IN THE HIGH COURT OF JUSTICE
Neutral Citation Number:  EWHC 2033 (Fam)
Case No: (EY13C00214)
Royal Courts of Justice
Date: 4th April 2014
MRS JUSTICE HOGG DBE
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B e t w e e n :
COVENTRY CITY COUNCIL
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(Transcribed from the Official Digital Recording by Cater Walsh & Co Transcription Suite 1st Floor Paddington House Kidderminster Worcs DY10 1AL Tel: 01562 60921 Fax: 01562 743235)
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MR C WATSON appeared on behalf of the Applicant, instructed by Coventry City Council Legal Department
MR A VINE appeared on behalf of the Guardian ad Litem, instructed by Brethertons LLP
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MRS JUSTICE HOGG
I have before me proceedings brought by Coventry City Council for a care order and placement order in respect of a little girl born 27th May 2013. It is believed that the mother is Romanian; her father's identity is unknown to the local authority as the mother failed to disclose his name and whereabouts.
A was born prematurely. The mother thought she was 25 weeks' pregnant at the time but the doctors thought that A was more likely to be of 27 to 28 weeks' gestation. She was very small at birth and, being so small and vulnerable, she remained in the paediatric intensive care for some weeks. She also developed serious abdominal difficulties in July from which she has recovered. She has a number of medical issues but given her age, the prognosis is not certain. However, within that context she is doing well, she seems settled, happy and stable in the foster home where she was placed on 4th September 2013.
The overall care plan for her is that she should remain long term with her foster carers who, if I made a placement order, would become her prospective adoptive parents. They were selected for A as they had been assessed and approved as concurrent foster carers. In other words, they would be foster carers who would be available to adopt her should the occasion arise. They are committed to her and wish to provide her with a long term care possibly under an adoption order. That is the long term care plan.
However, there are a number of issues that I have to deal with before I could consider the long-term welfare issues. The mother is believed to be Romanian. She told the hospital staff and social workers that she came here for a holiday on 22nd May 2013 but during that holiday she gave birth to A. She told the midwife that she had lost all her travel documents. She later said that they had fallen out of her bag whilst out with a friend. On 28th May a referral was made to social services as the midwife thought that the mother and baby required support to return to Romania once the baby was well enough.
The local authority was alerted by the hospital on 2nd June 2013 that the mother had been discharged from the hospital on 30th May but had not returned to visit her baby since. On 5th June social care work advised the police who had been conducting the enquiries that the mother had been located. The hospital indicated that the mother had requested that her baby be placed for adoption, and was intending to return to Romania as soon as possible. She did not want her baby to accompany her and did not want the baby to be cared for by her family members.
The hospital was able to contact the mother through her friend, Z, via a mobile phone and a meeting was arranged with the mother to attend the hospital on 7th June. Initially the mother failed to return but, ultimately, after some persuasion, she did so with her friend Z. She was spoken with through an interpreter speaking Romanian. At this meeting she gave her baby a name after some prompting with the social workers and held the baby for the first time showing some emotion in doing so. The mother gave information about her and her baby's background. She said that the father was Romanian Roma but she was herself Romanian. She refused to provide the father's name. She said that her family were not aware of her pregnancy. She had not told them about it or her relationship with the father and she had concealed the pregnancy from them. She said that her family would not approve of the relationship with the father as he was Roma and her mother would disown her if she knew. She wanted the baby to be adopted. She intended to return to Romania as soon as possible after she received her new travel documents.
She said she was from a named village in Romania, that she had two other children residing there, a son aged nine and a daughter aged ten and they were being cared for by their maternal grandparents. She had no money to support a baby. She said the father was aware of the pregnancy but was not interested and he was not aware that the baby had been born. She had come here on holiday to see her friend, Z, who came from the same area as the maternal grandparents. She had not told Z about the pregnancy until her waters broke. She said she had no fixed abode, she moved between the homes of various friends and had been evicted the evening before and was at that time staying with a friend of Z.
The process of adoption was explained to the mother and she agreed to wait in this country for the required six weeks to sign the necessary consent documents. A further meeting was arranged with the mother for 18th June. She did not attend that meeting and a further meeting was fixed for 3rd July. Again the mother did not attend. The mother did not visit the baby in hospital after 6th June and has not made any contact with the local authority or the hospital to either ask to see her or to enquire about the baby's welfare.
The baby became seriously unwell on 17th July and efforts were made to contact the mother on the mobile phone number supplied to the local authority by Z. It did not connect. Further efforts were made to contact the mother through Z but failed. Z claimed that she did not know the whereabouts of mother and her responses became increasingly antagonistic towards them. Z ultimately refused to cooperate with them. The local authority has not been able to make contact with the mother nor have they been able to trace her whereabouts since then.
The local authority instructed international process servers to conduct a trace for the mother. I have read two reports from the process servers dated 18th November and 30th November 2013 when they were instructed to confirm the identity of the mother. From the reports, it seems that the mother is a Romanian citizen born on 25th January 1985. She has a registered address in a named village and has an ID number that is valid until January 2015. She has four children, C, a boy, born in July 2001, CS, a girl, born in February 2003, V born on 11th September 2005 and G, a girl, born on 23rd March 2009. I am unable to say whether V is a boy or a girl as the name is Romanian.
The father of the two eldest children is identified by name. The father or fathers of the two younger children were not identified. The mother is not currently married. The process server met with the mother's own mother who is Romanian, who told him she is looking after the children at the family home, that the mother was not in Romania, she had left a few months ago to go to the United Kingdom. She said that the family believed she was working as a prostitute in the United Kingdom and recently had had problems and had been in hospital. The process server was unable to gain any further information but was able to say that the address in Coventry, which the mother had given to the local authority, did not exist.
In the second report, dated 30th November, the process server described the village as being small, about 100 kilometres from Bucharest, with "a majority gypsy population very poor and simple peoples." He met with the mother's own mother again who was shown a photograph of the mother. Initially she denied recognising the mother but later produced a copy of the mother's ID card with a photograph of the mother. Whilst there, a niece of the mother identified the photograph as the mother and a sister of the mother did so as well. The grandmother then returned with a copy of the mother's ID card and was able to confirm that the photograph with the process server was that of the mother. The process server then showed a photograph of the mother to a village policeman who identified it as that of the mother and said that she had been registered as missing but had returned to the address and was declared not missing. It seems he thought that she was probably in the United Kingdom and said that she did not have a relationship with her family. The local authority have been unable to trace the mother and has no information as to the father's identity or whereabouts.
The issues before me today are, one, whether this court has jurisdiction to entertain proceedings under the Children Act 1989 and under the Adoption of Children Act 2002; two, whether the matter can or should be referred to the Romanian courts under Article 15 of Brussels II (Revised) and, three, whether further enquiries should be made with the mother's family which in turn would inform them of the birth and existence of A and thus breach the mother's confidentiality.
In this context the Romanian authorities have been informed as to the existence of A and the existence of these proceedings and the care plan for adoption. The care proceedings were issued on 9th August last year and the application for the placement order was on 14th October. These applications were transferred from the Coventry Family Proceedings Court to the Coventry County Court on 18th November 2013 due to the complexity of the international aspects. On 20th November her Honour Judge Watson directed that the Romanian central authority be invited to attend the next hearing on 4th December. On 4th December, although the Romanian central authority had been notified, no representatives attended but on 2nd December the Romanian Directorate for International Law and Judicial Cooperation wrote saying that the correspondence had been forwarded to the child protection directorate and that a response was awaited.
On 4th December Judge Watson invited the Romanian central authority to write to the local authority by 23rd December informing the local authority of its position concerning the baby and the substance of any representation or applications that they were intending to make to the court. A further invitation was made to the Romanian central authority to attend at the next hearing on 13th January, it being noted that the court may make such an order on that date in the absence of any representation and the court considered that sufficient notice had been given. Judge Watson also ordered that the local authority do have permission to disclose this order and other relevant documents suitably redacted to the Romanian central authority before forwarding it to the Romanian child protection directorate that a warning of the confidentiality of the court proceedings would need to be maintained until further order.
The local authority was ordered to send a copy of the order to the Romanian central authority under cover of a letter explaining that their attendance is requested at the next hearing when final orders may be made in their absence. Judge Watson ordered that the Romanian authorities should not disclose the birth of the baby to the maternal family without the permission of the court. She gave leave to the Romanian central authority to apply to discharge parts of the order.
The matter was restored to her Honour Judge Watson on 13th January. The Romanian central authority had been invited but made no representations and was not in attendance on that day. However, the court read a letter from the Romanian directorate for International Law and Judicial Cooperation and another letter from the director of the Romanian child protection department and noted that the child protection department was content not to inform the maternal family about the birth of the baby and the judicial proceedings whilst A's best interests were considered.
The child protection department does not consider the adoption of the child as justifiable and that it seeks the return of the child to Romania. Various directions were made and the matter was transferred to Mrs Justice King to be heard in the Royal Courts of Justice in London on 17th January 2014. The Romanian authorities were invited to make representations to Mrs Justice King. It was noted that such attendance is essential if the court is to consider the Romanian authority's opposition to the local authority's application for care and placement orders. By paragraph 4 of the order if the Romanian authorities wish to oppose the local authority's application for care and placement orders they are invited by the court by 16th January to file and serve a document setting out their case in detail whether questions regarding the child's welfare are subject to determination under the United Kingdom or the Romanian law; however, the courts in England have powers of jurisdiction to determine the questions relating to the child's welfare and any points they make in opposition to the local authority's plans for the child, any points they wish to make in support of a plan for the child to be returned to Romania, and the plan they propose for the child's care including how her medical needs would be met. The Romanian central authority was to be served forthwith.
The letter of 9th January which was before Judge Watson came from the Directorate of International Law and Judicial Cooperation addressed to Coventry City Council,
"Please find attached letter of response from the child protection directorate concerning the child. The Romanian child protection considers that the international adoption of a child is not justified as Romanian national law provides specific and limited situations when international adoption can take place. The child protection directorate requests repatriation of the child to Romania where the local child protection agency will be available to make the necessary investigations and to adopt protective measures for the child."
The directorate also wrote on 16th January again to the local authority,
"Further to your message of 13th January, we are sending you attached the answer provided by the child protection directorate dated 15th January. With regard to the question raised by the Coventry County Court on the question of jurisdiction, it is our opinion that Article 13 of the EC council regulations number 2201 of 2003 is applicable, that the Royal Courts of Justice could also take into consideration and apply the provisions of Article 15 of Brussels II (Revised). As to the question of consent and participation by the Romanian representative at the hearing on 17th January our office cannot confirm that at this time."
The letter that was enclosed came from the Directorate of Child Protection which is dated 15th January;
"Further to your request for an opinion regarding the case of A, we believe that we should make the clarifications below. As you are aware from the information provided by the British authorities, the Romanian side has been asked to observe confidentiality about the situation of the child and the identity of the parents. It has been mentioned in our previous correspondence that there is a complete provision for Romanian local authorities to support and assume repatriation of the child considering that she is a Romanian national. However, given that the British authorities have only provided us with extremely brief information about the situation, we believe that their request dated 4th January that a series of documents should be made available by the 16th which should present a proposed plan for the child including the manner in which her medical situation would be handled and any other arguments meant to challenge the decisions made by the local authority that the child is adopted are unrealistic considering that any serious assessment must be based on documents that affect both the social background and they affect the medical condition of the child and the family environment of the natural extended family of the child in order to make a substantiated decision about setting up a measure of special protection. Under the circumstances in relation to the recent request by the British court we wish to mention that our institution upholds its opinion about the Romanian local authorities assuming the responsibility of repatriating this child to Romania and that the specialised documents will be prepared by the general directorate of social assistance for child protection from the country of domicile after the British Social Services provide us with the documents that describe the current situation. Whether a representative of the Romanian Embassy will appear on 17th January, please be advised that we cannot issue an opinion about the designation of the representative who will participate."
Then it was signed off.
Those letters were before Mrs Justice King and she dealt with the matter on 17th January of this year. She had seen these letters and there was no representative from the Romanian authorities being there but the Directorate of International Law and Judicial Cooperation had confirmed that they were aware. She made various directions including that the local authority should send all updating material to the International Directorate of International Law and Judicial Cooperation. The Romanian authorities were invited to send representatives to the hearing on 13th and 14th February of this matter which was listed before Mr Justice Roderick Wood when it was noted that the court would give consideration to making final determinations in their absence, but if they do intend to send such representations, they shall confirm the same by letter and no later than 31st January 2014. The Romanian authorities were invited to file and serve written documents, a skeleton argument by that time, and dealing with issues which related to the matters which I am now considering.
There was another letter which is undated. I am not clear as to precisely when it came to the attention of the court but it may have been written in January. Again it came from the Directorate of the Child Protection Department,
"Following our correspondence regarding the minor, you are hereby notified that the solution proposed by the British authorities regarding the adoption of a child by a family from the UK is not deemed justifiable. This is due to the fact that our national law stipulates that the international adoption of a minor of a citizen from Romania can only be allowed if the family with residency in Romania has not been identification."
It then sets out the law in Romania.
"In this context we are kindly asking you to pass this information on to the British authorities and to support the proceedings for the repatriation of the minor to Romania under the law."
The Directorate of International Law and Judicial Cooperation also wrote to Coventry City Council on 29th January,
"With regard to the case of the child our office has no additional information to provide. We shall wait to receive the result of the hearings on 13th and 14th February. No Romanian representative can be confirmed for the hearing. We remain at your disposal for further help."
Between the hearings of Mrs Justice King and Mr Justice Wood there was a series of emails passing between the vice consul of Romania here in London, one Mr H and Mr D of Coventry City Council.
The first letter or email is dated 20th January from Mr H indicating that the Embassy of Romania was informed by the Ministry of Justice and the Children Protectorate about these care proceedings.
"It was also brought to our attention in late November 2013 by the representative of the city council and we would like you to send us an up-to-date situation in relation to the procedures and what steps and measures you or the court have taken in order to clarify the identity of both parents, presumed Romanian nationalists, since the mother had never produced any documentary evidence either in respect of her identity and nationality."
Mr D replied on 22nd January in which he confirmed that the local authority has never received any documentation from mother, she stated she had lost the visa to enter the United Kingdom and that the local authority had instructed an inquiry agent to attempt to trace the mother in the United Kingdom and Romania and they were unsuccessful in locating her. However, they had identified the maternal family in Romania following on from an address which was given of the mother to the local authority. They had been shown a photograph of the mother to confirm that she was a family member and that was also confirmed by the local police officer. Before the mother left she did not confirm any details in relation to the father and, therefore, have not been able to locate him or confirm his nationality. He said that the matter had been transferred to London and had been heard by Mrs Justice King who had then adjourned it to be heard on 13th and 14th February before Mr Justice Wood setting out the issues, which would be considered which I am considering today. They were sent an order and he invited them to file and serve a written document, a skeleton argument, and to set out their definitive position and he said, "I will send through to you tomorrow by email a full copy of the current court orders so you are fully up-to-date with all the issues before the hearing in February."
Mr H then sent a lengthy email dated 27th January setting out his understanding of the legal situation from an international point of view and he said amongst other things,
"We would like to inform you that the consulate department of the Embassy of Romania cannot be part of the case and the Ambassador cannot be part of case in front of the court but we have the obligation to request the rights and interests of Romanian citizens in the United Kingdom to be observed and to cooperate with the British authorities in this respect."
I suspect by then he is referring to diplomatic immunity. The main concern was simply that he said,
"My major concern is in relation to the real identity of the mother. She might not be the named person and also might not be a Romanian national. Basically, in all our previous cases the Romanian authorities have asked for repatriation of children were in circumstances correctly identifying that their parents are Romanian nationals. Do you happen to have a date of birth or residence in Romania? Also could you please send us a scanned copy of the child's birth certificate, the form with the names of the parents on it?"
That was replied to by Mr D on 28th January,
"In relation to the birth certificate I can confirm that the child only has a United Kingdom birth certificate. I shall inform you that a copy of this is with the court bundle which was sent to you. Also within the court bundle are the reports of the process server which confirm the only information we have in relation to the identity of the mother including her family in Romania,"
and he then sets out the details which I am hearing today.
That was replied to by Mr H on 30th January,
"The issue of appropriate jurisdiction must be established by the court and if the court in the UK were to decide that the court in Romania is appropriate, it is necessary to address the central authority. If it is in the best interests of the child I believe that the family or extended family in Romania should be informed. I also believe that the UK police in cooperation with the Romanian police should correctly identify the mother. Once this problem is solved we shall analyse the other aspects."
He refers to Article 15. He then says,
"Basically the local authority is informed the first step is to identify the family and then to make a social assessment. Once done, the social assessment may indicate whether the family may take responsibility for the child. If not, the local authority have to find a foster carer for the child."
The matter came before Mr Justice Wood on 13th February 2014 but it was adjourned because by then it was thought that in a particular case heard by the Court of Appeal the judgment would be handed down in the immediate future and that there was some relevance to this matter, it was adjourned to be heard on 3rd April. It was originally listed to the learned judge. It came to me. Mr. Justice Wood ordered that the local authority should send to the Romanian central authority and the embassy of Romania a translated copy of the order and further a translated copy of documents set out in schedule 2 of the order and made various other directions. The schedule 2 documents relate to the case summary, the two inquiry agent reports, the two medical reports on the child, the statement of the social workers who had spoken to the mother in hospital, the updated final care plans, the guardian's analysis and the updating analysis and the amended guardian's report.
Before me I have had two additional letters from Romania. One from the Directorate for International Law and Judicial Cooperation dated 14th March setting out that under the provisions of the European community of a Member State that has competency to judge a certain case it is entitled to request for that case to be referred from another Member State if there is reasonable evidence to show it would be better positioned to hear that particular case. The Romanian legislation does not have policies and procedures for applying the provisions of this community regulation and means that the provisions of that regulation must be complemented by domestic Romanian law.
"We consider that the Romanian court assessing a claim based on Article 15 would need to make an application for procedural rules relating to contradictive terms so would be able to issue a ruling over a case only after summoning and hearing all parties. During the first case hearing of the parties summoned the judge has, by default, an application to assess and confirm that the court has the general material and territorial competence to rule over that particular place, making notes of the case conclusions and recommendations. Only in exceptional circumstances and/or further clarifications when evidence is needed the judge would raise this issue with the parties above and the court can adjourned accordingly. The court of a Member State requesting an application under Article 15 of the regulations is to be sent to a court from another Member State may select the court of another Member State by consulting the European judicial atlas in civil matters with the Romanian central authority. Please note that as soon as we receive a response from the relevant Romanian authorities on issues relating to the child protection as stipulated by the Romanian legislation we will bring it to your attention."
On 13th March the child protection department wrote the following:
"Taking into consideration that child citizenship is still to be clarified, we would like to state that if the court would confirm the child is a Romanian citizen, then the Romanian local authorities from the county where the child's natural family has residence would issue all the required documentation to return the child to Romania specifying also detailed measures and individual protection plan under which the child's best interests would be protected. We would like to mention that repatriation procedure as well as the background checks are carried out by the Romanian authorities would be based on the government decision number 1443 of 2004 regarding procedures for the repatriation of unaccompanied children providing the child's best interests would be protected. If, following the assessment made in relation to the child's extended family or natural parents, it would be decided that the family re-integration is not an option, then a Romanian competent authority would recommend the child be placed in a foster care based on a court order. The child's placement would be done by the panel for child protection in the county of residence thought necessary by the court depending on the evidence presented if special protection measures are necessary. Taking into consideration the child's age, the foster care placement would be the solution to be considered by the Romanian authority as under the current Romanian law, a child under the age of two cannot be placed in a residential institution (orphanage). We would like to emphasise that for the moment the Romanian authorities have been unable to identify the child's extended family members due to the confidentiality of this case. If the citizenship of the child and the mother are established as Romanian then the Romanian authorities will assume true responsibility for its repatriation be handling the case under Romanian laws."
That was the final word from the Romanian authorities and the note that sets out the general picture, that letter does not give a timescale as to what would be done, when it would be done and when the child could be placed. There is a lacuna as to what actually would be done in fact and the timescale was not set out.
In front of me I have the local authority and the guardian. I do not have the mother or any representation from her because her whereabouts are unknown and she has not been served. Likewise, I do not have the father whose identity is unknown. I do not have any representative from the Romanian authorities but I have read the letters and correspondence extensively so that it is clear that I have appreciated what they are saying and what their position is. It is quite clear at the moment that no Romanian court is involved and there is no indication as to what or when anything would happen or be put in place in Romania. There are no clear timescales. The local authority has done its best to locate the mother in this country. They have been in touch with the Department for Work and Pensions who have no trace of her. If she is in this country she is not working legally. Whether she is working and supporting herself in another way is another matter. There has also been an approach to the Home Office and the UK Border Agency to see whether there is any trace of her coming into this country or leaving this country. There has been no response. The local authority has approached through its process server the family which they believe to be the maternal family in Romania but the reality is her whereabouts are unknown.
Turning now to the specific issues I have to consider, the first is the jurisdiction of this court immediately. Under Article 8 and Article 13 I may have jurisdiction and the preliminary view of Mr Justice King was that I had jurisdiction under Article 8. Mr Justice Wood thought I had jurisdiction under Article 13. Counsel before me both agree that I do have jurisdiction under one or the other. The bottom line is Article 13 in that the child is here but I should consider Article 8, specifically, Article 8 says that a court of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time that the court is seized. The facts of the matter are clear, the court was seized initially on the issue of the care proceedings in August. The child was here. She had been born here. She was then currently in foster care and has since moved to her current foster carers in September. These are the very basic outline facts. We know what the mother said to the social workers and the midwife, it was her wish for this child to be adopted here, she did not want to take her back to Romania, she did not want her family to care for the child or to know of her pregnancy and child; that the father, while not knowing about the birth of the child, knew of the pregnancy and was not interested. The mother indicated that she was going back to Romania but did not want the child to accompany her back to Romania. Thus, the mother's clear wish and intention was to leave the child here for her to be adopted.
The mother has not made any contact with the either the hospital or the local authority and has not maintained any contact with the local authority. We do not know where she is and she has disappeared, and disappeared out of this child's life, as it was her stated intention that she wanted this child to be adopted here. Those are the facts from the mother's position. The family in Romania has indicated that it does not know about this child and while I call them the family, they are a presumed family. It is thought to be the family but there is no certainty to that.
In the recent case of Re A
 UKSC, Baroness Hale dealt with the question of habitual residence in which she said, having reviewed the authorities, that habitual residence is a question of fact and not a legal concept such as domicile. It was the purpose of the 1986 Act and the Convention to adopt a concept which was the same as that adopted in The Hague and European Conventions. The Regulations must also be interpreted consistently with those conventions. The test adopted by the European court is "the place which reflects some degree of integration by the child in a social and family environment in the country concerned". This depends upon numerous factors including the reasons for the family's stay in the country in question. "In my view, the tests adopted by the European court is preferable to that earlier adopted by the English courts. They focused on the situation of the child.
Following that, Lord Hughes said in the same case that one has to look at the facts. I accept that it is likely that the mother and the little girl are both Romanian. I cannot say that I am one hundred per cent certain but the evidence firmly indicates that likelihood. The mother seemed to speak Romanian as her first language. She talked about Romania and said she was returning to Romania. It seems that we have located her family. I am not making a clear finding of that because all I can do is to look at the evidence before me and the mother is not here. The little girl was born here and the mother wanted her to be adopted here. There was no pressure on her to reach this conclusion. It was her conclusion and she gave her reasons. She said that she had no money to support the child; that her family did not approve of her relationship with the father, that they would disown her and they would not support her and that the father himself was not interested. She herself had concealed the pregnancy from her family and from her friend, Z. The mother has effectively abandoned A to her fate here. She wanted her to be adopted in the United Kingdom, hoping that she would find a good home.
Effectively the mother has left her daughter. Since the birth, A has been here, she has never left this country, she has been in hospital for good reasons after her birth and then when she was ill in July. She only left hospital in September when she was placed with her foster carers and she has not left their care since. She looks on them as her carers, as her family, their home is her home, she knows nothing else, she is only ten months old but she is comfortable, seemingly happy and settled in that environment. If she has a language, it is English. It is not Romanian. No doubt she is familiar with the sound of English. She may now be understanding a lot of things, I know not, but if she has a language it is English. Her culture is that of her carers. The environment in which she lives is that of her carers. She has accessed the United Kingdom's health system. She moves around her carers' home area with her carers. She will know their friends and her environment is that of her carers who are British, living somewhere in this country, although I am not sure where; that is where she is and that is her environment. She has had no contact with her mother since 7th June when she was still very, very small. It is clear to me that there is a distinct level of integration for this little girl in the social and family environment in this country with these carers. She has no connection from a practical day to day point of view with Romania. It is clear to me that she is habitually resident here and I make that finding.
In that sense, there is no need for me to consider Article 13 and I have jurisdiction because she is habitually resident here but if I am wrong on that, Article 13 would kick in. Where a child's habitual residence cannot be established and jurisdiction cannot be determined, the courts of the Member State where the child is present shall have jurisdiction. I am saying that Article 8 applies, this child is habitually resident in this country and by that means I have jurisdiction.
I must consider whether this matter should be transferred to the Romanian court under Article 15 of Brussels II (Revised). Article 15, paragraph 1, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case or if a specific issue and where this is in the best interests of the child, stay the proceedings, or request the country the other member state to assume jurisdiction. Paragraph 2 says,
"Paragraph 1 shall apply
(a) upon the application of a party or
(b) at the court's own motion, or
(c) upon application from the court of another Member State with which the child has particular connection in accordance with paragraph 3. A transfer made of the court's own motion or by application of the court of another Member State must be accepted by at least one of the parties."
Referring briefly to paragraph 3, as the child shall be considered to have a particular connection to a Member State, as mentioned in paragraph 1, if that Member State has become the habitual residence of the child after the court referred to in paragraph 1 is seized; (b) is the former habitual residence of the child or (c) is the place of the child's nationality or (d) is the habitual residence of the holder of parental responsibility or (e) is the place where the child is located.
I accept that the child is likely to be a Romanian child. I am making that assumption for the purposes of Article 15 but I have to in reality look at paragraph 2 first. Paragraph 1 only applies if there has been an application by a party to transfer and there has been no application. I can of the court's own motion order a transfer or (c) upon application from a court of another Member State with which the child has a particular connection. That would be a Romanian court. To date there has been no application from a court in Romania. There has been an indication that there might be one but it is not the same as the application of the court and in any event, a transfer made of the court's own motion or by an application of the court of another Member State must be accepted by at least one of the parties. Of the two parties here neither have accepted a transfer and have indeed urged against it. The mother is not present and cannot be found for her view.
It has been argued that paragraph 2 determines the issue in any event. I agree with that because paragraph 1 can only apply if the condition in paragraph 2 is met and such condition has not been met because no one has accepted that there should be transfer. I am not minded of my own motion to make the order.
In any event, I can only make a transfer under paragraph 1 to the court of a Member State with which the child has a particular connection. I am assuming that she is Romanian by nationality, but I have to consider the Romanian court to be in a better position to hear the case than this court or a specific part of it and where it is in the best interests of the child to deal with the case.
Dealing with whether the court in Romania would be better placed to hear the case, I feel that it is not. The child was born here and all the evidence relating to her care and what happened surrounding her birth is here. There is social work evidence and the medical treatment and evidence here. All the relevant evidence is here. I fully recognise nowadays that with video links courts do hear matters across jurisdictions. Of course, video links can be set up one way or the other, either to Romania or from Romania, so that is not my principal objection to a transfer. My principal objection to a transfer is whether it would be in the child's best interests. I am clearly of the view that it would not be in her best interests for the following reasons. These proceedings are well in train. There is a clear plan provided by the local authority and agreed to by the guardian that if a care order were to be made and if a placement order were to be made, this child would be effectively adopted in due course by her carers, with whom she is happy and settled and that has the advantage that there would not be a move to another set of carers.
The little girl is now ten months old and although it is said that she could, with care, be transferred to another home, it would have to be a home that was very child sensitive and capable of allowing and encouraging and facilitating this child to change her attachment from her current carers to the new family. It would be difficult but still possible. From the letters we have received from Romania there is no clarity as to where or when this little girl might be found a home. There is no clarity as to what sort of home it would be either. There is no time limit or timescale as to when proceedings would be instituted or the duration of those proceedings and what would occur to this little girl if she were relocated to Romania. Where would she go? The only situation we have been told is that if there was no family member capable of taking her in, because she is under the age of two she would be placed into foster care, and these are ominous words, that because of her age being under two, it would be foster care rather than an "orphanage". She is in a home being loved by committed people. To move her to Romania would be placing her into limbo. As far as I can ascertain, she would not go immediately to a child centred sensitive family home. She would be put into foster care and from there in due course moved somewhere. That is not in her best interests.
The timescales are contrary to her best interests as well. She is nearly a year old and delay is not in her interests. She needs to be settled in her final home urgently. The advantage of these proceedings are that she is already potentially settled in her final home and that is something that I cannot ignore.
So for those reasons I do not think that it is in her interests to be moved. Insofar as I have to consider a transfer under Article 15 I reject it as not being in her best interests. I understand from recent authorities it has to be made clear in my judgment that I have considered a transfer and the reasons for rejecting transfer and that has to be put into the order. I initially reject it under paragraph 2 for the reasons I have given but in any event I would reject it under paragraph 1 as being contrary to her best interests.
I move on to the last issue before me which is should enquiries be made of the maternal family in Romania and that this would entail a breach of the mother's confidentiality. The local authority have said that there should be no more enquiries, that it would not be in A's best interests. It would delay the proceedings here and it would delay the making of a care order and a placement order. The guardian is of a different view and says that there should be enquiries because it would be in A's best interests if those enquiries are made.
It is never an easy point to breach the confidentiality of a mother who has given birth in difficult circumstances and I recognise that she does not want her family to know about the child and she has given her reasons. It has been said by the local authority that if it became known by a mother in similar circumstances, and if she felt that her confidentiality would be broken, she may not seek the assistance of medical help in giving birth; she may seek "a back street abortion" or give birth secretly which would endanger the mother and the child. The reality is that each case depends on its own facts. The matter is within my discretion.
Under the Children Act my task is to consider the child's best interests and that must be my paramount consideration. It then sets out the checklist required by section 3 as to whether I make an order or relating to the welfare and best interests of the child. Under the Adoption of Children Act 2002, section 1(2) the paramount consideration of the court must be the child's welfare throughout his or her life and I am referred to the checklist and things that I have to consider all relating to the future welfare of the child. The care plan here is for adoption. Romania, I acknowledge, does not have the same rules for adoption and their position for placing children is different from ours. Here, recently adoption has been described as the last resort for a child when all else fails and that was said in Re B
 UKSC 803 or, as Lady Hale said, it is "when nothing less would do".
It is a last resort at the end of the day because it is the curtailment of a child belonging to his or her natural family. By adoption the child legally becomes a member of another family and is incorporated into that family on an everyday basis. She would become a full member of that family legally, practically, and emotionally. It is a change of identity of lifestyle, environment, a change of everything in a child's life. It is a cutting off for the child from her background or the knowledge of the family and the environment in which she came from and it is a cutting off in law as well. The President in the recent case of Re B
indicated that it should only be done on very clear evidence and there must be proper evidence both from the local authority and from the guardian and the evidence must address all issues and must contain an analysis of the arguments for and against each option. There must be clear evidence and proper information or as much as can be garnered. All options must be considered before a care plan for adoption can be accepted, with a placement order being made or an adoption order being made.
The court has a duty to ensure that full and proper enquiries have been made of the child's family. Herein lies the problem, the tension between the little girl's interests and rights and those of the mother. The mother is not present because she cannot be found and she is not here to put her view and her voice cannot be heard but she made her wishes and intentions for her daughter clear. She wanted the little girl to be adopted and she wanted full confidentiality and had concealed the pregnancy. It is not known how the maternal family would react or what the consequences might be either within the family or to the mother if it became known by the family that the mother had given birth to this little girl and had effectively abandoned her in a foreign land. That we do not know. All we have is the indications by the mother that the family was disapproving of her relationship with the father and she felt that they would not support her in keeping the baby, that the father was not interested. We do not know the consequences that might arise if the family knew about it. All we know is that she wanted confidentiality for her own reasons.
Against that, the little girl has her rights and rights that should be considered before she is adopted here by her current carers. Enquiries should be made to see if she can be returned to her family, her culture, her birth environment, the country of her origins and those are her rights. Both sides, the mother and the daughter, can claim their right to Article 8 of the Human Rights which is that everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of respect except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, and economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In other words, in a case like this, there is to be respect for the individual's private and family life and that the court and others should not interfere with that right.
I must also remember that if the information is correct, there are other members of her family, the grandmother, and there may be a grandfather, the half-siblings, and the father himself would have rights to know about this child, to have a voice in that child's upbringing, if only to say, "We are not interested," but they have rights.
It is established law that if there are conflicting interests between a child and adults that after careful consideration of all the interests and consequences of any order, and the child's interests are paramount and they prevail over others.
On the one hand, we have the mother's position, as she set out and her wishes and her intentions for her daughter. On the other hand, we have the little girl's interests. Very little is known about her mother or her maternal family or their circumstances and even less about the father who has not been identified. The guardian, on behalf of A, says that it is important to carry out further enquiries and investigations to see if there is a long-term family member available in Romania, if there is a possibility of direct or indirect contact in the future if she is to remain here and to be adopted; and, if she is to be adopted, more information as to her background would be useful as to her family, their background. Such information may be of value to her in the future to know who she is, to know her background and to give her some sense of identity as to where she came from. Her guardian says that eventually if she is to be adopted, she will grow up to know that she has been adopted but she needs to know before she is adopted that everything was done that should have been done before a decision is made and that will be of value to her in her adult life. The guardian accepts that if there are to be further enquiries, there must be no delay.
There was a window of opportunity in February, it has narrowed in the last few weeks and there is very little time left if those enquiries are to be made. If I allow enquiries to be made, they should be strictly time restricted. The local authority say that there is enough information for this court to proceed, that this child needs to be settled quickly, decisions should be made and there should be no more delay given that the mother's wishes are clear.
I accept, if there is to be further investigation, that delay is an issue. Fortunately she is well placed. If she is to be adopted there will be no move and therefore she herself from a day to day point of view will remain settled until more is known and further decisions can be made but against that, the stress and strain on the carers must be huge. They love her and are committed to her and want to commit to her long term. They need certainty now or very soon from now. It is not fair on them to make them wait for ever. I bear that very much in mind because they are doing a good job and the little girl is benefiting from their care. Anxiety within the home never is good. It will or potentially could impact upon their care and that is what worries me.
I have thought about this and it is not an easy issue but I have come to a decision. I have come to the view that it would be in A's best interests to make further enquiries in Romania about her family and for the reasons set out by the guardian but those enquiries should be strictly time limited. There should be a strict timetable as to when they should be concluded. If they are not concluded in the timescale because it has not been possible, then decisions will have to be made in this court to conclude these proceedings. I think there should be one last attempt to make further enquiries of the mother's family and of the father's if he can be identified and of the provision and systems for child care in the Romanian locality.
Questions have been drafted by the guardian as to the issues which need to be raised and I approve of those questions. The issue is how best we can do it either through the Romanian central authority or in any other way and it may be that counsel would wish to discuss the matter before I finally conclude today but I am very anxious about the timing of this case. I envisage a short period when enquiries can be made. This case can be brought back to me as soon as possible after that. Hopefully we will have the information and final decisions can be made as to the future of this child. I am very concerned about delay. If counsel would like to consider the matter amongst themselves and then address me shortly, we will move forward.