Rachel Rowley (instructed by Legal Department, Nottingham City Council ) for the local authority; William Metaxa (instructed by Bhatia Best, Nottingham ) for the mother; Steven Veitch (instructed by Tallants, Mansfield ) for the child by the children’s guardian.
The local authority, supported by the children’s guardian, applied for care and placement orders under section 31 of the Children Act 1989 and section 22 of the Adoption and Children Act 2002 in respect of D, born in June 2012; the care plan provided for D to remain with his current foster carers in the United Kingdom only if no suitable other adopters could be found. The Czech parents proposed that the care proceedings be dismissed and D be returned to them to live with them in the Czech Republic. By a decision dated 18 December 2013 (In re D (A Child) [2013] EWHC 4078 (Fam); [2013] CN 2004), having determined that a Czech court would be better placed to hear the case, a formal request had been issued under article 15 of Council Regulation (EC) No 2201/2003 (“Brussels II Revised”) seeking the agreement of the Czech court to hear the case to its conclusion. That decision had been overturned by the Court of Appeal on 21 February 2014 (sub nom Nottingham City Council v LM [2014] EWCA Civ 152; [2014] WLR (D) 92) on the ground that it was flawed since consideration of D's Czech nationality had been allowed to dominate the thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517, para 35 and the matter was remitted for reconsideration by the same judge.
Pursuant to the direction given by the Court of Appeal, it was necessary to consider if there had been changes or a movement to change within the parents, and in particular in the father, which, with support, might allow for the possibility of orders that preserved the parental link and left alive the possibility of rehabilitation, that when conducting the best interests exercise, the benchmark of “exceptionality” had to be borne in mind, and that it was necessary to be satisfied, before making care and placement orders, that nothing else would do. Rejecting the mother’s proposal that the proceedings be dismissed and D be returned to her and the father in the Czech Republic, that was manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejected the majority of the previous findings made and the same was true to a lesser extent in relation to the mother. If the parents had been living in the United Kingdom, on the evidence it was inconceivable that D would be returned to them; that they were in the Czech Republic surely made no difference. A special guardianship order in favour of the current foster parents would be the preferred solution and they would be invited to apply for one pursuant to section 14A of the Children Act 1989 (as inserted). If they did not so apply within 14 days the Czech central authority would be notified that the court was contemplating a placement of D with Czech foster parents and ask them to set in train the identification of such foster parents. If they were identified and found suitable by the English court an order in wardship would be made placing D with those foster parents and such an order and judgment would explicitly provide that the question of contact or indeed discharge from foster care would be made by the Czech court. In principle foster care in the Czech Republic was a preferable solution to the irrevocability of a care order and placement order although not as preferable as a special guardianship order. The ethnicity factor and parental link was of critical importance and had to have the capacity of being preserved and should not be irrevocably severed on the facts of the case (paras 17, 32, 36, 42, 43).
Children Act 1989, s 14A (as inserted by Adoption and Children Act 2002, ss 115(1), 148)), 31
Adoption and Children Act 2002, s 22
Council Regulation (EC) No 2201/2003, art 15