London Borough of Hounslow v AM & Ors

I have sat throughout today and now give this judgment in public. This case concerns jurisdictional and other arrangements between two member states of the European Union, which is an obvious matter of genuine public interest.

The children the subject of these care proceedings are both girls. The elder is now aged two years. The younger is now aged about 10 months. They are both the children of the same mother and father. The parents are Hungarian nationals of Roma ethnicity. They have from time to time travelled, in exercise of the right of freedom of movement within the European Union, to England and Wales. In fact both the children were born here in England. After the elder child was born, the mother returned with her to Hungary for a period, but then travelled again to England where, as I have said, the younger child was born. Although they were both born here, neither child is a British citizen. I assume that each child is entitled to Hungarian citizenship.

Even before the younger child was born authorities here in England had been very concerned about the care given to, and wellbeing of, the elder child. The authorities became even more concerned at the time that the younger child was born in circumstances which were, frankly, very neglectful of a newborn baby. In the upshot, both the children have been looked after by the relevant local authority since a day or two after the birth of the younger child, that is, since May of last year. For many months they were voluntarily accommodated under the provisions of section 20 of the Children Act 1989. However, in January 2014 the local authority commenced the present formal proceedings for care orders in relation to both children.

It is agreed and accepted by both parents, and indeed also by the children’s guardian, that at the time of the commencement of these proceedings, when, accordingly, this court was first seised, both children were (as they remain) habitually resident in England Wales. It therefore follows, pursuant to Article 8 of Council Regulation EC number 2201/2003, known as Brussels II Revised, that the court of England and Wales is the court of primary jurisdiction.

Ever since the younger child was born and both children were voluntarily accommodated, they have in fact been placed and have lived together with the same foster family. It follows that the younger child has known no other home or carer throughout the 10 months of her life than that family. The children do see the parents about once a week for contact, but on the reports that I have read the contact is not a very satisfying or prolonged event, and apart from those limited occasions of contact the only language to which the children are being exposed is English.

The proceedings here are at a relatively early stage. The local authority have filed their so-called threshold document setting out their case. The father has briefly responded to it. The mother has not yet done so. Meantime, the mother, who was pregnant with a third child by, as I understand, the same father, travelled last week to Hungary to give birth to that child there. It is, frankly, pretty obvious that the reason she did so (and I was told that she did so upon legal advice) was to avoid the third child being immediately the subject of public law proceedings here as the other two have been. I understand that about two days ago she did indeed give birth in Hungary to a healthy son.

There has been some correspondence between the local authority here and the Hungarian central authority in Budapest for the purposes of the Brussels II regulation in Hungary; and, indeed, there is also some correspondence with the more local regional guardianship office in the area in which the whole extended family of these children live, which is a considerable distance from the capital city of Budapest. That correspondence to date indicates that the mother’s own mother (the maternal grandmother) could not care for these children as her home is small and her living circumstances very limited, and she already has other children living with her.

There has also been consideration of the mother’s own grandmother, that is, the maternal great-grandmother of these children. She is a lady now aged very nearly 67. It does not seem very promising that a lady of that age could sensibly undertake the care throughout their childhood of children as young as two years, let alone 10 months, and still less the new baby. But it may be that the proposal that will emerge is that there could be a period during which the mother and the children all live with the great-grandmother as the mother slowly acquires greater parenting capacity and skills. So there may be a need for some investigation there.

It has also been suggested by the father that a cousin of his, who also lives in the same area, might be able appropriately to care for, and bring up, these children. Even if the possibility of these children living with other members of the extended family does not prove fruitful, consideration will clearly have to be given to whether, if the children in the end have to be long-term fostered, or even adopted, that should happen here in England or there in Hungary.

The fact of the matter is that, although they were born here as a matter almost of accident, and although they are currently habitually resident here, these children are Hungarian children by citizenship and not British children, and their ethnicity is clearly that of the Hungarian Romany group. I do not mean it in any way offensively whatsoever when I say that one only has to see the father in the courtroom here to see how, ethnically, his appearance is markedly Romany.

Very serious consideration must therefore be given to whether or not in the longer term the future of these children lies in Hungary, whether that be living with one or both of their parents and/or with other members of their extended family, or with long-term ‘foster’ parents or by ‘adoption’. The mother herself has now made a formal application for the transfer of these proceedings to Hungary pursuant to the provisions of Article 15 of the Brussels II Revised regulation. It seems to me, however, that full consideration of transfer of the proceedings under Article 15 cannot be given without some concurrent consideration also of what arrangements might be made for the physical transfer of the children themselves to Hungary.

It is conceptually possible that the children could remain fostered here whilst the proceedings themselves took place in Hungary, but that would be an unusual and perhaps even a rather artificial course. It is of course entirely possible that the proceedings may continue here and that the final outcome of the proceedings is that the children should move to live in Hungary, whether with a family member or some third-party foster or adoptive parent. But the present application is one for the transfer of the proceedings themselves, and, as I have said, it does not seem to me, at any rate on the facts and in the circumstances of this case, that that can sensibly be considered without some clearer understanding of what arrangements might exist for the transfer of the children themselves to live, whether long term or even during the course of the proceedings, under suitable arrangements in Hungary.

There is of course a tension in this sort of situation. In a recent authority of the Court of Appeal during February 2014, on appeal from Mr Justice Mostyn, the Court of Appeal set aside the order of Mr Justice Mostyn for transfer at the outcome stage of the proceedings to Czechoslovakia. The essential reason why they did so was that the Court of Appeal considered (although Mr Justice Mostyn himself had not so considered) that he was now so deeply engaged upon the case that judicial continuity required its final resolution by him here.

Because of the obvious risk that the more a given judge may get immersed into a case, the more considerations of judicial continuity may dictate venue, the Court of Appeal (see in particular the concluding part of the judgment of Sir James Munby, President in that case) stressed the importance of grappling with these transfer issues at as early a stage as possible in proceedings of this kind. I am deeply conscious of that, and, indeed, it is a matter of some regret to me that I have not felt able to make some final determination of this application for transfer pursuant to Article 15 here today. But these proceedings themselves are still at a very early stage.

As I have said, there has not yet even been any consideration by the court of fact finding and proof of the threshold facts, so it seems to me that it is possible in the present case to have a brief pause whilst much more profound enquiries take place in Hungary than have so far taken place. I have asked whether the children’s social worker, Miss Halliday, might be willing, and permitted and funded, to travel to Hungary to carry out some thorough investigation there herself. She herself has expressed her willingness to do so, and initial enquiries today of her more senior management have indicated a willingness in principle to permit and fund her to do so.

The essential outcome today is, therefore, that this application will be adjourned, not part heard in front of myself, to come back before the court on 9^th May 2014. Between now and then, I envisage and most sincerely hope that Miss Halliday will indeed be able to travel to the area of Hungary in which this family live, that she may in fact be able to meet family members there, and most certainly that she will be able to meet with professional counterparts there, so that she can gain and then convey to the court and the other parties in these proceedings an informed view of exactly what arrangements might be made for the reception of these children and their proper care in Hungary. For those purposive reasons, I adjourn this application today.