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03 NOV 2015

Re CK (Care Proceedings: Habitual Residence: Art 15) [2015] EWHC 2666 (Fam)

Re CK (Care Proceedings: Habitual Residence: Art 15) [2015] EWHC 2666 (Fam)
(Family Division, Moylan J, 6 August 2015)

Jurisdiction – BIIR – Habitual residence – Art 15, BIIR – Whether the children were habitually resident in England and Wales – Whether the Lithuanian court was better placed to hear the proceedings

The court held that the Lithuanian children were habitually resident in England and Wales when proceedings were initiated and as the English court was also better placed to hear the case it was held to have jurisdiction.
Case No: NE15C00192
Neutral Citation Number: [2015] EWHC 2666 (Fam)



The Law Courts
The Quayside

Thursday, 6th August 2015



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Re: CK (Children)

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Transcribed from the Official Tape Recording by Apple Transcription Limited Suite 204, Kingfisher Business Centre, Burnley Road, Rawtenstall, Lancashire BB4 8ES DX: 26258 Rawtenstall – Telephone: 0845 604 5642 – Fax: 01706 870838

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Counsel for the Local Authority: Mr Stonor QC
Counsel for the Mother: Mr Brown
Counsel for the Father: Mr Spain
Counsel for the Children: Mr Gray

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[1] These proceedings concern four children: A (aged 16); B (aged 9); C (aged 9); and D (aged 3).

[2] The parties to the proceedings are the Local Authority, North Tyneside Council, represented by Mr Stonor QC; the children’s mother, represented by Mr Brown; the father of the three younger children, represented by Mr Spain; and the children, through their guardian, represented by Mr Gray. The eldest child’s father is deceased.

[3] This hearing has been listed to determine whether his court has jurisdiction and, if it does, whether a request should be made to the Lithuanian authorities under Article 15 of Brussels IIA. At the conclusion of the hearing, I adjourned giving judgment in order to give further time for the Lithuanian authorities to communicate any additional matters they wished to make in respect of Article 15. They had in fact already sent a letter to the English Central Authority, in response to questions posed by this court, but this was not available to me until after the hearing.

[4] The Lithuanian Central Authority has made it clear that they seek a transfer of jurisdiction under Article 15. It is their view that the Lithuanian authorities are better placed, and that it would be in the children’s best interests for them, to hear this case. In summary, they point to the children’s connections with Lithuania, to the connections which these proceedings have with Lithuania including in terms of potential placements and evidence and to the provisions of international instruments including Article 8 of the United Nations Convention on the Rights of the Child 1989 which requires State Parties to respect the right of a child to preserve his or her identity, including nationality.

[5] The Local Authority, the mother and the guardian all submit that this court has jurisdiction under Brussels IIA because the children were habitually resident in England and Wales at the date when these proceedings were commenced, namely, 15th April 2015. They also submit that it would not be appropriate to transfer jurisdiction under Article 15. Despite the father’s limited and only recent involvement in these proceedings, Mr Spain has made clear that he does not seek an adjournment of the hearing or of the determination of the above issues. Mr Spain does not actively oppose the cases advanced on behalf of the other parties in respect of those issues, saying that the father is keen for an early decision to be made for the benefit of the children.


[6] The children’s mother is aged 35. The three younger children’s father, who I will call ‘the father’, is aged 42. The father and mother are married. They and the children are Lithuanian nationals. They all lived in the family home in Lithuania until 25th January 2014. On that day, in fact in the middle of the night when the father was at work, the mother left the family home with the children and they travelled to England.

[7] The mother says that she was fleeing an abusive relationship. She had been told by a woman, “X”, that she would be much better off living in England. There appear to be differing accounts as to how the mother came to be in contact with X. She seems to have been introduced to her through her brother (that is the mother’s brother) who is in prison in Lithuania.

[8] X sent the mother some money and helped make arrangements for the mother and the children to travel to England. When they arrived in England, they first stayed with X at her home. Also living in that home was a man, “Y”, X’s partner, a friend of X’s and X’s son, “Z”.

[9] In her statement, the mother says that she was not given truthful information by X as to the circumstances she would find in England and that, if she had known the truth, she would not have moved to England.

[10] The mother says that, shortly after she and the children arrived in England, the father got in touch with her. She and the children then spoke to him via Skype.

[11] On 7th February 2014, the father contacted the Child Rights Protection Division (“CRPD”) for his local district in Lithuania. He told them that the children had been taken abroad by the mother without his agreement or knowledge. The father expressed concern about the children’s circumstances. He wrote again on 27th February 2014.

[12] The mother was contacted by email by the CRPD, in the course of which she was told that her removal of the three younger children from Lithuania without the father’s consent was wrongful under the 1980 Hague Child Abduction Convention (“the 1980 Convention”). The mother replied on 7th March 2014. She said that she had moved abroad with the children to escape psychological and physical abuse by the father.

[13] The CRPD contacted the State Child Rights Protection and Adoption Service (“the State Service”). The State Service responded that further information was required before it would make any request for information under Brussels IIA. In addition, it pointed to the father’s right to file an application under the 1980 Convention. The State Service is also the relevant Central Authority for Lithuania. Further details were given to enable the father to make such an application. This information was provided to the father on 9th April 2014. It is clear that he has not made any application under the 1980 Hague Convention or indeed otherwise. He appears not to have contacted the State Service again until some time in 2015.

[14] The CRPD has also stated that the family was known to them from August 2012. This followed the police reporting that the mother and the father had been drunk and arguing in the presence of B and that the father had dropped D, then aged 5 months. They were interviewed and the home was visited by social workers. The living conditions were determined to be very good, but the family remained subject to supervision. No more reports about child neglect were received by the CRPD.

[15] The children have remained living in England, the father, as I have described, having taken no steps to seek to obtain their return to Lithuania. On some date in February 2014, the mother and Z decided to set up home together with the children.

Local Authority Involvement and Commencement of Proceedings

[16] On 22nd May 2014, B was seen collecting cigarette stubs at a metro station. This was referred to the police. The Local Authority carried out an assessment. This was completed on 2nd June 2014. The children were not attending school and, it appears, had not been attending school since their arrival in England in January 2014. The mother was given advice about leaving the children in the care of the eldest child.

[17] Despite the fact that the children had not been in school for nearly six months and despite the mother’s apparent admission that B had often been sent to collect cigarette stubs by Z, the Local Authority decided that there was no further role for safeguarding services. I have not seen the June 2014 assessment, and this issue was not investigated during the course of the hearing, but I cannot but express surprise at this decision given the background circumstances. I would expect the Local Authority to review how this decision was made at that time.

[18] At this stage, all four children were sharing one bedroom and the mother and Z were sleeping in the living room. It appears the family were dependent on State benefits. Arrangements were made by the Local Authority for the elder three children to attend school. Since then, the eldest child has attended a local secondary high school and the twins have attended a local primary school.

[19] On 17th November 2014, Z assaulted the mother. He called an ambulance and the police came to the property. The children and the mother were taken to a refuge. The children were spoken to by the police and social workers.

[20] The mother reported that Z had assaulted her regularly and controlled all aspects of her life. She also reported that Y had exposed himself to the children and may have touched them inappropriately. The precise sequence of events is not clear to me, but it is clear that the eldest child told the police and social workers that Y had sexually assaulted his siblings and that he had told the mother about this.

[21] The twins were ABE interviewed, although not until 2nd December 2014. The reasons for this delay will also need to be considered during the course of the proceedings. The younger children reported that the mother had been told about the abuse they had suffered. They also reported witnessing domestic abuse between the mother and Z.

[22] Y has been charged with a number of sexual offences and is due to stand trial in late October 2015.

[23] On 3rd December 2014 the mother agreed to the children being voluntarily accommodated under s.20 of the Children Act 1989. The eldest child and D are in one placement and the twins are in another. They have regular contact with the mother and with each other.

[24] An Initial Child Protection Conference took place on 23rd December 2014. It was decided that, although the threshold was met for the children to be made subject to a child protection plan, they would not in fact be made subject to such a plan. This decision appears to have been reached on the basis that the children were safeguarded in their foster placements and the mother had consented to them remaining in foster care whilst a parenting assessment was undertaken.

[25] This decision is, again, not a matter which was explored in any detail at the hearing. However, given the history and given the children’s then circumstances, this decision and the decision not to commence care proceedings until April 2015 are troubling. They will also need to be explored, and an explanation provided by the Local Authority, especially as I understand that the mother’s solicitor invited the Local Authority to commence proceedings at the Public Law Outline meeting on 22nd January 2015.

[26] The troubling nature of these decisions is compounded by the fact that, in my view, this is exactly the sort of case in which proceedings should have been commenced immediately in order to address the matters dealt with by Sir James Munby P. in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] 2 FLR 151 and as referred to in my decision of Leicester City Council v S [2015] 1 FLR 1182.

[27] Proceedings were not commenced until after a Looked After Child review meeting on 3rd March 2015. At this meeting, the decision was taken to commence proceedings. This was said to be due to the seriousness of the concerns and the need for the court to be involved given the complexity of the issues. This should have been equally apparent in December 2014, frankly, if not earlier.


[28] The Order made at the commencement of the proceedings includes a provision to the effect that the court is satisfied it has jurisdiction based on habitual residence. This is puzzling given that the Note prepared by Mr Stonor, which was included with the application, expressly states that jurisdiction is one of the issues which would need to be addressed at an early stage. The draft pro forma order includes a paragraph stipulating that there is an issue as to jurisdiction, but this had been deleted.

[29] This was rectified at the first case management hearing before HHJ Simon Wood on 12th May 2015. His order records that the court will need to address both the issue of jurisdiction and whether the case should be transferred under Article 15.

[30] On 7th May 2015, the International Child Abduction and Contact Unit wrote to the Local Authority, forwarding a request for information which had been received from the State Service, as the Lithuanian Central Authority, under Article 55 of Brussels IIA. The father was said to have recently contacted the Lithuanian authorities and they were seeking information about the children’s circumstances.

[31] Pursuant to HHJ Wood’s order, the father was informed of the proceedings. He was not joined as a party until 8th July 2015. He was given limited disclosure, based on the mother’s allegations of domestic abuse.

[32] The request from the Lithuanian Central Authority, dated 16th April 2015, asks a number of questions about the children’s circumstances and whether it is possible for the children to be returned to the father’s care. In their reply, the Local Authority provide information in response to the questions and themselves ask for information from the Lithuanian authorities, including how an assessment of the parenting capacity of the father and other family members can best be undertaken.

[33] The Lithuanian Central Authority sent a number of documents on 12th May 2015, including certain records relating to the family (dealing with the incident in August 2012), a copy of the father’s administrative offences and details of the father’s communications with state authorities in February 2014.

[34] On 30th June 2015, the Lithuanian Central Authority made a formal request under Article 15. This refers to the children’s particular connections to Lithuania as defined by Article 15. In addition, it is said that given the children’s connections with Lithuania, the Lithuanian courts are better placed to hear this case. The children are Lithuanian. They had spent all their lives in Lithuania until January 2014. Their father lives in Lithuania, as do all their extended family members. The Lithuanian authorities are better placed to obtain evidence relating to the children’s past circumstances and to investigate, through interviews and assessments, what orders should be made. They are also said to be better placed to understand and evaluate this evidence “taking into account the cultural context of this family and the country that they are from.” Reference is made to Article 8 of the 1989 Convention, as referred to above. The request is also put in the context of the Lithuanian authorities considering that placement in Lithuania is very likely to be in the children’s best interests.

[35] On 10th July 2015, in response to a further request, the Lithuanian Central Authority provides information about how a transfer under Article 15 could be effected. The transfer would be considered by the Lithuanian Court of Appeal and, if accepted, the guardianship case would be transferred to the relevant local court. Proceedings can only be commenced in this court once the children are in Lithuania.

[36] The Central Authority also provides details of how assessments could be carried out in Lithuania, if the proceedings remain in England. Assessments could be carried out or conducted by Lithuanian Social Services. This would take about three to four weeks for close relatives, including grandparents, and three or more months for other proposed carers who are not related. The letter further adds that the Lithuanian authorities strongly believe that Lithuanian social workers are competent to assess potential carers. However, exceptionally in this case, they would agree to social workers from North Tyneside or CFAB (Children and Families Across Borders) visiting Lithuania to carry out assessments.

[37] Following the hearing, the Lithuanian Central Authority has stated that the local authority in Lithuania would be asked to assess the father and the eldest child’s paternal grandmother who wants to care for him. Additionally, they indicated that they could obtain police checks if required.


[38] For the purposes of deciding the issues referred to above, I have read the statements and other evidence filed to date and heard submissions on behalf of all of the parties.

[39] In the social workers’ statements, the children are all described as being settled and integrated in England. The elder three children have each said that they want to return to live with their mother. The eldest child has said that, if he cannot, he wants to remain in his current foster placement. They have also all each said that they want to stay in England. They have made it clear that they do not want to return to their home town in Lithuania, in part due to an asserted fear of the father.

[40] The eldest child has taken GCSEs and has a provisional place on an education / training course. He now has a good command of English. B is making excellent progress at school and has some close friends whom she sees at weekends and during the holidays. C is also said to be very settled and has made excellent progress at school. He has a number of good friends from school. D is similarly settled and enjoys attending nursery.

[41] In her statement, the mother says that she is now working four days per week. She also says that the children are happy and settled in England and do not want to return to Lithuania. She hopes to be able to obtain her own home as currently she is living with a friend. She is having contact with the children twice per week.

[42] The guardian also considers that the children are very well settled in England.

Legal Framework

(i) Jurisdiction

[43] Jurisdiction under Article 8 of Brussels IIA depends on the children being habitually resident in England and Wales at the date of the commencement of the proceedings.

[44] Article 10 addresses jurisdiction in cases of child abduction. It provides that the courts of the Member State of the child’s habitual residence before the wrongful removal retain jurisdiction until the child has become habitually resident in another Member State and: (a) each person having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her environment and at least one of a number of other conditions is met. These latter conditions include no request for return having been made within the one year period referred to above.

[45] The meaning of “habitual residence” has been comprehensively explored. I have been referred to a number of authorities, including Proceedings brought by A (Case C-523/07) [2010] Fam 42; Mercredi v Chaffe [2011] 1 FLR 1293; A v A and another (Children. Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1; Re A (Jurisdiction: Return of a Child) [2014] 1 FLR 111; Re LC (Reunite: International Child Abduction Centre Intervening) [2014] 1 FLR 1486; and AR v RN (Scotland) [2015] UKSC 35.

[46] Habitual residence is an issue of fact. In A v A (at paragraph 54) Lady Hale referred to the test adopted by the European Court: “the place which reflects some degree of integration by the child in a social and family environment”. The phrase, “degree of integration in a social and family environment,” derives from decisions in the Court of Justice of the European Union, including Proceedings brought by A, in which the court said at paragraph 38:

“In addition to the physical presence of the child in a Member State, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.”

[47] In AR v RN (Scotland), Lord Reed, with whom Lady Hale, Lord Clarke, Lord Wilson and Lord Hughes agreed, said at paragraph 21, “the important question is whether the residence has the necessary quality of stability.” This is to distinguish it from mere temporary residence and does not require an intention to reside permanently.

[48] The potentially relevant factors include, in respect of older children, their state of mind, as referred to in Re LC.

[49] Further, the habitual residence of a child can be changed unilaterally by one parent, see Re H (Jurisdiction) [2014] EWCA Civ 1101 (paragraph 34) and AR v RN (Scotland), (paragraphs 17 and 21). This conclusion is consistent with the structure of Article 10 of Brussels IIA, which refers to a change of habitual residence following, and despite, a wrongful removal or retention.

(b) Article 15

[50] Article 15 provides what is, effectively, a discretionary stay of proceedings in favour of another jurisdiction if: (i) the child has a particular connection with another Member State (as defined in Article 15); (ii) the courts of that Member State are better placed to hear the case or a specific part of the case; and (iii) this is in the best interests of the child.

[51] The above three questions must be addressed in respect of each child.

[52] The first requirement is clearly established in this case. The children were habitually resident in Lithuania until at least January 2014; the children are Lithuanian nationals; and, in respect of the three younger children, the father is habitually resident in Lithuania.

[53] Article 15 is an exception to the general jurisdictional provisions, but, as set out in the opinion of Advocate General Sharpston in Povse v Alpago [2011] Fam 199 (at paragraph 103):

“The introductory words, “By way of exception”, do not require, in my view, that the circumstances must be exceptional before the provision may be applied. Rather, they allow a court having jurisdiction to derogate from the general rules of jurisdiction and to transfer the case, or a part thereof, to the court of another member state, with which the child has a particular connection, if it considers that the latter court is better placed to hear the case and that the transfer will be in the best interests of the child – a situation which will, in principle, be exceptional.”

The court must, simply, address the three relevant questions when deciding to exercise its discretion to stay the proceedings and request a transfer.

[54] For example, the second question was considered in Re M (Brussels IIA: Article 15) [2014] 2 FLR 1372. In Ryder LJ’s judgment (at paragraph 20) he says:

“It is entirely proper to enquire into questions of fact that might inform the court's evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and, if so, by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court's knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on.”

[55] I have also been referred to Baker J’s decision of Re HA (A Child) (No2) [2015] EWHC 1310 (Fam). That case also concerned Lithuania. By an earlier decision, Bristol City Council v AA and HA [2015] 1 FLR 625, Baker J had decided to stay English proceedings and transfer jurisdiction to Lithuania. The transfer had been accepted but the relevant court in Lithuania then “closed” the case without making any order.

[56] The legal position in Lithuania has changed since that case, as set out in paragraph 28 of Baker J’s 2015 judgment and as referred to above. A request under Article 15 is now considered by the Lithuanian Court of Appeal and, if accepted, is transferred to the competent court for substantive consideration. Whilst I agree with Baker J, that the manner in which jurisdiction is to be transferred needs to be clear, I would merely add that when his Final Observations (in paragraph 56) are being considered they, clearly, have to be applied so as not to conflict with the principle that “the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent.”: see Re M, paragraph 19 and Re T (Brussels II Revised: Article 15) [2014] 1 FLR 749 paragraph 24.


[57] Mr Stonor submits that the children were habitually resident in England and Wales by April 2015. He submits that they had, by then, become sufficiently settled and integrated with the necessary degree of stability to establish habitual residence. They had been living in England for approximately 14 months and had become integrated through attending school and nursery and living in settled circumstances, at least since early December 2014. He also relies on the fact that the three elder children say that they want to remain living in England.

[58] In respect of Article 15, Mr Stonor submits that Lithuania is not better placed to hear the case and that it is not in the children’s best interests for proceedings to be transferred. This applies, he submits, powerfully in respect of the eldest child who will be 17 on 6th October 2015. The court’s power (in England) to make any care order in respect of him expires on that date. It is submitted that it is in his best interests for a decision to be made before then and that this court is better placed to make any such decision.

[59] In respect of the younger children, Mr Stonor submits that this court is also best placed to hear the case. Much of the evidence which the court will need to address is located in England, in particular in respect of events since January 2014. The mother is living here and intends to remain living here. Although the father and other family members are in Lithuania, information and evidence can be obtained from, and assessments undertaken in, Lithuania for the purposes of proceedings in England.

[60] Mr Brown, on behalf of the mother, also submits that the children were habitually resident in England at the relevant time. They had become settled and integrated due to the length of time they had lived in England and, significantly, as a result of the effect of their having been accommodated under s.20 of the Children Act. Mr Brown points to the elder children’s integration into their environments in England as being well established both through their school and through their foster parents.

[61] In respect of Article 15, he submits that the evidence which gave rise to the care proceedings, namely, what happened to the children after their arrival in England, will require evidence from witnesses, all of whom are in England. He submits that this court is better placed to hear this case given the court’s current close connection with the mother and the children and, indeed, with these proceedings.

[62] I have referred above to Mr Spain’s position on behalf of the father. He does not submit that the children are not habitually resident in England and does not actively oppose this court exercising its jurisdiction.

[63] Mr Gray, on behalf of the children, also submits that the children were habitually resident at the relevant date. They were settled in their placements and integrated in England, doing well at school and nursery. They have an established and stable life here. He also emphasises that the elder children say they want to remain here and do not want to return to live in Lithuania.

[64] The guardian also opposes a transfer under Article 15. Mr Gray submits that this court is best placed to hear the case given the events which led to the present proceedings being initiated and given the mother’s and the children’s presence in England. Without further inquiry and investigation, Mr Gray submits that it would not be in the children’s best interests for jurisdiction to be transferred because, until further investigations have been undertaken, it would not be in their best interests for them to be returned to Lithuania.


[65] The first issue which I need to address is whether the children were habitually resident in England when the care proceedings were commenced.

[66] According to the mother, when she and the children came to England, she intended this move of home to be permanent. It was clearly a fragile move in the earlier months given the mother’s and the children’s circumstances and given that the father could have started proceedings under the 1980 Convention.

[67] However, as the months passed, the children’s lives clearly became more settled and integrated in England. This developed significantly when the elder children started attending school in June 2014 and even more so when they were accommodated in December 2014. I must, of course, have regard to all the circumstances of the case, including the children’s nationality, their family and other connections with Lithuania and, certainly, in respect of the oldest child but also, I consider, the twins, their expressed views.

[68] The test for determining habitual residence is summarised as depending on whether there is some degree of integration by a child in a social and family environment. That this is an overarching summary is clear because the court needs to conduct a broad assessment (“numerous factors” are engaged, as referred to by Lady Hale in A v A para. 54). I considered this issue, in the context of the Mental Capacity Act 2005, in An English Local Authority v SW and Others [2015] COPLR 29, [2014] EWCOP 43, (at paragraph 72) when I referred to the broad assessment as being that: “which is required properly to determine whether the quality of residence is such that it has become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary or intermittent residence. This means a sufficient, or some, degree of integration, not, I suggest, as a limited factual assessment, but as a question to be answered by reference to the factors, suitably applied, referred to by the Court of Justice and the Supreme Court.” As Lord Reed said in AR v RN (Scotland) at paragraph 21:

“As was explained in A v A, the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent. The Lord Ordinary's exclusive focus on the latter question led to his failing to consider in his judgment the abundant evidence relating to the stability of the mother's and the children's lives in Scotland, and their integration into their social and family environment there.”

[69] Weighing all the factors present in this case, I am satisfied that the children were habitually resident in England and Wales when the proceedings commenced in April 2015. Their residence here had clearly acquired the necessary quality of stability and reflected a significant degree of integration.

[70] I have come to this conclusion although, in my view, there is a strong argument to the effect that, in the early months after their arrival, the children were not sufficiently settled and integrated for them to have become habitually resident in England. Their lives were so unsettled and, it must be said, they were being provided with what appears to have been very inappropriate care. However, by April 2015 there had been dramatic changes in their circumstances. I do not see that the fact that these changes were significantly due to State intervention alters their effect on the issue of whether the children, as a result, became habitually resident in England. This was the reality of their environment.

[71] Accordingly, this court has jurisdiction under Article 8 of Brussels IIA.

[72] Article 10 does not apply in this case. The children continued to reside in England for more than one year from when the father became aware of their presence here. No request for their return was lodged in England within one year of that date, which appears to have been on or about 7th February 2014.

[73] Turning now to the second issue, Article 15.

[74] I have dealt with the first question, namely “particular connection”, above.

[75] The next question is whether the courts of Lithuania are better placed to hear this case. As referred to in the correspondence from the Lithuanian Central Authority, the Lithuanian courts would clearly be well placed to address the family’s circumstances before January 2014 and to investigate potential carers of the children in Lithuania, including, importantly, the father. They would also, as they assert, be well placed to obtain information about the “available social services and support” in Lithuania. They would also have the advantage that this is a Lithuanian family, which continues to have extensive links with Lithuania.

[76] The English court is well placed to address and investigate the circumstances which led to care proceedings being issued here. The English court is also well placed to assess the mother as a carer as she is living in and intends to remain living in England. The English court is also well placed to address the relevant children’s wishes and feelings as they are also living in England.

[77] Weighing all the factors present in this case and weighing, in particular, the matters highlighted by the Lithuanian Central Authority, I have come to the conclusion that the Lithuanian courts are not better placed to hear this case. A significant part of the necessary evidence will be obtained from witnesses in England. Further, assessment of the father and other family members can be obtained from Lithuania. In addition, and of significant importance in my view in this exercise, the three elder children appear to be stating strongly that they want to stay in England, preferably with their mother but, in any event, that they do not want to return to Lithuania because they are afraid of their father.

[78] Further, it seems to me inevitable that the children will continue to live in England pending further substantive investigations. I agree with the submission made by Mr Gray that, without further inquiry and investigation, I am not able to decide that it is in their best interests for any of them to move to live in Lithuania. When this factor is weighed with the other factors in this case, it reinforces my conclusion that the Lithuanian courts are not better placed but, indeed, that the English court is better placed to hear this case.

[79] Turning to the next question, namely, whether it is in the best interests of the children for jurisdiction to be transferred to Lithuania.

[80] As set out in recital 12 to Brussels IIA, the grounds of jurisdiction “are shaped in the light of the best interests of the child, in particular on the criterion of proximity.” In my judgment, it would not be in the best interests of the children for jurisdiction to be transferred, in particular when they will continue to reside in England pending a substantive determination of this case and when the options for their future long-term care are in England as well as in Lithuania. In contrast to other cases, the options for their future care are not focused in the other Member State, namely, Lithuania. They include substantive options in England. This applies with particular force to the eldest child, but also applies to the younger three children.

[81] As a general observation and having regard to the principle as enunciated in recital 12, I would expect any assessment of better placed and best interests under Article 15 to be influenced significantly by whether the child is to be returned to or is moving to live in the other Member State in the event that jurisdiction is transferred, i.e. following the acceptance of jurisdiction under Article 15. If a child who is habitually resident in England is to remain living in England, at least during the course of proceedings, it would in my view require some powerful countervailing factor or factors to justify transferring jurisdiction to a Member State in which the child would not be living. It would, of course, be jurisdictionally possible to leave any decision as to where the child should live, pending the substantive determination of proceedings, to the courts of the other Member State. However, I can foresee considerable potential problems, as demonstrated by Re HA, if a child were to continue to live in England whilst subject to care proceedings or their equivalent in another Member State, in particular because this court would no longer have any substantive jurisdiction and would be confined, at most, to provisional measures under Article 20.

[82] In conclusion, I do not consider that it would be in the best interests of any of the children in this case for jurisdiction to be transferred. I do not, therefore, propose to make any request under Article 15.
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