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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Derby City Council v SK & Ors [2015] EWFC 57 (25 June 2015) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2015/57.html Cite as: [2015] EWFC 57

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/06/2015

............................. THE HONOURABLE MR JUSTICE KEEHAN

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 children and members of their 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.

Mr Justice Keehan :

Introduction

1. In this matter I am concerned with three children:

a) KL who was born on 6 May 2006 and is 9 years of age. His father is Mr L;

b) KM, who was born on 18 October 2008 and is 6 years of age. His father is Mr M; and

c) RK, who was born on 6 February 2013 and is 2 years of age. His father is the second Respondent, TK.

The mother of all three children is the First Respondent, SK.

2. Mr L and Mr M have played no part in these proceedings; their whereabouts are unknown to the local authority. In any event both had their parental responsibility for their respective child terminated by the Polish Court on 13 June 2013.
3. The local authority, Derby City Council, issued these care proceedings on 6 March 2015. An issue about the courts' jurisdiction to deal with the application for care orders was raised before HHJ Orrell sitting in the Family Court at Derby. On 1 April 2015 he directed that the issue of jurisdiction should be determined by a judge of High Court level. Thus the matter was listed before me today.
4. Mr Setright QC, leading counsel for the local authority, identified the following 4 jurisdictional issues which fell to be determined:

a) were there ongoing proceedings in Poland which, pursuant to Article 19 of BIIa, the consequence of which would be that the courts of that jurisdiction would have been first seized?

b) had the mother wrongfully removed the children from Poland and/or wrongfully retained them in this jurisdiction and, if so, had any person with rights of custody acquiesced to the removal and/or retention within the meaning of Article 10?

c) have the children lost their habitual residence in Poland and/or have they gained habitual residence in this jurisdiction based on Article 8 of BIIa?

d) If no habitual residence is discerned in either Poland or in this jurisdiction, is jurisdiction established on the basis of physical presence at the relevant date pursuant to Article 13?

5. If, on whatever basis, jurisdiction is established in this court, the question is raised by the local authority of whether the court should make a transfer request to the Polish Court pursuant to Article 15 of BIIa.

Background

6. The mother, the fathers of the children and the children are all nationals of Poland. Each child was born in and lived in Poland until August 2014.
7. In 2001 (P) and then in 2003 (J and N) the mother's three older children were removed from her care by the Polish Court. They all now reside with members of the extended family.
8. In 2007 the mother's parental responsibility for KL was 'restricted' by the making of a supervision order in Poland. In 2010 the mother's parental responsibility for KM was similarly 'restricted'.
9. In July 2011 KL and KM were removed from the care of the mother and were placed in a children's home.
10. Following his birth in 2013, RK was made the subject of a supervision order by the Polish Court but remained in the care of his mother. The mother's parental responsibility was restricted by the appointment of a court appointed guardian. The parental responsibility of TK was suspended.
11. On 13 June 2013 Mr L, father of KL, and Mr M, father of KM, were deprived of their parental responsibility of their children.
12. In August 2013 KL and KM were returned to the care of their mother.
13. On 8 October 2013 a final order was made by the Polish Court restricting the mother's parental responsibility in respect of the children.
14. In March 2014 the father arrived in the UK and was seeking employment in Derby. The plan was for the mother and children to join the father and live with him in the UK. Their initial plan to travel to the UK was delayed and there were relationship issues between the parents.
15. On 6 August 2014 the mother and children arrived in the UK where they resided with maternal grandmother in Gloucester. Prior to leaving Poland the mother had two final meetings with the court appointed guardian in July and on 5 August. In the former the mother told the guardian that she and the children were travelling to the UK in order that the parents could talk about their future together. At the meeting on 5 August the mother discussed her plans with the guardian. The latter requested that the mother provided her with her new address "when she already has a place of permanent resident" (sic).
16. In September 2014 the parents were reconciled and lived with the children in Derby. The older two children were registered at and attended a local school. The parents each say in their respective witness statements, and I accept, that they planned and intended to reside permanently in the UK.
17. There then followed a series of unfortunate events which led to one of the children being accommodated pursuant to Section 20 of the Children Act 1989 and to the institution of these proceedings on 6 March 2015. In my judgment these matters are not relevant to the jurisdictional issues I am asked to determine.
18. On 15 April 2015 the Polish Court indicated that 'no other new proceedings are ongoing in relation to the three minors. The enforcement proceedings in respect of a court guardian's supervision of the minors' mother…. are open but are not conducted, as the mother and her sons are staying abroad'. At no stage has the court appointed guardian nor the Polish Court sought or requested the return of any of the three children to Poland. The guardian has not asserted that she was not aware of the mother's plans; the contrary is the case.
19. Further the position of the Polish Court was clarified in a document of even date that " this Court will not request the transfer of the case conducted in England to Poland. However, this court is preparing a request to England to continue the supervision by a guardian of [the mothers] parental authority by the English authorities". As I understand matters, to date no such request has been formally received.

Discussion

20. All of the parties filed very detailed and helpful skeleton arguments setting out their respective submissions on the relevant legal issues and on the factual matrix.
21. Mr Setright QC rightly reminded me that the issue of jurisdiction is not a matter that the parties can resolve by agreement; it is a matter for the court.
22. The parties were able to agree on the instruction of an expert in Polish law, Darota Beange who produced a helpful report and an addendum.
23. At the outset of the hearing on 12 June, I indicated to the counsel that having read the reports, statements and skeleton arguments I had reached a provisional view on the issue of jurisdiction. With agreement of all counsel I expressed that view; no party objected to the same or sought to persuade me to reach a different conclusion. Accordingly, my provisional view became my final view and my determination of the issues in relation to jurisdiction.
24. In the premises I intend no discourtesy to counsel by not referring to the various authorities cited in their skeleton arguments when setting out the reasons for my decision in short order.
25. On the basis of the undisputed factual evidence, I am satisfied that the appropriate authorities in Poland knew that the mother and the children planned to travel to the UK. Further I am satisfied that the parents intended the move to be a permanent one, at least for the foreseeable future, and that the court appointed Polish guardian was aware of the same.
26. The children may have had unsatisfactory care from their parents when living in the jurisdiction but I am satisfied that their respective lives here reflected some degree of 'integration in a social and family environment': A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 and In the matter of LC (Children) [2014] UKSC 1.
27. I am entirely satisfied that, save for enforcement proceedings which are not being pursued, there are no pending proceedings before the Polish Court. Accordingly no issue arises pursuant to Article 19 that the Polish court is the court first seized.
28. I am not satisfied that the mother wrongfully removed the children from Poland and/or wrongfully retained them in this jurisdiction. Even if I am wrong, I am satisfied that those bodies who have choate or inchoate rights of custody in Poland, namely the Polish Court and/or the court appointed guardian, have acquiesced in the removal of the children from Poland and/or their retention by the parents in this jurisdiction.
29. On the basis of the evidence which I have accepted, I am completely satisfied that the children lost their habitual resident in Poland on 6 August 2014 and that they had gained habitual residence in this jurisdiction by no later than the relevant date (namely 6 March 2015).
30. Accordingly it follows that pursuant to Article 8 of BIIa, I am satisfied that the children are habitually resident in England and that this court has jurisdiction to determine the care proceedings issued by the local authority.
31. Even if I am wrong in that determination and they had not gained habitual residence in this jurisdiction by the relevant date but they had lost their habitual residence in Poland, I am satisfied this court has jurisdiction by virtue of their physical presence in England pursuant to Article 13.
32. The threshold criteria are in dispute. I am satisfied that the evidence relied on by the local authority which is disputed by the parents, is predominantly based on events which took place in this jurisdiction.
33. The court has a discretion to exercise its powers under Article 15 to transfer the proceedings to Poland if and only if the court is satisfied that:

a) the children have a 'particular connection' with another member state;

b) a court of the other member state would be 'better placed to hear the case or a specific part thereof'; and

c) a transfer is in the best interests of the children: Nottingham City Council v LM [2014] EWCA Civ 152 at paragraph 54.

34. Plainly the children have a 'particular connection' with Poland. At the moment I am not satisfied that the courts of Poland are better placed to hear the issue of threshold and potentially of welfare. Therefore I am not satisfied that a transfer to Poland is in the best interests of the children.
35. Having decided the issues related to jurisdiction, I will now transfer the matter back to the Family Court at Derby. It will be a matter for the trial judge to decide whether:

a) there is a need for a fact finding hearing; or

b) at the conclusion of any fact finding hearing or at the conclusion of a final or welfare hearing that the matter should, in accordance with the Nottingham City Council v LM criteria, be transferred to Poland, pursuant to Article 15.

36. For the avoidance of doubt, nothing I have said in this judgment should be taken to express any view on whether:

a) there should be a fact finding hearing or a composite final hearing; nor

b) there should be, at any future point in this case, a transfer of this matter to Poland.

Both decisions are entirely a matter for the trial judge.