A (A Child), Re

This matter concerns a young child A who was born in June 2008 so is 5, nearly 6. His parents are the first and second respondents who I shall hereafter refer to as the mother and father. A has been in the care of foster parents since April 2013 following bruising seen on his face at school caused whilst he was in the care of the mother’s then partner. Following investigation by the Local Authority they issued care proceedings and A was placed with foster carers pursuant to a series of interim care orders.

The issues that I have to determine during this hearing are as follows:

Before I go on to deal with the background, there are a few preliminary matters I wish to set out.

This case has caused the court enormous concern and, regrettably, is another example of the need of the court to grapple with jurisdiction issues at a much earlier stage. As will become clear, the father in this case was not served with the papers, or given formal notice of these proceedings, until September 2013, some five months after care proceedings were started whereby his son was placed in foster care pursuant to interim care orders. This has come about due to a combination of the Local Authority, the Children's Guardian and the court not getting to grips with the issues.

As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.

No party had sought to restore the matter back to the court when they should have done. I, like Mr Justice Keehan in A Local Authority v DG & Ors [2014] EWHC 63, would like to associate myself with the observations made by the President, Sir James Munby, in the case of Re W (A Child) [2013] EWCA Civ 1177 at paragraphs 50 to 54, in particular when he makes the following observations in relation to compliance with orders:

“For present purposes the principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work.

Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority.”

In the unhappy procedural history of this case I give, by way of example, the following orders that have not been complied with, the direct consequence that has had on A and the delay in determining these issues.

On 13th June 2013, some two months after proceedings had been issued, His Honour Judge Polden gave leave to the foreign process section of the Queen’s Bench Action Department at the Royal Courts of Justice to serve the father out of England and Wales, namely in the Republic of Latvia. When I enquired in September as to what happened in relation to this and whether the father was, in fact, served, no information was provided and no-one had cared to make any enquiries. No party has taken issue with what the father has said that he was not served with these proceedings until September. Compliance with that order was left in abeyance and no further directions were sought by any party.

The matter came back to court in the intervening two months and by 9th August 2013 Her Honour Judge Cameron ordered the Local Authority to write to the father in Russian and notify him of the proceedings, to inform him of his eligibility for non-means tested non-merits legal aid and to ask him if he wishes to be represented and provide him with a list of local solicitors. As far as I am aware, that order was not complied with. I am told the Local Authority simply did not write the letter.

When the matter first came before me on 25th September I expressed my concern that five months after proceedings had been issued the father had still not been served or notified effectively of the proceedings. At the invitation of the court the father was contacted that day, as were solicitors who were able to take his case on (who he agreed to instruct) and by that afternoon counsel attended court on his behalf. Goodman Ray remained his solicitors. The court is extremely grateful to Goodman Ray, in particular Ms Hollmann, for being able to take this case on at such short notice.

This is a father who, as I understand it, has parental responsibility so he is an automatic respondent to these proceedings under Rule 12.3 Family Procedure Rules 2010 (FPR 2010). Even if he does not have parental responsibility, there is a mandatory requirement for him to be given notice of the proceedings. Proceedings involving the State in relation to the removal of a child from the birth family are one of the most serious interventions in family life there can be. For that action to be taken without the father being properly served, notified of the proceedings and/or given effective access to legal advice to advise him of his position is deplorable. It has caused unacceptable delays in decisions being made for the future care of this little boy.

In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

Turning now to the background of this matter, the mother and father are both Latvian nationals. They were married in Latvia in 2007 where A was born in June 2008. The parties cohabited in Latvia and shared the care of A until their separation. The mother travelled to England to work for two periods of six months, between March and August 2011 and between February and September 2012. A remained in the care of the father during those periods, with the support of the maternal grandmother and paternal grandfather.

Following the mother’s return to Latvia in September 2012 she removed A from the matrimonial home and moved him to the home of the maternal grandmother. The mother issued divorce proceedings in September 2012 and a final decree was made on 13^th November 2012.

After the divorce A continued to reside with the mother in the home of the maternal grandmother. The father had contact, but it was agreed that all parties would go out together on contact visits, although he says there were some difficulties in those arrangements being made. The evidence appears to establish that he last had contact with A on either the 13^th or 14^th December 2012.

On 3^rd January 2013 the mother removed A from Latvia to England where he remains to date. It is the father’s case that he did not consent to A removal from Latvia. He says he discovered after Christmas 2012 that the mother had removed A to England and at which point he made enquiries to discover her whereabouts and to seek A’s return to Latvia.

On 15^th April 2013 the Local Authority in England received a referral from the school that A had been attending that he had bruising to both sides of his face. There were also several other concerns regarding A’s behaviour and daily wetting. The school said they had experienced difficulties engaging the mother and the mother’s then partner. They conducted a section 47 investigation. At a joint visit A disclosed that he had been hit by the mother’s partner and he had placed his hands on A’s mouth. The mother said she had formed a relationship with her partner when she had been in England in 2012. It was reported that the mother, her partner and A lived in a room in a shared property in poor and unsuitable conditions.

A was removed from his mother’s care pursuant to a police protection order and placed with foster carers where he remains. The Local Authority issued its care application on 17^th April. The mother has had regular contact to A initially on two occasions per week and, more recently, on one occasion per week. She separated from her partner and has tried to get work. To her credit she has been able to secure work, initially in Brighton and then more recently in West London.

She is now living with a gentleman called Mr S. She announced at an earlier hearing that it was her intention to marry Mr S and she wishes to have more children in that relationship with him.

In May 2013 the father was informed by a representative of the Orphan’s Court in Latvia that A was in foster care in Kent. That appears to have resulted from a letter from the Local Authority which I have not seen but the response to it is in the bundle. The Orphan’s Court responded on 14^th June 2013 as follows:

“On 23^rd May the Orphan’s Court informed the child’s father…of the situation that has arisen with his son, A. It was established that [the father] is ready to undertake responsibility for the daily care and upbringing of his son.”

According to the father, that was the only information that he had until he received a phone call at some point at the end of June/beginning of July from the family group conference convener requesting him to go to Riga with his father to take part in a family group conference.

That took place on 8^th July 2013. There were two coordinators, one in England and one in Latvia. It took place by Skype and involved the mother, the father, the paternal grandfather, the maternal grandmother and also the children’s guardian was there too. In relation to the father’s position the family group conference record states as follows:

“[the father] wants A back home with him. He can take care of A and has a part-time job. He lives in a two roomed apartment and so A can share a room with him. [the father] lives with his father. [the father] made it clear he doesn’t have anything against the mother and wants to support A. He made it clear though that he sees no future any more with his ex-wife.”

Other than that initial contact and the family group conference the father had no further direct or indirect contact with the Local Authority until during the hearing on 25^th September when the father was contacted and legal representation was secured. The father was not served with the court documents until 26^th September 2013.

In relation to the care proceedings, an interim care order was made initially by the Family Proceedings Court on 18^th April and the application was transferred to the county court. The proceedings were then transferred to the High Court on 11^th September 2013 following legal advice the Local Authority had obtained in relation to the issue of jurisdiction, part of which recommended the matter should be transferred to this court.

The matter came before me, as I have said, on 25^th September 2013 when the father became engaged in the proceedings, directions were made for the filing of evidence and the matter came back before me on 9^th December and 21^st January 2014. Much of the debate at the hearing in December and January concerned practical arrangements and financial considerations to secure the father’s attendance to participate in these proceedings.

The matters in relation to threshold were recorded at the hearing on 25^th September and a composite threshold document was filed within the proceedings. At the hearing on 25^th September the issue in relation to jurisdiction was first raised by the respondent father. In his statements that followed he asserted that the mother brought A to this jurisdiction without his consent. He subsequently made an application on 15 January 2013 seeking A’s return to Latvia pursuant to the Hague Convention. He has filed four statements in support of his application and the mother has filed statements in response, including a statement from a family friend in support of her contention that the father consented or acquiesced to her travelling to England with A.

Because of the situation the court found itself in and the concern about the impact of delay the father agreed (without prejudice to his contention that this court did not have jurisdiction) to welfare assessments being undertaken to avoid any further delay for A if this court did have jurisdiction.

As a result, the Local Authority has conducted a detailed parenting assessment in relation to the mother and more latterly her current partner, Mr S. The father’s position has been assessed through Children and Families Across Borders (‘CFAB’).

The father arrived in Maidstone on 3^rd February 2014. I am told he had contact with A on the 3^rd and 4^th February in the presence of the social worker and the children’s guardian. He also gave a sample of hair for alcohol testing on 4^th February, as that was a matter of issue that had been raised by the mother. Although the Local Authority had agreed to fund such travel arrangements, the paternal grandfather was unable to travel to the United Kingdom because he was unable to get time off work.

The hearing was listed to start yesterday to determine the various issues outlined at the start of this judgment

The Local Authority’s position in relation to the enquiries that have been made and the assessments of the father is they are described as being largely positive and whilst there is still an outstanding issue in relation to the tests regarding level of alcohol consumption, the Local Authority on the information they have do not consider this is a case were the father residing in this jurisdiction where they would be taking care proceedings. What they would be doing is setting out a package of support in relation to the family and possibly convening a child protection conference.

It is agreed the Hague Convention application, although second in time, is the matter that the court should consider first. In essence, the father’s position is that he did not give his consent to the removal of A. Although the mother initially challenged that position in her evidence and in her response to the Hague application, she conceded that the father did not, in fact, consent to A’s removal from Latvia in January 2013. So the central issue is whether the mother can establish any of the defences. It is agreed in those circumstances that the removal of A was wrongful pursuant to Articles 3 and 5 of the Hague Convention, because he was habitually resident in Latvia prior to the removal. The father had rights of custody in respect of him under Latvian law under Articles 177 and 178, the father did not consent to his removal and the removal was in breach of his rights of custody which he was exercising or would have done but for the removal.

The mother raises a number of matters in relation to a defence to the application:

In relation to acquiescence the mother’s case is set out in her second statement and in her response to the Hague Convention. She says that she told the father on the 2^nd or 3^rd January that she was taking A to England. She said the father made no attempt to stop her and she says on her arrival in England she contacted the father by telephone and provided him with her address. She remained in contact with him via a social networking site providing him with updates, but she says the father did not respond and she says the father made no request for A’s return and made no effort to seek his return.

The mother gave oral evidence on this aspect of the case and was cross examined. It is right there are a number of inconsistencies between the account she gives in her second statement, the account in her written defence to the Hague Convention application and the oral evidence she gave. One example being when she said she provided the father with an address. This is what she said in her defence whereas in her statement she said that she had offered him her addresses, yet in her oral evidence she said she told him that she was in Maidstone. There were other similar inconsistencies in her accounts which I will obviously need to carefully consider. The father gave oral evidence which was broadly consistent with his written evidence.

In determining acquiescence the House of Lords decision Re H (Abduction: Acquiescence) [1997] 1 FLR 872 is the leading authority setting out the factors that the court should take into account. They are summarised as follows: firstly, the question of whether the wronged parent has acquiesced in the removal or retention of a child depends on his actual state of mind; secondly, the subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; thirdly, the trial judge in reaching his decision on that question of fact will, no doubt, be inclined to attach more weight to the contemporaneous words or actions of the wronged parent than to his bare assertions in evidence of his intentions; fourthly, the court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted children and; fifthly, where the words or actions of the wronged parent had clearly and unequivocally shown or had led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

It is submitted on behalf of the father that the mother’s case, even taken at its highest does not actually get over the threshold. Essentially her case is based on the father’s inaction prior to May 2013. When he was informed about the position (as set out in the letter from the Latvian authorities) he sought the return of A to his care. This cannot amount to clear and unequivocal words and actions on the part of the father. At best, ignoring the inconsistencies and accepting all the mother says, she could not have known what the father’s intentions were.

The father further submits that the mother’s own conduct does not support a belief that the father had acquiesced in the removal. Reliance is placed on steps the father took, supported by evidence from the City Family Court in Latvia, following the removal. Those are set out in two of his statements, in particular his first statement at paragraph 9 when he states that once he had learned that A was in the United Kingdom he went to the local police station to report the mother had taken him to England against his wishes. He said the police were very unhelpful and told him there was nothing they could do about it. He said he did not have any record of the visit to the police and the police just dealt with him over the counter.

Following that, he contacted the local Orphan’s Court. He said they took the mother’s number, by that he meant her Latvian mobile phone and said they would contact her to find out how A was doing. He said he never heard from them again until they became involved as a result of the care proceedings issued in this country. In his third statement at paragraph 3, he expands and says that he went back to the family court to see if they had made a record of him attending. He attaches to that statement a letter from the court setting out the position which says as follows:

“... City Family Court confirms that in 2012/2013 the father, both on his own as well as together with his father, repeatedly applied to the ... City Family Court to find the location of his son since the mother of his son had not informed him of her actual place of residence. The father was applied to the state police to locate his son and later to apply to the Ministry of Justice where the location of the son abroad became known.”

It is submitted on behalf of the father that it is difficult to understand why he would be taking those steps if the mother was right and he had been provided with an address and a UK mobile contact number. His actions, it is submitted, are inconsistent with the account that is being given by the mother.

The mother’s submissions in relation to acquiescence are that effectively the father was accepting of her continued residence with the child in England and that is why he took no steps to secure the child’s return. Essentially she relies on the inaction by him as far as they were aware in supporting their arguments in relation to acquiescence.

In my judgment it is very difficult for that position to be maintained because it is entirely inconsistent with the steps taken by the father in Latvia in contacting the relevant authorities once he had been made aware that A had been taken to this jurisdiction by his mother. He made it clear that he spoke to the authorities in May and July that he wanted A to return to Latvia to live with him.

The mother’s account of their contact after she came here in January 2013 is not, in my judgment, a reliable one due to the inconsistencies in the accounts she has given in her statement, her statement of defence of the Hague proceedings and in her oral evidence. It is clear to me her account does not sit comfortably with the steps taken by the father in trying to locate his son. It is quite clear on the two occasions when he was contacted by the authorities in May and July that he wanted A to return back to his care. Any observations that he made during either of those two occasions were done without him being served with the proceedings, given notice as to what the position is or having received any legal advice.

For those reasons I reject the defence that the father had acquiesced to A being in this jurisdiction.

The next matter relates to the question of grave risk of harm under Article 13(b). In Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 the Supreme Court reiterated the test to be applied when assessing an Article 13(b) defence and I very much have in mind the matters set out at paragraphs 31 to 35. The burden of proof on establishing this is on the mother. In paragraph 36 of that case the Supreme Court said:

“There is obviously a tension between the inability of the court to resolve factual disputes between the parties and the risks that the child will face if the allegations are in fact true. Mr Turner submits that there is a sensible and pragmatic solution. Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country. This is where arrangements for international co-operation between liaison judges are so helpful. Without such protective measures, the court may have no option but to do the best it can to resolve the disputed issues.”

The father denies the allegations that have been made by the mother of excessive drinking and violent and aggressive behaviour towards A. The mother relied on the findings and the information from the divorce proceedings in Latvia. She relies on the fact that the order records details of the behaviour alleged by the mother, including that the father:

“Had other interests such as alcohol, a carefree lifestyle, meeting up with friends and spending time outside the house as well as spending the family’s money on his personal interests,” [resulting in,] “Debts for utility services and their living conditions become socially unfavourable,” [and then a little bit further,] “That he stopped taking an interest in their child and there was an emotionally unstable atmosphere within the family and that he is aggressive towards their son and affects them both emotionally.”

She relies on those matters and also the description of the father’s behaviour in the witness statement from Miss F. Mr Pidduck, on her behalf, realistically accepts that there is a high bar to make out an Article 13(b) defence as set out in Re E regarding the circumstances and evidence the court needs to be satisfied of before this defence can be established.

In relation to the father’s position regarding this defence, it is submitted on his behalf that the history of the case is inconsistent with the case now advanced by the mother. They rely, in particular, on the fact that the mother left A in the father and the maternal grandmother’s care on two occasions for six months, firstly in 2011 and then again in the care of the father in 2012. If the position was as she has alleged, it would have taken place at a time prior to her being in this jurisdiction in 2012, so it would have been in early 2012 and is inconsistent with the fact that she left A in the care of the father. Secondly, there is no supporting corroborative evidence in relation to the assertions that she makes, particularly in relation to concern from A’s nursery about the father’s care of him. She also relies on matters relating to her mother’s statements, but there is no direct evidence from her mother. Also, it is clear from the history on the mother’s account that, in fact, she was asking the father to come with her to England. It was only when he refused that she decided to come, which is inconsistent with the matters regarding his behaviour now relied on.

In any event, as a result of the enquiries that have been made during the currency of these proceedings, there is information before the court in relation to the father’s capacity to meet A’s needs. They have been assessed by the relevant authorities in Latvia and whilst there are some matters that give cause for concern, there is clearly a support mechanism that can be put in place in Latvia to be able to assist the father in caring for A. The father has agreed to take up the offers of support that have been suggested.

In all those circumstances I have reached the very clear conclusion that the mother has failed to establish an Article 13(b) defence. The evidence relied upon does not amount to the grave risk of harm that is required. There were, no doubt, difficulties in the parties’ relationship which resulted in its breakdown but, as I have said, it was of note that the mother originally wanted the father to come with her to England, and after a lot of these incidents must have taken place she left A in the care of the father, particularly in 2012. Even on her case she remained in contact with the father and she appears quite content for him to have contact with A in the future. All of those matters seem inconsistent with an Article 13(b) defence and for those reasons I reject it.

Finally, to the question of settlement under Article 12 of the Hague Convention. Article 12 provides:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.” [It continues,]“The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”

In Re M (Abduction: Zimbabwe) [2008] 1 FLR Baroness Hale described the exercise of discretion where the exception of settlement of more than one year has been established as follows:

“In settlement cases it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer ‘hot pursuit’ cases. By definition, for whatever reason the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that the country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strengths of the countervailing factors which may well include the child’s objections as well as her integration in her new community.”

In the case of Cannon v Cannon [2005] 1 FLR 169 Lord Justice Thorpe cites the judgment of Mrs Justice Bracewell in Re N as follows:

“The second question which has arisen is what is the degree of settlement which has to be demonstrated? There is some force, I find, in the argument that legal presumptions reflect the norm and the presumption under the Convention is that children should be returned unless the mother can establish the degree of settlement which is more than mere adjustment to the surroundings. I find that the word should be given its ordinary, natural meaning and that word ‘settled’ in this context has two constituents. First, it involves a physical element of relating to being established in a community and an environment. Secondly, I find that it has an emotional constituent relating to security and stability.”

The mother submits A has been here now for more than a year. He has spent the majority of his time in this period with English foster carers and has become wholly accustomed to a very different lifestyle.

Against that, the father directs the court’s attention to A’s circumstances since he arrived in this jurisdiction and submits that the evidence does not establish that A is settled. He draws attention, in particular, to the circumstances in which A has lived with the mother and her partner, which were described as unsuitable and inappropriate. Secondly, the position in relation to his schooling. At the date of his removal on 15^th April, he spoke no English and had difficulties in communicating with other children in the school. Thirdly, he was removed and placed in the care of foster carers where he has remained to date. His carers do not speak Russian and despite the court’s request it has not been possible to find a culturally appropriate placement in which he could easily communicate with his carers. This must have been a difficult experience and still continues to be a difficult experience for him. There have been reports in the looked-after children reviews in July where he was described as experiencing multiple carers and repetitive separations, he presents as confused and concerned, being also quite cautious as he does not appear to trust the people around him. Fourthly, they rely on the fact that for the significant part of the period of time that A has been in this jurisdiction he has been placed with foster carers, which is by its very nature an interim placement whilst investigation is made as to whether he would return back to the care of his mother or whether his father or wider family members are available to be able to care for him. So, by its very nature, the placement since April has been temporary, because no final decision has been made. In those circumstances when one looks at the background in relation to the relatively short period of time he has spent with his mother and her partner between January and April 2013, it would be very difficult to describe this child as being established in a community and an environment and that he has an emotional constituent relating to security and stability.

As I indicated during the hearing, whilst there may be some doubt as to whether this is a settlement case because of the timing of the issue of the Hague application, I have treated this as a settlement case. Adopting the words of Mrs Justice Bracewell in Re N, settlement has to mean more than just adjustment to the surroundings. In my judgment there is little evidence that kind of settlement has taken place. There were difficulties, as I have indicated earlier on, in the school and with language and A has spent the last six months in temporary care. The fact that due to the delays in the proceedings he has been in a placement that is not Russian speaking does not, when considering the wider picture, as I have to, amount to a secure argument to support settlement. I am satisfied that that this defence is not made out either.

In those circumstances in relation to the Hague application, the court does not need to go on to consider its discretion as to whether the court should order a return as the relevant defences have not been established.

I turn, very briefly, to the question of habitual residence, although in the light of my decision regarding The Hague Convention application it is not strictly necessary. However, it may provide helpful clarity. Jurisdiction to determine the Local Authority’s care application issued in April of last year is regulated by Article 8 of B2R; it is dependent on habitual residence being established. In considering habitual residence, the court is guided by what has been set out in the Supreme Court decision of A v A & Anor (Children: Habitual Residence) (Reunite International Child Abduction Centres and other intervening) [2013] UKSC 60, in particular the matters set out at paragraph 54 regarding the principles to determination of this issue are drawn together. I shall list them:

It is submitted on behalf of the father that it is clear that at the relevant date (18^th April) A remained habitually resident in Latvia. That follows the basis upon which I have already made a determination in relation to the Hague Convention application. His connections are his social and family environment in Latvia, both his parents are Latvian, until January 2013 that was the only jurisdiction he had resided in, it is where his extended family is, he went to school there, his and his parents’ first language is Russian, the father did not consent or acquiesce to his removal to this jurisdiction and the father undoubtedly remains habitually resident in Latvia. There was very little evidence, if any, that he became integrated into a social or family environment in England due to the relatively short period of time that he had been attending school here, the circumstances that the mother and her then partner found themselves in and the lack of any kind of link the mother had in relation to the circumstances in which they lived apart from her relationship with her partner. I agree.

For the reasons that I have already set out, I do not consider the father has acquiesced to the retention by the mother of A here and in the same way I do not consider he has acquiesced to A’s habitual residence here and in those circumstances Article 10 B2R applies and A’s habitual residence remains in Latvia.

So for those very brief reasons I am clear that at the time the proceedings were commenced in this jurisdiction A’s habitual residence was in Latvia and so this court, other than for the limited purposes under Article 20 B2R, does not have jurisdiction to determine the care proceedings.

In those circumstances A should be returned to Latvia and I will hear submissions from the parties as to the practical arrangements that need to be made.