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A Local Authority v MM & Ors [2020] EWFC 65

A father’s unsuccessful application to transfer the welfare stage of care proceedings to Romania.

Nineteen months after the commencement of care proceedings, the father applied to transfer the case under article 15 of Council Regulation (EC) No 2201/2003 ("Brussels IIa"). All the parent parties supported the application, which was opposed by the local authority and the children's guardian.

The parents and children (W, X, Y and Z) were Romanian nationals and identified as part of the Romani ethnic group. Z and W came to England from Romania in 2015 aged seven and six respectively. Z and W were born in England. Since June 2018, the children have lived with English-only speaking foster carers under the terms of an interim care order. Following a fully contested fact-finding hearing in August 2019, extremely serious findings were made against the parties. Subsequently, in the criminal court, the parties were found guilty of offences including child cruelty and abduction and were sentenced to terms of imprisonment (only MM's sentence was suspended).

When this application came before Mostyn J, the second, third and fourth respondents remained in prison. All the local authority's viability assessments were negative. Assessments of alternative carers were positive; in particular that of W's maternal grandparents who were willing to care for W only. Further assessments were outstanding.

Mostyn J considered article 15 and the judgment of Munby J in AB v JLB (Brussels II Revised; Article 15) [2009] 1 FLR 517 amongst others, noting three questions for the court. First, does the child have a 'particular connection' (within the meaning of article 15(3)) with the other Member State? Second, would the court of the other Member State be better placed to hear the case or part thereof? Third, is it in the best interests of the child to transfer the case?

Answering question 1, Mostyn J, found the 'particular connection' existed. Regarding question 2, Mostyn J concluded the respondents 'have not come anywhere close to discharging the burden posed' and the application had been made far too late. In terms of the children's best interests, Mostyn J noted the children had settled well with consistent foster care and that any further move should be their final permanent move and that he could not countenance their removal to a temporary placement in Romania.

Dismissing the application, the judge said, "a transfer of these four children to Romania at this stage of the proceedings would be liable to be seriously, even disastrously, detrimental to their situation."

Summary by Dr Sara Hunton, barrister Field Court Chambers

Read the full judgment of A Local Authority v MM & Ors [2020] EWFC 65 on BAILII