A (Refusal of Article 15 application for transfer) [2017] EWFC B41 (14 July 2017)

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: LS17C00256

IN THE FAMILY COURT SITTING AT LEEDS

COMBINED COURT CENTRE

OXFORD ROW

LEEDS

Date: 14^th July 2017

Before :

MR RECORDER HOWE QC

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Re A (Refusal of Article 15 application for transfer)

Hearing dates: 23^rd June and 14^th July 2017

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JUDGMENT

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Mr Huw Lippiatt for the Local Authority

Ms Elizabeth Walker for the Mother M

Mr Paul Edwards for the Father F

Jana Jakubovska – as litigant in person

Ms Garnham (23^rd June 2017) and Mr Browne (14^th July 2017) for the Child

MR RECORDER HOWE QC:

Relevant Background

1. In these proceedings I am concerned with the welfare of one child, A, who was born in 2015 and is now 2 years old. A’s mother [M] and father [F] are both citizens of the Republic of Latvia. A has dual UK/Latvian citizenship.

2. These care proceedings were commenced by the local authority [LA] on 22nd March 2017 following A’s placement in emergency foster care as a result of the police exercising their powers under section 46 Children Act 1989. An interim care order was made on 22^nd March and A has remained in foster care initially with contact to M 3 times per week for a period of 2 hours per visit. Contact was offered to F twice each week for a period of 2 hours and this took place on days when A did not see M. Since April 2017 the parents have been having contact together and this is currently 3 times each week for 2 hours per session.

3. The events that led to the issue of proceedings are summarised in a schedule of findings dated 2^nd May 2017. In summary, LA seeks findings that A suffered neglect and likely emotional and physical harm due to M’s use of alcohol on 21^st March 2017 that rendered her unresponsive and unable to meet A’s needs. LA alleges that A has suffered and was likely to suffer significant emotional harm due to witnessing physical and verbal disputes between his parents. LA also alleges that A was likely to suffer significant emotional harm by witnessing M’s aggressive behaviour towards others when intoxicated. It is alleged that F has failed to protect A from the consequences of M’s alcohol misuse. LA assert that A was likely to suffer significant harm due to M and F’s denial of alcohol misuse and domestic abuse and their inability to change.

4. Following the initial hearing before the District Judge, the proceedings were transferred to a Circuit Judge for case management. By 15^th May 2017, M had made an application for the proceedings to be transferred to the Orphan’s Court of the Republic of Latvia [OCL] and the OCL had sent its own request for transfer following the maternal grandmother having approached the Court in Latvia. A maternal aunt [MA] had also issued an application to be joined as a party. The Circuit Judge directed that MA’s application for party status be listed before the Honourable Mr Justice Cobb on 19^th May 2017 and the applications for transfer of the proceedings to Latvia be listed before a Circuit Judge on 9^th June 2017.

5. By the time of the hearing on 15^th May 2017, LA had completed initial screening/viability assessments of 8 sets of proposed alternative carers. The screening assessment of MA was negative. The screening assessments of the paternal grandparents [PGP] and paternal uncle [PU], who live in England, were positive as were the screening assessments of 2 other alternative placements that reside in Latvia. The Circuit Judge directed that LA file and serve parenting assessments of M and F by 26^th June 2017 and obtain assessments of the 2 positively assessed potential carers in Latvia; that assessment to be undertaken by CFAB (Children and Families Across Boarders) and to be filed and served by 7^th August 2017. LA was directed to file and serve assessments of PGP and PU by 7^th August 2017.

6. On 19^th May 2017, The Honourable Mr Justice Cobb granted MA’s application for party status. I have had the opportunity to read a transcript of Cobb J’s judgment. On 9^th June 2017, the applications to transfer the proceedings to Latvia came before His Honour Judge Hunt. The court had made arrangements for representatives from the OCL to participate in the hearing by way of a video link. Unfortunately, the quality of the video link was poor and the proceedings were adjourned and listed before me on 23^rd June 2017. Judge Hunt also directed that MA’s application for a further assessment by an independent social worked by listed for determination at this hearing.

7. On 23^rd June 2017, I heard submissions by all parties and from representatives of OCL, who attended court in person. During the course of the day, I was informed that M was due to appear before the Magistrates Court the following week. M had been charged with an offence of child neglect arising from the circumstances that led to A being placed in police protection on 22^nd March. It was a possibility that bail conditions imposed by the magistrates may restrict M’s ability to return to Latvia prior to the conclusion of the criminal proceedings. Were this to occur, M would be unable to travel to Riga to have direct contact with A and her ability to participate in any proceedings or assessment in Latvia would be restricted.

8. Given the potential significance of M’s inability to travel to whether the Latvian court was ‘best placed’ to hear the proceedings and whether such a transfer was in A’s best interests, I adjourned the application part-heard to a date after M’s appearance before the Magistrates, so that M’s ability travel to Latvia could be established.

9. I have today been informed that M entered a ‘not guilty’ plea to the criminal charge and the proceedings have been adjourned for trial to a date in mid-September 2017. I have been told that M has been released on unconditional bail and that her ability to travel between England and Latvia is unrestricted.

10. I have also been provided with a copy of the parenting assessment of M and F that has been recently completed by LA. The parties had agreed a redacted bundle for use at this hearing but, as has become common, the need to remove documents to keep the bundle below 350 pages resulted in relevant material being removed. In assessing whether the Latvian court is ‘better placed’ to determine these proceedings, it is necessary for me to have knowledge of the factual disputes concerning the threshold criteria that exist between M, F and LA. The documents relevant to this had been removed from the bundle but I have heard submissions from the parties and considered the threshold schedule drafted by LA and the responses of the parents.

The Parties and Representation

11. LA is represented by Mr Huw Lippiatt. M is represented by Ms Elizabeth Walker. F is represented by Mr Paul Edwards and the Guardian [CG] was represented by Ms Garnham on 23^rd June and today is represented by Mr Browne. On 23^rd June, Ms Leonora spoke on behalf of the 2 representatives of the OCL who attended the hearing. They were invited to return for this adjourned hearing if they wished but have not attended. I have received a letter from ROC setting out its submissions as to why a transfer to Latvia should be granted and I have considered the content of that letter, alongside all their other written communications, in reaching my decision.

12. MA appeared in person on 23^rd June supported by a Mackenzie Friend. I received a detailed 4^th statement from MA, dated 22^nd June 2017, prior to the last hearing. I have read with care her position statement dated 8^th June 2017, that sets out the arguments she raises in support of the application for transfer. MA appeared in person again today, with the same MacKenzie friend, and asked that she be provided with an interpreter. MA told me that she did not understand the questions that I asked of her on 23^rd June and therefore, she said, the answers that she gave me were ‘guesses’. My impression of MA both today and on 23^rd June is that she speaks fluent English and that the answers that she gave on the last occasion were clear and appropriate answers to the questions raised. I have confirmed with her today that she understands the reasons given by all other parties in support of the transfer application and whether she wishes to provide the court with any further reasons not provided by others, which she did not. I am entirely satisfied that MA’s case is encompassed within the arguments raised by others, particularly given the detailed documents that she has provided setting out her case.

The Legal Principles the Apply to the Application to Transfer the Proceedings to the Republic of Latvia

13. The Council Regulation (EC) No 2201/2003 prescribes the jurisdiction of this court to hear proceedings concerning matters of parental responsibility as between the states of the European Union. I shall refer to this regulation as BIIA.

14. Article 8 of BIIA provides that “The Court 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”.

15. On the circumstances of this case, all parties agree that A was habitually resident in England and Wales at the time LA lodged its application for a care order. The parents moved to the UK on 21^st September 2009 and have been living and working here since that time. A was born in 2015 and has resided with his parents in England until removed to foster care by the police on 22^nd March 2017. Having considered the factors set out in Re A (A Child) [2013] UKSC 60 and Mercredi v Chaffe [2011] 1 FLR 1293, I endorse the consensus view of the parties and find that A was habitually resident in England at the time the court was seised of the proceedings.

16. Having made this determination, it is the courts of England and Wales that hold jurisdiction to hear proceedings concerning A under the general rule provided in Article 8 of BIIA.

17. Article 15 of BIIA provides an exception to the general rule. It states:

“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.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court’s own motion; or

(c) upon application from a court of another member state with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court’s own motion or by application of a court of another member state must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a member state as mentioned in paragraph 1, if that member state: ...

(c) is the place of the child’s nationality; ...

4. The court of the member state having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other member state shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with articles 8 to 14.

5. 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 six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with articles 8 to 14.

6. The courts shall cooperate for the purposes of this article, either directly or through the central authorities designated pursuant to article 53.”

18. The leading authority by the Courts in this jurisdiction is provided in Re N (Children) [2016] UKSC 15. That decision was provided prior to the determination by the European Court of Justice of a referral made by the Supreme Court of the Republic of Ireland. On 27^th October 2016, the ECJ gave its decision in Child and Family Agency v JD and another C-428/15.

19. The decision of the ECJ explains that Article 15 allows the transfer of care proceedings, even if this necessitates an authority in the receiving member state issuing proceedings after the transfer.

20. At §35 of the judgment of Baroness Hale in Re N, permission to appeal was refused on the basis that the court took the view that article 15 did apply to public law proceedings. That has now been confirmed by the ECJ.

21. The decision of the Supreme Court in Re N gave clarity to the court’s determination of applications under article 15 of BIIA. At §57 of her judgment, Baroness Hale said:

“I share the President’s view that the language of article 15.1 is simple and clear. It requires no gloss or explanation. The court has three questions to answer: does the child have a particular connection (as defined in article 15.3) with another member state; would a court in that member state be better placed to hear the case, or a specified part of it; and would this be in the best interests of the child? The “better placed” and “best interests” questions are separate questions and the “best interests” question is intended to be an additional safeguard for the child. The question is not what eventual outcome to the case will be in the best interests of the child but whether the transfer will be in her best interests. Subject to that, the scope of the inquiry will depend upon all the circumstances of the case.

22. In Re M (Brussels II revised: Article 15) [2014] EWCA Civ 152 at §54, Sir James Munby P explained “it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other state”. That approach was endorsed by the Supreme court in Re N.

23. When considering the matters that should be taken into account by the court in determining the child’s best interests, Baroness Hale said, at §44:

“44. The question remains, what is encompassed in the “best interests” requirement? The distinction drawn in In re I remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it “attenuated”. 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 the 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 seised 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”.

24. The decision of the ECJ in the case of Child and Family Agency v JD and another C-428/15, the Court gave guidance in the following terms:

(a) Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the court of a Member State that normally has jurisdiction to deal with a given case must, if it is to be able to request a transfer to a court of another Member State, be capable of rebutting the strong presumption in favour of maintaining its own jurisdiction, on the basis of that regulation [§49];

(b) When applying Article 15(1) of Regulation No 2201/2003 to a given case, the court having jurisdiction must compare the extent and degree of the relation of ‘general’ proximity that links it to the child concerned, under Article 8(1) of that regulation, with the extent and degree of the relation of ‘particular’ proximity demonstrated by one or more of the factors set out in Article 15(3) of that regulation that exists, in the particular case, between that child and certain other Member States [§54];

(c) The existence of a ‘particular connection’, within the meaning of Article 15(1) of Regulation No 2201/2003, relevant to the circumstances of the case, between the child and another Member State does not necessarily, in itself, prejudge either the question whether, in addition, a court of that other Member State is better placed to deal with the case than the court having jurisdiction, or, if that other court is in fact better placed, the issue whether the transfer of the case to that other court is in the best interests of the child [§55];

(d) The court having jurisdiction must 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 that court [§57];

(e) The court having jurisdiction may take into account, among other factors, the rules of procedure in the other Member State, such as those applicable to the taking of evidence required for dealing with the case. However, the court having jurisdiction should not take into consideration, within such an assessment, the substantive law of that other Member State which might be applicable by the court of that other Member State, if the case were transferred to it. If the court were to take that into consideration, doing so would be in breach of the principles of mutual trust between Member States and mutual recognition of judgments that are the basis of Regulation No 2201/2003 [§57];

(f) The requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned [§59];

(g) The court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation [§59];

(h) In order to determine that a court of another Member State with which the child has a particular connection is better placed, the court having jurisdiction in a Member State must be satisfied that the transfer of the case to that other court is such as to provide genuine and specific added value to the examination of that case, taking into account, inter alia, the rules of procedure applicable in that other Member State [§61];

(i) In order to determine that such a transfer is in the best interests of the child, the court having jurisdiction in a Member State must be satisfied, in particular, that that transfer is not liable to be detrimental to the situation of the child [§61].

The Arguments in Favour of Transfer

25. On 23^rd June 2017, M, F, MA and OCL were all seeking a transfer of these proceedings. In her position statement filed for the hearing, the Guardian was opposed to the transfer. Following discussions with the representatives of the Latvian Court, the Guardian altered her position and supported the application. LA remained opposed to transfer. Today I received a further position statement from CG in which she has revised her position and she is now, again, opposed to the application

26. I have heard detailed submissions from all advocates and considered their helpful written arguments. The matters relied upon in favour of a transfer of the proceedings to Latvia can be summarized as follows:

(a) M, F and MA say that it is their intention to return to Latvia. It is M’s case that she has, for some time, intended to return and had taken steps prior to A’s removal from her care to register him with a doctor and had made an application for a place at pre-school. LA question the reliability of M’s assertion that she intended to relocate but, in my judgment, when this intention was formed does not assist in my determination of whether the Latvian court is ‘better placed’ or whether a transfer is now in A’s best interests. All parties agree that A is habitually resident in England. In my judgment, what is of some importance is whether the intention of M, F and MA to relocate to Latvia is genuine, as it is relied upon as a powerful reason why it is in A’s best interests for that jurisdiction to determine A’s future. It is argued that the majority of the potential carers now known to A will be residing in Latvia. However, it is also the position of M, F and MA that they will remain in this jurisdiction should the transfer not be granted, so the timing of the return is entirely dependent on the decision that I make today.

ROC submit that it is to A’s advantage that all family members are assessed within the area where they will be living so that decisions made for A take into account local services and resources.

(b) It is also argued that the Latvian authorities are best placed to decide A’s future as there are a number of relatives or friends in Latvia who are being assessed as alternative carers for A. M’s godmother has been positively assessed by the Latvian authorities as a possible carer. It had been thought that 2 other carers, IN and AN, were to be assessed but LA has been informed that these individuals have withdrawn from the assessment process. Therefore, on the information before me there are currently 2 potential carers who have been assessed by the Latvian authorities as possible carers – MA and M’s godmother. The maternal grandmother [MGM] has been assessed by LA and that assessment concluded that MGM was not a viable carer. I have received a letter from MGM informing that she contests the assessment. I understand that MGM may now want to be reassessed by OCL. I do not know if this is going to happen or if OCL will agree to do so. I was told on 23^rd June that the assessments undertaken in this jurisdiction have been heavily relied upon by OCL in other cases that have been transferred to them from this jurisdiction. Given the uncertainty as to whether there will be any further assessment of MGM, in my judgment I can give this possibility little weight in coming to my conclusions on the application for transfer. MGM should make an application within these proceedings if the case is not transferred to Latvia.

(c) When CG was in support of the application to transfer, one of her reasons for being in favour was her concern that as the family had such a poor working relationship with LA, it was not realistic to expect M, F and MA to accept the conclusions reached by LA or to be able to work with them in any constructive way. CG was not alleging that LA’s work had been in any way inappropriate. She relied upon the views being expressed by M, F and MA, however unreasonable or unjustified and was of the view that a ‘new start’ with different professionals in Latvia would be to A’s advantage. It was submitted on behalf of M that she would perceive the assessments undertaken by LA as biased and it would be to A’s advantage for the family to work cooperatively with a new authority in Latvia. MA told me today that LA had committed perjury in the assessments that it had filed thus far, the assessment of the MGM being one example. It is clear from the documentation provided by MA that she has very strong feelings about the conduct of LA and its treatment of M and A. She told me on 23^rd June that her cooperation with the Latvian authorities would be better than her cooperation with LA.

(d) It has also been argued that OCL is best placed to make decisions for A as their work with M, F and MA would be completed in the Latvian language, that it would be easier for M, F and MA to fully engage in an assessment in Latvia as they would not need interpreters and would have greater confidence in the assessments undertaken as they would be able to explain their positions more effectively.

(e) Perhaps the most significant reason relied upon by M, F. M and CG concerns A’s current foster placement. The interim care plan dated 23^rd March 2017 describes, under the heading ‘Race, Culture, Religion and Language that “A is of white European decent. It is not thought that his parents actively engage in any religion”.

What is absent from this care plan is any recognition that A is the child of parents who speak Latvian and Russian. M, F, MA and ROC have all expressed their concern that A’s cultural heritage is not being recognized or supported by his placement with white British foster carers and, more importantly in their view, he is not being supported to develop an ability to speak Latvian and Russian. Indeed, the criticism goes further in that M asserts that A did not understand any English when he was moved to this foster placement and it is her case, supported by F and MA, that A is suffering harm by remaining in this placement.

I have been told by ROC that a foster placement has been identified for A in Latvia with carers who speak both Latvian and Russian and it is ROC’s submission that it would be in A’s best interests for him to relocate to this placement now so that his cultural and linguistic needs can be promoted.

(f) ROC advised the court on 23^rd June that it would anticipate making a final decision concerning A during September and this is relied upon as a reason to transfer as decision making for A would be slightly earlier than an anticipated final hearing date in this court.

The Arguments against Transfer

27. On 23^rd June, LA was the only party opposing a transfer, although it was supported by CG before the hearing on 23^rd June and again today. I can summarise the submissions in favour of transfer as follows:

(a) It is submitted that ROC is not best placed to hear the case and make decisions concerning A as the factual issues that have given rise to child protection concerns for A have taken place in England and the witnesses that will need to be heard are all located within this jurisdiction;

(b) It is submitted that there is now only 1 positively assessed potential carer for A currently living in Latvia so it is the English authorities that are better located to complete assessments of all possible carers;

(c) It is argued that, as assessments are already underway in England, they should continue. The PGM has been positively assessed and is now having unsupervised contact with A. It is submitted that it would not be in A’s best interests for that contact to stop now that it has commenced. It is said that no final decision has been made concerning which final placement should be preferred and cannot be made until the assessment of the Godmother in Latvia is concluded but, on the basis that the majority of the assessment work will have been undertaken in England, it is the English court that is best placed to determine an outcome for A;

(d) It is submitted that it is not in A’s best interests to have a change of foster placement, even if the foster carers in Latvia speak Russian and Latvian. It is LA’s case that A is settled in his current placement, understands both Russian and English and is now using both languages. It is said that A will suffer harm by being removed from the foster carer to whom he has bonded and that such a move should only be contemplated if A is to move to a carer who is to be his long-term carer following the making of a final decision;

(e) It is submitted that there would be a loss of care options for A were the case to be transferred to Latvia. It is submitted by CG in the position statement dated 6^th June 2017 that if the case remains in England, all care options for A including those in Latvia remain open when a permanent placement determination is made. The implication is that all these options, and specifically a placement with PGM, may not be considered by ROC if the case was transferred to Latvia; ROC already having approved MA and the Godmother as potential Guardians for A, although it is not known if the assessment of the Godmother is a full or provisional assessment;

(f) It is submitted that decisions for A can be made within this jurisdiction in similar timescales to those outlined by ROC. It is submitted that until ROC receive the papers from these proceedings and consider the assessments already undertaken by LA, it is not possible for ROC to be prescriptive as to when it will be able to make a final decision for A.

Discussion and Decision

28. As set out in §21 above, I have to answer 3 questions in the affirmative before I could consider exercising my discretion in favour of granting this application for the transfer of the proceedings to Latvia. The first of those questions is whether A has a particular connection (as defined in article 15.3) with Latvia. The parties are in agreement that this condition is satisfied. A is a child of Latvian parents. Although he has lived in England all his life, his has Latvian citizenship and has family members residing in Latvia. In my judgment, he has a particular connection with Latvia as defined by article 15.3.

29. The 2^nd question that I need to consider is whether ROC is better placed to hear the case, or a specified part of it. Given that Ms Walker was able to clarify during the course of submissions today the mother’s response to the factual allegations made against her, it is convenient to first deal with the practicalities of determining the history, and thereby determining the risk to which A may be exposed, were he to be placed in the care of his parents.

30. I accept the submission made on behalf of LA that the evidence any decision maker will need to consider, to establish the quality of parenting to which A has been exposed, is within this jurisdiction. It has been submitted that M accepts that the police have been called and accepts that she has been intoxicated, so it will not be necessary to call oral evidence on these issues. However, M does not accept that her use of alcohol has caused significant harm or the risk of significant harm to A. When looking at LA’s threshold document, M denies each and every allegation made. M goes further and says that, although she accepts making reports that she had been assaulted by F, those allegations were invented by her and were not true. In determining whether M has invented the allegations or whether they are accurate, it will be necessary for those who received those reports to provide evidence, including about M’s demeanour and behaviour at the time the allegations were made. M denies that she has been aggressive to professionals when in drink and when in the presence of A, and denies thereby exposing him to significant emotional harm. To determine this allegation, those who say they were on the receiving end of M’s aggression will need to give evidence.

31. I accept that certain events are unlikely to be proved if LA is relying on anonymous referrals from witnesses who are unwilling to attend court but the degree of M’s denial of the relevant history is so complete that it will, in my judgment, be necessary for the court to hear evidence to determine the contested facts. In my judgment, it is the English court that is best placed to hear this part of the case.

32. I also accept the submission that, as all but 1 of the persons who are being assessed or are to be further assessed to provide care for A are in England, it is the English court that is best placed to determine where and with who A should live. M and F have been assessed. They contest the result of that assessment and they can do so by challenging the authors at final hearing. It is agreed that MA should be the subject of an independent assessment and that can take place in this jurisdiction and be completed within, I believe, an 8 week period. PGM and paternal uncle are being assessed and that is due to be completed next month. The assessment of the godmother is continuing and will be taken into account by LA and the court when it is received.

33. I am not persuaded that M, F and MA’s hostility towards LA is a factor that should carry much weight in my decision-making. MA uses very strong words when accusing LA of lying and committing perjury. No findings have been made that any worker has lied or has an agenda to ‘comply with targets’ and ‘ensure that A is placed for adoption’, allegations made by M. The court frequently sees hostility towards local authority workers by family members as the family does not accept that the concerns of the local authority are valid and are angry as the child has been removed and placed in foster care. The hostility in this case appears to be based on these same factors. As I indicated during the course of the submissions, given that M, F and MA have developed a hostility towards this LA as it has taken steps that they do not like, there is no guarantee that they would not develop the same hostility towards workers in Latvia, were there to be a disagreement as to where A should be placed.

35. I am not at all persuaded that ROC is best placed to undertake assessments of M, F and MA. Their lives are currently in England and have been in England for some considerable time. It may well be that, if A is returned to M and F’s care, they will relocate to Latvia but that is not a desire that F has reported consistently. It is one of the possible outcomes for A and, in my judgment, it should be considered alongside all the other options available for him. ROC was not asked if they would actively consider a placement with PGM as part of their decision making for A. It was ROC’s plan to assess M, F, MA and the other carers in Latvia and I accept that they would do so competently. However, PGM’s position as a potential long-term carer is important and I as PGM has developed a relationship with A and A enjoys his time with her. In my judgment it is important that this placement option is considered alongside all others.

36. In my judgment, it is the English court who is best placed to assess M and F against the risks that may be posed to A by their parenting of him, as the information about this parenting history is in this jurisdiction. Whilst the assessment of the godmother is continuing in Latvia, all other assessments are being undertaken or have been completed by professionals based in England. The court can, of course, in making final decisions for A, take into account information concerning resources and support services available in Latvia and it will need to do so if consider a placement with the godmother or if considering a placement with M, F or MA in Latvia rather than in England. That information can be provided by ROC through the central authority and it is not necessary for the case to be transferred for this court to have the benefit of that information.

37. As set out by the ECJ, there is a strong presumption that decisions concerning parental responsibility will be made in the jurisdiction where the child is habitually resident. I have carefully considered the submissions made by and on behalf of M, F, MA and ROC but, on balance, I find there is no genuine or specific added value with respect to the decision that has to be made for A by a transfer of the proceedings to Latvia.

38. Given that I do not agree that the court in Latvia is best placed to hear the case, it is not necessary for me to move to consider whether it would be in A’s best interests for a transfer to take place but given the submissions heard, I consider it appropriate that I do address the competing arguments that have been raised.

39. There is clearly some overlap in the arguments concerning whether ROC is ‘best placed’ to hear the case and whether it is in A’s best interests for there to be a transfer but as explained by Baroness Hale, they are 2 distinct questions that need to be answered separately. The clearest welfare argument arises from ROC’s plan that A would be placed with Russian and Latvian speaking foster cares were the proceedings to be transferred. That would have the advantage of promoting his Latvian cultural identity and support his development of Latvian and Russian language skills. It would have the disadvantage of him not being able to continue to develop his ability to understand and speak English, which is an important matter if placement with PGM is to be considered alongside all other options.

40. If A were to move to Latvia, he would have to again develop a bond and create an attachment to new carers. LA argue strongly that this is not in his best interests and that any further move should be to permanent carers. CG had supported a move and thought that A would cope with having to be placed in another temporary placement but has now revised her position and advises, through her position statement dated 13^th July 2013, that A is currently settled and well cared for in his current placement. I also take into account the content of the parenting assessment in so far as the foster carer describes A as settled, making progress with his responses to the routine and boundaries in place within the foster home and responding to the English language with the foster carers and to Latvian and Russian when in contact or watching cartoons and listening to nursery rhymes.

41. I entirely accept that this foster placement does not meet all A’s cultural and linguistic needs but that has to be balanced with the harm that I find he will suffer if moved from a placement where his is currently settled. I accept LA’s case that the next move for A should, if at all possible, be to a permanent placement. That placement may well be with M and F. It may be with MA who A knows well and is an important person to him. She will now be the subject of an independent assessment and her offer to provide full time care for A will be considered alongside all the other placement options for him.

42. In my finding, to move A to another placement at this stage in the proceedings, when this court is able receive further evidence and list an IRH in around a further 12 weeks, is not in his best interest. As such a move would be necessary for A if the proceedings were transferred, I find that a transfer would be detrimental to A and the application for transfer pursuant to article 15 is dismissed.

43. That is my judgment.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> A (Refusal of Article 15 application for transfer) [2017] EWFC B41 (14 July 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/41.html Cite as: [2017] EWFC B41

England and Wales Family Court Decisions (other Judges)