr Perkins attended the hearing on 20 April. The plan is for them to have extensive contact with V this week and to return to Lithuania with her on 25 April.

By the 20 April hearing there had been some significant developments. They can be summarised as follows:

It was agreed Mr and Mrs D should become parties to these proceedings. I made that direction on 20 April.

I adjourned the matter to a further hearing on 22 April so I could consider the updated position.

V and her mother arrived in the United Kingdom on 27 June 2012, having lived together in Lithuania from her birth. The mother says they lived with her sister, GZ (maternal aunt), for one month. They then moved into a shared house in Ipswich for seven months, after which V and her mother moved into another house in Ipswich with a family who they had met in the shared house.

In June 2013, the mother met Mr J. In September 2013 the mother and V moved into a shared house in Thetford with Mr J.

As part of the assessments of Mr and Mrs D they reported that V remained in Lithuania for approximately one year after her mother moved to the United Kingdom and that they had care of V each weekend during that time.

V first came to the attention of Norfolk County Council Children’s Services (the Local Authority) on 15 November 2013, when she was observed at school to have an injury to her face which she subsequently reported was caused by her mother, who hit her with a belt.

Dr R at the Norfolk and Norwich Hospital was of the view that the injury to V’s face was more likely to be non-accidental in nature. As a result, V was placed in the care of her maternal aunt in Ipswich by agreement with her mother.

There was a police investigation and on 9 December 2013, the police informed the Local Authority that they were taking no further action in relation to the alleged assault. As a result V to return to the care of her mother.

On 16 January 2014, V attended at school with an injury to her tongue. She appeared to report that the injury was caused by her mother, with scissors. V was placed with foster carers under an agreement with the mother pursuant to section 20 Children Act 1989. V has contact with her mother twice a week for 1 1/2 hours.

On 22 January 2014, Dr B, at the Norfolk and Norwich Hospital reported that he could not say whether the injury to the tongue was accidental or non-accidental.

Child protection enquiries by the Local Authority, initiated following the incident on 15 November 2013, revealed additional concerns about V’s emotional and behavioural presentation at school, which was reported to be far outside what one would expect of a child of V’s age and experiences.

After what this court considers to be a wholly unacceptable delay proceedings were ultimately issued by the Local Authority in August 2014. The Local Authority accept that between January and August there was no active social work assessment of the case, other than managing contact. V has remained accommodated pursuant to section 20 Children Act 1989, with the consequence that the Local Authority does not share parental responsibility with the parents.

The Local Authority notified the Lithuanian Central Authority of the proceedings immediately upon issue on 27 August 2014. A response was received on 6 October 2014 and there followed an ongoing exchange of correspondence between the Local Authority and the Lithuanian Central Authority. It is unclear how much, if any, of this communication went via the Central Authority here.

A social work parenting assessment of the mother and her partner was undertaken by a child protection social worker, and filed on 22 December 2014. The assessment was negative and did not support V’s placement with her mother. The mother made an application in January 2015 for a further assessment of her by an independent social worker. It was intended that application should be considered following the fact finding hearing in February.

The Local Authority instructed Ranjit Mann, an independent social worker, to undertake initial assessments of the father and other proposed carers in Lithuania. Those assessments were completed in November 2014. Mr Mann did not support placement of V with her father. Mr Mann positively assessed Mr and Mrs D and a full assessment of them was commissioned and filed on 5 January 2015. The full assessment recommended Mr and Mrs D as carers for V as a result of which, arrangements were made for Mr and Mrs D to come to England in February 2015 and for contact to be facilitated with V. The contact sessions were extremely positive leading the Local Authority to put forward a proposal for V to move to the care of Mr and Mrs D as soon as practicable.

At the directions hearing before His Honour Judge Curl on 9 January 2015, the Local Authority invited the court to list a hearing to deal with the Article 15 issue of its own motion to prevent delay. The matter was listed as a preliminary issue at the fact finding hearing listed in February before District Judge Royall.

By letter dated 21 January 2015 the Lithuanian Central Authority notified the English Central Authority that they sought transfer to Lithuania under Article 15 of BIIR.

District Judge Royall did not consider it appropriate that he hear the BIIR arguments and referred the case to His Honour Judge Richards, the Designated Family Judge for Norfolk. His Honour Judge Richards invited District Judge Royall to list the BIIR application before him at the conclusion of the fact finding hearing.

On 30 January 2015, District Judge Royall made directions for the Local Authority to immediately seek further information from the Lithuanian Central Authority and for a translated copy of the bundle to be served on them.

The fact finding hearing was heard before District Judge Royall in the Family Court sitting at Norwich. Judgment was delivered on 6 February 2015. The District Judge determined that V had suffered significant harm in that the injury to her face was non-accidental in nature and was caused by the mother, and V was at risk of suffering significant emotional and physical harm in the future.

Following the fact finding hearing, directions were made in respect of the BIIR application, the matter was listed before His Honour Judge Curl on 25 February 2015 and 9 March 2015. The case was transferred to be listed before me on 27 March 2015.

I made directions on 27 March 2015, listing the matter for hearing on 31 March 2015 and for the filing of skeleton arguments on the issue of transfer under Article 15 by 2pm on 30 March 2015.

I heard oral submissions from the parties on 31 March and 20 April.

Article 15 BIIR provides:

Article 15.1 BIIR provides that “,,,,,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 ...”

As set out by Munby J as he then was in AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at [35] the steps for the court are:

“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.”

The English court has jurisdiction and can consider whether to transfer the case under Article 15. V has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State by reason of the child’s nationality: Article 15(3)(c).

On 31 March the parties submitted that the Lithuanian court would be better placed to hear the case as to the long term issues relating to V for the following reasons:

The parties submitted on 31 March that in all the circumstances of this case transfer of the long term issues regarding the care of V is in the best interests of the child:

The parties’ position on 20 April is set out in paragraph 16 above.

The court is placed in a difficult position in this case and in reaching a decision it needs to balance and evaluate a number of matters.

V requires a decision to be made about her future care. She has been with her current carers since January 2014. With the possible exception of the father all parties agree that she should be placed immediately with Mr and Mrs D and move to live with them in Lithuania.

Whilst V has continued to have contact with her mother this court has concluded that her mother caused her significant harm in the way described by District Judge Royall in his judgment dated 6 February 2015. He found:

There is no evidence by the mother that she accepts she caused that harm to V. She does accept that there would need to be further assessment of her before she could be considered as a future carer for V. She agrees V should return to Lithuania in the care of Mr and Mrs D and should remain in their care unless any other order is made by the Lithuanian court following any application by her to that court. The mother intends to return to live in Lithuania.

The father has had legal representation during these proceedings, and been represented by counsel at every hearing before me. He has been made aware of what orders are being sought and has had the opportunity to be heard in accordance with Article 23. He is a person who is unknown to V. Even accepting what he says he has only seen her twice in her life. Whilst there has been a recent change in his position about placement of V with Mrs and Mrs D it is not submitted on his behalf that the Article 15 request should not be made thereby accepting, in effect, that the proceeding would be better dealt with in Lithuania. His recent change about placement with Mr and Mrs D is not based on any reasoned objections and appears to be based on an email to his solicitors which indicates this change with no further information.

Mr and Mrs D are now present in this jurisdiction are having extensive contact with V in preparation for a return to Lithuania with V at the weekend.

There has been no issue between the parties that this court has substantive jurisdiction. V was habitually resident here at the time this court was seised. She had been living in this jurisdiction since 2012, was attending school and was fully integrated here.

I am quite satisfied this court should exercise its jurisdiction to make orders to provide for the care of V. Her welfare is the court’s paramount consideration under section 1 Children Act 1989 which provides

V’s best interests and welfare are met by her being placed in the care of Mr and Mrs D in Lithuania. The detailed assessment of them by the independent social worker Mr Mann recommend V’s placement with them. The statement from the Local Authority social worker dated 23 February 2015 reports on the very positive visits by them to see V at her foster carer’s home on 14^th, 16^th, 17^th. 18^th and 19^th February and supports the recommendation of Mr Mann. V’s Guardian Ms W observed the contact in February and agrees with the assessment of the social worker. Mr and Mrs D agree to such a placement and have had the opportunity of having legal advice regarding their position. On their behalf Mr Perkins invites this court to retain substantive jurisdiction although he acknowledges in his position statement that regardless of how and where the current welfare dispute is concluded the parents have a right and opportunity to restore the matter to any competent court during the child’s minority.

I have reached my conclusion that there should be a final child arrangements order notwithstanding the fact that the Guardian has not had the opportunity to prepare her final analysis. Her position was set out in a position statement filed on her behalf for the hearing on 20 April 2015. I am satisfied that I have sufficient information in respect of V’s welfare to make this order and that there is no requirement for the Guardian to prepare a final analysis.

By this court making a Child Arrangements Order Mr and Mrs D would have an order specifying that V lives with them, they would have parental responsibility for V and have permission for take V to Lithuania. Up until the father’s recent possible change in position both parents were agreed V should return to Lithuania and, in effect, should be in the care of Mr and Mrs D subject to any further orders made by the Lithuanian court. That remains the mother’s position. The father supports an Article 15 transfer, thereby accepting, in effect, the Lithuanian court is better placed to deal with the case. Any suggestion on the father’s behalf that V should not be placed with Mr and Mrs D lacks any rational foundation.

The mother anticipates returning to live in Lithuania; in those circumstances she would continue to see V for at least 3 hours per week. Mr and Mrs D may agree to the mother seeing V more frequently in the exercise of their parental responsibility. To date the mother’s contact has been supervised by the Local Authority. The role of supervision/support will be taken over by Mr and Mrs D once V is living with them in Lithuania.

Mr and Mrs D solicitors’ in a letter dated 14 April 2015 sent to the Local Authority, but now shared with all the parties, set out their position on a number of issues that I had directed should be addressed. Within that letter they observed ‘the courts of England and Wales will retain jurisdiction under Article 9 to modify access rights for 3 months following [V] leaving the jurisdiction unless the parents start proceedings in Lithuania’. Mr Perkins has drawn my attention to the provisions of Article 9 BllR submitting that even if the mother, despite her indication, remains in this jurisdiction she has an opportunity and a forum within which to raise issues in relation to her ‘access rights’ commencing after this Sunday when V will leave this jurisdiction. I accept the propositions made in the solicitor’s letter and by Mr Perkins in relation to Article 9, with the clarification that the condition under Article 9 is participation in any proceedings.

In relation to any issue regarding the longer term arrangements for V’s care I consider that aspect should be dealt with by the Lithuanian court however I do not consider there should be an Article 15 request. That is for the following reasons:

This court has carefully considered the position of V. She is a party to these proceedings acting through her Children’s Guardian Ms W. On behalf of V she supports the proposed placement of V in the care of Mr and Mrs D and her move with them to Lithuania.

This court has also considered the position of the proposed placement. I do not consider it is a placement that requires the prior consent of the competent authority in the requested State under Article 56 (2) as it is not a placement in institutional care or with a foster family.

There are three aspects of this case that have caused this court great concern.