LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
"The final professional word for the practitioner in family and child law" Phillip Taylor MBE...
‘Transfer to a court better placed to hear the case
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 a specific part thereof, and where this is in the best interests of the child [stay the case, or transfer to the court of nother member state].’
‘ The first care proceedings ended with the making of a child arrangements order in favour of maternal grandmother. Children Act 1989 s 12(2) provides that: “Where the court makes a child arrangements order and a person who is not a parent or guardian is named in the order as a person with whom the child is to live, that person shall have parental responsibility for the child while the order remains in force so far as providing for the child to live with that person.” It follows, therefore, that as a consequence of the child arrangements order the grandmother acquired parental responsibility for the children.’He then asked himself the question:
‘ As a matter of law, in light of the orders made by the Latvian Orphan’s Court, does the grandmother still have parental responsibility for the children or has the order made by this court on 31st March 2015 ceased to have effect? This is not simply an academic point. Rule 12.3(1) of the Family Procedure Rules 2010 provides that “Every person whom the applicant believes to have parental responsibility for the child” is an automatic respondent to care proceeding relating to that child…’It seems the local authority did not serve the grandmother. The judge was undecided as to whether he should say that she should be served; but said he was not willing to decide the point. Despite that he refused the Latvian court’s application; that is without hearing from the grand-mother.
‘ … I have come to the conclusion that it would not be appropriate for me to determine the point at this juncture. The local authority accepts that the grandmother should be given notice of the proceedings. She should be informed of her entitlement to apply for party status and of the fact that it is possible she may be entitled to automatic party status. If the grandmother wishes to be a party to these proceedings she can make an application. If she makes an application it is open to her to contend that she is entitled to automatic party status. Then and only then does it become necessary for the point to be determined.’The judge refers to FPR 2010 r 12.3(1) as setting out who should be parties to care proceedings (see row 12 of col 3 of the table in r 12.3(1)). He says it means ‘every person whom the applicant believes to have parental responsibility for the child’. He is probably right if ‘As above’ refers back to row 1 in the table. It must mean that, but it is not clear. The table has confused court staff, Legal Aid Agency decision-makers and even Black LJ (as she then was) in the Court of Appeal in Re W (Representation of a Child)  EWCA Civ 1051,  2 FLR 199.
‘ … The first of these questions is a simple question of fact and the second and third questions an exercise in evaluation undertaken in the light of the circumstances of the particular child.’Of the children’s position in relation to England and Latvia best interests Judge Bellamy said:
‘ These children are Latvian children of Latvian parents. They were born in Latvia. They are Latvian nationals. Until April 2010 they had lived in Latvia all their short lives. They returned to live in Latvia in April 2015 and remained living there until May 2016. During that period they lived with their maternal grandmother and also, from July 2015, with their mother. They still have both maternal and paternal family members living in Latvia. In my judgment it is plain that they have “a particular connection” with Latvia for the purposes of Article 15(1).But said the judge, there were ‘factors that point the other way’ (though it is not possible to tell how any of these factors would have operated differently if the children had been with their grandmother in Latvia: if that remained an option for the court); and in particular:
 Would the Latvian court be “better placed to hear the case, or a specific part thereof”? In light of the extent of the children’s connection with Latvia described in the previous paragraph coupled with the involvement of the Latvian social services and the Latvian court in 2015 and 2016, to which I referred earlier, I accept that it is arguable that the Latvian court is “better placed to hear the case”.’
‘(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union.’Art 24, like the Regulation is – at least at present – part of the law in England and Wales. Art 24 of the Charter (and, for the role of the Charter, see 'Child's views and court proceedings') says as relevant:
‘1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.In Re D (A Child) (International Recognition)  EWCA Civ 12,  2 FLR 347 (child’s ‘opportunity to be heard’ in a Brussels IIA decision) the child was 7. HHJ Atkinson took into account a 10-year-old’s views. There is no record of HHJ Bellamy having considered the views of either child, though they were aged 12 and 8; nor of recital (33) and Art 24 being considered in terms.
2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration….’