Case No: ZE15C00062

IN THE FAMILY COURT sitting at EAST LONDON

11 Westferry Circus,
London E14 4HD

Date: 14th April 2015

Before :

HER HONOUR JUDGE CAROL ATKINSON (sitting as a Deputy High Court judge)
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G and A (Children : Habitual Residence and Article 15 transfer)

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Representation

Mr Samuel appeared on behalf of the London Borough of Newham

Ms Gillman appeared on behalf of the First Respondent mother, JS

Ms Nix appeared on behalf of the Second and Third Respondent children, G and A, through their Guardian.

Hearing date: 27th March 2015

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Judgment
HHJ ATKINSON:

Introduction

1.	G is a girl who was born on 18.11.02 and is now aged 12 years and 3 months.  She is one of five siblings.  I am concerned only with G and one other - her younger brother, A, who was born on 8th August 2010 and is now aged 4 years and 6 months.  The children were born in Lithuania.  They are Lithuanian nationals and have lived in Lithuania for the whole of their lives until Nov/ Dec 2013.

2.	The children’s mother is JS.  She too is a Lithuanian national.  G and A have different fathers – both Lithuanian nationals – and both remain living in Lithuania.  Neither has played a part in these proceedings thus far.  As I have said, the children have 3 other siblings and an extended family; all in Lithuania.

3.	The local authority bringing these proceedings is the London Borough of Newham (LBN).  The matter has been transferred to me because there is a pressing need for a decision as to whether or not there is jurisdiction in the court to determine the applications made by the LBN.  If I determine that there is jurisdiction, there is an equally pressing need to determine an application, brought by the LBN, that I should make a request to the Lithuanian authorities to receive a transfer of this case.

Essential facts

4.	I will set out as much background as is necessary to set the scene as the LBN saw it when it issued its proceedings in February last.  
5.	These children first came to the attention of LBN on 27th January 2014 when it received a referral from Children and Families Across Borders (CFAB) in respect of them both.  LBN was informed that the equivalent of social services in Lithuania was concerned about the whereabouts and wellbeing of the children.  LBN was informed that the mother had a history of social services involvement in Lithuania which included concerns arising out of her leaving the children home alone or alternatively leaving them in the care of her partner whilst she left the country.  The mother disputes these allegations.

6.	 LBN made enquiries at an address that they were given and also at all Newham schools but could find no trace of the mother or children in Newham.  It closed the case.

7.	On 20th November 2014, G and A came to the attention of the police who found them home alone in an address in Newham.  They were taken into police protection.  G was ABE interviewed and made allegations of physical abuse against her mother.  She also suggested that her mother had entered into a sham marriage.  The next day the mother signed a s.20 agreement for the local authority to accommodate the children.  They were placed in foster care where they have remained ever since.  So far as the LBN was aware neither of the children had been enrolled in education and neither had been registered with a GP.  The LBN had minimal information about their lives in the UK since their arrival late 2013/ early 2014.  

8.	LBN issued its proceedings in relation to these children on 6th February 2015. I believe that the reason for the delay was that they were busying themselves trying to extract information about the family from the Lithuanian authorities.  If that is so, it is no excuse for not issuing proceedings in a timely manner.  The result is that we have lost 6 weeks in the timetable to make decisions about these children.

9.	Initial directions were made and an application for an ICO came before HHJ Purkiss on 26th February 2015.  Identifying that there was a pressing issue to be determined regarding jurisdiction, the case was listed before me on the soonest date after my imminent return from the Crown Court – 12th March last.  Judge Purkiss directed the filing of evidence by the mother concerning the circumstances in which she and the children came to be living in this country.  The statement filed did not fully address the issues and simply did not comply with the directions made by Judge Purkiss.  

10.	At the hearing on 12th March the mother was not in attendance and her Counsel at first invited me to deal with the issues by way of submissions which was not appropriate, in my view. The matter had to be adjourned to 27th March with a direction that the mother file a statement which complied with the direction given by Judge Purkiss. 

11.	At the conclusion of that hearing, having heard the evidence of the mother and submissions from all parties, I indicated my decision – namely that there was jurisdiction but that I intended to make an Article 15 request for transfer.  I gave brief reasons and indicated that I would hand down a written judgment as soon as I was able.

Jurisdiction: The Law

12.	Pursuant to Article 8 of Council Regulation (EC) 2201/2003, commonly known “Brussels II Revised” and referred to in this Judgment as BIIR: 

“the courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised”

What this means is that the jurisdictional basis for the making of public law orders under Part 4 of the Children Act 1989 derives from the habitual residence in the UK of the child or children in question at the time that the court is seised.  

13.	Applying Article 16 of BIIR, the time when the court was seised of this application was 6th February 2015.  Therefore, if G and A were habitually resident in the UK on 6th February 2015 then this court has jurisdiction to deal with the matter. 

14.	Having indicated at the outset that I have found that there is jurisdiction I see no reason to go on and recite the other Articles which arise for consideration in the event that I do not find jurisdiction on the basis of Article 8.

15.	Turning to the concept of “habitual residence”, in Re E [2014] EWHC 6 the President of the Family Division, Sir James Munby, confirmed that, in determining the question of habitual residence, the courts will apply the principles explained by the Supreme Court in A v A [2013] UKSC 60.  The principles are summarised by Baroness Hale of Richmond at paragraph 54 of the Supreme Court judgment. In particular:
a.	habitual residence is a question of fact and not a legal concept such as domicile;
b.	the test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned;
c.	this depends on numerous factors, including the reason for the family's stay in the country in question;
d.	the social and family environment of an infant or young child is shared with those on whom he is dependent – hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned;
e.	the essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce;
f.	it is possible that a child may have no country of habitual residence at a particular point in time.
16.	Of further assistance on the issue of habitual residence is also the case of Re KL [2013]UKSC 75.  Of particular interest to this case is the restatement of the proposition that there is no legal rule that a child is habitually resident where the parent with custody is resident, though parental intent does play a part in establishing a change in the habitual residence of a child ie parental intent in relation to the reason for leaving one country and moving to another.

17.	It is the LBN’s case that these children have not become habitually resident in the UK.  The mother maintains that they have all acquired habitual residence here. The children’s Guardian supports the mother’s position in this regard.

Evidence

18.	It is the LBN’s position that that these children are not habitually resident in the UK and they retain their habitual residence in Lithuania.  The local authority relies heavily upon what appears to be a complete lack of social and family integration in the UK as demonstrated by the failure to register either child at a school or GP practice and their apparent isolation within the community – there being no evidence of friends or family or support networks of any kind.    

19.	Whilst waiting for the adjourned hearing of this matter the LBN uncovered further information about the family. It would appear that in February 2014, after the original referral was made the Metropolitan Police was contacted by CFAB.  CFAB had received a referral regarding the mother from an anti-trafficking charity known as Caritas.  Caritas maintained that it had spoken with the mother who had told them that she had entered into a sham marriage with a man called Emir, that Emir now wanted a divorce and that he had “other plans for her”, that there were other women living at the same address and that she was afraid to speak with anyone when he was present.  There were allegations made, it is suggested, that Emir was involved in benefits fraud.  This information was passed onto CFAB and CFAB made a referral to the London Borough of Barking and Dagenham (LBBD).  The LBBD carried out what appears to my eye to be a fairly perfunctory assessment of the mother and her husband.  During the assessment the LBBD was contacted by Emir who had confirmed his intention to enrol the children at a school and who asserted that they were already registered at a GP surgery.  That was never checked because it transpires that they were never actually registered for health care.  On 23rd May 2014, after giving the mother advice about registering the children in education and for health services, LBBD closed the case considering that there were no welfare concerns.  

20.	The mother maintains that she and the children are all habitually resident in the UK.  Her case before me at the hearing was contained in two statements and in her oral evidence.  It is agreed that her first statement contains no detail of those matters that she was directed to set out.  Her second statement has some but not full detail.  It was at my insistence that I heard oral evidence from the mother which was, in my view, absolutely necessary in order for me to be able to resolve the habitual residence issue.  The following is a summary of the case advanced by her at the hearing.  It is borne out in some respects by some further documentary evidence discovered by the LBN.  

21.	The mother told me that she came to England in 2011.  She had been separated from her partner for some time, though they were still living under the same roof.  She was unable to find a job in Lithuania and had been given to understand that there was work here.  She found a job in a café and came to meet a friend.  She left her five children behind in Lithuania.  

22.	It was whilst working in that café that she met the man that she would subsequently marry – this was Emir, as she called him.  She married him on 14th February 2014.  They married in Scotland it would seem.  When asked why, she said that he and his friends wanted them to marry there.  She denied that the marriage was a sham or that she had ever reported the matters set out above to a Caritas worker though she accepted that she had spoken to someone from Caritas.

23.	She said that after the marriage she would occasionally return to see her five children in Lithuania.  In Nov/Dec 2013 following one such visit, she returned to England bringing four of the children with her.  The eldest, V, was left in Lithuania as he attends a special school.  She returned to Lithuania in Jan 2014 with two of the four children because they were not behaving properly in UK and she could not manage them.  She left them in Lithuania and returned to the UK to live with G and A, who had remained in the UK apparently in the care of an aunt.

24.	This basic account is supported in some of the documentation filed by the LBN.  In particular, the original referral document from the Lithuanian authorities notes that in November 2013, the mother and her four children ”moved to the UK”, that in December 2013 she returned with two sons and told the SW she was planning to return to the UK “to her other children” (G and A).  She said G and A were “living with good people”.

25.	Once she had returned to be with G and A, however, it would appear to be correct that G was never registered by her mother for a school place.  Her explanation for this was that she had left this to her husband who had been given the forms by LBBD but did nothing.  There is some support in the information that LBN now have from the LBBD to support the suggestion that they were indeed given the forms but the mother could provide no answer as to why she did not chase this matter with her husband when many months later G was still not at school.  As a result, G never went to school here whilst in her mother’s care. Mother told me that she and Emir separated in September 2014 whereupon A was registered by her at a nursery.  The evidence is that he attended only sporadically.  

26.	The mother maintained that the children were registered at a GP surgery in her written evidence.  That turned out to be incorrect.  She was registered but they were not.  Her explanation was that the registration with a GP was undertaken by her husband.  Again this is borne out by the evidence from LBBD.

27.	In cross examination the mother accepted that they were socially integrated only to a limited extent.  However, she insisted that her marriage was genuine.  She agreed that she had had little contact (3 times) with Emir since their separation. She said that they separated because he found another woman and that she did intend to divorce him.  

28.	I asked the mother about the conversation with the visitor from Caritas.  She agreed that it had happened but denied saying the things recorded by the worker.  She accepted that she has no relatives in the UK.  She also told me that in Lithuania she has her own house and that although her partner is a violent man and living in her house, were she to go back to Lithuania she would “kick him out” as he is not the registered owner – it appears that she continues to be.

29.	I should add that it is a matter of record that since being accommodated by the LBN in November 2014, G has been registered at school and A at nursery.  They have attended ever since and have become integrated into the home and family of the foster carers.

Discussion
 
30.	The LA replies heavily in this case upon the fact that prior to its intervention there was no “regular order of life” here for this family.  The children were neither at school nor registered for health care – two very basic forms of social integration.  What is more they have no friends, family or any support network such that their mother has relied upon a variety of virtual strangers to care for them whilst she has gone out to work.  I have been directed to the necessity for “some degree of integration by the child in a social and family environment”.  The LBN maintains that what we have here is not enough.

31.	I do not agree.  I find that the mother and her children have acquired habitual residence here.  In the first place the evidence is that the mother came here to work and that is what she has continued to do throughout her time here.  Initially she worked here whilst her children remained in Lithuania.  There is nothing unusual in that.

32.	She married in 2012.  I am far from convinced that this was a genuine marriage.  I am concerned at the information contained in the report from Caritas.  I make no findings but observe that it seems unlikely that someone concerned for the welfare of this mother would so badly record what she had said.  However, even if this was a sham marriage it would not, it seems to me, necessarily undermine her acquisition of habitual residence in this country.  

33.	In Nov/ Dec 2013 she brought four of her five children here.  The only child left behind was the one who is attending a specialist school.  She returned two of the four children to Lithuania in Jan 2014 but returned to G and A to continue, she says, to live in the UK.  That this was her intent is supported in what she told the Lithuanian authorities and is recorded in the original referral.

34.	In keeping with that intent she has continued to work but it is right that she failed to register G for a school place – A would have been too young – or G and A for health care.  Are those failures indicative of a lack of intent on her part?  Not necessarily.  They are capable of explanation if one considers that she may have been simply neglectful of her children’s educational and health needs.  In the context of what I have been told about concerns regarding this lady in Lithuania and a tendency, it is said, for her to place her own needs before those of her children, this would not be an unreasonable explanation for those failures. 

35.	What is more, I keep on coming back to this question.  If she did not intend that they should all live here, why were G and A kept here with her in London?  She has returned the other boys to Lithuania. She did not intend that they should stay.  Why keep G and A here unless she intended that this is where they should live – attending school or not.

36.	It is right that at aged 12, G is not entirely reliant upon the habitual residence acquired by her mother.  I am invited to look at her situation apart from her mother and brother and determine that G was so insufficiently integrated to mean that she cannot have acquired habitual residence for herself?  I do not agree.  In the first place I cannot divorce her completely from the reality of her dependence upon her mother.  Secondly all there needs to be is “some” degree of integration and it seems to me that living here in the way that is described in the evidence – with her mother and brother, sometimes caring for her brother and having some, albeit minimal, integration with others – is enough. 

37.	I heard argument from the Guardian’s solicitor about the extent to which G and A’s respective integration into life in this country through their placement in foster care would count towards establishing them as habitually resident here.  In the event, it is unnecessary for me to decide that point but I would observe that I have some serious misgivings as to whether a short period in s. 20 accommodation, designed as a temporary measure to safeguard the children over 6 weeks or so whilst the LBN considered what steps to take regarding their future, could provide the children with the degree of social and family integration necessary to establish habitual residence here.  

Article 15 transfer

38.	Article 15(1) provides;
"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, will 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."
39.	 Article 15(3) sets out a list of the factual instances in which a child shall be considered as having “a particular connection” with another Member State such that a request could be made.  For the purposes of this case it is significant that one of those instances is that the Member State in question “is the place of the child’s nationality” and another is that it was “the former habitual residence of the child”.
40.	Article 15(5) provides;
"The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seizure in accordance with paragraphs (1)(a) or (1)(b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with articles 8 to 14".
41.	The issue of making a request for transfer pursuant to Article 15 was considered 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 of Article 15(1) into three essential questions:
"(1) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various maters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))?
(2) Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
(3) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."

42.	Article 15 was considered more recently by the Court of Appeal in the case of Nottingham City Council v LM [2014] EWCA Civ 152 .  This was an appeal from a decision by Mostyn J to make a request to the courts of the Czech Republic to assume jurisdiction. I distil from that authority the following:
a.	The Article 15 exception to the general rule of jurisdiction only comes into play when all three of the essential questions to which I refer in the paragraph above are answered in the affirmative (per Ryder LJ para 15);
b.	The question of whether a court of another Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed having considered all the circumstances of the case and that evaluation is “intimately connected” with the question of the best interests of the child (per Ryder LJ para 19);
c.	The starting point for the evaluation of whether the other Member State is better placed to hear the proceedings is one of “comity and co-operation” between Member States and we are reminded that “the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent”
d.	Factors which may inform the courts evaluation of whether one court is better placed to hear a case are factors such as – the availability of witnesses of fact, whether and by whom assessments can be conducted, the necessity for assessors to travel, whether one courts knowledge of the case (perhaps through judicial continuity) provides an advantage.
e.	the best interests question asked by Art 15(1) is whether it is in the child's best interests for the case to be determined (or a specific part of the case to be determined) in another jurisdiction.
Discussion
43.	It is conceded that G and A each have a “particular connection” with the other member state, Lithuania, in accordance with Art 15(3).  They are both Lithuanian nationals and Lithuania was their former habitual residence.

44.	Which member state would be best placed to hear this case?  Wherever this case is heard there will be issues as to the history of the mother’s parenting in Lithuania – subject to dispute by her in proceedings here – and also a factual dispute as to the circumstances in which the children have come to be in care here.    It is argued that the factual dispute regarding the circumstances here will be the dominant one and therefore the court here is best placed to determine that – the witnesses being here.  I disagree.  

45.	The mother takes issue with the fact that her children were left home alone, arguing that they were left in the care of a neighbour.  She does not, however, take issue with the fact that G was not enrolled in a school and had not had access to education for the entire time that she had been in the UK – almost a year by then.  Nor does she dispute that A had been enrolled at a nursery only since Sept 2014 and had had sporadic attendance.  Further, she is unable to dispute that the children were never registered for health care and whether they had been left in the care of another adult or not the fact is she has worked throughout her time in the UK and by that means alone they had been left in the care of a number of alternative carers, some of them little known to the children.  Thus the issue of them being left home alone is unlikely to be of any great significance in the assessment of her parenting in the UK.  What will be significant, however, will be the history of her parenting as assessed in Lithuania, which is subject to challenge by her.  That, it seems to me, will be more easily determined in situ – namely in Lithuania.

46.	Additionally, it seems to me likely that the issues raised by the Lithuanian arm of Caritas (the anti-trafficking charity) will be of potential significance in the case.  As I have observed I had an unsatisfactory response from the mother in answer to my questions about what she had told the Lithuanian worker from that charity.  The full information about what was said, supported by the extensive knowledge of the Caritas worker is all in the hands of someone in Lithuania.

47.	Moving on to the welfare decision in the case.  Clearly consideration must first be given to the possibility that these children can be returned to the care of their mother.  The assessment of her capabilities will involve consideration of whether she is able to put her children’s needs ahead of her own.  That will inevitably involve an examination of the circumstances in which there were alleged failures in her parenting in Lithuania and the reasons why she has come to the UK.  Other possible outcomes will include placement in the care of extended family members either together with their siblings or sufficiently close to their siblings to enable their relationship to resume.  There are no extended family members here; no-one who could offer alternative care to the mother.  Self evidently, all options involving the extended family can be considered more easily where those family members live - in Lithuania.

48.	Accordingly, I have no doubt that from the perspective of evidence gathering and presentation and assessing alternatives for these children, Lithuania is best placed to hear this case.  Is a transfer in the best interests of these children? The best interests test in this context is not the same as the welfare test set out in our domestic legislation which governs the decision making with regard to all matters relating to the upbringing of children, but rather a consideration of whether it is in the children’s best interests to have the case (or part of it) determined in another jurisdiction.  

49.	The mother argues that to send her back to Lithuania to argue her case will prejudice her in the sense that she will lose her job and accommodation here, thereby ruining her chances of remaining here which is where she wants to live with the children.  However, in her evidence she also told me that in Lithuania she has a place to live.  It is currently occupied by her former partner.  She would just have to “kick him out” and she could take it back, is what she said.  Whilst I have some sympathy with her so far as her desire to live and work here is concerned that cannot be at the expense of the wellbeing and safety of the children with whom I am concerned.  Even looked at neutrally the circumstances in which they have lived here for the last year suggest that these arrangements have been made without giving priority to their needs – for education and health care at the very least.

50.	The Guardian, through her solicitor, argues that if I transfer this matter to Lithuania these children may end up in care homes in Lithuania and that this will be disruptive for them given that they are settled in foster placements here.  Of course their current placements do not come with any sort of permanence, even in the short term. However, measuring the relative welfare benefits of a transfer of placement is not the correct approach to the determination of this issue and without more amounts to a misapplication of the “best interests” part of the test.  What is more, I proceed as I must on the basis that whatever the practical and welfare arrangements put into place for the children on transfer they will be considered with care by the Lithuanian authorities and will have at their heart the welfare of these children.

51.	The children have family in Lithuania and have lived there for almost all their life. Their father’s, siblings and extended family is there.  The Guardian met the children on 25th February 2015. She produced a note of the meeting setting out that G confirmed that she wished to live with her maternal Grandmother but was not sure because her Grandmother works. 

52.	The guardian also suggests that there is currently insufficient information before the Court to allow it to determine the Article 15 question.  The Local Authority has been greatly assisted in corresponding with the Lithuanian Central Authority by ICACU. I was told at the hearing that the Lithuanian Central Authority had agreed to “set out its position in writing” prior to my hearing on 27th March.  By the time of the hearing it had not done so.  It was submitted that the court would be in a better position to properly evaluate the second and third limbs of the Article 15 test once the Lithuanian Central Authority had responded to the Local Authority’s requests and provided further information in respect of this family.  I am afraid that I disagree.  Though the position of the other member state is of interest to me I consider that I have ample information already from Lithuania.  I have already set much of that information out.  It is clear to me that the Lithuanian authorities, quite rightly, have expressed ongoing concerns about this family by making the original referral and by responding with the background information already before the court. These decisions have to be made early in the proceedings and it would be quite wrong to await the outcome of an evidence gathering exercise.

53.	It is suggested that I should await the assessment of the mother by the ISW.  Once again, I disagree.  It is imperative that decisions regarding Article 15 requests are made swiftly.  The assessment of the mother by an ISW will proceed so as to ensure that in the event that the request is denied then the information will be available to allow this case to continue here.  Alternatively if the request is accepted that information can be sent to Lithuania to be considered there.

54.	It seems to me when decisions regarding the capability of this mother to care for her children and alternative welfare outcomes are so obviously better assessed elsewhere for the reasons set out above then it obviously is in the children’s best interests that the matter should be heard in that different jurisdiction.  

55.	Accordingly, the three conditions set out above are satisfied and I intend to request that the court in Lithuania assumes jurisdiction of this case in accordance with Article 15(5).