This judgment is being handed down in private on 18 December 2013. It consists of 43 paragraphs and has been signed and dated by the judge. The judge gives leave for it to be reported in this anonymised form.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE MOSTYN
Re: D (a Child)
Rachel Rowley (instructed by The Local Authority) for the Applicant
Clive Newton QC and William Metaxa (instructed by Bhatia Best Solicitors)
for the 1st Respondent
The 2nd Respondent did not attend and was not represented
Steven Veitch (instructed by Tallents Solicitors) for the 3rd Respondent
Hearing dates: 17 & 18 December 2013
Judgment
Mr Justice Mostyn:
Before me yesterday, 17 December 2013, were listed for final determination the applications by the Local Authority for a full care order and a placement (for adoption) order in respect of D who was born in June 2012 in Birmingham and who is now nearly 18 months old. However, my final case management order made on 8 October 2013 expressly contemplated that there may be an application by the Central Authority of the Czech Republic (the Office for the International Legal Protection of Children, or OILPC), or by the mother, for a request to be made by me pursuant to Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (otherwise known as Brussels II revised or B2R) for the transfer of these public law proceedings to the courts of the Czech Republic for disposal there. My directions provided that any such application by OILPC ought to be made by 31 October 2013 and in the absence of such an application any equivalent application should be made by the mother by 14 November 2013. No such application was made by OILPC (even though it had clearly signified that it intended to do so on 23 October 2013) and accordingly the mother made her application in lieu a little late on 27 November 2013. (No-one has taken any point about the delay which I imagine was connected with the obtainment of legal aid.)
It is agreed that the mother’s application for a transfer request should be dealt with as a preliminary issue. It is advanced by Mr Newton QC leading Mr Metaxa. It is strongly opposed by Miss Rowley for the local authority and Mr Veitch who represents D, instructed by the Guardian. This is my judgment on the preliminary issue.
The background to this case is set out in my very full fact-finding judgment dated 30 November 2012 ([2012] EWHC 3362 (Fam)). As I said there, the story that unfolded before me was wrenchingly dispiriting and was one of abuse, misery, exploitation, criminality, and unrelenting vice. The father here was the step-father of the mother. He seduced her (thereby committing the crime of sexual activity with a child family member as defined in sections 25 and 27 Sexual Offences Act 2003) at the same time that he was sleeping with the mother’s own mother. The mother’s half-siblings were allowed to be aware that their father was sleeping with their sister. The father plied the mother with drugs. It was a truly appalling state of affairs.
In short, the judgment described the father as a malevolent Svengali. It described how on Day 5 of the hearing he fled to the Czech Republic. Since then he has not engaged in these proceedings. I found the mother to be both victim and perpetrator of harm (see para 65). The mother’s stance at the time that I made that judgment was that she intended permanently to separate from the father and, if permitted to by the court, to bring up D alone (see para 62). That stance did not last long. She travelled to the Czech Republic at Christmas to see her dying grandmother. She re-united with the father and fell pregnant by him again. She returned here in January 2013, and kept up regular contact to D. She returned to the Czech Republic on 1 August 2013 to have her baby there. She did so because she was well aware that the local authority would have sought orders removing her baby from her at birth had she been born here. Her daughter L was born in September 2013. She lives with the mother and the father in Novy Jiĉin. The mother has returned here for this hearing and had been afforded contact to D during this visit.
D’s position is that he is placed with English foster-parents in their 50s. They are very fond of and attached to him but on account of their age do not seek to apply for a special guardianship order as they would be in their 70s by the time he was a teenager. On account of their age they are not candidates for adoption (even if they wanted that). Therefore if the local authority’s substantive applications are granted D will be placed with a new adoptive family.
D and L are full siblings. They are both Czech citizens. Although D was born here he has not (yet) been granted British citizenship. Ethnically the father is fully Romani. The mother is half Romani and half Slavic. Thus D and L are three-quarters Romani and one-quarter Slavic.
According to a letter from OILPC dated 23 October 2013 the local authority for Novy Jiĉin (the Child Protective Services of Novy Jiĉin Municipality) have been provided with a copy of my judgment of 30 November 2012. That letter recounts the supervisory steps taken by the Child Protective Services in the light of my findings. It states:
“According to the request of the Local Authority to the Hospital, it was found out that there are no deficiencies in the care of the mother of his newborn baby, so they were put together home.
The household survey was carried out repeatedly and without prior appointment. It was found that parents have the conditions for a child, that the home is fully furnished and maintained.
In the latest survey, which was carried out in time when mother was in England, the father was caught at home in the morning with her daughter alone. The minor L was clean, neat and appropriately dressed, showing no signs of neglect. Father had the nutrition and tea ready for his daughter.
The Local Authority cooperation with the parents of the minor is good, parents cooperate according to the agreement with the Local Authority, they respect the orders to come to the Local Authority, father is if necessary caught on your mobile phone.
By the query of the general practitioner of children and adolescents who is the GP of L, it was found that he does not have any comments for the care of the little child. The child is pure, it benefits, nutrition is provided, and parents cooperate as necessary. The father brings the child to the doctor, (the contact with the doctor was provided three times, once at home and twice in the office) and once in the company of the mother and once accompanied by another person. Parents tell the doctor that the mother shall stay in England.
Parents came together on a register of the Municipal Office Novy Jiĉin, where the agreement of both parents was determined paternity of a minor L.
Although by the Local Authority there was not found deficiencies in the care of L, the Local Authority due to the circumstances of the case agreed with the family, that it will continue to work with the family and will continue monitoring the conditions of family and parental care of minor L.”
In addition to this supervision it is proposed that services be provided by an organisation) called Domino. Their letter dated 4 December 2013 states:
The organization DOMINO cz, o. s. has been offering services to families with children since 1993. Within the delegation from the Child Protective Services it offers complex services for children as well as families.
In cooperation with the Child Protective Services of Novy Jiĉin Municipality and the parents of the minors D and L, the parents’ competency to take care of the minors will be increased, so that the children are not in any danger. We are ready to sign the services agreement with the family, where the family commits to 15 hours of family therapy. There will also be a family assistant assigned to the family and he/she would visit the family once per week, would help it and would promote the parental competencies in the parents.
Due to the fact that the mother is currently staying in England, we already met, together with the Child Protective Services of Novy Jiĉin Municipality workers, with the father of the minors and provided supportive psychotherapy to him. We will continue providing therapy to the father and the mother of the minors after her return to Novy Jiĉin.
The mother was informed about theses steps by the father of the minors via telephone.”
Mr Veitch correctly says that the Child Protective Services in Novy Jiĉin have decided to go down the route of supervision rather than care for L. Both he and the local authority strongly criticise the Child Protective Services for doing so. They regard it as a dereliction of their duties having regard to the very strong findings made by me against the father and to a lesser extent against the mother. Miss Rowley submits that “[the enquiries by the Child Protective Services] seem to amount to little more than a “safe and well check”. The information received from OILPC to date, does not suggest that [the Child Protective Services] has considered or addressed the risks arising out of the findings of this court, despite the judgment having been received by them.” Mr Veitch submits that “if there is clear evidence, as it is submitted there is in the instant case, that the Czech authorities are not appropriately protecting a child the court should not ignore that fact.”
Criticisms of the actions of the Child Protective Services in Novy Jiĉin is obviously very dangerous territory for me to be lured into.
Article 15 provides, so far as is relevant to this case:
"Transfer to a court better placed to hear the case
1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or
(b) request a court of another Member State to assume jurisdiction …
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53."
The tests to be applied on an Article 15 transfer request were considered by me in Re T (A Child: Article 15 of B2R) [2013] Fam 253 and by the Court of Appeal, on appeal from my decision, in Re K (A Child) [2013] EWCA Civ 895. The Court of Appeal disapproved my suggestion that assistance in explicating Article 15 may be derived from domestic decisions on the principles to be applied when considering the doctrine of forum conveniens in a child case. Rather, an Article 15 application should be determined by asking and answering the “cardinal” questions propounded by Munby J in AB v JLB [2008] EWHC 2965 (Fam) [2009] 1 FLR 517 uninfluenced by any comparative domestic jurisprudence. In that case Munby J stated at para 35:
"(i) First, it must determine whether the child has, within the meaning of Article 15(3), "a particular connection" with the relevant other member State – here, the United Kingdom. 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))?
(ii) 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.
(iii) 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 Court of Appeal confirmed at paras 25 and 26 that in conducting the best interests analysis under question (iii) the principle of paramountcy did not apply. Rather, there should be only the sort of attenuated limited inquiry that was applicable where the same exercise was undertaken under Article 12 as explained by Baroness Hale in Re I (A Child) [2009] UKSC 10 where she stated at para 36:
"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 sort of considerations which come into play when deciding upon the most appropriate forum."
For my part I would only add (uninfluenced by any extraneous learning) that it seems to me to be obvious that in considering question (ii) the burden is on the applicant to show that the other court would be better placed to hear the case.
Re K contains this vitally important sentence in para 24: “We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction.” This mirrors my own comments in para 37 of Re T.
In this case there is no dispute that question (i) is answered affirmatively. The controversy relates to questions (ii) and (iii).
Mr Newton QC submits in relation to question (ii):
Both parents and D are Czech nationals. It is probable that the habitual residence of both mother and father is the Czech Republic. Certainly both parents’ permanent residence is now in the Czech Republic.
L, D’s full sibling, is a Czech Republic national and the habitual residence of L is the Czech Republic.
Three of D’s grandparents are of Roma/Czech origin: the fourth grandparent is of Czech origin.
The parents’ first language is Czech. Any proceedings in the Czech Republic will be in that language. The ongoing assessments are being and will continue to be undertaken in that language.
Important issues in the case relate to the mother’s parenting ability and ability to protect a child from risks posed by the father. The latest and very important evidence relating to those issues is that of the Czech social services who have been assessing and monitoring all aspects relating to the care of L by mother and father in the Czech Republic in the light of Mostyn J’s fact finding judgment of 20 November 2012 and of the concerns of the local authority (see the communication from OILPC dated 17 October 2013 and the email of 21 November 2013 from a representative of the Legal Department of OILPC).
The court in the Czech Republic is better placed to access and properly assess this evidence.
The promotion of D’s heritage is of great importance. If the decision is that D should be placed away from the mother and father the court in the Czech Republic is better placed to ensure an ethnically and culturally suitable placement for D.
If the decision is that D should be placed away from the mother and father the court in the Czech Republic is better placed to ensure that D has appropriate contact with his parents and L and other members of the extended family.
If the decision is that D’s permanent future placement should be with the mother and father, the court in the Czech Republic is better placed to ensure that any appropriate safeguards are put in place.
D has not been put in a permanent placement and a further move for him will have to take place in any event.
In relation to question (iii) Mr Newton QC submits:
“the conclusion that the court of the requested Member State is better placed to hear the case is in itself a most important factor suggesting that a transfer is in the child’s best interests. It must generally be that it is in the child’s best interests for the case relating to his future to be determined by the court better placed to hear it. ”
In relation to question (ii) Miss Rowley submits:
D was born in this country, and has resided here all of his life.
D is habitually resident in this country. He has not set foot on Czech soil and therefore even if his parents are habitually resident there, he is not.
His siblings, B and K reside here, as does their mother.
The mother and father were habitually resident in this country between 2006 and November 2012 (the father) and August 2013 (the mother). The father claimed benefits and lived in social housing. He made an application for registration as an EAA national, claiming the mother as a dependant in 2007. In fact, the UK border agency rejected his application, but it indicates that he regarded UK as his home and had put down his roots here.
The mother (and probably the father) intended to remain here and raise D in this country. This country is their “ordinary residence” of choice, and they are staying in the Czech Republic due to the circumstances relating to this case. The mother only fled this country in an attempt to evade the care proceedings in relation to L and this court’s jurisdiction in respect of that application, the father fled this country to avoid further scrutiny of the court under cross examination.
A wealth of evidence has been made available to this court in respect of the events in this families’ life during their time in this country, in the form of social worker’s statements, health visitors statements, parties’ own statements, evidence from the police, in relation to the factual and historical background to this case, relevant to the fact finding hearing and the intervention of the Local Authority.
A substantial hearing has already taken place in November 2012, and the parents submitted to the jurisdiction of this court;
Furthermore, in relation to D’s future placement, and against the background of the serious findings made, this court has directed and received a report from an independent social worker. It also has before it final evidence from D’s social worker and Guardian. These witnesses are expected to give evidence to this court at the final hearing. All the detailed and comprehensive evidence relating to parenting abilities is here, in this country;
Thus, it is not accepted, as suggested in the mother’s skeleton that the “latest and very important evidence” relating to the mother’s parenting ability and ability to protect from risks posed by father is that of the Czech Republic Authorities. They have not carried out the careful and full investigation that has been carried out here. Their enquiries to date have focused on the ability of the mother and father to meet the basic needs of L, the co-operation of the parents, and it seems whether there are immediate safeguarding concerns arising out of her relationship with the father. They have been made as a response to “prompts” from the Czech Embassy. They seem to amount to little more than a “safe and well check”. The information received from OILPC to date, does not suggest that it has considered or addressed the risks arising out of the findings of this court, despite the judgment having been received by them. This is not stated as a “divisive value judgment about the laws and procedures of our European neighbours” [Mostyn J in Re T], but as a reasonable conclusion to be drawn from the information supplied by OILPC itself to date;
Furthermore, a substantial amount of relevant background material is contained in the case material of B and K, whose future was determined by this court, and it was not until July that these cases were separated. In the event that this case was transferred, this information is unlikely to be considered by the Czech Courts.
There are no proceedings currently in the Czech Republic in relation to L. OILPC have indicated the Authorities could apply for supervision of the court, but there is no further information available to suggest this has happened, nor indeed what this means. This is not a case therefore where D’s case would be consolidated with an existing Czech case. As there has been no application for transfer by OILPC, there is no plan as to the interim placement of D, no clear plan as to further assessment of the parents, if the court did find in favour of the mother’s application, and of course, if Czech Republic accepted the transfer. The most this court knows is that it is likely that D could be placed in institutional care in the interim, as the availability of foster care is low (letter dated 23 October 2013 from OILPC);
The Local Authority acknowledges that D’s ethnic and cultural needs are of great importance, bearing in mind his Czech/Roma heritage. However, they do not outweigh the need for D to grow up in an environment which is safe, stable and secure and free from the risks already identified by this court. In recognition of the importance of his heritage, the Local Authority has sought to promote the Czech language to date with the assistance of his mother. At their request, she has provided the Local Authority with a CD of Czech nursery rhymes, which are regularly played to him. The Local Authority has addressed the cultural aspect of this case in the social worker’s statement at C20 and C127, and more recently in her statement dated 16th October 2103 at paragraphs 20 and 22. At the date of the latter statement, there were 11 prospective adoptive families of Eastern European heritage. Committed efforts would be made to find a placement which met D’s needs in this country. It is questionable whether the Czech Republic is in a better position to place D in a more ethnically and culturally suitable placement, based on the information received from OILPC. On 24 October 2013, a representative of the Legal Department of OILPC confirmed that “there are no direct adopters for D and the Local Authority is not even in contact with any other relatives of D”. In earlier correspondence, OILPC have been unable to give any indication of the availability of placements which would reflect his Roma heritage.
And as to question (iii) she submits:
“It is accepted that in determining the best interests of D, it is a determination within the context of choice of forum. The Local Authority relies upon the points made above in support of its submission in this regard. This court is concerned with the future welfare of D, and has been now for the last 16 months. It has made a number of very serious findings about his parents, which impact on his future welfare. This court is ready to determine his future welfare on 17 and 18 December 2013, there is no more to be done. It is in D’s best interests for the court that made the findings to determine his future.”
On behalf of D Mr Veitch submits as to question (ii):
D: D was born in the UK and has resided here his whole life. He has been placed in an English speaking foster placement and therefore has begun to develop a sense of identity based on those primary carers. It is understood that in contact mother spoke to D in English. At the time of his birth his parents were both ordinarily resident in the UK and intended to remain in this country. The father had an established home here for which he received housing benefits. He only left this country in the course of the finding of fact and considered that he was “forced to go to the Czech Republic”. The mother returned to the Czech Republic prior to the birth of her second child. It is submitted that the only interpretation of this is to frustrate this court’s process.
Proceedings: This court has been seized of this matter since August 2012. A vast amount of evidence has been prepared and filed both in relation to the substantive finding of fact hearing and the final hearing. This court has already had the benefit of hearing the parties give their evidence at the finding of fact and has made significant findings against both the father and the mother. The events on which those findings were based, largely took place in England. Regarding disposal of this case there has been detailed social work assessment of the mother including observations of contact, ISW assessment and the observations of the child’s guardian. All of this evidence would be highly relevant to the Czech Court’s determination of D’s best interests. There would therefore be delay and expense involved in the translation of all of this material and the attendance of witnesses in the Czech Courts.
Linked Proceedings: This court has already determined that the best interests of B and K (D’s half siblings and maternal aunt and uncle) required them to be placed away from the birth family. Issues of identity, life story work and potential post placement contact are best dealt with by this court.
Position of the Czech Authorities: There is no application from the Czech authorities for transfer pursuant to Art 15. A representative of the Czech Embassy conceded that this court was the appropriate forum as long ago as 16 October 2012. There is therefore no information before this court as to what if any proceedings there would be in the Czech Republic if the matter were transferred.
And as to question (iii) he submitted:
“If there is clear evidence, as it is submitted there is in the instant case, that the Czech authorities are not appropriately protecting a child the court should not ignore that fact. The Czech authorities are aware of the findings about the relationship between the father and the mother. Despite these findings L remains in the care of the father and his family. The “latest and very important evidence” (per the skeleton argument on behalf of the mother) in fact amounts to little more than a superficial examination of the child’s immediate circumstances and the parents ability to provide basic care needs. The court should be concerned that if these proceedings are transferred to the Czech Republic there will be a significant negative impact on D’s welfare both in terms of substantial delay to the outcome of proceedings and the risk that he will be returned to his birth family. A family which this court has found has caused him significant harm and puts him at risk of further significant harm in the future. D is now 18 months old and is forming attachments. His need for urgent determination of his future and placement in a permanent caring and stable placement is pressing.”
A significant difference between Re T / Re K and this case is that in the former case the Slovakian Central Authority was very proactively pursuing an Article 15 transfer request. It had advanced a very clear plan for the care of the child should he be returned. The plan was expected to be authorised and approved by the Slovakian court. Here the interest of the Czech authorities has been much more ambiguous. Their attitude is shown by paras 6 – 18 of Ms Rowley’s skeleton which I now reproduce:
On 20 September 2012, just a month or so after these proceedings commenced, the High Court invited a representative of the Czech Embassy to attend a hearing on 16 October 2012 before Mrs Justice King to make any oral submissions they considered necessary or to make written representations in time for that hearing.
On 16 October 2012, the Deputy Head of Mission of the Czech Embassy appeared before Mrs Justice King and set out the position of the Embassy:
It recognised the jurisdiction of the High Court to make decisions in respect of the Czech children (B, K and D) and it did not currently seek the repatriation of these children;
He asked that the Embassy be kept informed of the progress of the case and any change in the legal status of the children;
Mrs Justice King also ordered a transcript of the judgment relating to the fact find to be sent to the Embassy. There were no representations made by the parents at that stage for the matter to be transferred to the Czech Republic.
On 30 November 2012, following judgment in the finding of fact hearing, this Court once again invited the Deputy Head of Mission of the Czech Embassy to attend court on the 28 February 2013 to make any representations as appropriate relating to the welfare stage. There was also provision made for the disclosure of the judgment to the Embassy, together with all statements filed prior to the February hearing, which would set out the future plans of the Local Authority.
On 28 February 2013, the Deputy Head of Mission of the Czech Embassy attended court and confirmed that the Czech Embassy considered that the High Court had jurisdiction to make decisions about the future placements of the children, including D.
In March 2013, OILPC responded to an email from the social worker, sent to the Deputy Head of Mission of the Czech Embassy, with regard to adoption processes in Czech Republic.
On 30 July 2013, the local authority were ordered to send an agreed letter to the Czech Central Authority, OILPC, addressing specific questions and issues relating to possible placement options in Czech Republic; and sending the judgment of this court directly to them.
On the same date, the Local Authority were directed to invite the Czech Embassy to intervene in proceedings before the next hearing namely 8 October 2013, informing them once again of the local authority’s plans for placement.
On 22 August 2013, an agreed letter, as ordered, was sent to OILPC and a reminder sent on 2 October 2013.
On the 4 October 2013, OLPC replied, and stated (inter alia) “if there won’t be a procedure in accordance to this Hague Convention, then it seems to be the most effective to proceed in accordance to the Art 15 of the Regulation No 2201/2003 (Brussels II) in the Czech Republic”.
On 8 October, this Court invited the OILPC to make any application pursuant to Article 15 by 31 October 2013 and must do so in full form with argument in support, and attend the hearing set down on 17 and 18 December 2013. If OILPC did not make such an application, then if the mother intended to pursue a transfer then she should apply by 14 November 2013.
On 14 October 2013, the Local Authority wrote to OILPC serving the order of the 8 October 2013 upon them and specifically referring OILPC to the provision of the order dealing with the application to transfer to be made by 31 October 2013, in the event that was its intention.
On the 23 October 2013, OILPC wrote to the Local Authority and stated: “The Office for International Legal Protection of Children does intend to transfer the case pursuant to Article 15 but this depends on the question whether the possible further decision of the competent Czech Court about the child custody would be enforceable in United Kingdom as stated in the previous letter”.
There has been no application to date by OILPC to transfer these proceedings to Czech Republic, despite there being ample opportunity for them to do so. Both the Czech Embassy and OILPC have had sight of the judgment of this court.
Conclusions
The case of Re T / Re K was a very obvious one for a transfer request under Article 15. The arguments for and against in this case are much more evenly balanced. However, the issues that are raised go a good deal wider than a simple application of the words of the regulation to the specific facts of this case. They raise the very important political and social issue of whether, and if so to what extent, the remit of our child protection system should extend to children who are citizens of other EU countries (but not of this country) where there exists a clearly defined transfer procedure to enable their future to be determined in the court of their homeland. There has recently been a public clamour about a certain Italian case (see In the matter of P (A Child) [2013] EWHC 4048 (Fam), where the press reporting is described) and it is fair to say that the issues which I have to determine are a matter of pressing public concern.
It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go there. If it does not it will stay here and be determined here.
In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.
But in most cases all things are not equal. And so a scrutiny of the facts must be made in each case.
Here I agree with Mr Newton QC that up to the date of my judgment of 30 November 2012 the facts have been definitively found. Of course, having conducted the fact-finding hearing I have some advantage were I to conduct the disposal hearing over another judge, whether that judge is sitting here or in the Czech Republic. This is because not every nuance of the case necessarily finds expression in my judgment. But, generally speaking, the advantage that I have by virtue of having conducted a fact finding hearing over a fellow judge is marginal. Wherever the disposal hearing is conducted it will not be necessary to go behind my findings or to examine the underlying evidence. Indeed in preparing for the final hearing in this case there has been virtually no reference to the “wealth of evidence” (as Miss Rowley puts it) which led to my judgment about the historic facts.
Mr Newton QC has described the events since 30 November 2012 as "facts yet to be established". He argues that a Czech court would be far better placed to investigate those facts than this court. I tend to agree. Only the Czech court would be able to investigate whether the father is, as the mother claims in her latest statement, a changed and reformed character. This is because he will not engage in these proceedings. It may be said that it is unprincipled for this court to allow the father to put a gun to its head but at the end of the day it surely must be practical considerations that determine which court is better placed to conduct the final disposal hearing and to gather and consider all the relevant evidence as to whether reunification of D with his parents is feasible, or whether the drastic, extreme and exceptional measure of adoption is the only valid option.
Further, I agree with Mr Newton QC that it is the Czech court which can better fully investigate the prospect of maintenance of the relationship of D with his full sibling L.
I unhesitatingly decline to be drawn into a process of evaluation of the competence of the Child Protective Services in Novy Jiĉin, let alone of the Czech court. In my judgment the statement of Thorpe LJ in para 24 of Re K is not a mere rebuttable presumption but is a no entry sign. Criticism of the performance of local authorities and judicial services in fellow EU countries is territory into which I must not go.
It is fair to observe that there has not been much in the way of further professional evidence as to whether D can be reunited with his parents or his sister L since my judgment of 30 November 2012. Based on my findings the stance of the local authority is that the father is so irredeemably corrupt and malign that in circumstances where he and the mother maintain their relationship there is no alternative but to place D for adoption. The consequence of an adoption will be, as Miss Rowley realistically accepts, that D will lose, if not completely, then very largely, connection to his Czech/Roma heritage. This is an exceptionally important factor in my judgment. I accept that the promotion of D’s heritage must be balanced, as Miss Rowley says, against his need to be reared in a safe, stable and secure environment. However, underlying this submission is a tacit suggestion that the courts of the Czech Republic are incapable of promoting that need. That I cannot accept. On the other hand I believe that the Czech court will be much better able than me to recognise and promote his Czech/Roma heritage.
I am concerned by the distinct lack of enthusiasm by the Czech authorities to seek themselves an Article 15 transfer request. But the very terms of Article 15 envisage the request being made upon application from a party, or of this court's own motion, or upon application from a court of another Member State with which the child has a particular connection. The Article does not in fact contemplate the application being made by either a foreign government or by an executive agency of a foreign government. It envisages, first, the application being made by a party, and that is what has happened here.
I am of course concerned by the delay that would be occasioned in the final disposal of D's case were the transfer request to be made. Of course, if the Czech court does not accept the invitation within six weeks then the case will proceed to final disposal here. That is not a very long delay especially when one considers that D, if the orders are made as sought by the local authority, will have to be placed with a new adoptive family anyway. If the Czech court does accept the invitation then the delay in final resolution is a completely unknown quantity but it is fair to say that it will inevitably be longer than were I to deal with this matter, especially, as Miss Rowley fairly points out, where there are no actual proceedings in being in the Czech Republic.
It must not be forgotten that the local authority’s application is for a placement order. That would (almost) inevitably lead to an adoption order, most likely with an English family, and severance of his connection with his homeland, his ethnicity, and his half siblings B and K. I place no weight on Miss Rowley’s reference in para 19(iii) above to their residence here along with their mother as I consider it much more likely than not that were the orders to be made as sought by the local authority that D would lose all contact with them. Equally, I think it is improbable, were the a matter to be adjudicated finally by the Czech court, that maintenance of the relationship between D and his half siblings would be in fact be achieved. This factor does not weigh with me either way.
In my decision of Re T at para 26 I stated:
“When considering applications of this nature I always remind myself of the "momentous" nature of the decision which I have to make - that description derives directly from opening sentence of Baroness Hale's opinion in the case of Re B (Children) [2008] UKHL 35 at para 20. I also remind myself of the words of Munby J (as he then was) in Re B (A Child) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para 101:
"it must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever. When a family judge makes a freeing or an adoption order in relation to a twenty-year old mother's baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks."”
This sentiment has been most forcefully reiterated recently by the Supreme Court in the case of Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 and by the Court of Appeal in the case of Re B-S (Children) [2013] EWCA Civ 1146. In the latter case Sir James Munby P, for the court, stated at para 22:
“The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215. ”
Earlier in para 19 he stated:
“In this connection it is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34, that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”
The evidence here suggests that save in cases of abandonment adoption in the Czech Republic is only permitted with parental consent. It is therefore even more momentous where a local authority seeks this remedy in a case where the laws of the child's homeland would not allow it. Indeed, it may fairly be said to give rise to diplomatic and political questions about the relations between states within the Union.
I am fully alive to the fact that in 2004 this family came to this country and settled here. Social Services were not involved with the family until October 2011. When a family immigrates here they must be taken to accept all our laws whether they relate to tax, crime or the protection of children. The fact that our family law permit non-consensual adoption (in contrast to the law of their homeland) is part of the price of the exercise of the right to settle here. This feature is a strong pointer against making the Article 15 request. However, notwithstanding this period of settlement this was always a Czech family. It lived in a Czech community. It spoke Czech (indeed the English of all members of the family is very poor). It maintained many contacts with the Czech Republic. But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic, L is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.
I have considered very carefully the excellent arguments of Miss Rowley and Mr Veitch but I have concluded, not without some hesitation, that I answer questions (ii) and (iii) affirmatively and should request the court exercising public child protection jurisdiction in the municipality of Novy Jiĉin in the Czech Republic to accept a transfer of this case and to decide D’s future. If that court has not responded affirmatively within six weeks then this case will proceed here. In the meantime D will remain in care under interim care orders which will be renewed on paper. If the Czech court accepts jurisdiction then D will continue to remain in care under interim care orders until the Czech court makes alternative arrangements for him.
I mentioned in argument that this is a case giving rise to very important concerns. Miss Rowley and Mr Veitch indicated that they would wish to appeal if I granted the application for a transfer request; conversely Mr Newton QC indicated that he would wish to appeal if I declined it. As I indicated to counsel I would, either way, grant permission to appeal as I consider that this case that falls within CPR 52.6(b) i.e. there is a compelling reason why an appeal should be heard. In my opinion the Court of Appeal needs to consider the very difficult issues thrown up by this case and to give definitive guidance as to how future Article 15 requests in public law cases should be dealt with. Certainly I would have thought that they would wish to emphasise that any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage and give consideration to transfer to the High Court. But that will be for them. I confine myself only to granting permission to appeal to the local authority and to the Guardian. Any appeal must be heard with great expedition and I understand that the Court of Appeal would be able to hear the appeal in the first week of the forthcoming Lent term, and in fact will be giving directions later today.
Postscript
After this judgment had been distributed in draft and just before I was due to enter court to hand it down on final form I was given an email dated 17 December 2013 timed at 10:06 from the head of the Child Protective Services of Novy Jiĉin Municipality (which as I now realise is more correctly called the Department of Social Legal Protection of Children of the Municipal Authority of Novy Jiĉin). I have read that email and nothing in it alters the conclusions I have reached.