Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
Mrs Justice Theis DBE
Between:
The London Borough of Brent | Applicant |
- and - (1) A (2) B (3) C (by her Children’s Guardian) | |
Respondents |
Mr Jake Barras (Solicitor-Advocate) for the Applicant
Ms Jennifer Perrins (instructed by Lyons Davidson) for the First and Second Respondents
Mr Nick Stonor KC (instructed by DawsonCornwell) for the Third Respondent
Hearing date: 17 December 2024
Judgment date: 15 January 2025
Approved Judgment
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. Nobody may be identified by name or location. The anonymity of everyone other than the lawyers must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Mrs Justice Theis DBE:
Introduction
This application concerns C, now age 16 ¾ years. The applicant local authority seek a return order under the inherent jurisdiction that would order C’s return to this jurisdiction from Denmark to the United Kingdom. That order is supported by C’s parents but opposed by C, through her Children’s Guardian.
C has been in Denmark since June 2024. She is currently placed in a safe house provided by Danish Social Services. C reports that she left England to be with her girlfriend, X, age 17 years who lived in Denmark, out of fear of honour-based violence from her family, who live in this jurisdiction. There have been legal proceedings in Denmark where interim measures have been made under Article 11 Convention in Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation on Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention). C’s parents have been able to participate in those proceedings in Denmark and have had access to legal advice there. C is also represented within those proceedings.
Relevant background
C was born in Sweden and is a Swedish citizen. C’s family is of Iraqi heritage, both parents were born in Iraq. C and her family have lived in England for the last 13 years. C, her parents and her siblings all have leave to remain here. C has been educated here and completed her GCSE exams the day before she left to travel to Denmark.
C travelled to Denmark unbeknown to her parents, leaving the family home in the early hours of the morning. Her trip was funded by X’s mother. C had met X online and they wished to continue their relationship. The day after her arrival in Denmark C was admitted to hospital for treatment of her Type 1 diabetes, she had not brought any medication with her. The hospital made a referral to the relevant Children’s Services.
Five days after she had left the family home, C’s sister reported to the local authority that C had gone missing. The matter was referred to the police the following day. On 27 June 2024 a referral was received here from the Danish Authorities via the Central Authority here, ICACU (International Child Abduction and Contact Unit).
C told the social workers in Denmark and the local authority social workers based here that she went to Denmark due to fears that she was at risk of honour based violence as a result of her relationship with another female. She reported that her older sister had informed her that if her parents discovered about her sexuality she would be killed or returned to Iraq to be ‘cured’ of her sexuality. C alleged that her father, with the knowledge of her mother, had physically chastised her for many years, and disclosed difficulties she had experienced with her mental health.
Following C’s discharge from hospital the authorities in Denmark took protective measures under Article 11 of the 1996 Convention and through protective orders made on 16 June 2024 and 4 July 2024 obtained authorisation for C to be placed in a safe house for the next six months from the Danish Committee for Young People. C’s parents were represented in those proceedings and the authorisation included prohibition of any contact between C and her family and X.
The local authority social worker has explained to C that in light of her allegations against her parents the local authority would be able to provide her with accommodation here under s 20 Children Act 1989 (CA 1989) together with other practical support, such as with her education and other support services. Even though C felt isolated, she has remained clear she wished to remain in Denmark.
The local authority social worker attended a meeting with the Danish social worker on 22 July 2024 and was advised that they no longer considered C to be at risk in Denmark, as her family were not in the country. As a consequence, C was allowed unsupervised time in the community and was spending weekends with X staying at X’s sister’s home. That has continued to date. The Danish social services indicated that the current period of accommodation for C would come to an end, initially thought to be in early December 2024.
Following this meeting, the local authority issued wardship proceedings here and on 24 July 2024 Judd J made a declaration that on the basis of the information the court had it had jurisdiction on the basis of C’s habitual residence and gave the local authority leave to invoke the inherent jurisdiction. The local authority were directed to use its best endeavours to carry out an assessment of X’s mother as an alternative carer for C, the Danish social work team were requested to provide a report setting out their position and notice of the wardship proceedings was given to the Swedish and Danish Embassies.
The assessment of X’s mother was completed on 1 August 2024. It did not support C’s placement with her due to concerns surrounding her assistance in enabling C to leave this jurisdiction and her inability to forward plan regarding C’s health care and access to education. No update on that assessment has been made.
At the next hearing here on 13 August 2024, the Children’s Guardian sought permission to instruct a Danish lawyer to provide an expert opinion on the obligations of the Danish State towards someone in C’s position. That application was granted at the hearing on 17 September 2024. Due to delays in obtaining that advice the next hearing was not until 4 December 2024, which it was thought was the day before the Danish Authorities may withdraw accommodation and support for C.
Shortly before the hearing on 4 December 2024 the local authority received a judgment from the Danish Authorities determining an appeal by C’s parents. That judgment stated that the decision that C should be placed outside of her parents home would be reconsidered after a year or the conclusion of these proceedings. In effect, this continued the existing arrangements for C in Denmark during this time. Further directions were given in these proceedings and the matter was re-listed before me on 17 December 2024.
The court is extremely grateful to Mr Roderick from Lyons Davidson Solicitorswho attended the hearing on 4 December 2024 at short notice to advise the parents on a pro bono basis. Following that hearing the father’s application for legal aid was successful and the parents had the benefit of representation at this hearing by Ms Perrins. I heard submissions on 17 December 2024 and reserved judgment.
Just prior to the hearing on 17 December 2024 the solicitor for the child circulated an unissued application seeking to request the Danish Authorities to assume jurisdiction under Article 8 of the 1996 Convention.
Assessments and expert evidence
The Danish Authorities have stated in a letter dated 8 August 2024 that based on the information set out in the letter at that time, they considered it was in C’s best interests to return to England. A subsequent letter dated 22 August 2024 sets out that the concept of legal guardian does not exist in Danish law. The letter continues that the placement of C does not fundamentally change who has custody of C, C would not be able to make decisions of her own until she attains the age of 18 years and without the consent of her legal guardian she cannot apply for or receive benefits in her own right as a minor in Denmark.
The expert evidence from the Danish lawyer, Ms Mikkelsen, is dated 14 October 2024 with an addendum dated 6 December 2024.Ms Mikkelsen is also C’s solicitor who had advocated for her at the Danish Committee hearings. In summary, she confirms that the recent decision from the Danish Authorities means that C has been placed outside the family home for a period of one year and will be entitled to the same support as any other child in Danish foster care. That decision runs for the year if C continues to reside in Denmark.
More generally Ms Mikkelsen confirms the following:
As a Swedish national C is entitled to enter Denmark and is free to study and work in Denmark, pursuant to section 1 of the Child Act, however, this is only on the basis that Denmark accepts C should be placed in Denmark pursuant to Article 33 of the 1996 Convention.
It is not an option in Denmark for an authority to take over custody of a child, this will always have to be a physical person and the starting point would be one of the parents.
‘Parental Decision making Rights’ for C currently lie with the English Courts on the basis of the wardship proceedings.
In order for X to apply for benefits for C when she attains 18 years she would have to apply to become C’s guardian. As it is ‘standard practice’ for parents to retain child custody of their children, even if they are placed elsewhere, this application may be rejected.
As jurisdiction currently lies here there would need to be agreement between the two jurisdictions for jurisdiction to be transferred to Denmark, via the Central Authorities, either by a request under Article 8 or 33 of the 1996 Convention.
The evidence
In the most recent written evidence from the local authority social worker she sets out the meeting with the Danish Authorities on 6 December 2024. Whilst the statement notes that C would have access to the Danish education system, there remains a concern about her ability to access it as C does not speak Danish. The statement continues that even if C did not wish to continue her education, finding work is likely to encounter the same language difficulties. The meeting explored other issues if C remained in Denmark. In the part of the statement that deals with C’s wishes and feelings the social worker sets out the position of the Danish Authorities and confirms C’s wishes and feelings of wanting to remain in Denmark have not changed.
The statement provides an update from the Danish social worker who reports that C remains living in the ‘safe house and feels bored and would like to attend school’. The Danish social worker considered C would benefit from counselling and has given her details of an organisation C could contact. She reports that C continues to meet with X and X’s sister each week. It was reported C had recently stolen some clothes from a shop and was caught by the police. The police do not expect C to be fined and the contact person from the safe house reported that C is very unhappy about her actions.
In their most recent statement C’s parents set out their denials of the allegations made by C against them, their love for C and their understanding C does not wish to return to their care or to this jurisdiction. They set out that they would be willing to accept advice and support regarding the decisions C has made regarding her relationship with X and express their concerns regarding C’s vulnerability in Denmark by only having limited people to communicate with and the steps taken by X’s mother in facilitating C’s travel to Denmark in the first place. They are concerned that C has not been able to access education and the interruption there has been in the medical support here for her diabetes. They support C returning to this jurisdiction.
The Children’s Guardian, Ms Harvey, filed a detailed report on 25 November 2024. That report sets out in some detail the difficulties C’s position presents. Following her full and careful analysis of the pros and cons of the options for C she concludes that she does not support a return order being made as it would, in her assessment, be contrary to C’s welfare needs.
Legal Framework
The Private International Law (Implementation of Agreements) Act 2020 gives domestic effect to the 1996 Convention, along with the 2005 and 2007 Hague Convention.
No party has raised any issue of this court having jurisdiction pursuant to Articles 5 and 7 of the 1996 Convention, declaration having been made to that effect by Judd J on 25 July 2024 although Mr Stonor submits habitual residence may need to be looked at again if the court refuses the summary return application. To date the Danish Authorities have provided C with accommodation in a safe house, pursuant to Article 11 of the 1996 Convention.
Articles 8 and 9 of the 1996 Convention provide a mechanism for the transfer of proceedings between jurisdictions “By way of exception” and also provide a list of Contracting States who a request for transfer can be made to. Article 8 provides:
“(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are
a) a State of which the child is a national,
b) a State in which property of the child is located,
c) a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage,
d) a State with which the child has a substantial connection.(3) The authorities concerned may proceed to an exchange of views.
(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child's best interests.”
While Articles 8 & 9 provide a mechanism for transfer, these are by way of a request to the other jurisdiction where the requesting State considers they or the other State would be better placed in the particular case to assess the best interests of the child.
Article 33 of the 1996 Convention provides as follows:
If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.
The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child's best interests.
The leading authority in considering whether to grant the order for return under the inherent jurisdiction remain the principles set out in In Re J (A Child) (Custody Rights: Jurisdiction) [2006] AC 80. Each case is fact specific and the ultimate question is what is in the individual child’s best interests within the context of a summary return. In the judgment of Lord Wilson in Re NY [2019] UKSC 46, paragraph 49:
“The mother refers to seven specific aspects of the child’s welfare, known as the welfare checklist to which a court is required by section 1(3) of the 1989 Act to have particular regard. She points out, however, that, by subsections (3) and (4), the checklist expressly applies only to the making of certain orders under the 1989 Act including a specific issue order, as is confirmed by the seventh specific aspect, namely the range of powers under that Act. The first six specified aspects of the child’s welfare are therefore not expressly applicable to the making of an order under the inherent jurisdiction. But their utility in any analysis of a child’s welfare has been recognised for nearly 30 years. In its determination of any application under the inherent jurisdiction governed by consideration of a child’s welfare, the court is likely to find it appropriate to consider the first six aspects of welfare specified in section 1(3) (see In re S (A Child )(Abduction: Hearing the Child) [2014] EWCA Civ 1557, [2015] Fam 263 at para 22 (iv), Ryder LJ); and if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the child’s welfare requires, it should conduct an enquiry into any or all of those aspects and if so, how extensive that enquiry should be” .
According to Lord Wilson in NY at [56] – [63], the questions to be asked are:
Was the evidence sufficiently up-to-date
Had the judge made or could the Court of Appeal make, findings sufficient to justify the summary return order
Should an enquiry be conducted into any or all of the aspects of welfare specified in s.1(3) of the 1989 Act and if so, how extensive should that enquiry be
Should, in the light of the Practice Direction 12J an enquiry be conducted into the allegations of domestic abuse raised by the mother
Was it appropriate without identification of any arrangements the child in Israel and in particular of where the child and the mother would live, to conclude that the child’s welfare required her to return to Israel;
Should oral evidence be given by the parties, and if so, on what aspects and to what extent and
Should the court have considered whether a Cafcass officer should be directed to prepare a report and if so upon what aspects and to what extent”
Submissions
The local authority maintain their position that this court should make a return order within the inherent jurisdiction proceedings. Mr Barras, on behalf of the local authority, submits that any application seeking transfer of the proceedings to Denmark is unlikely to be successful as C is not a Danish citizen, she has no property in Denmark and there are no divorce or legal separation proceedings concerning her parents. Mr Barras submits that C does not have a substantial connection with Denmark due to her limited connections with Denmark, other than her relationship with X, she had never resided in Denmark prior to June 2024, she has only been provided with emergency accommodation since she has been there, she has no family in Denmark and her contact with X is limited by the Danish Authorities. The local authority submit any request, if made, is likely to be unsuccessful, consistent with the view expressed in the letter dated 8 August 2024 that it was their opinion that it was best for C not to be placed in Denmark.
In support of their submissions for the court to make a return order the local authority submit all realistic options have now been explored for C to remain in Denmark and it remains in her best interests for her to return to this jurisdiction. In particular, the assessment of X’s mother was negative and the Danish Authorities have confirmed they would not consent to a placement pursuant to Article 33. There are no other family members in Denmark who could care for C until she attains the age of 18 years and no educational provision there that would be able to provide education that C could access. C would be able to continue her relationship with X from this jurisdiction and the legal advice provides a mechanism for C to be returned to this jurisdiction, even in the event she is not willing. In the written evidence the local authority set out their plans in the event that a return order is made. They would send two social workers to Denmark to collect C, likely to be the current and previous social worker. There is only one direct flight a week from where C is and they would propose bringing C back on a direct flight. The social worker states they do not consider it likely physical force will be required, stating the Danish police have confirmed that they do not have powers themselves to force C to leave but ‘the police are able to assist if [C] resists physically’. No further details are given as to what that would involve.
The local authority recognise that C’s consistent view has been not to return to this jurisdiction but they submit when considered with the other factors it is not determinative and there is a lack of maturity in her views as regards her situation. C’s wish to remain in Denmark needs to be considered against the realities of her position, namely she is not an adult and able to live and work independently in Denmark, there is no person with parental responsibility who she could reside with in Denmark, no family or friends have been positively assessed to care for her there, she has an over dependence on X and the Danish Authorities have indicated they would not agree to any Article 33 placement. In those circumstances the local authority submit the court ‘must make an order for [C’s] return…’.
In the event of a return order being made the local authority have confirmed C would be provided with s 20 accommodation, probably semi-independent. C’s parents dispute her allegations but have confirmed they would abide by any working agreement with the local authority and the local authority will assist C to return to school to undertake her A levels in accordance with her wishes.
Ms Perrins, on behalf of the parents, supports the local authority position although realistically recognises neither option is ‘ideal’ and submits C’s circumstances remaining in Denmark are ‘bleak’. She submits there are clear welfare reasons that support a summary return to this jurisdiction. She submits remaining in Denmark will severely limited C’s life chances. Due to the way C went to Denmark her living arrangements have resulted in her becoming isolated, bored, miserable (as reported by the Danish social worker) and restricted in what she can do. There are real gaps in what support and services could be made available to support C in Denmark and the arrangements that are currently made for her are on an interim emergency basis. There is a real concern that her wishes and feelings may be influenced by her wish to continue her relationship with X and her wishes need to be seen in the context of the other evidence that remaining in Denmark does not meet her short or long term welfare needs. C does not speak Danish which has a direct impact on what educational provision would be available for her and the consequences of the Danish legal system that would still require her parents’ consent again would be inimical to decisions to be easily made in her best interests. By remaining in Denmark she would lose the consistency of her diabetes support and be limited in being able to effectively access any meaningful psychological support. To delay any decision regarding C’s return here is unlikely to meet her welfare needs or a different position by the Danish Authorities, and there is no evidence she would resist any order made by this court.
Mr Stonor KC, on behalf of C’s Children’s Guardian, submits the application for summary return should be dismissed. The Danish Authorities, who have already been taking protective measures under Article 11, should be invited to assume jurisdiction either pursuant to Article 5 or 8. Article 5 on the basis that the refusal of a summary return orders tips the balance in favour of a declaration that C’s habitual residence has now changed. Article 8 if the Danish Authorities indicate following an exchange of views under Article 8(3) that a formal transfer request is necessary. There should be a directions hearing before this court in late January to consider the outcome of either of these options when the proceedings could either be dismissed or a decision made as to transfer.
Mr Stonor makes the following general observations. He acknowledges C may be vulnerable due to her circumstances but she is intelligent and is Gillick competent to make decisions about her living arrangements. She has been living in Denmark now for over six months and despite her circumstances her wishes have remained consistent and clear to remain living there. During that time and for the next six months or so the Danish Authorities have taken steps to safeguard and support C and if the court refuses the application for a return order they are likely to continue to do so.
Mr Stonor reminds the court that despite the denials of the parents the backdrop of the steps C has taken is that the Danish authorities took the steps they did as in July 2024 they considered the fact that the police believe the security risk is high and they took seriously the allegations made by C. On 19 November 2024, after two unsuccessful appeals by the parents, when the Danish Appeals Board dismissed the parents’ appeal against the decision made on 4 July 2024 and ordered the case should be reconsidered ‘one year after the date of our decision or final ruling’ they considered ‘It is our assessment that there is a clear risk that [C’s] health and development would suffer harm due to insufficient care for [C] if she were to continue to live in the home’ and ‘A ‘risk assessment’ has been carried out, and it concludes that there is a serious risk that the honour-related violence and control would continue if [C] were to return to [the parents]’. In dismissing the parents’ appeal he submits they did so in the full knowledge of this hearing and rejected the parents’ argument that ‘The decision should therefore be set aside so that the right authority and the right country can make the right decision’ and that ‘The only thing that can be done is to set aside the decision in its entirety, as then the UK would know that she is to go back there, and they could then ensure that she gets the right support and implement the right measures’.
Mr Stonor submits that whilst the local authority assert that the Danish Authorities would decline a request under Article 33, no Article 33 request has in fact been made. The letter dated 8 August 2024 was written relatively soon after C’s arrival and the situation has moved on. In any event, the letter states ‘If the English authorities wish to apply for a placement in Denmark in accordance with Article 33 of the Convention, it is our opinion that it is the Danish authorities who must choose a suitable placement for her…’.
Mr Stonor submits the Danish legal expert has confirmed that C is entitled to the same benefits as Danish children placed in foster care which includes a place to live, medical care, education, educations support etc.
The Children’s Guardian’s report, Mr Stonor submits, provides a detailed and balanced analysis of C’s position. It acknowledges and details the pros and cons of each option, recognising there are no easy solutions. Having carefully considered the pros and cons the recommendation in the report is that the application for a return order should be refused as it would be ‘against her expressed wishes and feelings and may lead to an escalation in risk and a deterioration in her mental wellbeing. I would hope that the English and Danish authorities can and will work cooperatively, to safeguard [C] and to provide the relevant services to her, as needed.’.
Mr Stonor submits the court should refuse the application for C’s summary return. The Danish Authorities should be invited to consider their position in the light of this judgment, coupled with an application for an exchange of views under Article 8(3) and a formal request under Article 33.
Discussion and decision
C is outside the terms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction due to her age, hence why this issue is being considered within proceedings under the inherent jurisdiction. The key issue to be determined at this hearing is whether it is in C’s best interests for a summary return order to be made.
There is no real issue that the leading authorities regarding the applicable principles on non-Convention summary return remain In Re J and Re NY, the ultimate question being what is in the individual child’s best interests, albeit within the context of a summary return, as opposed to full welfare proceedings. The factors set out by Lord Wilson at [55] – [63] provide a framework to consider in making such a decision.
As Ms Perrins outlines, this case is atypical in a number of ways. It concerns a young person who took the decision to go abroad themselves and social services both here and in Denmark have been involved.
Having arrived in Denmark and come to the attention of the authorities there, interim emergency steps have been taken to safeguard C by the Danish Authorities. That support has recently been confirmed in their rejection of the parents’ appeal on 19 November 2024 and extending the time during which the decision will run to one year.
C’s wishes and feelings have not changed, despite the somewhat difficult situation she is in, with no access to education and references to her feeling bored and isolated. She has consistently said that she does not wish to return to this jurisdiction, even though she knows the local authority would provide her with accommodation and she would be able to return to education she can more readily access. The evidence from the Children’s Guardian, which I accept, makes clear that any return against her wishes could result in her suffering emotional harm and risk an escalation in risk and a deterioration in her mental well-being.
Whilst it is right a return to this jurisdiction could promote C’s education needs, that cannot be viewed in isolation of her emotional needs, which are likely to be adversely impacted by such an order being made.
If a return order was made there would be a significant change in C’s circumstances over the last six months. Whilst she would be returning to a jurisdiction she knows and would more readily be able to re-build her relationship with her family, she has not been there now for some considerable time and left it of her own accord. C has remained resolutely resistant to returning here and there is a real risk that if a return order is made it is only likely to be achieved through the involvement of the police which, even if successful, is likely to have a lasting adverse impact on C.
C’s age, sex and characteristics are important. The Children’s Guardian considers C is gaining ‘a sense of acceptance and belonging in her developing identity’. C has consistently maintained that she took the steps she did because of her fears about what would be done to her when her sexuality became known. Those fears have remained even though she has been made aware that she would not be returning to live with her parents.
The allegations C has made are very serious. The parents have been clear in their denial of any such behaviour and risk to C. The Danish Authorities have taken these allegations seriously. They cannot be ignored and C has maintained the allegations despite the passage of time, her difficult circumstances and the separation from her wider family and friends. The Children’s Guardian recognises the chasm between the parents’ account of their parenting and what C states she experienced. The parents maintain C is not telling the truth but cannot account for this other than to blame influence from X on C. C’s account of her experiences is not only reported to the social workers and the Children’s Guardian but also set out in the letter she wrote to the family via her sister after she left the family home.
Having stood back and considered the position, I have concluded the application for a summary return should be refused. I have reached that conclusion for the following reasons:
Whilst I do not consider C’s wishes and feelings to be a determinative factor, C has remained consistent over an extended period of time, even though she has been made aware of the arrangements that would be in place for her on her return and her circumstances in Denmark have been far from straightforward. Even with the benefit of that knowledge her views remain the same. She is nearly 17 years old and is aware of the realities of not returning back to this jurisdiction. I agree with Mr Stonor the order that is being sought in this case is at the far reaches of the court’s powers. It is of note that no private law order can be made in relation to someone who is C’s age unless there are exceptional circumstances (s9(6) CA 1989) and in March 2025, when C attains the age of 17 years, no care or supervision order can be made (s31(3) CA 1989).
C’s wishes and feelings have been gathered over an extended period of time during which her circumstances have changed and she has been provided with additional information. Mr Stonor confirmed the Children’s Guardian has had communications with C over the six month period on seven occasions, either by phone or video for between 30 minutes and one hour on each occasion. That is reflected in the detailed information in the Children’s Guardian’s written report. In the Children’s Guardian’s view, which I accept, C’s wish to remain in Denmark is not dependent on her relationship with X.
I have carefully weighed in the balance the impact on C’s educational needs but equally have to consider her emotional needs and agree with the assessment of the Children’s Guardian that a return to this jurisdiction against her express wishes is likely to impact her mental health which outweighs, at this stage, the detriment to her educational needs. C’s current emotional and psychological health appears to be fragile by virtue of the behaviours she has been exhibiting recently.
C has now been in Denmark for over six months. Despite the difficulties in her circumstances her wishes and feelings have not changed. A return order in those circumstances would involve a significant change in circumstances as whilst she would be returning to a jurisdiction that is familiar to her in many ways the proposed accommodation and support would not be.
C took the steps she did in leaving this jurisdiction in circumstances where, according to her, she feared the consequences if she expressed her sexuality. The Children’s Guardian’s assessment is that despite the difficulties such a step has involved for her she has ‘gained a sense of acceptance and belonging in her developing identity’ which could be put at serious risk if a return order was made against her expressed wishes.
Whilst I recognise there is a risk of harm if C remains in her current circumstances with only limited support, limited access to education and remaining in a country where she does not speak the language, there is, in my judgment, a greater risk of harm to C if she is forced to return here, against her wishes, possibly by force involving the police in circumstances where she has made serious allegations about the consequences for her. I have factored in the parents’ consistent denials but on the local authority case she would be returning to a situation that is reliant on her consent, namely s20 accommodation, which C does not consent to. That precarious situation is likely to put her at real risk of harm and I accept the powerful and detailed analysis in the Children’s Guardian’s report and her conclusion.
There remains some uncertainty as to whether there has been an effective Article 33 request. The letter from the Danish Authorities dated 8 August 2024 refers to ‘If the English authorities wish to apply for placement in Denmark in accordance with Article 33 of the Convention’, clearly signalling an application had not been made. That is consistent with the recital in the order made on 17 September 2024 which records ‘The court held that article 33 of the Convention would only be engaged after the court or local authority had made a welfare decision and a formal request under article 33’. That request should now take place.
The Children’s Guardian has circulated an unissued application under Article 8. There should be an exchange of views as provided for by Article 8(3).
At the time these proceedings were commenced the court was satisfied on the information filed then that C was and remained habitually resident here. In the light of the events and evidence since these proceedings have been commenced and bearing in mind C’s views and circumstances it may be considered that issue may need to be re-evaluated.
I am grateful for confirmation after the hearing on 17 December 2024 that C was going to be updated about her siblings, which is what she had asked for.
There is no easy answer to this case. On the information the court has now I am satisfied a return order now is inimical to C’s welfare needs. I agree with the Children’s Guardian it remains detrimental for C to remain in limbo between two jurisdictions. The parties should urgently liaise as to how to manage the next steps in the light of the court’s decision and, if required, the court will determine any issues that cannot be agreed when the judgment is handed down.
Postscript
The wardship proceedings concluded in December 2025 upon the Danish authorities agreeing to C being placed in Denmark pursuant to Article 33 1996 Convention.
