Rachel Rowley (instructed by Legal Department, A Local Authority ) for the local authority; Clive Newton QC and William Metaxa (instructed by Bhatia Best, Nottingham ) for the mother; Steven Veitch (instructed by Tallents, Mansfield ) for the child by the children’s guardian; the father did not appear and was not represented.
On the local authority’s applications for a full care order and a placement order in respect of D, born in June 2012 in Birmingham, it had been agreed that the mother's application for a transfer to the courts of the Czech Republic under article 15 of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II Revised”) should be dealt with as a preliminary issue. The background, set out in the full fact-finding judgment dated 30 November 2012 [2012] EWHC 3362 (Fam), had been one of abuse, misery, exploitation, criminality, and unrelenting vice. The father had fled to the Czech Republic and since then had not engaged in the proceedings. The mother had been found to be both victim and perpetrator of harm. She had proposed permanently to separate from the father but had in fact reunited with him in the Czech Republic and had had another child, L, with him there. D had been placed with foster parents in England who were not seeking to adopt him so that, were the local authority's substantive applications granted, D would be placed with a new adoptive family.
Application granted. The tests to be applied on an article 15 transfer request had been considered in In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] Fam 253 and, on appeal, sub nom In re K (A Child) [2013] EWCA Civ 895; AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517, para 35; and In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319, para 36. Here there was no dispute that D had a particular connection with the Czech Republic; the controversy centred on whether the Czech courts would be better placed to hear the matter and whether transfer would be in the best interests of the child. The arguments for and against transfer were much more evenly balanced than in the In re T/ In re K case. However, the issues raised went a good deal wider than a simple application of the words of the Regulation to the specific facts of the case since they raised the very important political and social issue of whether, and if so to what extent, the remit of the English child protection system should extend to children who were citizens of other European Union countries where there existed a clearly defined transfer procedure to enable their future to be determined in the court of their homeland. It was not to be forgotten that the local authority application was for a placement order. That would (almost) inevitably lead to an adoption order, most likely with an English family, and severance of his connection with his homeland, his ethnicity, and his half siblings in England. The evidence suggested that save in cases of abandonment adoption in the Czech Republic was only permitted with parental consent. It was therefore even more momentous where a local authority sought that remedy in a case where the laws of the child's homeland would not allow it. Indeed, it might fairly be said to give rise to diplomatic and political questions about the relations between states within the Union. Although the family had settled in England in 2004 it had always been a Czech family, living in a Czech community, speaking Czech (and very poor English) and maintaining many contacts with the Czech Republic. There were also the practical facts that the parents and D’s sibling L were in the Czech Republic and any proceedings there would be conducted in the first language of the parents. Having considered the opposing arguments very carefully, the court exercising public child protection jurisdiction in the Czech Republic would be requested to accept a transfer. If that court had not responded affirmatively within six weeks the case would proceed in England (paras 12, 13, 16, 24, 29, 35, 39–41).
Permission to appeal granted. Since the case gave rise to very important concerns it fell within CPR r 52.6(b); ie there was a compelling reason why an appeal should be heard. The Court of Appeal needed to consider the very difficult issues thrown up by the case and to give definitive guidance as to how future article 15 requests in public law cases should be dealt with. Any appeal had to be heard with great expedition and the understanding was that the Court of Appeal would be able to hear the appeal in the first week of Lent term 2014 (para 42).
Council Regulation (EC) No 2201/2003, art 15