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Medway Council v B & Others [2015] EWHC 3064 (Fam)

Judgment concerning the extent to which the wishes and feelings of children are relevant when considering whether the criteria for transferring jurisdiction pursuant to Art 15(1) of Brussels IIa are met.

The case concerned seven children: KB (15), NB (12), ZB (9), AB (8), KAB (7) ALB (4) and RB (3). All of the children, the mother ('JB'), father of KB ('RM') and the father of youngest six children ('BB') are Slovakian nationals and are of Slovakian Roma origin.

The family moved to the UK from Slovakia in 2008. Prior to moving to the UK, NB spent a period of time in care in Slovakia due to the mother being unable to care for him and BB being incarcerated. On 23 March 2015 the children were taken into police protection and thereafter made the subject of an EPO. An ICO was made after a contested hearing on 2 April 2015. BB had already returned to Slovakia by this stage. He was later apprehended trying to re-enter the UK and on 27 July 2015 was deported to Slovakia. Prior to 23 March 2015 the local authority had been involved with the family due to neglect, repeated homelessness and signs that KB and NB were beyond parental control. Supervision orders were made and thereafter the children moved from Child Protection Plans to Child in Need plans. Prior to the commencement of proceedings in 2015 a negative assessment was carried out of the mother.

The substantive application before the court was an application by Medway Council for care orders in respect of all seven children. During the course of the proceeding the Slovak Central Authority ('SCA') sought to intervene in the proceedings and contended for the return of all of the children to Slovakia, either into the care of the mother and BB (now living together in Slovakia) or into residential or foster care if the mother and BB were assessed in Slovakia as incapable of parenting the children. The mother made a formal application under Art 15(2)(a) of BIIa for an order pursuant to Art 15(1) with respect of all seven children. The matter was transferred to the High Court to determine the issue of jurisdiction.

Mr Justice Macdonald gave permission to the SCA to intervene for the purpose of the Art 15(1) issue, and for determination of the substantive proceedings.

The mother was not present in the UK at the time of the hearing before Macdonald J, it being suggested by her mother and KB that she would not return to the UK and was pregnant with twins and had left for Slovakia to avoid involvement of the local authority with her unborn children. At the hearing the mother confirmed that she only sought a transfer in respect of the youngest five children, thus agreeing to the older two children remaining in long term foster care, in light of the fact that they were beyond her parental control and that she would not be able to parent seven children.  The local authority and Guardian shared the mother's position. The SCA contended that jurisdiction should be transferred in respect of all seven children.

Mr Justice Macdonald considered the relevant law and authorities: see paras 31 – 47.

The SCA provided a comprehensive list of factors in relation to the relevant questions, including in relation to the children's particular connection to Slovakia, whether the Slovak court is better placed to hear the case and whether transfer to Slovakia is in each of the child's best interests. The list is set out at para 48 of the judgment. The SCA submitted that, in respect of all seven children, the criteria in Art 15(1) were met. If the court rejected the submission of the SCA, it sought to argue that the court's welfare decision should be to place all seven children in a residential setting in Slovakia.

After hearing submissions from all parties, as set out in paras 48 to 57, Mr Justice Macdonald concluded:

Addressing the relevant factors Mr Justice Macdonald reasoned his decision as follows:

Particular connection
All seven children have a particular connection to Slovakia. Slovakia is the former habitual residence of the children, the place of the children's nationality and is now likely to be the place of habitual residence of the holders of parental responsibility for each child.

Better placed
In relation to the five younger children there are a range of forensic factors which lead to the Slovakian courts being better placed to hear the case, including:

Finding that the position of KB and NB is fundamentally different from the younger five children, Mr Justice Macdonald stated:

Best Interests
It is in the best interests of the youngest five children for their respective futures to be determined in the jurisdiction in which each of the realistic options for their long term welfare is located and in the jurisdiction that is best able to assess each of those options within the national, cultural, linguistic, ethnic and religious context which comprises the heritage of the children. (para 79)

It is in not KB or NB's best interests for jurisdiction to be transferred to the courts in Slovakia.  It it is in KB and NB's best interests for their cases to be determined in the jurisdiction in which assessment, care planning and placement decision making has already been concluded, the jurisdiction in which a long term placement has already been located and the jurisdiction in which the parents of the children (subject to confirmation of the position of the father of KB) have consented to the children remaining for the purposes of securing their long term welfare.   Nor would delay be in their best interests. (para 82)

In relation to the KB and NB's wishes and feelings Mr Justice Macdonald stated:

'In addition, and very importantly, in my judgment it would not be in KB and NB's best interests to transfer jurisdiction in this case in the face of their strongly and consistently expressed objection to returning to Slovakia.  In particular, having regard to the strongly expressed views of KB and NB, there is in my judgment an appreciable risk that the behaviour of both boys would regress significantly (with the physical dangers attendant thereon) and that there emotional welfare would be damaged if their clearly expressed wishes and feelings in this regard were ignored.  In my judgment this risk is one which must weigh heavily in my determination of the question of whether a transfer of jurisdiction is in the best interests of KB and NB.'  (para 81)

In relation to the youngest five children a request was therefore made pursuant to Art 15(1)(b) to the courts of the Slovak Republic to assume jurisdiction in respect of ZB, AB, KAB, ALB and RB.

In relation to KB and NB the mother's application (not pursued) to transfer jurisdiction under Art 15 was dismissed and the invitation of the Slovak Central Authority to transfer jurisdiction of the court's own motion was also dismissed.
The terms of the order are outlined at para 87.

Emily Ward, Barrister, Broadway House Chambers
__________________________

Neutral Citation Number: [2015] EWHC 3064 (Fam)
Case No: ME15C00611

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/10/2015

Before:

THE HONOURABLE MR JUSTICE MACDONALD

- - - - - - - - - - - - - - - - - - - - -

Between:

MEDWAY COUNCIL
 Applicant
- and - 
JB First Respondent
- and - 
BB Second Respondent
- and - 
RM Third Respondent
- and - 
KB, NB, ZB, AB, KB, ALB and RB Fourth to Tenth Respondents
- and - 
Centre for the International Legal Protection of Children and Youth of the Slovak Republic Intervener
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms Sandra Fisher (instructed by Medway Council Legal Department) for the Applicant
Mr Jonathan Bennett
(instructed by Pearsons) for the First Respondent
Ms Hari Kaur
(instructed by Bridge McFarland Solicitors) for the Second Respondent
Mr Donaghey
(of Davis, Simmons & Donaghey) for the Fourth to Tenth Respondents

Hearing dates: 2 October 2015
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for this annonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the current addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.

MR JUSTICE MACDONALD:
INTRODUCTION

1. In this matter I am concerned with seven children.  KB, aged 15, NB, aged 12, ZB, aged 9, AB, aged 8, KAB, aged 7, ALB, aged 4 and RB, aged 3.  The mother of the children is JB (hereafter 'the mother').  She is herself one of ten siblings.  The father of the eldest child, KB, is RM.  He lives in Slovakia and has had notice of these proceedings although, at present, his position regarding the proposals for KB does not appear to have been ascertained definitively.  The father of the six youngest children is BB.  All of the children and each of the parents are Slovakian nationals and are of Slovakian Roma origin.  KB has stated that he has a twin sister, VB, who is placed in care in Slovakia.  

2. This case raises a question of the extent to which the wishes and feelings of children are relevant when considering whether the criteria for transferring jurisdiction pursuant to Art 15(1) of Council Regulation (EC) No 2201/2003 (BIIa) are met.

3. The substantive application before this court is an application under Part IV of the Children Act 1989 by Medway Council for care orders in respect of all seven children.  Those proceedings were issued in March of this year.  The threshold criteria pursuant to s 31 of the Children Act 1989 are conceded by the mother in this case (it would not appear that either RM or BB has yet formally conceded the threshold).  Specifically, the mother concedes certain facts pertaining to her care of the children and concedes that the two eldest children, KB and NB, are beyond parental control.  The care proceedings are at present listed in the Family Court for a final hearing before Her Honour Judge Lazarus on 2 November 2015 with a time estimate of 5 days.

4. On 4 August 2015 the Family Court at Medway received a document from the Centre for the International Legal Protection of Children and Youth of the Slovak Republic (which organisation is the Central Authority of the Slovak Republic) entitled "Intervention to be a Third Party to the Proceedings".  By that document the Central Authority sought to be made interveners in these care proceedings.

5. In its document of 4 August 2015 the Slovak Central Authority made clear that it sought the return of all of the children to Slovakia, either into the care of the mother and BB or into residential or foster care if the mother and BB were assessed in Slovakia as incapable of parenting the children.  The Central Authority suggested that the return of the children to Slovakia "could be achieved using the procedure under Article 56 of Council Regulation (EC) No 2201/2003".  There was no suggestion at that stage that the Slovakian Central Authority sought a transfer of jurisdiction to the Slovakian courts pursuant to Art 15(1) of BIIa as distinct from inviting the English court to contemplate final orders facilitating placement of the children in Slovakia and to utilise the procedure for consulting the Slovak Central Authority under Art 56 as a precondition to that end.  On 26 August 2015 the care proceedings were transferred to the High Court.

6. Notwithstanding the absence at that stage of a formal application by the Central Authority pursuant to Art 15(2)(c) for transfer of jurisdiction to the Slovakian under Art 15(1), an order dated 2 September 2015 listed this matter on 2 October 2015 for consideration of "the application from the Centre for the International Legal Protection of Children and Youth for transfer or to intervene in the proceedings" and directed that the Slovak Central Authority "provide the local authority with a Skeleton Argument in support of their application by 18 September 2015". Within the body of that Skeleton Argument, dated 17 September 2015, the Slovak Central Authority does invite this court to consider transferring jurisdiction to the Slovakian court of its own motion pursuant to Art 15(2)(b) of BIIa. 

7. In the circumstances, whilst there is, in fact, no formal application from the Central Authority of the Slovak Republic under Art 15(2)(c) for transfer jurisdiction to Slovakia, it is clear from the face of the Skeleton Argument filed by the Slovak Central Authority that it urges this court to exercise its power under Art 15(2)(b) of BIIa to transfer jurisdiction in relation to all seven children to the Slovakian court of its own volition so as to enable the Slovak courts to decide the best interests of each of the children.

8. I decided at the outset of this hearing that the Slovak Central Authority should have permission to intervene in these proceedings, both for the purposes of determining the issue under Art 15(1) and for the determination of the substantive proceedings concerning the children (which, for reasons I will come to, will now be limited in this jurisdiction to considering the welfare of KB and NB).  The Slovakian Central Authority is not represented before the court.  The Central Authority made clear in correspondence that it would not be in attendance or represented at this hearing but invited the court to have regard to the submissions set out in its Skeleton Argument and to contact the Central Authority if any further information was required.

9. By an application dated 15 September 2015 the mother herself applied under Art 15(2)(a) of BIIa for an order pursuant to Art 15(1) transferring these proceedings to the courts in Slovakia.  The application by the mother was issued in respect of all seven children.  However, during the course of this hearing the mother indicated that she now seeks the transfer of jurisdiction to the Slovakian court in respect of the youngest five children only.  BB also now, I am told, adopts the same position. 

10. The mother's position on transfer of jurisdiction expressed at this hearing is consistent with her indication at a hearing on 14 July 2015 (recorded on the face of the order of Her Honour Judge Cameron of that date) that she agreed that KB and NB should remain in long term foster care in light of the fact that they were beyond her parental control and that she would not be able to parent all seven children.   The mother has today confirmed to her legal advisers that this remains her position.

11. The local authority supports the transfer of jurisdiction to Slovakia in respect of the youngest five children but opposes a transfer in relation to KB and NB.   Whilst initially opposed to transfer of jurisdiction to the Slovakian courts in respect of any of the children, the Children's Guardian gave further consideration to her position at court and now also supports the transfer of jurisdiction to Slovakia in respect of the youngest five children.  In tandem with the local authority, the Children's Guardian opposes the transfer of jurisdiction in relation to KB and NB.

12. In the circumstances, it can be seen that all parties and the Slovak Central Authority now make common cause in submitting that jurisdiction in respect of the five youngest children should be transferred to the courts in Slovakia.  It can also be seen that it is now only the Slovakian Central Authority that contends that this court should, of its own volition, transfer jurisdiction in respect of KB and NB to the Slovakian courts. 

13. I am now asked to approve the unanimous position of the parties and the Slovak Central Authority that a request should be made to the Slovakian courts to assume jurisdiction in respect of the five youngest children and to decide whether to make the same request in respect of the two eldest children.  In doing so I bear in mind the words of the President in Nottingham City Council v LM [2014] EWCA Civ 152 at [54(vii)] that:

"Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 "will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum."

BACKGROUND
14. Within the context of the application under Art 15(1) the factual background to this matter can be taken with relative brevity.  The family moved to the United Kingdom from Slovakia in 2008.  The maternal grandparents and six of the mother's siblings also reside in the United Kingdom.  Prior to the family moving to the United Kingdom, information received from the Slovak Central Authority indicates that NB spent a period placed in care in Slovakia due to the mother being unable to provide accommodation for him and BB being incarcerated in prison.

15. On 23 March 2015 the children were taken into police protection.  All seven children were thereafter made the subject of an emergency protection order.  An interim care order was granted in respect of the children following a contested hearing on 2 April 2015, which order remains in force. 

16. At the time the father of the youngest six children, BB, had already returned to Slovakia.   On 19 June 2015 BB was caught attempting to re-enter the United Kingdom unlawfully. On 27 July 2015 BB was deported to Slovakia by the Home Office pursuant to the Immigration (European Economic Area) Regulations 2006 r 19(3)(b) and 21 on the grounds of public policy having regard to the fact of BB's previous criminality in Slovakia, which criminality resulted in a sentence of imprisonment.

17. Prior to 23 March 2015 the local authority had already had involvement with the family.  The issues which triggered that involvement were the neglect of the children's care (including an incident where RB was admitted to hospital with severe dehydration), repeated issues of homelessness and signs that both KB and NB were beyond parental control.  This latter issue had manifested in both elder children becoming involved in the criminal justice system in this country, in KB refusing to engage in education, absconding and demonstrating a marked lack of fear and in NB refusing to engage in education, developing negative beliefs about himself and demonstrating aggression and difficulty in regulating his emotions.

18. The issues concerning the standard of parenting being afforded to the children led in 2012 to proceedings in respect of the children in the North Kent Family Proceedings Court.  On 21 December 2012 twelve month supervision orders were granted in respect of each child.  In April 2013 the children were moved from Child Protection Plans to Child in Need plans and family support work was undertaken.  Unfortunately, notwithstanding this intervention, from September 2014 matters again deteriorated and a decision had already been taken in March 2015 to issue further public law proceedings at the time matters reached a head on 23 March 2015. 

19. As noted above, within the context of foregoing background, the threshold criteria pursuant to s 31(2) of the Children Act 1989 are conceded by the mother in this case on the basis of certain concessions as to matters of fact relied on by the local authority (again, it should be noted that it would appear that neither BB or RM have yet formally conceded the threshold).

20. Prior to these proceedings being commenced a Child and Family Assessment was completed by the local authority on 6 March 2015.  Within the current proceedings two assessments of the family have been undertaken.  A 'Sunlight Parenting Assessment' report was completed on 28 August 2015 regarding the capacity of the mother to meet the needs of the children.  This assessment did not consider the parenting capacity of BB, or his ability to support the care of the mother by reason of his having been deported as set out above.  The report concluded that the mother was not in a position to meet the needs of the children and that her capacity to make changes was not one that was within timescales commensurate with the children's needs.  A report was also commissioned from the ROMA Support Group.  That report, dated 7 September 2015 made a number of recommendations for engaging the mother should she return to the United Kingdom.   In addition to these assessments of the family, a kinship assessment was proposed of ZE, who is the maternal grandmother of the children.  However, ZE confirmed her withdrawal from the assessment process by a letter dated 30 July 2015.

21. As early as 5 May 2015 the mother had begun stating that she wished to be 'deported' back to Slovakia with the children.  The mother acknowledged that the children may be placed in a children's home upon their return but stated that she and BB had a four bedroomed flat in Slovakia in which to accommodate the children.  The mother has now returned to Slovakia without the children and is living with BB in the four bedroomed flat.  The precise date the mother left for Slovakia is not known, although on 13 August 2015 the mother telephoned KB and informed him she was in Slovakia.  On 26 August 2015 the maternal grandmother informed the social worker that the mother will not return to the United Kingdom.  On 31 August 2015 KB informed his foster carers that the mother is now four months pregnant with twins and had left for Slovakia in order to avoid the involvement of the local authority with her unborn children.

22. Due to repeated difficulties regarding the mother's behaviour at contact, and more widely, during the course of proceedings the local authority applied for permission to suspend contact between the mother and the children pursuant to s 34(4) of the Children Act 1989.  On 14 July 2015 the mother agreed to the suspension of contact.  On 30 July 2015 the foster placement for the youngest five children broke down following a significant deterioration of the children's behaviour.  This deterioration followed an incident of unauthorised contact between the children and their mother on 27 July 2015.   Within this context, the long term care plans for each of the youngest children remain to be finalised.

23. Since April 2015 both KB, who is 15, and NB, who is 12, have repeatedly and consistently expressed their wish not to have contact with their mother and have had no formal contact with her for a significant period (although it is clear that KB has during that period had some informal contact with his mother at times when he has absconded from his foster placement).  The social worker makes clear in her statement that both children have expressed frustration that the issue of maternal contact has been revisited by the social worker and that both KB and NB have exhibited behaviour that suggests that they feel that they are not being listened to, each boy accusing the social worker of ignoring their views.  NB does not wish to have contact with his father and RB does not wish to have contact with BB.  Both RB and NB do however have a close relationship with their maternal grandmother in England and wish to have contact with her.

24. KB and NB have also expressed strong and consistent views regarding returning to Slovakia to the care of their mother.  On 31 August 2015 the Children's Guardian visited NB. The social worker visited both boys on 1 September 2015.  The clear wish of NB was not to return to his mother's care, whether in the United Kingdom or in Slovakia.  When he was asked what he thought about returning to Slovakia if his younger siblings returned he was unsure of his position.  Following the visits of the Guardian and the social worker to ascertain NB's views the foster carer reported disturbed behaviour by NB.   On 11 September 2015 the foster carers sent a note to the local authority stating that NB had been very unsettled.  After a period of trying to find out what was upsetting NB the foster carers recorded that NB had started crying and:

"…saying how he has been so good and now he has to move back to Slovakia, he said I don't understand what I have done to get this, I have tried my best I don't beat people up, I don't rob people anymore and that's not what I want to do."

25. Within the foregoing context, Ms Fisher on behalf of the local authority informed the court that NB is so disturbed by the thought of returning to Slovakia that he has self harmed and has, in this context, been observed banging his head against the wall.

26. At the time the Children's Guardian visited the foster placement on 31 August 2015 KB was absent, having absconded from the foster placement.  The Children's Guardian was concerned that this episode of absconding was linked to the recent news that his mother had returned to Slovakia and to information received by KB that he too may be returned to Slovakia.  Within this context, it is of note that when he returned to the foster placement on the evening of 31 August 2015 KB spoke to his foster carer about his concerns regarding returning to Slovakia.  KB said that there was no point in speaking to the Guardian about his wishes as his maternal grandmother had told him he had to go to Slovakia and he had no choice.  KB said he had visited his grandmother than morning and had spoken with a "Slovakian solicitor" who had said he would be living in Slovakia in a matter of weeks.  KB repeated that, in the circumstances, there was no point is saying he wanted to stay in England as he had no choice in the matter.  He further told the foster carer that he had learnt from his grandmother that his mother was four months pregnant with twins.  KB expressed the view that his mother would not care for him and NB once "we are deported" because she will be too busy with the new babies.  At the conclusion of the conversation with his foster carer KB was persuaded to speak to the Guardian the next day if that could be arranged although this does not appear to have taken place.

27. On 1 September 2015 KB expressed to the social worker, through the foster carer, a strong wish not to return to Slovakia.  KB made clear he had a large family in the United Kingdom (including, specifically, his maternal grandmother) as well as a number of friends.  KB again reported having spoken to a person who claimed to be a solicitor in Slovakia who had told him all the children were going to be sent to that country.  KB said he saw no reason to behave well if he was going to be sent to Slovakia.

28. Finally, within the foregoing context I note also that NB has recently informed the social worker that he wishes to remain with his current carers "forever" and that "this is how children are supposed to be looked after.  I want to become a foster carer". Both children have built up a very good relationship with their current foster carer, in whose care they have been since the breakdown on 31 March 2015 of their previous foster placement consequent on both boys pushing boundaries beyond breaking point.  The view of the social worker is that both KB and NB have shown a commitment to remain in their current placement.  Within the placement improvements in the behaviour of both KB and NB have been noted and, in the assessment of the social worker, both boys demonstrate willingness and an ability to engage with the foster carers. 

29. For their part, the foster carers have been approved as long term carers and have made clear their wish to care for KB and NB in the long term.  The foster carers in question have experience of working with children who exhibit challenging behaviour (as both KB and NB have done) and have actively sought to promote the culture and identity of KB and NB as well as demonstrating an ability to work alongside the local authority to promote the welfare of the boys.  Within this context, the local authority's final care plans for KB and NB now provide for the both boys to remain placed with their current foster carers until they reach the age of majority.  As already noted, the mother consents to this plan in respect of KB and NB, as does BB in respect of NB (again, it is not clear that RM has given his consent in respect of KB).

30. By contrast to the consistently expressed views of KB and NB, historically it has been the case that ZB (aged 9), AB (aged 8) and KAB (aged 7) have made clear that they wish to return to the care of their mother.  ALB (aged 4) and RB (aged 3) are also reported to have expressed a desire to return to their mother.  Each of the younger children has consistently made clear that they love their mother.  However, following a meeting with the children on 1 September 2015, I am informed that ZB, AB and KAB told the social worker that they do not wish to return to the care of their mother in Slovakia.

THE LAW

31. The relevant law in this case centres on Art 15 of BIIa  Art 15 provides as follows in respect of the transfer of jurisdiction to the courts of another Member State:

Article 15
Transfer to a court better placed to hear the case
(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.

32. It is important to note at the outset that Art 15 represents, as the article itself makes clear, an exception to the general rule articulated by Art 8 of BIIa that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.   As an exception to this general rule, Art 15 must be construed narrowly (see Nottingham City Council v LM at [50]).  Further, Art 15 must be given a uniform construction throughout the courts of the Member States of the European Union, which uniform construction cannot be dominated by a domestic law approach in cases brought under Art 15 in this jurisdiction (see Re K (A Child) [2014] 1 Fam 130 at [19]).

33. The criteria against which the court must measure and determine any request to transfer jurisdiction to the courts of another Member State are articulated in Art 15(1).  In the case of AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 Munby J (as he then was) illuminated the three questions the court is required by Art 15(1) to answer:

"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."

34. The question of whether a court of another Member State would be better placed to hear the case (or a specific part of the case) must be evaluated by reference to all the circumstances of the case.  The starting point for this evaluation is the principle of comity and co-operation between Member States of the European Union enshrined in the European Union Treaty.  In particular, these principles demand 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 to those in this jurisdiction (Nottingham City Council v LM at [19]).  Thus, for example, for this court to take into account the fact that the court in Slovakia may be minded to take a different view of the seriousness of risk to the children from their mother and respective fathers to that identified by the assessments in England would constitute a comparative evaluation of the efficacy of the Slovakian courts and, accordingly, would be impermissible (Nottingham City Council v LM at [38]).

35. In Nottingham City Council v LM at [19] Ryder LJ (as he then was) gave non-exhaustive examples of matters that might evidence that another Member State was better placed to hear the case.  Those examples included the availability of witnesses of fact in the Member State, whether assessments could be more effectively conducted in the Member State (for example, because that is where members of the extended family live or because the assessments can be conducted by professionals fully conversant with the national, social and cultural background of the family) and whether the court's knowledge of the case in the Member State provides an advantage, for example by reason of judicial continuity between fact finding and evaluation.  Another example will be whether proceedings in the Member State can be conducted in the first language of the family, negating the need for interpreters and permitting the family more effectively to participate in proceedings.

36. The question of whether the transfer of jurisdiction to the court of another Member State is in the best interests of the child is a best interests evaluation that is limited in scope to the issue of forum.  In Re I (A Child) [2010] 1 FLR 361, Baroness Hale, examining the construction of Art 12(3) of BIIa, said in relation to the best interests criteria contained in that Article:

"[36]   The final requirement in Art 12(3) is that the jurisdiction of the English courts should be in the best interests of the child. Nothing turns, in my view, on the difference between 'the best interests of the child' in Art 12(3), 'the superior interests of the child' in Art 12(1) and 'the child's interest' in Art 12(4). They must mean the same thing, which is that it is in the child's interests for the case to be determined in the courts of this country rather than elsewhere. This question is quite different from the substantive question in the proceedings, which is 'what outcome to these proceedings will be in the best interests of the child?' It will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum. The fact that the parties have submitted to the jurisdiction and are both habitually resident within it is clearly relevant though by no means the only factor.

37. In Re K (A Child) [2014] 1 Fam 130 at [25] and [26] the Court of Appeal made clear that the construction of the best interests test in Art 15(1) is the same as that in Art 12(3) and that, accordingly, the test to be applied to the third question asked by Art 15(1) is that articulated by Baroness Hale in the case of Re I (A Child).  Thus, when considering the issue of best interests under Art 15(1) the question the court must pose itself is whether it is in the child's best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction (Nottingham City Council v LM at [21]). 

38. In Nottingham City Council v LM at [19] Ryder LJ made clear that given the construction of Art 15 of BIIa and the logical connection between the questions, the question of whether a court of another Member State would be better placed to hear the case (or a specific part thereof) is intimately connected with the question of the child's best interests (see also Advocate General Eleanor Sharpston's opinion in Purrucker v Perez C-256/09 at [97]). 

39. As I have already noted, having regard to the views expressed by the children regarding return to Slovakia, and in particular the strong views expressed by KB and NB, this case raises a question of how the views of subject children should be treated by the court when determining whether to request a transfer of jurisdiction.  Within the context of the foregoing legal principles, are the subject child's wishes and feelings relevant when determining an application under Art 15(1) of BIIa and, if so, what weight should be attached to those wishes and feelings when making that determination?

40. The right of children to be heard in matters affecting their future in a manner commensurate with their age, development and understanding is well recognised in European Community law (Art 24(1) of the Charter of Fundamental Rights of the European Union and see also Art 3 of the 1996 European Convention on the Exercise of Children's Rights (ETS No 160)).  Art 24(1) of the Charter of Fundamental Rights of the European Union provides as follows:

"Article 24
The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity."

41. Whilst Art 11(2) of BIIa expressly articulates a requirement to ensure the child has an opportunity to be heard only in the context of the court applying Arts 12 and 13 of the 1980 Hague Convention, the Preamble to BIIa makes clear at paragraph 33 that "This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union.  In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union".   In the circumstances, in my judgment it is clear that Art 15 of BIIa must be read having regard to the requirement enshrined in Art 24 of the Charter to take into consideration the views of the child on matters which concern him or her in accordance with his or her age and maturity, the question of whether jurisdiction in respect of the child should be transferred to another Member State pursuant to Art 15(1) of BIIa being a matter which concerns the child for the purposes of Art 24(1) of the Charter.

42. The approach of the domestic courts reflects and reinforces the position under European Union law.  In Re E (Children)(Abduction: Custody Appeal) [2011] 2 FLR 758 at [17] the Supreme Court made it clear that the United Nations Convention on the Rights of the Child (UNCRC) should be taken into account in deriving the autonomous meaning of the language of Art 15.  Art 12 of the UNCRC provides that States Parties shall assure to the child who is capable of forming his or her own view the right to express those views freely in all matters affecting the child and requires the views of the child to be given due weight in accordance with the age and maturity of the child.  The Court of Appeal has made clear in the context of applications under Art 15 of BIIa that the 'better placed' and 'best interests' questions each involve an exercise in evaluation, which evaluation is to be undertaken in light of all the circumstances of the particular case and the particular child (Nottingham City Council v LM at [54(ii)].  The particular child's views will plainly constitute part of the circumstances of the particular case and the particular child. 

43. Within this context, the questions of 'better placed' and 'best interests' in Art 15(1) entail a broad evaluation of the circumstances of the case and are interconnected (see Leicester City Council v S [2014] EWHC 1575 (Fam) at [58]).  Having regard to the foregoing principles, in determining the interconnected questions of whether another Member State is better placed to hear the case and whether transfer of jurisdiction to the courts of another Member State would be in the child's best interests, I am satisfied that in conducting the broad evaluation of the circumstances of the case the court is required to take into account views expressed by the subject child relevant to the question of whether there should be a transfer of jurisdiction under Art 15(1) having regard to his or her age and maturity.  To do so is also consistent with the wider jurisprudence on the importance of ascertaining the views of children in cases concerning those children who have been moved by parents or carers (often without being consulted) between jurisdictions (see for example Re D (Abduction: Rights of Custody [2007] 1 FLR 961, Re G (Children) [2010] EWCA Civ 1232 and Re LC (Reunite: International Child Abduction Centre Intervening [2014] 1 FLR 1486).

44. This conclusion of course begs the question of what views expressed by the subject child will be relevant to the determination of the questions the court must ask itself under Art 15(1) of BIIa.  

45. Having regard to the scope of the questions asked by Art 15(1), to be relevant to the question of transfer of jurisdiction the views expressed by the child must go to one or more of the issues of whether the child has a particular connection with the other Member State, whether the courts of another Member State are better placed to hear the case and whether transfer of jurisdiction is in the child's best interests. Of course, children do not tend to express their views, wishes and feelings in the technical language of European Union law.  As in this case, a child is much more likely to express a general wish not to return to another Member State and/or to one or both parents for reasons which pertain, for example, to the child's fear of what awaits him or her in the other Member State, the child's view of his or her parents ability to provide care or the child's wish to remain with trusted foster carers or in the company of friends made in this jurisdiction, rather than to state in terms that, for example, he or she considers the court of the other Member State is not better placed to determine his or her future or to argue that a transfer of jurisdiction would not be in his or her own best interests.  However, such views on the part of the child may nonetheless be relevant to the court's determination of an application under Art 15(1) notwithstanding that the child's reasons for not wishing to return are not expressed strictly in terms of the questions posed by that article.

46. By way of example, a determination of whether the courts of another Member State are better placed to hear the proceedings will often involve consideration of whether that other Member State is better placed to conduct assessments which will inform the welfare outcome in the case.  The participation of the child in such assessments is both a right of the child and crucial to an accurate, child centred appraisal of the welfare aspects of the case (see UNCRC Art 9(2), UN Committee on the Rights of the Child General Comment No 12 (2009) (CRC/C/GC/12) para 54 and the 1996 European Convention on the Exercise of Children's Rights Art 3 (ETS No 160)).  Within this context, when considering whether another jurisdiction is better placed to hear the case it is legitimate to ask, for example, what level of co-operation by the child in assessments in that jurisdiction, and what level of acceptance by the child in the welfare outcome recommended by such assessment, will be achieved in circumstances where strongly held wishes and feelings of the child regarding his or her return to the Member State in question have been, from the child's perspective, ignored.  An older child who resists strongly his or her return to another Member State may well be far less willing to participate in assessments, in arrangements for interim contact and in the process of care planning pending final orders in that Member State.  Such a situation is plainly relevant to the question of whether the courts of that Member State are 'better placed' to hear the case notwithstanding that the child's reasons for not wishing to return are not expressed strictly in terms of the questions posed by Art 15(1).  There will be other examples dependent on the particular facts of the given case.

47. Further, whilst the 'best interests' question in Art 15(1) is limited to the question of forum, that question must, in my judgment, encompass an examination of the impact on the child's physical and emotional welfare of a change of forum.  Where, for example, a child has expressed a visceral objection to returning to the other Member State in question and threatened absconding or self harm if such a return were to be enforced against his or her wishes and feelings, it may legitimately be said that to transfer jurisdiction to the courts of that Member State is antithetic to that child's best interests such that the clearly expressed wishes and feelings of the child must be a weighty factor in determining the narrow best interests question on the issue of forum.  I pause to note that whilst Art 15 speaks of the transfer of the jurisdiction to hear the case rather than the physical removal of the subject child to the jurisdiction of the other Member State, and therefore admits of the possibility that the child may remain in the original jurisdiction whilst proceedings in that other Member State are determined, it is difficult to see how, practically, a transfer of jurisdiction could be effective if it did not result also in the return of the subject child to the receiving jurisdiction.  By way of further example within the context of the question of best interests under Art 15(1), and having regard to the interconnected nature of the 'better placed' and 'best interests' tests, it might also be said that it would not be in the child's best interests to transfer jurisdiction in the face of the child's expressed wish not to return to the Member State in question where to cut across that expressed wish would have the effect of reducing markedly the efficacy of assessments and care planning in the other Member State.  Once again, there will be other examples dependent on the particular facts of the given case.

SUBMISSIONS

48. In respect of the factors which it submits meet the criteria under Art 1 (1), in respect of each child the Slovak Central Authority has provided the following comprehensive list of factors in relation to the questions of whether the children have a particular connection to Slovakia, whether the Slovak court is better placed to hear the case and whether the transfer of jurisdiction to Slovakia is in each child's best interests:

i) Both their parents are Slovaks and Slovak citizens. The children are Slovak citizens;

ii) The children have strong family and cultural ties to Slovakia;

iii) Within this context, all seven children have a particular connection with Slovakia;

iv) The parents have moved permanently to Slovakia where they are arranging new housing and trying to start a new life;

v) The parents have expressed a wish to care for their children and will ask the Slovak courts to decide that issue;

vi) Within this context, it is easier for the necessary assessments to be undertaken in Slovakia;

vii) The parents and extended family members speak Slovakian and do not speak English.  The parents can accordingly more effectively participate in proceedings conducted in their home country. All documents from Slovakia need to be translated into English if the matter proceeds in England, increasing costs;

viii) The necessity for translations and cross-border assessments if the English court retains jurisdiction could lead to delay, which delay would be avoided if jurisdiction was transferred to the Slovak court;

ix) The Slovak Republic can provide adequate social and medical care for the children;

x) Within the context of their parents being in Slovakia and they being of Slovakian nationality, the Slovakian courts would be best placed to decide the welfare issues based on assessments undertaken by the Slovak Central Office and competent Slovak authorities.

xi) The current carers of the children are not the permanent cares of the children, in the circumstances further moves will have to take place and thus disruption is therefore inevitable (this is no longer accurate in respect of KB and NB);

xii) The process of moving the children to Slovakia is a process that can be managed by the competent Slovak authorities;

xiii) The Slovak authorities and non-governmental institutions will be in a position to provide help and support to the parents if requested;

xiv) Transfer of jurisdiction would not, having regard to the age of the children, be harmful or cause unacceptable disruption;

xv) If the children return to Slovakia they will be able to have close contact with their parents and siblings and to have ties with their extended family strengthened.

49. Having regard to the foregoing factors, the Slovak Central Authority submits that, in respect of all seven children, the criteria in Art 15(1) are met in this case.

50. If the court rejects the submission of the Slovak Central Authority that it should request that the Slovakian courts assume jurisdiction in respect of one or more of the children, the Slovak Central authority seeks to persuade the court that, in exercising its jurisdiction, its welfare decision should be to place all seven children in a residential setting in Slovakia (having made a request pursuant to Art 56 of BIIa) if assessments of the mother and BB in Slovakia prove to be negative.  In support of this welfare (as distinct from jurisdictional) submission, the Slovak Central Authority will submit that such an outcome is in the children's best interests by reason of the children being Slovak citizens, the manner in which such an outcome would facilitate the continuation and development of family ties and the ability of the Slovak authorities to provide adequate social and medical care for the children.

51. Within this context, the Slovak Central authority also makes clear its view that any orders made by the English court authorising the adoption of the children or their placement in long term foster care would be in contravention of the best interests of the children and would not accord with the imperatives of Art 8 of the ECHR nor the European jurisprudence in respect thereof.  Whilst there have been cases in which EU Member States have sought to suggest that the general approach in this jurisdiction to adoption or long term fostering without parental consent of foreign national children is unlawful and / or a breach of the Convention per se (see for example In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] 1 WLR 2670 at [13]-[15] and CB (A Child) [2015] EWCA Civ 888 at [80]) the submission of the Slovak Central Authority in this case is, as I read it, more nuanced.  Namely, that to place these children for adoption or in long term foster care in England would, in the particular circumstances of this case, including the possibility of their placement in Slovakia, constitute a disproportionate interference with the Art 8 rights of this family.

52. As to the practicalities of transferring jurisdiction in respect of the children to the courts in Slovakia or placing the children in Slovakia following a welfare decision in this jurisdiction, by its Skeleton Argument the Central Authority makes clear that it is, in co-operation with the Slovakian Central Office of Labour and Social Affairs preparing a report concerning the current situation of the parents and their housing (as at 1 October 2015 the Central Authority indicated that it was attempting to persuade the Social Welfare Office to expedite the report).  The Central Authority intends to deliver that assessment to this court.  As already noted, the Slovak Central authority proposes, if the assessment is negative, to place the children in what at some points in the documentation provided by the Central Authority is described as a "children's home" and on other occasions as "foster care" in Slovakia.  The Central Authority has offered to provide reports regarding specific children's homes. The Central Authority has made clear that the whole process of relocating the children would be monitored by the competent Slovak authorities.

53. In supporting the transfer of jurisdiction to the Slovakian court in respect of the younger children in this case the local authority points to the fact that each of the youngest children have a particular connection with Slovakia for the purposes of Art 15(1), that proceeding in Slovakia would allow the parents to participate directly in the proceedings, would negate the need for interpreters, would permit the children to continue to have direct contact with their parents in the event that they could not return to their care and that any proposed permanent placement will be racially and culturally appropriate.  The local authority further points out that, in circumstances where the mother concedes much of the factual background, including hitting ALB, there will be no need for witnesses of fact from England to participate in proceedings.  As to the assessments, the local authority submits that, in the context of the parents having reunited, its assessments did not include BB and that any further assessment of the parents as a couple would need to take place in Slovakia as that is where the parents are now located.  Finally, the local authority point out that judicial continuity has not been achieved in this case.

54. With respect to KB and NB the local authority submits that, whilst it can also be said that they have a particular connection to Slovakia and that the forensic advantages of the Slovakian court outlined above would apply to proceedings concerning them, the position of KB and NB is wholly different to that of the younger children.  In particular, the local authority submits that in light of their ages, 12 and 15 respectively, the expressed views of NB and KB concerning a return to Slovakia should be accorded weight in the determination of the questions of whether Slovakia is better placed to hear the cases in respect of KB and NB and whether transfer of jurisdiction is in the best interests of KB and NB.  The local authority further point to the fact that the assessments of the mother in respect of her sole capacity to care for KB and NB have been completed, that the mother and BB do not (in contrast to the young children) advance themselves as joint carers for KB and NB, that the mother has expressly consented to KB remaining in his current foster placement and that the mother and BB have expressly consented to NB remaining in his current foster care placement.  Within this context, the local authority submits that, by contrast to the position in respect of the younger children, the English court is manifestly better placed to hear the case in respect of KB and NB and that it is in the best interests of KB and NB that the English court does so. The local authority submits that the Slovak Central Authority should be permitted to intervene in the English proceedings concerning KB and NB.

55. As already recounted, the mother seeks transfer of jurisdiction in relation to her youngest five children.  The mother submits that, within the context of both herself and BB having returned to Slovakia, the assessments carried out in this jurisdiction in relation to the children are based on a situation that is no longer that proposed by the parents, namely that they care for the children together, her case being that it is only when she has lacked the support of BB that her care of the children has fallen below a level that is acceptable.  The mother submits that the assessments that now require to be undertaken in this context are best carried out in Slovakia.  The mother further points out that, by reason of his immigration status, the father is not permitted to re-enter the United Kingdom in order to take part in an assessment, further bolstering the submission that Slovakia is better placed (indeed, uniquely placed) to complete the required assessment of the couple.  Whilst there are a significant number of family members in England, the mother reminds the court that they do not advance themselves as kinship carers for the children and that there are also extended family members in Slovakia.  The mother further reminds the court that it must treat the Slovakian authorities as equally competent as their English counterparts.

56. On behalf of BB, and in the context of her somewhat limited instructions, Ms Kaur reminds the court that BB and the mother are living together in a four bedroomed property in Slovakia, that they are receiving regular visits from social workers to ensure that the home is in order and that BB is hopeful that the five youngest children will be returned to the joint care of himself and the mother. 

57. The Children's Guardian now supports the submissions of the local authority in respect of both the younger and the older children.  In addition to adopting the submissions of the local authority as summarised above, the Children's Guardian submits that the views of KB and NB may be determinative of the question of best interests under Art 15(1).  The Children's Guardian further points out that whilst the care plans for the youngest children have yet to be finalised, the care plans for KB and NB have been finalised and, moreover, are the subject of agreement on the part of the mother and BB.  In the circumstances, the Children's Guardian submits that to transfer jurisdiction in respect of KB and NB to the Slovakian courts at this stage would result in unacceptable delay for two children who urgently require the plans for their respective futures, plans with which all parties now agree, to be confirmed.

DISCUSSION

58. It is accepted by all parties, and plain in all the circumstances of this case, that each of the children is habitually resident in England and Wales for the purposes of Art 8 of BIIa and that, accordingly, the English court has jurisdiction in respect of each child.  I have decided that the criteria for requesting that the Slovakian courts assume this jurisdiction are met in respect of the five youngest children, ZB, aged 9, AB, aged 8, KAB, aged 7, ALB, aged 4 and RB, aged 3 and that a request should be made to the Slovakian courts.  I have decided that the criteria for requesting that the Slovakian courts assume this jurisdiction are not met in respect of the two eldest children, KB, aged 15, NB, aged 12, and that a request should not be made to the Slovakian courts.  My reasons for so deciding are as follows.

Particular Connection
59. It is plain that, as a matter of established fact, all of the children have a particular connection with Slovakia.  Slovakia is the former habitual residence of the children, it is the place of the children's nationality and it is now likely that Slovakia is the place of habitual residence of holders of parental responsibility for each of the children.

Better Placed

60. Dealing first with the younger children with respect to the question of whether the courts in Slovakia are better placed to hear the case, in this case there are a range of forensic factors that in my judgment lead to the conclusion that the Slovakian court is indeed better placed to hear this case in respect of each of those children (some of which factors may also be said to apply to KB and NB). 

61. First, the majority of the factual matters which led to these proceedings are not in dispute.  The mother concedes many of the facts comprising the history that led to care proceedings being taken in respect of the children.  In the circumstances, there will be no need for the Slovakian court to hear witnesses of fact or to make findings of fact concerning disputed matters which have arisen in this jurisdiction.   In these circumstances the principle focus of the court which determines the outcome of the proceedings will be on the issue of welfare outcome. 

62. The care plans for the younger children have yet to be finalised by the local authority in this jurisdiction.  Within this context the welfare options for the younger children can be summarised as follows, (a) return to the care of the parents (who now present themselves as joint carers and contend that they have yet to be assessed as such), (b) placement with a member of the extended family in Slovakia (none of those members of the extended family who reside in this jurisdiction being willing to advance themselves as kinship carers), (c) permanent placement outside the family in Slovakia or (d) permanent placement outside the family in this jurisdiction.

63. With respect to a potential placement with the parents, having regard to the fact that the parents are now again living together, to the fact that the assessments in this jurisdiction had no opportunity (by virtue of BB's deportation to Slovakia in June 2015) to include assessment of the option of the joint care of the children by the mother and BB and to the fact that the parents are now located in Slovakia, there is a cogent argument that this option requires now to be assessed and that the requisite assessment would be better undertaken in Slovakia, there being obvious advantages to the assessment being carried out in that jurisdiction in terms of practicality, language and detailed knowledge of the national, cultural, linguistic, ethnic and religious context. 

64. With regard to placement with members of the extended family, it would seem plain that this is only an option in Slovakia, the members of the extended family living in England not having advanced themselves (or, in the case of the maternal grandmother, having withdrawn) in this regard.  In the circumstances, it would once again appear that the authorities in Slovakia would be better placed to further assess this option if appropriate. 

65. Finally, having regard to the fact that a long term placement option for the younger children has yet to be identified in this jurisdiction, and in particular to their nationality and cultural background, there is also a strong argument that the efficacy of a permanent placement outside the family should be assessed in Slovakia and, if found to be in the children's best interests, provided in Slovakia given the increased likelihood of a culturally appropriate placement and the possibility of continuing contact with members of the birth family.   These advantages with respect to assessment and provision do not pertain in respect of a long term placement in this jurisdiction.

66. Accordingly, in my judgment it is clear that, at present, the realistic options for the long term care of the youngest children all lie in Slovakia and fall, logically, to be assessed in that jurisdiction with full knowledge and understanding of the cultural, social and linguistic heritage of the family.  Whilst I recognise that some assessment has already been carried out in this jurisdiction, matters have moved on since those assessments were undertaken.  Those assessments can, in any event, be made available to the Slovakian authorities.

67. It is, of course, important to recognise that, very recently, ZB, aged 9, AB, aged 8 and KAB, aged 7 have stated that they do not wish to return to the care of their mother in Slovakia.  It is further important, given the ages of these children, and for the reasons I have set out above, to have regard to these expressed wishes and I have borne them carefully in mind.  However, in my judgment the expressed wishes and feelings of ZB, AB and KAB do not act to change my overall conclusion that the Slovakian court is better placed to hear their cases.  Whilst I note and take account of their recently expressed views having regard to their age and maturity those views must be placed in their proper context.  That context is the consistent expression by all three children to date of their love of their mother and their wish to return to her care.  In my judgment their recent expression of wishes to the contrary in one meeting with the social worker is not a sufficient basis on which to conclude that those wishes outweigh the forensic advantages set out above with respect to the jurisdiction of Slovakia. 

68. In particular, there is no cogent evidence to suggest that the children's wishes and feelings will, if jurisdiction is transferred, undermine those forensic advantages or that to act contrary to the children's recently expressed wishes will result in emotional harm extending beyond short term disruption and upset.  Further, having regard to the ages of ZB, AB and KAB, in my judgment somewhat less weight can be attached to their expressed views in light of their age and maturity compared to KB and NB who are considerably older.  These points apply with even greater force when considering the wishes and feelings of ALB, aged 4, and of RB, aged 3.

69. Having regard to the particular circumstances of the case, and in particular to the matters set out above I am satisfied that the Slovakian court is now better placed to hear the case in respect of the younger children and I endorse the consensual position of the parties on this question.

70. Turning to KB and NB, as I have noted, on the face of it some of the forensic advantages which render the jurisdiction of Slovakia better placed to hear the case with respect to the younger children can be said to apply to the elder boys.  However, a deeper examination of the position in my judgment demonstrates that, in fact, the position of KB and NB is fundamentally different to that of their younger siblings.

71. First, the position of KB and NB is very different from that of the younger children in respect of the issues of placement options, consequential assessment and care planning.  As noted above, in contrast to the position in respect of the younger children, the assessments of the mother of her capacity to care for KB and NB have been completed and are negative.  In addition, and again in contrast to the younger children, neither the mother nor BB seek to be further assessed to care for KB and NB (either in this jurisdiction or in Slovakia), do not advance themselves as carers for KB and NB and do not seek transfer of jurisdiction in respect of the boys to Slovakia for consideration of that option.  In the circumstances, the option of rehabilitation to the care of the mother and BB that may be available for the younger children in Slovakia is not available for KB and NB. 

72. Within this context, the process of assessment and planning for alternate long term care for KB and NB is far more advanced in this jurisdiction than it is for the younger children. Indeed, by contrast to the position in respect of the younger children, the assessment of placement options and care planning in this jurisdiction is complete for both KB and NB.  The current foster carers for KB and NB have been approved as long term carers for the boys and have made clear their wish to care for the boys in the long term.   Within this context, the local authority's final care plans for KB and NB now provide for the both boys to remain placed with their current foster carers until they reach the age of majority.  The mother accepts that KB should remain in long term foster care and the mother and BB accept that NB should likewise remain in long term foster care. 

73. Second, in my judgment the stated objections of KB and NB to returning to the care of their mother and BB and to returning to Slovakia should be accorded weight when determining the question of whether the courts in Slovakia are better placed to hear their cases.  In considering what weight it is proper to attach to the children's wishes and feelings I have of course had regard to their age and maturity.  Accepting that they are children who have had a disrupted and emotionally damaging upbringing, I am nonetheless satisfied that both boys are of an age and a maturity where their clear and consistent views should be accorded significant weight in my determination of the question of whether Slovakia is better placed to determine their cases.

74. Both boys have expressed their views forcefully and consistently for a number of months now.  In particular, in my judgment both boys have made clear that they see their efforts at improved behaviour and at making progress in other areas of their lives as part of a 'promise' or 'compact', their much improved behaviour and effort being that which they are prepared willingly to give in return for remaining in the stable, secure and supportive placement provided by the current foster carers, which placement they value and from which they derive much benefit.  Within this context it is important to consider what the effect on the boys would be of breaking that promise or compact (as the boys would surely see it) by transferring jurisdiction to the courts in Slovakia.   As I have already noted above, whilst Art 15 speaks of the transfer of the jurisdiction to hear the case rather than the physical removal of the subject child to the jurisdiction of the other Member State, and therefore admits of the possibility that KB and NB could remain in this jurisdiction whilst proceedings Slovakia are determined, it is difficult to see how, practically, a transfer of jurisdiction could be effective if it did not result also in the return of KB and NB to the receiving jurisdiction.

75. Were jurisdiction in respect of KB and NB transferred to the courts in Slovakia those courts would, given the steps proposed by the Slovak Central Authority following transfer, need to seek to engage KB and NB in a number of ways.  In particular, they would need to assess for themselves what placement in Slovakia would be in KB and NB's best interests.  This would, given the age and maturity of KB and NB require their engagement in the assessment process.  However, in my judgment it is highly questionable whether such co-operation would be achieved in circumstances where the clearly and strongly expressed wishes and feelings of the KB and NB regarding return to the Slovakia had been ignored.  In the circumstances, I find myself satisfied that the expressed wishes and feelings of KB and NB, whilst not determinative, constitute a further reason for concluding that the courts in Slovakia are not, in the particular circumstances of this case, better placed to hear the case in respect of KB and NB.

76. Finally, and again by contrast to the younger children, transferring jurisdiction in respect of KB and NB to the courts in Slovakia will, in the particular circumstances of this case, result in considerable delay for KB and NB.  Whilst some delay in respect of the younger children is inevitable in light of the fact that the care plan for these children remains unresolved the same cannot be said for KB and NB.  Given the consent of the mother and KB and the finalised care plans of the local authority, the proceedings in respect of KB and NB can (subject to the consent of KB's father being obtained) be finalised by way of a consent order almost immediately.  In my judgment it cannot be said that the courts in Slovakia are better placed to hear the case in respect of KB and NB where such a transfer or jurisdiction would result in a considerable period of delay to which the children would not be exposed were the proceedings to remain in this jurisdiction. 

77. In all the circumstances of the case I am clear that it cannot be said that the courts in Slovakia are better placed to hear the case in respect of KB and NB. 

Best Interests

78. As noted above, the courts have consistently emphasised that the question of whether transfer of jurisdiction to another Member State is in the child's best interests is intimately linked with the question of whether that Member State is better placed to hear the case. 

79. In relation to the younger children, having concluded that the courts in Slovakia are better placed to hear the case in respect of them, in my judgment it is also the case that it is in the best interests of each of those children for jurisdiction to be transferred to Slovakia.  In my judgment it is plainly in the best interests of the youngest children for their respective futures to be determined in the jurisdiction in which each of the realistic options for their long term welfare is located and in the jurisdiction that is best able to assess each of those options within the national, cultural, linguistic, ethnic and religious context which comprises the heritage of the children.  For reasons I have already set out, in my judgment it cannot be said in respect of the younger children that to transfer the proceedings in the face of their very recently expressed wishes would be antithetic to their best interests when placed in the history of their expressed views.

80. By contrast, in relation to KB and NB I am wholly satisfied that it is in not in either of the boys' best interests for jurisdiction to be transferred to the courts in Slovakia.  This is of course no reflection on the competency of that jurisdiction.  Rather, my conclusion is consequent upon my judgment that it is in KB and NB's best interests for their cases to be determined in the jurisdiction in which assessment, care planning and placement decision making has already been concluded, the jurisdiction in which a long term placement has already been located and the jurisdiction in which the parents of the children (subject to confirmation of the position of the father of KB) have consented to the children remaining for the purposes of securing their long term welfare. 

81. In addition, and very importantly, in my judgment it would not be in KB and NB's best interests to transfer jurisdiction in this case in the face of their strongly and consistently expressed objection to returning to Slovakia.  In particular, having regard to the strongly expressed views of KB and NB, there is in my judgment an appreciable risk that the behaviour of both boys would regress significantly (with the physical dangers attendant thereon) and that there emotional welfare would be damaged if their clearly expressed wishes and feelings in this regard were ignored.  In my judgment this risk is one which must weigh heavily in my determination of the question of whether a transfer of jurisdiction is in the best interests of KB and NB. 

82. Finally, in my judgment and having regard to the stage at which the proceedings in respect of the boys have reached in this jurisdiction, it would not be in either boy's best interests to expose them to the degree of delay in the determination of their cases that would inevitably follow were this matter to be transferred to the courts in Slovakia but which could be avoided entirely if this court retained jurisdiction.

83. I make clear that I am very conscious that my decision will result in the members of this sibling group living for in separate jurisdictions (including KB living apart from his twin sister, VB).  Whilst this situation is not one to be wished for I am satisfied that, having regard to the individual needs of each child and the differential options for meeting those needs, it is a situation that is necessary if the welfare of each child is to be safeguarded and promoted.

CONCLUSION

84. Being satisfied that the courts in Slovakia are better placed to hear the case of the younger children, and being satisfied that transfer of jurisdiction is in each of their best interests, I endorse the unanimous position of the parties that a request should be made to the courts in Slovakia to assume jurisdiction in respect of ZB, AB, KAB, ALB and RB.  I am however not satisfied that the Slovakian court would be better placed to hear the case in respect of KB and NB nor that it would be in either child's best interests for jurisdiction to be transferred.  Accordingly, I dismiss the mother's application (no longer pursued by her) under Art 15 and decline the invitation of the Slovak Central Authority to transfer jurisdiction of my own motion.

85. Whilst the procedure adopted by the domestic courts is clear when a request is made by another Member State for the English court to assume jurisdiction (see Re L-M (Transfer of Irish Proceedings) [2013] 2 FLR 708) there is at present no information before this court on the specific procedure by which the Slovakian courts will become seized of this matter and will thereafter consider whether to accept transfer of jurisdiction pursuant to Art 15(5) on the grounds that the acceptance of transfer is in the best interests of the younger children.  For example, in Re L-M (Transfer of Irish Proceedings) Cobb J suggested that where an Art 15 request is made it would be helpful for the requesting State to communicate the request through the International Judicial Network rather than through the Central Authority.  However, in circumstances where in this case the Slovak Central Authority has demanded rigorous adherence to its stated requirement for all communications regarding the children to pass through the Central Authority, enquiries will need to be made as to whether the guidance given by Cobb J regarding the use of the International Judicial Network will, in this case, result in a more effective and timely response to the transfer request.  Enquiries will also need to be made to establish to which court in Slovakia the transfer request should be directed.

86. Finally (and again as set out by Cobb J in Re L-M (Transfer of Irish Proceedings)) it is preferable for the courts having jurisdiction as to the substance of the proceedings (in this case the English court) to oversee the Art 15 transfer arrangements, the jurisdiction of the court having jurisdiction as to the substance of the proceedings ceasing when the children physically move to receiving jurisdiction.  As the transfer in respect of the younger children in this case is of a public law process, and placement of the youngest children in care in Slovakia is contemplated, at least initially, confirmation that the 'competent authority' in Slovakia has consented to the placement under Art 56 will be required (Health Service Executive v SC and AC (Case C-92/12) [2012] 2 FLR 1040 and Re L-M (Transfer of Irish Proceedings) at [42]). Whilst no formal request under Art 56 has been made of the Slovakian 'competent authority', it can be seen from the content of this judgment that that authority will consent to the placement.

87. In the circumstances, and whilst enquiries will need to be made as to which court in Slovakia the request to assume jurisdiction should be directed, and the as to the most efficacious mechanism for the making that request and any Art 56 request, I make the following orders in respect of the younger children:

(a) The application of the First Respondent in respect of KB and NB for transfer of jurisdiction is dismissed and the invitation of the Slovak Central Authority to transfer jurisdiction in relation to KB and NB is respectfully declined.
(
b) A request shall be made pursuant to Art 15(1)(b) to the courts of the Slovak Republic to assume jurisdiction in respect of ZB, AB, KAB, ALB and RB.

(c) If the Slovak Central Authority indicates its assent to the request directed in paragraph (b) being made through the offices of the International Judicial Network the request shall be made by those means;

(d) Once the courts of the Slovak Republic indicate pursuant to paragraph (b) above that they are seized of this matter and that they accept jurisdiction in respect of ZB, AB, KAB, ALB and RB (which indication will be given by 14 December 2015 in accordance with the timescales set out in Art 15(5)) the local authority shall apply immediately for an urgent directions hearing before me at which the final arrangements for the move of the children to the jurisdiction of Slovakia shall be considered and approved.

(e) Once the request directed in paragraph (b) has been made the local authority shall take responsibility for liaising with the Slovak Central Authority with a view to expediting the acceptance of jurisdiction in respect of ZB, AB, KAB, ALB and RB by the courts of Slovakia.

(f) There shall be provision for translated documents to be provided to the Slovakian court and the Slovak Central Authority, which documents will include this judgment, the assessments completed by the local authority and the ROMA support group, the parties' statements and the reports of the Children's Guardian.

88. In relation to KB and NB, the parties urged me to consider retaining the proceedings relating to the boys before me with a view to considering the final disposal of the proceedings relating to them at the hearing that will consider the final arrangements for the move of the younger children to Slovakia.  Whilst I was initially attracted to this idea that hearing may well be over 6 weeks distant having regard to the timescales stipulate by Art 15(5).  At present I am told that the final hearing of this matter remains listed before Her Honour Judge Lazarus in the Family Court sitting at Medway commencing on 2 November 2015. 

89. In the circumstances, I take the view that the proceedings in relation to KB and NB should be disposed of at that hearing.  As I have already stated, I have joined the Slovak Central Authority as interveners in the proceedings and the Central Authority will be able to make such representations as it sees fit for the hearing before Her Honour Judge Lazarus.  The Central Authority has already provided comprehensive submissions setting out its welfare arguments should the court not accede to the invitation to transfer the proceedings under Art 15(1) in respect of one or more of the children.  It is likely, if the Central Authority adopts the practice they have followed to date, that any additional submissions from the Central Authority will likewise be in writing.  It may be sensible, given the level of agreement between the parties to these proceedings that the time estimate for the final hearing can be reduced and listed towards the end of the week commencing 2 November to allow the Central Authority time to compile and submit any further submissions it may have.

90. In the circumstances, I shall transfer the proceedings in respect of KB and NB back to the Family Court for hearing in the week commencing 2 November 2015 and will direct that any additional written submissions by the Central Authority for the final hearing in respect of RB and NB are made available to the court in time for the commencement of that hearing.  

91. That is my judgment.