D, E, F and G (Children : Art 15 - transfer of the proceedings) (Rev 2)

The substantive application before me is the Local Authority’s application, dated 6^th April 2017, for care orders in respect of 4 children. I shall refer to them as D, a girl, aged 10 years old, E, a boy, aged 8 years old, F, a boy, aged 2 years old and G, a girl, is just 8 months old.

The children are currently the subject of interim care orders made on 7^th April 2017. They have been in foster care since that date. They have had several moves of placement but for the last two months have been in a placement together.

The children’s parents are Romanian nationals of Roma heritage. I am unclear as to when precisely the father came to the UK. It is believed that the mother and children followed in 2014. The elder two children were born in Romania; the younger two were born in this jurisdiction. At the date of issue, the mother was in this jurisdiction and the father was believed to be in Romania having been deported. The parents are now both in Romania and intend, it would seem, to remain there. I was told at the last hearing that they were due to marry on Monday 31^st July.

An application for a transfer of the proceedings to Romania, pursuant to Article 15 Council Regulation (EC) 2201/2003 (BIIR), was issued on the mother’s behalf on 12^th April 2017. The Court has already determined that it had jurisdiction to hear the case based on habitual residence.

The father joins mother in her application. The local authority and the Guardian oppose transfer.

The applicant is the London Borough of Redbridge.

The mother is 28 years of age. She speaks little English. The father of the children is 32. The parents and the whole of the extended family is Romanian Roma in culture and origin.

As I have already set out, the mother came to England three years ago with D and E; she was following the father who had arrived in the country previously. It is not unreasonable to assume that they intended to make their lives here. The younger two children were born here. It is understood that the family have had multiple addresses. However, in spite of these constant moves, the older children did attend schools here and the family have accessed health services.

The family came to the attention of the authorities when in July 2015 the mother gave birth to F having sought no antenatal care. In February 2016, there were some troubling reports regarding Mother’s behaviour. On 4 September 2016, the mother called the police to report that the father had assaulted her. There was bruising / red marks to her upper arm. The mother indicated that the father had pulled her hair and signalled by punching her head that the father had hit her on the head. She later retracted her statement and said that her ex-partner (not the father) had hit her. The mother refused to sign a written agreement in October 2016. The children were made the subjects of Child Protection Plans on 10 October 2016.

The father was deported in January 2017 because of criminal activity though I am unclear as to precisely what. Although the mother claimed that he was in Ireland and that she had no contact with him, it seems that after his deportation he returned illegally to the UK and secretly resumed residence with her and the children.

On the 8 March 2017, a further incident of violence took place between the mother and father. The mother said that the father placed his hand over her throat and tried to strangle her. She said he pushed her onto the floor and took her money - £300.00. The mother started to scream at which point father packed his things and left the family home. The mother says that the children were asleep in their room. However, the maternal grandmother, who was in the jurisdiction at the time, witnessed the incident.

Meanwhile extradition proceedings were in progress in respect of the mother. On 13^th March 2017 the mother’s contested extradition proceedings were adjourned to 21 April whilst the local authority assessed family members and friends, presumably in this jurisdiction, as alternative carers for the children in the event that the mother was extradited.

The family moved on 18th March 2017 from Ilford to Forest Gate with the children into multi-occupancy accommodation. During a social work visit to the family home on 30th March 2017 the social worker saw the father entering the family home and leaving the property in a car.

On 5^th April 2017, there was a violent incident at the mother’s address. The mother advised that three males who occupied their multi-occupancy accommodation had kicked her door down, pushed her down the stairs, punched and kicked her whilst the children were in the house. She was very reluctant to report the incident to the police.

Following this incident, the mother refused to sign a section 20 Children Act 1989 agreement and so the police exercised their powers and removed the children from the mother’s care into foster care. The local authority issued care proceedings on 6 April. On 7 April, Interim care orders (ICOs) were made until 11 April. On 11^th April, the orders were extended to the conclusion of the proceedings or further order. On 12^th April, the mother issued an Article 15 BIIR application.

On 13 April, the mother handed over the two older children’s Romanian passports to her counsel, and the case was transferred from Croydon to East London for the Article 15 BIIR application. At that hearing the maternal uncle attended court and confirmed that he no longer wished to be assessed as a carer for the children. During that hearing the Mother said that she was frightened of the father, that he had been living with her and was not in Ireland (as she had previously asserted) and that he was waiting outside in his car in the vicinity of the court and had a knife with him.

The Team Manager called the Police who attended and attempted apprehend him, without success. The Police took the father into custody the next day arresting him in the property shared with the mother. It is clear from the social assessment report prepared by the Romanian authorities that he is now back in Romania and residing in a village near the maternal grandmother.

On 26 April, an Extradition Order was made in respect of the mother who did not contest the application. She was due to be deported a few days after the hearing in these proceedings on 8 May 2017. However, she removed her tag and failed to present herself for removal on 12th May 2017. It would appear that she fled the country by some other means. It seems that both she and the father are now in Romania.

It was understood that upon her return to Romania, the mother would be placed in custody where she would serve a sentence of 703 days imposed by the court of Cluj in her absence, for false testimony. In fact, she has served only a few weeks in prison and has now been released. We are told that there is a hearing in December 2017 at which a determination will be made as to whether she needs to serve any more of her 703-day sentence or whether it will be suspended or reduced. There is no clarity about her precise circumstances.

This matter has been adjourned on several occasions. Sometimes because of the need to be clear about where the mother and father were. On another occasion because an issue arose as to the parentage of the children which I deal with below.

In the intervening weeks, the children have been assessed by a consultant child and adolescent psychiatrist, Dr M. It was hoped that he would have one opportunity to see the children with their mother before she was deported but as she left before her extradition date without notice to anyone it seems that was not possible. He was clear that the children would be best placed together.

On the 4 July 2017, the Romanian Consulate confirmed that Romanian social services are happy for the children to be repatriated to the care of the maternal grandmother and that the father has signed a declaration that he will support the children in that placement.

There is an issue as to the suitability of the grandmother as a carer for the children because whilst an assessment of her capacity to care for the children in Romania has been undertaken by the Romanian authorities and is positive in its conclusion, a viability assessment undertaken by the Local Authority of the grandmother’s capacity to care for the children in this jurisdiction was negative.

At the hearing on the 6 July 2017 I was unable, again, to deal with the mother’s application for an Article 15 transfer and was invited to determine the local authority’s application for an order that the police disclose the mother’s DNA sample for determining the children’s parentage. This was because the local authority had raised concerns about the maternity of the children. The DNA tests suggested that D, E and G have the same parents. F, the third born child, has a different father/mother, the local authority was told. After a short debate in logic during which the authority was encouraged to apply some common sense to the situation, it was accepted that there is clear evidence that the mother is the mother of F and G – born here – and so the likelihood is that she is the mother of all children and F has a different father. The father, I should observe, maintains that he is the father of all 4 children. Mother’s position is as yet unclear.

The mother has filed an initial statement in the proceedings which is dated 25^th April 2017. Father filed a position statement on last occasion and at this hearing a statement of evidence. It has been the mother’s position throughout these proceedings that she wants her children to be repatriated to Romania to be cared for there by her or in the alternative by the maternal grandmother. Indeed, the current information as to her reunification with the father means that a return to mother would mean a return to both parents. The father supports her position.

The position of the local authority and Guardian as to outcome is as yet unclear save that following the receipt of the report of Dr M, the local authority indicated it is unlikely that it would seek placement orders in respect of the younger children.

The Children’s Guardian met and spoke to D for the second time shortly before the hearing on 6^th July. D remained firmly of the view she wanted to remain in the UK with her current foster carers. She has negative views about the prospect of return to Romania and the care of her parents or extended family. She has vivid memories of being in a children’s home, being taken when 4 years old into the home and going back to her mother when 8 years old. She is reported to be very happy to be living in a settled home with her siblings and able to go to school consistently.

It is against that background the issues for me to decide at this hearing are whether or not to make a request of the Romanian authorities for a transfer of the proceedings to Romania.

Article 15 BIIR provides an “exception” to the ordinary determination of jurisdiction:

“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 in accordance with paragraph 4; or

(b)

request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

In AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 at paragraph 35, Munby J, as he then was, distilled the route to the exception into three essential questions:

Article 15 transfers were considered most recently by the Supreme Court in the case of In the matter of N(Children) [2016] UKSC 15 (“Re N”). Taking this decision together with earlier decisions, in particular, In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152, I remind myself of the following essential principles:

Finally, the judgment of the CJEU in Case C-428/15 – Child and Family Agency v JD is of significance. I limit myself to reciting the following principles which are of importance to the instant case:

It is significant, in my view, that the judgment of the CJEU places a renewed emphasis on the exceptionality of Article 15 and the need to rebut the “strong presumption” in favour of the ordinary jurisdictional determination. The requirement that a transfer should provide “genuine and specific added value” only serves to reinforce that point. Further, whilst the decision also emphasises the respect that must be afforded to the competence of other Member States, and whilst it is clear that the consideration of “best interests” relates solely to transfer and not to the ultimate determination the court confirms that “best interests” can and should focus on the impact on the “material situation” for the particular child in the circumstances of the case.

In this case, so far as the older two children are concerned, Romania was their former place of habitual residence (Art 15(3)(b)). Not so for the two younger children who were both born in this jurisdiction. However, all 4 children are, I believe, Romanian nationals (Art 15(3)(c)). In addition, their mother, who has parental responsibility for them, is now habitually resident in Romania, or so it would seem (Art 15(3)(d)). As a matter of fact, this part of the test is satisfied.

Whilst it does not detract from the fact that this question is answered in the affirmative it will be useful, I think, to pause for a moment to remind myself of the extent and degree of the ‘general’ proximity linking these children to this jurisdiction and compare that to the extent and degree of the ‘particular’ proximity to Romania.

Mr Shaw for the Guardian points out that whilst it cannot be disputed that there is a particular connection to Romania in this case, the proximity of such connection is arguably diluted by the length of time the children have been brought up in this jurisdiction and the more recent history of family life for the children in the UK.

To that I add my own observation that for each of the children the connection with Romania is of differing degree. Certainly, for the younger two children the factors which make the particular connection with Romania are all through their parents. Whilst I do not suggest that this is not of importance it is a valid point that those connections are not made through any physical connection themselves with Romania. They were born here, have never lived anywhere else, and so far as I am aware, they have never been to Romania. Their contact with their heritage has been through their parents. Contact with extended members of their family has been limited to visits in this jurisdiction. Arguably, for these younger two children the factors forging the necessary particular connection do not establish a stronger proximity or connection with Romania than the proximity they establish to this jurisdiction.

The situation for the older children is, of course, different. The particular connection established by the older children through living in Romania for more than half of their lives, is stronger. Having said that, this jurisdiction was the place chosen by their parents to bring them to settle and is where their mother chose to have her younger two children. Whilst their lifestyle was itinerant in the sense that they have suffered frequent moves and changes of location and have led an unsettled and chaotic life here whilst in her care, that is the nature of the care that she gives. It does not in my Judgment undermine their connection to this jurisdiction any more than it would undermine their ability to establish habitual residence here [see the decision of Cobb J in Re SS [2014] EWHC 3338 (Fam) paras 36-37]

As I have said none of these observations negate the fact that the first condition is met but I mention them because the degree of connection may be important when considering the other two questions.

There are two obvious ways in which it is said that the Romanian courts would be better placed to hear this case. The first is in the gathering of the welfare evidence – which will largely be in Romania – and the second is in the practicalities of presenting and hearing that evidence. Let me deal with the second of those matters first.

There are obvious and valid points made about the practical difficulties caused by having proceedings here when it is likely that we will need the attendance of family / assessors to give evidence in the English courts. However, it seems to me that there are arrangements that can be made for the attendance of witnesses wherever the case is to be heard and there is nothing in this case which makes me suppose that arrangements to hear the evidence of the essential witnesses in this jurisdiction would not be possible here.

Turning to the gathering of the essential welfare evidence, the mother argues forcefully that she will be so disadvantaged by the proceedings remaining here as to interfere with her Article 6 rights to a fair trial. This, she says, means that the Romanian courts are “better placed” to hear the case.

Ms Charlton’s arguments centre on the fact that both parents, the grandmother and other family members who are being proposed as carers, indeed, she argues, the only realistic care options for these children, are in Romania and will remain there. Not only will it be easier for them to be assessed there but it will be fairer for them to be assessed in Romania where they will be measured against their own cultural norms and spoken to in their own language. Indeed, the mother goes further and argues that unless this case is transferred to Romania she will not be able to be properly assessed at all and will be prevented from properly engaging in the process; by that means, it is argued, her Art 6 rights will be infringed.

In my judgment, if it is the case that these parents are unable to engage in the process whilst the proceedings remain here then it might amount to an infringement of their Article 6 rights. Further that would not only suggest that Romania was better placed to hear the case, it would also weigh heavily in favour of it being in the children’s best interests for the case to be transferred to Romania.

However, whilst it will certainly be more difficult to assess the mother, father and extended family whilst they remain in Romania I am not yet satisfied that it will not be possible for the mother and the father, or extended family, to be fairly or properly assessed or play an active and meaningful part in these proceedings to the extent that their Article 6 rights are compromised. Let me explain why.

The local authority intends to assess the mother and father, and indeed all the extended family, jointly with the Romanian authorities and argues by this means assessment will be full and fair and the potential disadvantages to the parents of leaving the decision making here will be removed.

On behalf of the mother the point was properly made that if she is unable to return here this might mean being unable to assess her with the children. Does this mean that she will be unable to be properly assessed?

To determine this case, I do need evidence about the strength of her relationship with the children but I have that in the evidence of observations of the children already in the papers. More importantly will be the assessment of her capability to meet their needs. This case is about chaotic lifestyle and exposure to domestic violence and the ability of the parents to understand the impact of that upon their children. The assessment of her lifestyle and whether in fact there has been domestic violence between the parents and significantly the impact that has had, if at all, on the children, is something that can be assessed by reference to the history of the case and the evidence gathered here already regarding the children. Whether mother acknowledges and understands its impact will become clear in the assessment of her in Romania.

Mother points out that it will be difficult for her to engage in the process here. Even providing instructions to her solicitors has proved difficult since she has been out of the country. Whilst I appreciate that it is difficult long distance it is by no means impossible. In the first place, I would observe that since she fled the jurisdiction in advance of her extradition the reasons that it has been difficult to contact her was that she was ‘on the run’ from the authorities and once in Romania she was in prison. She has not long since been released and so we have yet to see whether there are impossible hurdles to maintaining contact with her. Further, I am far from satisfied that it will be impossible to bring mother back to this jurisdiction, if only temporarily. She indicates that this would not be possible before the hearing in December but I would prefer that attempts to secure the answer to this this were made through more official independent channels before we assume that this will not be possible.

The father raises the same arguments as the mother though his situation is a little different. The case against him is that he is a violent man who is unlikely to be able to care safely for these children – whether alone or in a relationship with the mother. There is a considerable body of evidence in support of this case already. It is his position that he has been totally misjudged and that the mother has lied about him. He says that the basis upon which he was deported is utterly erroneous. If that is right then he will have no difficulty, surely, in returning to the UK to be assessed once he has rectified these errors. If that proves not to be the case, then the same considerations as to his assessment in Romania and engagement in proceedings here apply to him as to the mother.

The father relies upon the case of Re D (Transfer of Proceedings) [2013] EWHC 4078 (Fam) [2014] 2 FLR 496 and in particular the comment made by Mostyn J that “although Art 15 of BIIR was neutrally phrased it contained an important subtext 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 had become so tenuous as to be an irrelevant consideration (see para [26]).”

In that case, a Czech child remained in the UK when the Czech parents and extended family were all in the Czech Republic. Arguably, not unlike the situation here. The problem with placing reliance upon this isolated comment is that Re D (supra) was the first instance decision subjected to the successful appeal In re M (supra). Whilst mentioning other essential parts of the Court of Appeal decision, I did not focus on the fact that the very phrases relied upon by the father in this case were said by the Court of Appeal to amount to an arguably “impermissible gloss on the plain words of Art 15(1)”.

Further, Re N and the CJEU decision as I have said re-emphasises that the state with jurisdiction should retain that jurisdiction unless the ‘exception’ of Art 15 is established through the consideration of three separate questions designed to assess the proximity of the connection with the other member state, the added value brought in transfer and the best interests of the child in having the proceedings heard away from its place of habitual residence.

Finally, there is still a real issue as to whether the father is the birth father of these children. The evidence currently suggests that he cannot be the father of all of them. Given their history it seems likely that if he is the father of any it will be the elder two and the youngest. That means that there is another father of one of the children who was born here. That man must have been in this jurisdiction at some point and may still be in this jurisdiction. We know nothing about that father. We may never know anything more about him but it seems to me that this jurisdiction is, for the time being, better placed to investigate and resolve that issue provided the mother is prepared to be open about the children’s paternity.

Do I consider that there is any “genuine and specific added value” in the case being heard in Romania? Before I answer that question, I think it prudent to consider whether it would be in the “best interests” of these children to have the case transferred to Romania to be heard. The evaluation of ‘better placed’ is “intimately connected” with the question of the ‘best interests’ of the child. (Re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152 approved in N(Children) [2016] UKSC 15). As I have already pointed out, the extent to which the parents can be fairly assessed in this jurisdiction has relevance to my consideration of the “best interests” test. It is this third question which is the safeguard for the children concerned and which must be considered alongside the issue of best placed though separately from it. Let me turn to that now.

Mother argues that whilst we cannot predict the outcome we can predict that these children must return to Romania. In this jurisdiction, the only option for them will be foster care or adoption whereas they have a family member who has been positively assessed by the Romanian authorities and who is willing and able to provide care for them all in the absence of their mother. There is of course a live issue regarding the suitability of the grandmother as there is a negative assessment of her in this jurisdiction. However, it is argued that even if the welfare decision demands separation from the natural family, these children should be in the place to which they are culturally connected and where they will have meaningful contact to their parents. This is the place where they belong.

The Guardian and the LA is firmly of the view that it is in the best interests of these children for these proceedings to be heard here. They each, quite rightly, fight shy of suggesting that this is because the provisions available here are better than Romania or that the Romanian courts will be unable to deal with the case appropriately. Those are arguments that I could not and would not countenance.

The Guardian’s point is simply that given what we know, even at this stage and without pre-judging the case, there is a real possibility that neither parent will prove to be able to care for these children and whilst that must lead to serious consideration of the extended family or even a simple return to foster care in a more culturally appropriate environment, the circumstances of this case may invite consideration of it being in the best interests of these children to remain together in foster care here. A transfer of the case to Romania would remove that option for the children, whereas placement in Romania with a family member or in care in Romania will remain a real option and capable of full consideration if the proceedings remain here.

In addition, the Guardian points to the potential impact upon the children of a move now. Firstly D, who has expressed increasingly strong wishes to remain here in her current foster placement with her siblings and has made a number of troublingly negative comments about her extended family. Indeed, all children are settled in their current placement. The immediate impact on the children of a transfer would be a change in schools for the two oldest children, removal from their current placement where they are settling together and residence in Romania, a country which is alien to the two youngest. For the elder two who are now in school, the disruption of their education would come at a time when they have had the longest period of undisrupted schooling. The disruption to them would be, in the view of the Guardian, considerable and such a negative impact cannot be ignored.

The mother suggests that there are only positives in a move for these children given that the children have no significant familial or emotional attachments in this jurisdiction and given that they are unable to have meaningful contact with their parents separated by so many miles.

The mother argues that they could be returned to the maternal grandmother immediately if a transfer is made. With respect that is not yet indicated as being in their best interests. As I have already set out there is a dispute as to her ability to safeguard them – supported to a degree by the misgivings expressed by D at being placed in her care. It is far from clear that the Romanian authorities are properly aware of these concerns. My faith in the Romanian system is such that I am sure the concerns expressed here would be examined carefully before such placement took place. Thus, if the case is transferred now, the process of determining with whom they should live is unlikely to be concluded by the time they physically return to Romania raising the possibility that they may well be placed in another temporary placement before having to move again. If, however, at the conclusion of the proceedings in this country it is considered to be in their best interests to be repatriated to Romania that will follow a period of stability here which will only be to their benefit.

I do not intend to make a transfer request at this stage. This has been a difficult balance.

The question of which court is “better placed” to hear this case is very finely balanced. On a simple level, if the assessment of which court is better placed is limited to the practical considerations of where most evidence will be gathered and most witnesses will be based then Romania would be better placed to hear this case. However, the question is not necessarily answered through a simple assessment of practicalities it seems to me. I need to determine whether “the transfer of the case to that other court is such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before” this court.

Had I been satisfied that the parents’ Article 6 rights could not be guaranteed by retaining the proceedings in this jurisdiction then Romania would have been better placed but as I am not so satisfied I conclude, by a narrow margin that Romania is not better placed to hear this case. It adds no genuine and specific added value. If I am wrong about that let me move on to the more powerful reason for not transferring the case now under the third test.

In Re N the “best interests” test was addressed by Lady Hale as follows: “……. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seized of the case to retain it, or whether it is in the child’s best interests for the case to be transferred to the requested court”.

The CJEU concluded that the court hearing the application must be satisfied that the transfer is “not liable to be detrimental to the situation of the child concerned” (para. 58). Thus, the court having jurisdiction must assess any negative effects that such a transfer might have on what the court considered were the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation (Para 59). The desirability of the case being determined by the court best able to do so may, therefore, be overridden by some negative effect on the transfer of a case on the circumstances or situation of the child.

I disagree that the welfare decision in respect of these children, as in the Re D case, is driven inevitably by the fact that they are Romanian nationals and their family is all in Romania. I do see that there is likely to be a strong argument that they must in due course return to Romania but at this stage, given the negative experiences that they might have had in the care of their parents and extended family, combined with what is an increasingly strong connection with this country, I do not feel able to be sure that a return will be the only possible outcome. Whilst their links to Romania are far from tenuous, neither are their links to this jurisdiction. These children have a connection with this country that has established jurisdiction. For the younger two in particular it goes further than that. Their connection to this country is relatively strong. Even for the older two their life in Romania in the care of their parents has seen them, it is believed in the care of the authorities.

However, even if ultimately they are to return to Romania, I am particularly concerned by the likely negative effects on the children’s welfare should there be a transfer of the proceedings now. The disruption to them would be considerable and yet I can prevent them having to suffer that disruption by concluding the proceedings in this country. This does not prevent full and proper consideration of their repatriation in due course.

I bear in mind in assessing the negatives, the issue of contact between the children and their family in the interim. Whilst the children remain here and their parents in Romania there can be no face to face contact. If the proceedings were to transfer they would at least have more meaningful contact with their parents. Of course, the children have not had face to face contact with their father for some time. I accept that this is problematic but it does not, in my view, outweigh the negative effects of a move now to Romania.

I made it clear during the hearing that there must be all efforts made to set up some form of Skype contact for these children as a matter of urgency and I proceed on the basis that this will be done. In circumstances in which they are provided with no contact to their parents by the local authority the balance on best interests may well shift. For now it remains firmly in favour of hearing the proceedings in this jurisdiction.

Accordingly, I am driven to the conclusion that I must refuse the transfer. I should add that the issue of transfer in this case has been finely balanced. So much so that, I consider it necessary to keep this issue under constant review. If, despite all efforts, it becomes apparent that these parents cannot be properly assessed here, for instance, or there is some other change in their situation impacting upon the issue of where the proceedings should be heard, there is no reason why a further application for an Article 15 transfer cannot be made.