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Family Law

The leading authority on all aspects of family law

11 MAY 2015

Norfolk County Council v VE and Others [2015] EWFC 30

Norfolk County Council v VE and Others [2015] EWFC 30
(Family Court, Theis J, 22 April 2015)

Jurisdiction – Art 15, BIIR – Care proceedings – Parents planning to return to Lithuania – Child to be placed with family member there – Lithuanian court altered its stance and no longer sought an Art 15 request – Whether the English court should determine the long-term plan for the child

The full judgment is available below.


The English court which had previously made an Art 15 transfer request of the Lithuanian court determined that the 6-year-old child should be placed with family members in Lithuania under a child arrangements order.

Care proceedings were initiated in relation to the 6-year-old Lithuanian girl after she was found to have been physically and emotionally harmed while living with her mother in England. The father remained in Lithuania. The child was placed in foster care under s 20 of the Children Act 1989. She had did not have regular contact with the father.

The court determined that it had jurisdiction and that there should be an Art 15, BIIR, transfer to Lithuania for the long-term arrangements for the child to be determined there. In the short term the child was placed with the mother’s cousin and his partner, under an interim child arrangements order, who would return with her to Lithuania and she would stay in their care until any order of the Lithuanian court.

Following the hearing a letter was received by the Lithuanian Central Authority stating that it no longer sought a transfer of jurisdiction to the Lithuanian court. The mother’s position remained unchanged in that she would seek a return of the child to her care once they had returned to Lithuania. The father, who had previously sought the child’s return to Lithuania had expressed a wish for the child to remain in England. The guardian supported the placement of the child with the mother’s cousin in Lithuania but no longer supported an Art 15 transfer request due to the inevitable delay it would cause. She sought a final hearing by the English court.

Having regard to the paramountcy of the child’s welfare the court decided to exercise its jurisdiction to make orders providing for the care of the child. The child’s best interests would be met by her being placed in the care of the mother’s cousin in Lithuania. The detailed independent social work assessment was very positive in this regard and the guardian supported that position. A final child arrangements order would be made. The mother would be permitted to have ongoing contact as previously arranged. Issues regarding the longer term arrangements would be dealt with by the Lithuanian court as the child would be living in its jurisdiction but an Art 15 transfer request would not be made.

Case No: NR14C00789
Neutral Citation Number:[2015] EWFC 30 (Fam)

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 22nd April 2015

Before:

MRS JUSTICE THEIS

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Between:

NORFOLK COUNTY COUNCIL
Applicant

- and -

VE and others
Respondents

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Mr Marcus Scott-Manderson Q.C & Ms Katie Harris (instructed by LA) for the Applicant
Ms Markanza Cudby (instructed by Rudlings & Wakelam) for the 1st Respondent
Mr Jeremy Dugdale (instructed by Spire Solicitors) for the 2nd Respondent
Mr Michael Edwards (instructed by Hatch Brenner LLP) for the 3rd Respondent
Mr Alistair Perkins (instructed by Freemans) for the 4th and 5th Respondent

Hearing dates: 27th and 31st March 20th and 22nd April

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Judgment

Mrs Justice Theis DBE
:

Introduction

[1] This matter concerns a young girl V who was born in early 2009 and is now 6 years old. I shall refer to her parents as the mother and father. They are now 25 and 26 years respectively. They are both Lithuanian nationals, the mother and V have lived here since 2012. The father remains living in Lithuania.

[2] These proceedings concern care proceedings issued by Norfolk County Council (the Local Authority). They were issued in August 2014 as they considered V was at risk of significant harm due to marks seen on V’s face at her school in November 2013 which they alleged were caused by the mother together with emotional harm caused by the circumstances V was living in with her mother. The parties to these proceedings are the Local Authority, the parents and V. V is represented in these proceedings by her Children’s Guardian, Ms W.

[3] V was born in Lithuania. Prior to being placed with foster carers in January 2014 she lived with her mother, initially in Lithuania and since 2012 in England. She has had limited contact with her father. According to the mother V has never seen her father, according to her father he saw her once when she was about 10 months old and a further time in late 2013 when she was staying with her maternal aunt.

[4] The mother has parental responsibility for V. Although there is some uncertainty about whether the father has parental responsibility this court has worked on the basis that he has. There is reference in the papers to proceedings for financial support for V in Lithuania where there was an order that the father should have no contact with V. No papers or details of those proceedings have been seen.

[5] V has been in the care of foster carers since January 2014 with the agreement of the mother pursuant to section 20 Children Act 1989. There is no interim care order in favour of the Local Authority, so the only people with parental responsibility are V’s parents. V has contact with her mother twice a week.

[6] District Judge Royall held a fact finding hearing in February 2015. After hearing the evidence relied upon by the Local Authority, the mother and her partner he concluded that the Local Authority had established that V had suffered and was at risk of suffering significant harm in the way described at paragraph 2 above.

[7] This case was listed before a High Court Judge to consider the question of a request for a transfer to Lithuania under Article 15 Council Regulation (EC) no 2201/2003 (BIIR). It was listed first before me on 27 March 2015. I heard legal argument on 31 March 2015 and made directions listing the matter for further hearing on 17 April 2015. Due to difficulties with court availability the matter was listed on 20 April 2015.

[8] At the hearing on 31 March all parties agreed

(1) This court has substantive jurisdiction;

(2) This court can and should consider the short term arrangements for V’s care to enable her to return to Lithuania without further delay;

 (3) There should be an Article 15 transfer to Lithuania with a request for it to consider all issues as to the long term arrangements for V’s care to be determined by the Lithuanian court.

[9] The parties agreed that in the short term V should be placed in the care of ED and DD. They are the mother’s maternal cousin and his partner. They lived in Lithuania with their two children, age 12 and 6 years. They have been the subject of an assessment by an English independent social worker, Ranjit Mann, who supports placement of V in their care. The position of the father was somewhat equivocal as there has been difficulty in getting instructions, however he wished for V to be returned to Lithuania.

[10] The mother plans to return to Lithuania and make an application to the courts there for consideration to be given to V being returned to her care. The father also plans to make an application to the courts in Lithuania seeking the placement of V in his care. It was accepted by the parents that the Local Authority should make the practical arrangements for V to be returned to Lithuania in the care of Mr and Mrs D and recognise that she should stay living with them until any further orders are made by the Lithuanian court.

[11] Mr and Mrs D came to England in February 2015 and had contact with V. All parties agree that visit went very well.

[12] At the hearing on 31 March the plan was for Mr and Mrs D to return here by 21 April, have further contact with V over a period of 5 – 7 days and then take her to live with them in Lithuania by the 30 April 2015. This would be pursuant to an interim Child Arrangements Order made by this court whereby V would live with them in the interim and they would have parental responsibility. The order would also give them permission to remove V from this jurisdiction to Lithuania in the interim.

[13] On 31 March it was agreed that pursuant to Article 15.4 this court will set a time limit of 14 court working days from the email transmission of the Article 15 request to the Lithuanian Central Authority, by which time the Lithuanian court shall be seised.

[14] At the hearing on 31 March the intention was to list the matter before this court on 11 June 2015 to consider either closing the case in the English jurisdiction in the event that the Article 15 request has been accepted by the Lithuanian court or, alternatively, making orders for the long term arrangements for V in the event that the Article 15 request is refused.

[15] Mr and Mrs D came to this jurisdiction on 20 April together with their 7 year old daughter. They had the benefit of legal advice and Mr Perkins attended the hearing on 20 April. The plan is for them to have extensive contact with V this week and to return to Lithuania with her on 25 April.

[16] By the 20 April hearing there had been some significant developments. They can be summarised as follows:

(1) A letter was received on 16 April 2015 from the Lithuanian Central Authority (State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour) which states it no longer seeks a transfer to the Lithunaina court. The letter refers to the fact that it had ‘recently got a writing regarding the minor [V] custody case’ and stated as follows

‘The Service does not contrary with the fact that the competent court of United Kingdom will decide on the above mentioned minor’s further custody proceedings as it is going to accommodate the minor with the Lithuanian family who seem to be appropriate guardians to the competent social workers of the United Kingdom. Also it is scheduled to accommodate the minor in Lithuania. According to the fact that the question of the guardian appointment has been already resolved in the United Kingdom and that the Service’s opinion that the guardians of the minor’s should be established her relatives has been taken into account the Service’s question regarding the jurisdiction transfer to Lithuanian competent court for the setting of the guardianship is no longer relevant.’

The Local Authority here has ensured that all relevant documents from these proceedings have been translated and transmitted to the Lithuanian Central Authority. There was some debate at the hearing on 20 April as to whether this service was the Lithuanian Central Authority as previous letters had referred to the Ministry of Justice. The Central Authority here has since confirmed that this Service is the Lithuanian Central Authority.

(2) Mr Perkins, on behalf of Mr and Mrs D, invited the court to reconsider the issue of the Article 15 request in the light of the fact that it was no longer being sought by the Lithuanian Central Authority and submitted this court was better placed to hear the case due to its history in dealing with the proceedings to date.

(3) Mr Scott-Manderson Q.C. recognised that in the light of the recent developments the issue concerning an Article 15 transfer was now much more finely balanced. He considers the terms of the letter from the Lithuanian Central Authority does not necessarily mean the transfer request would not be accepted, as it is possibly based on a misunderstanding as to what orders have been made here regarding Mr and Mrs D.

(4) Ms Green on behalf of the mother indicated the mother’s position had not changed. The position statement filed on her behalf stated

‘It is the Respondent mother’s intention to issue proceedings in Lithuania and seek further assessments of herself to take place in Lithuania with a view to [V] being placed in her permanent care’.

She accepted that once V is in Lithuania the frequency and duration of V’s contact with her should be supervised at the discretion of Mr and Mrs D although asks that it should be the same frequency as it is here, namely twice per week for 1 ½ hours. She supported an Article 15 transfer.

(5) The father’s position has possibly changed, in that he has sent an email to his solicitors here to indicate that he does not agree with V residing with Mr and Mrs D or being taken by them to Lithuania and that he would prefer she remained in England. The document filed on his behalf indicated some uncertainty about the father’s position but did not consider his recent instructions amounted to a resistance to the Article 15 transfer unless it was clear such a request would be refused. According to the document filed by the Children’s Guardian on 21 April with an update of the parties positions the father is recorded as supporting the Article 15 request and that it would be wrong to conclude the proceedings in this jurisdiction.

(6) The position on behalf of the Children’s Guardian is that V should be placed with Mr and Mrs D in Lithuania and that that placement should be as secure as possible. In the light of the letter dated 16 April from the Lithuanian Central Authority she does not now support the Article 15 request as in the light of that letter it is most likely to lead to a six week delay before receipt of a further rejection. She seeks directions for a further hearing here that will be a final hearing and supports the immediate placement of V with Mr and Mrs D in Lithuania.

[17] It was agreed Mr and Mrs D should become parties to these proceedings. I made that direction on 20 April.

[18] I adjourned the matter to a further hearing on 22 April so I could consider the updated position.

Relevant Background

[19] V and her mother arrived in the United Kingdom on 27 June 2012, having lived together in Lithuania from her birth. The mother says they lived with her sister, GZ (maternal aunt), for one month. They then moved into a shared house in Ipswich for seven months, after which V and her mother moved into another house in Ipswich with a family who they had met in the shared house.

[20] In June 2013, the mother met Mr J. In September 2013 the mother and V moved into a shared house in Thetford with Mr J.

[21] As part of the assessments of Mr and Mrs D they reported that V remained in Lithuania for approximately one year after her mother moved to the United Kingdom and that they had care of V each weekend during that time.

[22] V first came to the attention of Norfolk County Council Children’s Services (the Local Authority) on 15 November 2013, when she was observed at school to have an injury to her face which she subsequently reported was caused by her mother, who hit her with a belt.

[23] Dr R at the Norfolk and Norwich Hospital was of the view that the injury to V’s face was more likely to be non-accidental in nature. As a result, V was placed in the care of her maternal aunt in Ipswich by agreement with her mother.

[24] There was a police investigation and on 9 December 2013, the police informed the Local Authority that they were taking no further action in relation to the alleged assault. As a result V to return to the care of her mother.

[25] On 16 January 2014, V attended at school with an injury to her tongue. She appeared to report that the injury was caused by her mother, with scissors. V was placed with foster carers under an agreement with the mother pursuant to section 20 Children Act 1989. V has contact with her mother twice a week for 1 1/2 hours.

[26] On 22 January 2014, Dr B, at the Norfolk and Norwich Hospital reported that he could not say whether the injury to the tongue was accidental or non-accidental.

[27] Child protection enquiries by the Local Authority, initiated following the incident on 15 November 2013, revealed additional concerns about V’s emotional and behavioural presentation at school, which was reported to be far outside what one would expect of a child of V’s age and experiences.

[28] After what this court considers to be a wholly unacceptable delay proceedings were ultimately issued by the Local Authority in August 2014. The Local Authority accept that between January and August there was no active social work assessment of the case, other than managing contact. V has remained accommodated pursuant to section 20 Children Act 1989, with the consequence that the Local Authority does not share parental responsibility with the parents.

[29] The Local Authority notified the Lithuanian Central Authority of the proceedings immediately upon issue on 27 August 2014. A response was received on 6 October 2014 and there followed an ongoing exchange of correspondence between the Local Authority and the Lithuanian Central Authority. It is unclear how much, if any, of this communication went via the Central Authority here.

[30] A social work parenting assessment of the mother and her partner was undertaken by a child protection social worker, and filed on 22 December 2014. The assessment was negative and did not support V’s placement with her mother. The mother made an application in January 2015 for a further assessment of her by an independent social worker. It was intended that application should be considered following the fact finding hearing in February.

[31] The Local Authority instructed Ranjit Mann, an independent social worker, to undertake initial assessments of the father and other proposed carers in Lithuania. Those assessments were completed in November 2014. Mr Mann did not support placement of V with her father. Mr Mann positively assessed Mr and Mrs D and a full assessment of them was commissioned and filed on 5 January 2015. The full assessment recommended Mr and Mrs D as carers for V as a result of which, arrangements were made for Mr and Mrs D to come to England in February 2015 and for contact to be facilitated with V. The contact sessions were extremely positive leading the Local Authority to put forward a proposal for V to move to the care of Mr and Mrs D as soon as practicable.

[32] At the directions hearing before His Honour Judge Curl on 9 January 2015, the Local Authority invited the court to list a hearing to deal with the Article 15 issue of its own motion to prevent delay. The matter was listed as a preliminary issue at the fact finding hearing listed in February before District Judge Royall.

[33] By letter dated 21 January 2015 the Lithuanian Central Authority notified the English Central Authority that they sought transfer to Lithuania under Article 15 of BIIR.

[34] District Judge Royall did not consider it appropriate that he hear the BIIR arguments and referred the case to His Honour Judge Richards, the Designated Family Judge for Norfolk. His Honour Judge Richards invited District Judge Royall to list the BIIR application before him at the conclusion of the fact finding hearing.

[35] On 30 January 2015, District Judge Royall made directions for the Local Authority to immediately seek further information from the Lithuanian Central Authority and for a translated copy of the bundle to be served on them.

[36] The fact finding hearing was heard before District Judge Royall in the Family Court sitting at Norwich. Judgment was delivered on 6 February 2015. The District Judge determined that V had suffered significant harm in that the injury to her face was non-accidental in nature and was caused by the mother, and V was at risk of suffering significant emotional and physical harm in the future.

[37] Following the fact finding hearing, directions were made in respect of the BIIR application, the matter was listed before His Honour Judge Curl on 25 February 2015 and 9 March 2015. The case was transferred to be listed before me on 27 March 2015.

[38] I made directions on 27 March 2015, listing the matter for hearing on 31 March 2015 and for the filing of skeleton arguments on the issue of transfer under Article 15 by 2pm on 30 March 2015.

[39] I heard oral submissions from the parties on 31 March and 20 April.

Legal Framework

[40] Article 15 BIIR provides:

'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:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

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.'

[41] Article 15.1 BIIR provides that

“...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 ...”

[42] As set out by Munby J as he then was in AB v JLB Brussels II Revised Article 15 [2009] 1 FLR 517 at [35] the steps for the court are:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. ... Given the various matters set out in Article 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 Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c)). 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. 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.”

[43] The English court has jurisdiction and can consider whether to transfer the case under Article 15. V has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State by reason of the child’s nationality: Article 15(3)(c).

[44] On 31 March the parties submitted that the Lithuanian court would be better placed to hear the case as to the long term issues relating to V for the following reasons:

(1) The assessment on the father presently obtained is a viability assessment made in circumstances without the cooperation of the Lithuanian authorities.

(2) The Lithuanian court is better placed to direct and evaluate any further local Lithuanian assessments of the parents or any other members of the wider family or other potential carers.

(3) The Lithuanian court is better placed to see what support should be in place to secure any placement for V.

(4) Further and importantly all parties in these proceedings propose and agree the physical move of the child to Lithuania.

[45] The parties submitted on 31 March that in all the circumstances of this case transfer of the long term issues regarding the care of V is in the best interests of the child:

(1) There should be no further delay.

(2) The best interests of V in the short term are to be placed in Lithuania in the care of Mr and Mrs D. There is a positive assessment of them, they are part of the wider family and there is agreement by those with parental responsibility (the mother and father) that V should return to Lithuania in their care in the short term.

(3) The father seeks the care of V but on the evidence available to this court V is not even aware that E is her father, she does not know him. She has had no meaningful contact with him and the references in the papers to previous proceedings in Lithuania where contact was forbidden between the father and V may require further investigation.

(4) The mother intends to return to Lithuania to seek the care of V.

(5) The best interests of V in the long term point to promptly completing any further assessment of her parents in Lithuania, where both parents indicate they wish to make further applications for the care of V.

(6) The best interests of V point to completing any further assessment and/or evaluation of any alternative placements in the country of her origin and culture.

[46] The parties’ position on 20 April is set out in paragraph 16 above.

Discussion and Decision

[47] The court is placed in a difficult position in this case and in reaching a decision it needs to balance and evaluate a number of matters.

[48] V requires a decision to be made about her future care. She has been with her current carers since January 2014. With the possible exception of the father all parties agree that she should be placed immediately with Mr and Mrs D and move to live with them in Lithuania.

[49] Whilst V has continued to have contact with her mother this court has concluded that her mother caused her significant harm in the way described by District Judge Royall in his judgment dated 6 February 2015. He found:

(1) That on 2 occasions whilst V was in her care she suffered 2 injuries on separate occasions to her face namely

(i) a triangular area of petchial 2.5 cm vertically and 1.5 cm horizontally just lateral to the right eye, and

(ii) scattered petchial marks over the right temple of no particular pattern described as sparse

(2) That the injuries were not accidental but inflicted by the mother and consistent with being hit by an object which could be a belt or some other instrument of that shape.

(3) That whilst V was in her care she suffered emotional harm and neglect namely

(i) she caused V to live in unsuitable premises

(ii) V’s teeth were decaying

(iii) she prioritised her and her partner’s lifestyle and relationship over V’s needs

(iv) she failed to set boundaries for V

(v) the mother’s work life balance was entirely wrong and misguided

(4) that had the Local Authority not removed V from her, V would have been at risk of suffering significant harm and that harm would have been attributable to the care given to her by her mother.

[50] There is no evidence by the mother that she accepts she caused that harm to V. She does accept that there would need to be further assessment of her before she could be considered as a future carer for V. She agrees V should return to Lithuania in the care of Mr and Mrs D and should remain in their care unless any other order is made by the Lithuanian court following any application by her to that court. The mother intends to return to live in Lithuania.

[51] The father has had legal representation during these proceedings, and been represented by counsel at every hearing before me. He has been made aware of what orders are being sought and has had the opportunity to be heard in accordance with Article 23. He is a person who is unknown to V. Even accepting what he says he has only seen her twice in her life. Whilst there has been a recent change in his position about placement of V with Mrs and Mrs D it is not submitted on his behalf that the Article 15 request should not be made thereby accepting, in effect, that the proceeding would be better dealt with in Lithuania. His recent change about placement with Mr and Mrs D is not based on any reasoned objections and appears to be based on an email to his solicitors which indicates this change with no further information.

[52] Mr and Mrs D are now present in this jurisdiction are having extensive contact with V in preparation for a return to Lithuania with V at the weekend.

[53] There has been no issue between the parties that this court has substantive jurisdiction. V was habitually resident here at the time this court was seised. She had been living in this jurisdiction since 2012, was attending school and was fully integrated here.

[54] I am quite satisfied this court should exercise its jurisdiction to make orders to provide for the care of V. Her welfare is the court’s paramount consideration under section 1 Children Act 1989 which provides When a court determines any question with respect to— (a) the upbringing of a child;.. the child’s welfare shall be the court’s paramount consideration. The court should have regard to the matters set out in the welfare checklist in section 1 (3), which I do. The court must also have regard to the Article 6 and 8 rights of the parties.

[55] V’s best interests and welfare are met by her being placed in the care of Mr and Mrs D in Lithuania. The detailed assessment of them by the independent social worker Mr Mann recommend V’s placement with them. The statement from the Local Authority social worker dated 23 February 2015 reports on the very positive visits by them to see V at her foster carer’s home on 14th, 16th, 17th. 18th and 19th February and supports the recommendation of Mr Mann. V’s Guardian Ms W observed the contact in February and agrees with the assessment of the social worker. Mr and Mrs D agree to such a placement and have had the opportunity of having legal advice regarding their position. On their behalf Mr Perkins invites this court to retain substantive jurisdiction although he acknowledges in his position statement that regardless of how and where the current welfare dispute is concluded the parents have a right and opportunity to restore the matter to any competent court during the child’s minority.

[56] I have reached my conclusion that there should be a final child arrangements order notwithstanding the fact that the Guardian has not had the opportunity to prepare her final analysis. Her position was set out in a position statement filed on her behalf for the hearing on 20 April 2015. I am satisfied that I have sufficient information in respect of V’s welfare to make this order and that there is no requirement for the Guardian to prepare a final analysis.

[57] By this court making a Child Arrangements Order Mr and Mrs D would have an order specifying that V lives with them, they would have parental responsibility for V and have permission for take V to Lithuania. Up until the father’s recent possible change in position both parents were agreed V should return to Lithuania and, in effect, should be in the care of Mr and Mrs D subject to any further orders made by the Lithuanian court. That remains the mother’s position. The father supports an Article 15 transfer, thereby accepting, in effect, the Lithuanian court is better placed to deal with the case. Any suggestion on the father’s behalf that V should not be placed with Mr and Mrs D lacks any rational foundation.

[58] The mother anticipates returning to live in Lithuania; in those circumstances she would continue to see V for at least 3 hours per week. Mr and Mrs D may agree to the mother seeing V more frequently in the exercise of their parental responsibility. To date the mother’s contact has been supervised by the Local Authority. The role of supervision/support will be taken over by Mr and Mrs D once V is living with them in Lithuania.

[59] Mr and Mrs D solicitors’ in a letter dated 14 April 2015 sent to the Local Authority, but now shared with all the parties, set out their position on a number of issues that I had directed should be addressed. Within that letter they observed ‘the courts of England and Wales will retain jurisdiction under Article 9 to modify access rights for 3 months following [V] leaving the jurisdiction unless the parents start proceedings in Lithuania’. Mr Perkins has drawn my attention to the provisions of Article 9 BllR submitting that even if the mother, despite her indication, remains in this jurisdiction she has an opportunity and a forum within which to raise issues in relation to her ‘access rights’ commencing after this Sunday when V will leave this jurisdiction. I accept the propositions made in the solicitor’s letter and by Mr Perkins in relation to Article 9, with the clarification that the condition under Article 9 is participation in any proceedings.

[60] In relation to any issue regarding the longer term arrangements for V’s care I consider that aspect should be dealt with by the Lithuanian court however I do not consider there should be an Article 15 request. That is for the following reasons:

(1) In the light of the letter dated 16 April from the Lithuanian Central Authority it is likely that an Article 15 request will be refused. To continue to make the request in those circumstances will only cause further delay and uncertainty which is contrary to V’s welfare. Whilst I accept there is some uncertainty in the letter about the precise basis upon which there has been this change of position it is clear that the plan for the return of V to Lithuania in the care of Mr and Mrs D is an important factor in them stating that the transfer is ‘no longer relevant’.

(2) The father’s position that V should remain in this jurisdiction is wholly contrary to her welfare and he gives no reasoned basis for that course meeting her welfare needs. His updated position supports an Article 15 transfer and does not accept the proceedings should be concluded here. All the evidence supports V’s welfare needs being met by her placement with Mr and Mrs D. They have been subject to a detailed assessment by Mr Mann which recommends placement with them and they have demonstrated considerable commitment to care for V by co-operating with the assessment and coming here to see V in February. Importantly as well as being part of the wider maternal family they will ensure V’s cultural, identity and language needs will be met. One of the most concerning aspects of this case is that due to the delays in dealing with this case V’s cultural needs were not being met. She demonstrated increasing reluctance to speak Lithuanian to her mother and no steps had been taken to maintain or support her cultural needs. One of the positive features of her contact with Mr and Mrs D in February was the re- emergence of V’s ability to speak Lithuanian. To delay the placement further puts that very positive step at risk. Whatever her future relationship with her parents it is clearly in her interests to be able to communicate with them in their common language.

(3) It is wholly unrealistic for this court to retain jurisdiction and undertake an effective evaluation of the long term future options for V in circumstances where she and all the relevant adults will be living in Lithuania after this weekend. I have carefully considered the observations made by Ryder LJ in Nottingham City Council v LM [2014] EWCA Civ 152 at paragraphs 27 and 28. The difference here is that none of the relevant adults or the child will continue to be in this jurisdiction. The papers have already been translated and are with the Lithuanian Central Authority. Any court in Lithuania will have the benefit of the judgment of District Judge Royall which sets out the background to the case and the findings made by the court and I will direct that a schedule of findings is incorporated in any order I make.

(4) When V returns to Lithuania the intention is for her to remain living there long term, she will attend school and be fully integrated there. That will be her habitual residence.

(5) The Lithuanian court is clearly better placed to deal with any long term issues regarding her care as the assessments of the parents and any other family members, including Mr and Mrs D, can more appropriately take place there. The mother intends to make an application to the Lithuanian court. If she does so any assessments or investigations would be undertaken in the jurisdiction where the relevant adults and child will be living and they will be conducted in their first language, without the need for an interpreter.

(6) A Child Arrangements Order will be underpinned by a certificate under Article 39.

[61] This court has carefully considered the position of V. She is a party to these proceedings acting through her Children’s Guardian Ms W. On behalf of V she supports the proposed placement of V in the care of Mr and Mrs D and her move with them to Lithuania.

[62] This court has also considered the position of the proposed placement. I do not consider it is a placement that requires the prior consent of the competent authority in the requested State under Article 56 (2) as it is not a placement in institutional care or with a foster family.

Wider considerations

[63] There are three aspects of this case that have caused this court great concern.

(1) There was a wholly unacceptable delay by this Local Authority in issuing proceedings. V was placed with foster carers in January pursuant to section 20 Children Act 1989 and proceedings were not issued until August 2014. No justification has been given for that delay. That delay was detrimental to V’s welfare, as it delayed decisions being made about her future care.

(2) There was an unacceptable delay by the court to consider the position under Article 15. The obligation to consider this issue is not only on the parties but it is also on the court. As Sir James Munby, President of the Family Division, said in Nottingham City Council v LM [2014] EWCA Civ 152 ‘Judges must be astute to raise these points even if they have been overlooked by the parties’ (paragraph 57). In that case, as he did in Re E [2014] EWHC 6 (Fam), he made clear the need for courts to record in its orders the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

(3) The basis upon which the independent social worker went to conduct assessments in Lithuania is far from clear. On the information this court has that was done without the knowledge of the Central Authority here. In response to an email sent to the Lithuanian Central Authority on 13 October 2014 notifying them of the intention to send an independent social worker to undertake assessments of V’s relatives the Lithuanian Central Authority (State Child Rights Protection and Adoption Service under the Ministry of Social Security and Labour) emailed the Local Authority on 15 October 2014 and informed them that they would not co-operate with the social workers from abroad. The practice of sending social workers from here to conduct assessments in other member states requires very careful consideration, and should only usually be considered in circumstances where there is express agreement from the other member state.

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