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Latvian child taken into care without the knowledge of his father

Court lays down guidance for care proceedings where one parent lives abroad

Mrs Justice Theis has ordered the return to his father of a Latvian boy who had been taken into care by Kent County Council following allegations that he had been beaten by his mother's partner.

In Re A (A Child) [2014] EWHC 604 (Fam), the court was told that the mother had brought the child to England without the consent of his father.

Following an initial referral from A's school in relation to bruising being seen on his face, he was removed from the care of his mother and placed with foster carers. The local authority initiated care proceedings and an interim care order was granted by the court in England in April 2013.

In May 2013, the father was informed of the care proceedings in England by the Orphans Court in Latvia and of the fact that A was residing in foster care. The father participated in a family group conference facilitated by the local authority via Skype in July 2013, with there being no further contact made by the local authority until the case was heard by the High Court in September. The father was not served with the court documentation until late September 2013.

Theis J was critical of the failure to deal with the jurisdictional issues at a much earlier stage, for non-compliance with previous court orders and also for the unacceptable delay in notifying the father of the care proceedings, in properly serving him with the court documents and in failing to give him effective access to legal advice to advise him of his position.

The judge set out the following guidance in relation to the actions which should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to BIIR information as to the parent's whereabouts can be obtained through an Article 55 request via the Central Authority.

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation.

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court's jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party's legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

Theis J found that the mother had failed to establish the defences of acquiescence to A being moved to the jurisdiction, that she had failed to establish an Article 13(b) defence, and that the defence of settlement was not made out by the mother. In such circumstances, the court did not need to consider its discretion as to whether the court should order a return as none of the defences had been established. The judge therefore ordered A's immediate return to Latvia.

Hilka Hollmann of Goodman Ray, who acted for the father, commented:

"In today's shrinking world, the case sets out important guidance about what steps to take when a parent lives abroad. The court has made it very clear that it is simply not acceptable to exclude a parent from care proceedings because it is difficult to find or communicate with them.

"In this case, a confused foreign child was left in foster care for 10 months, whilst costly court proceeding were ongoing, because for five months nobody had thought of asking the father pertinent questions or providing him with relevant information about the proceedings and his rights.

"The case shows how important it is that legal aid and accessible legal representation are available to all parents in care proceedings, or whose children have been abducted, irrespective of their country of residence.

"Once the father became involved in the proceedings, he made an application under the Hague Convention for the return of his child to Latvia, and things happened very quickly. The court found that it had no jurisdiction over this child and, happily, father and child have now been reunited and have returned home together."

The judgment and case summary by Michael Jones of 15 Winckley Square, from which this item is derived, can be found here. For an article by Michael Jones focusing on care proceedings with a European dimension, please click here.

30/3/14