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Suffolk County Council v DL [2014] EWFC 29

Determination within care proceedings as to whether to make a request, pursuant to Article 15 BIIR, for another member state to assume jurisdiction

The local authority had issued care proceedings in respect of an eight week old child born in the UK to a Lithuanian mother who had lived in the UK for 6 years. The mother, who had drug addiction problems, supported placement of the child with her parents in Lithuania. The local authority was actively assessing the possibility of this placement.

The case came before Mrs Justice Parker for directions. The issue was whether the court should make a request (pursuant to Article 15 of BIIR) for the Lithuanian court to assume jurisdiction.

Having noted that, although habitually resident in the UK, the child had undoubted connections to Lithuania.   Parker J considered the recent relevant case law from which emerged consensus that, in respect of Article 15 requests, delay was "pivotal" The questions of best interests and which court should have jurisdiction were interlinked and that "best interests" in Article 15(1) relates to best interests in respect of transfer and not best interests overall.

Recent case law establishing that there was no drawback to making a request to another member state whilst the court in this jurisdiction was assessing a parent, was equally applicable to circumstances where the assessment was of relatives abroad. The aim was to avoid delay and to progress the case.

Anecdote and experience suggested that, when complying with Article 56 (pursuant to which a local authority considering placement of a child in public/foster care in another member state must consult through the relevant body in that jurisdiction) informal approaches were not always successful. A formal request under Article 15 was likely to be more expeditious.

It was appropriate to conduct a "pros and cons" analysis in respect of the best interests. Although there was no certainty as to what the Lithuanian authorities might do, the making of the request at this juncture had no drawbacks and might well "enhance" the decision-making process.

Accordingly, (with the agreement of all parties) the Article 15(3) request should be made. The case was to be remitted back to a local s.9 Judge for monitoring and /or planning to final hearing should Lithuania decline jurisdiction.

Summary by Katy Rensten barrister, Coram Chambers
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Neutral Citation Number: [2014] EWFC 29
Case No. CM14C05108

(Sitting at Ipswich)

Ipswich Family Court
8 Arcade St, Ipswich IP1 1EJ
Date: Monday, 14th July 2014


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B E T W E E N :

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DL Respondent
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MISS C. STARKIE  (instructed by Suffolk Legal Services)  appeared on behalf of the Applicant.

  (Solicitor, of David Wilson Solicitors)  appeared on behalf of the Respondent.

  (instructed by Haywards Solicitors)  appeared on behalf of the Child
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1 KL was born on 11 May 2014, so she is just coming up to eight weeks old.  Her mother is Lithuanian.  She has been in this country for six years and is  settled here.  The father of the baby is not involved and may not have been identified.  The mother, sadly, has problems of drug addiction.  Mr. Wilson, who represents her, tells me that she is an intelligent lady who understands that she is unlikely to be able to care for her child.  Social Services have found her co-operative and also intelligent.  K is represented by a guardian.  The mother's parents are in Lithuania and are looking after at least one or perhaps three of their granddaughters by the mother's sister.  The mother's sister also has some problems. 

2 Initial inquiries about the grandparents through CFAB have been generally positive.  There are some questions which require to be answered still.  This local authority is looking extremely actively at the possibility of placing this child with her grandparents. If this case were to conclude entirely within these English care proceedings which commenced after K's birth, this would require a placement outside the jurisdiction to be approved by the court pursuant to Schedule 2, Rule 19 of the Children Act 1989. This is a directions hearing listed before me, the case having previously been heard at the Chelmsford County Court. 

3 It is my duty pursuant to Article 15 of BIIR to consider at all stages whether I should either stay the case and invite the parties to introduce a request before the court of another member state or request a court of another member state to assume jurisdiction. This is an area of the law in which judges and practitioners are on a very steep learning curve.  I gave a judgment only two weeks ago, London and Borough of Barking and Dagenham v C and Ors [2014]  EWHC 2472 (Fam), following judgments of Baker J in Bristol City Council v AA and Anor, [2014] EWHC 1022 (Fam) and Moylan J Leicester City Council v S, [2014] EWHC 1575 (Fam).  We are in agreement that delay is a pivotal issue relevant to best interests pursuant to Article 15(1).  The Court of Appeal decision in Nottingham City Council v LM & Ors. [2014] EWCA Civ. 152 [2014] EWCA Civ 152, held  that the questions of  best interests and which court is better placed to hear the case are interlinked, and that best interests in Article 15(1) relates to best interests in respect of transfer and not best interests overall.

4 This little girl, notwithstanding that she is undoubtedly habitually resident here having been born here, and thus has a particular connection with this country but also has a particular connection, self-evidently, with Lithuania, being a Lithuanian citizen and born of a Lithuanian mother, notwithstanding that she is settled here. She also has Lithuanian grandparents who the mother proposes as carers for this child.  The mother is presently in prison having been convicted of drug-related offences.  She may be just about to be released on a 'tag'.  She has not, at least until now, put herself forward as a carer for this child and strongly supports a Lithuanian option with her parents.

5 It seems to me, notwithstanding that the local authority is very actively assessing the grandparents, that this is an appropriate time for the Court to consider whether it should exercise its powers to request Lithuania to assume jurisdiction pursuant to Article 15(1)(b).  As Baker J in the Bristol case and Moylan J in the Leicester case ruled (and I take the same view) there is no drawback and every advantage in making a request to another member state alongside further assessment of a parent.  It seems to me that an assessment or further inquiries of relatives abroad demands the same approach.  The aim is to progress the case and to avoid delay.  If Lithuania does not wish to assume jurisdiction, which it may not if it takes the view that these proceedings are well advanced and that this local authority is adopting the right approach, then this case, which I shall timetable through to a final hearing, will proceed in this jurisdiction.  The options for this baby within our understanding of child welfare, which may not be the same as Lithuania's, would be either family placement if mother cannot care for her own child, or adoption.  Lithuania may regard other options as being appropriate for one of its citizens.

6 Under Article 56 a local authority contemplating placing a child in institutional care or with a foster family in another member state must first  consult the member state through the Central or other authority having jurisction in  the central   authority having jurisdiction in the latter state where public authority intervention is required for domestic cases of child placement.

7 As in this case, the authorities may not wish to respond to an informal request, but may indicate that they would certainly come before the court if there were any question of adoption in this jurisdiction of one of its nationals.  If the case gets to that stage then delay is likely to be advanced and that is not in the interests of this child.

8 It seems to be–  this is anecdotal but nonetheless not to be disregarded – that it is reasonably common for authorities not to respond to the first, informal request through diplomatic routes or channels of communication but that a formal request pursuant to Article 15 is likely to be responded to with considerable expedition.

9 When conducting a balance sheet analysis of pros and cons of best interests, as seemed to me in the Barking and Dagenham case to be appropriate, the 'con' in this case is uncertainty as to what the Lithuanian authorities might do. However potential delay is in built into any of the options, and what I must strive to do is to adopt the course which is likely to serve the child's best interests.  Also this Lithuanian child ought in principle to have her future decided by the Lithuanian authorities.  However it may be that the answers to the questions which I have approved, which will go by way of addendum to the grandparents through CFAB, may satisfy the local authority, which will set in place an agency decision on the 26th August. This may bring this case to an agreed resolution without the involvement of the Lithuanian authorities.

10 In reality there are no drawbacks to the making of a request, which is likely to enhance decision making for this little girl rather than to inhibit it.  All parties now, having considered the various options, are agreed that I should make  a request pursuant to Article 15 (3), list this case before a s.9 judge locally for the first week of September to monitor progress, but set up a contingency plan which timetables this case through to a final hearing if the Lithuanian authorities do not wish to become involved.  It cannot be ignored, as I have already said, that they may choose to intervene at a late stage even if they have not chosen to intervene before.  I have to adopt a course which is not necessarily a failsafe but which gives the best options available for this little girl.

11 I am most grateful for the assistance of counsel in an area of law with which I am sure all will very soon become familiar but at the moment requires thought and care and learning from experience.