EUPillar Re J, E (Children: Brussels II Revised: Article 15) [2014] EWFC 45

Summary

The care proceedings were in respect of two children, J and E. Both children were born in England. The first child, J, was born in January 2012, and the second child was born in May 2013. Both parents were Hungarian nationals. The family was living in very poor conditions, which was why the Local Authority placed both children in a foster placement. After the English court assumed jurisdiction under Article 8 of Brussels IIa, the questions was whether a transfer request was to be made under Article 15. HHJ Bellamy made a request to the Hungarian courts, holding that: “86 […] a decision under Article 15 , which is in essence a decision as to forum, does not raise a ‘question with respect to the upbringing of a child’. It is a decision about where that question is to be determined.” […] 88 In this case, there are two components to the issue of delay. Firstly, there is the delay which has already occurred. Secondly, there is the delay which will arise as a result of an order for transfer under Article 15. They cannot be considered in isolation from each other. 89 As for the first, leaving to one side the delay which arose as a result of this local authority's failure to act more decisively in the twelve months before E was born, since the children were placed in foster care the local authority has been responsible for further delay. Having applied for emergency protection orders the parents agreed to the children being accommodated under s.20 of the Children Act 1989 . That should have been (and according to the guardian was expected to be) a short-term, temporary arrangement pending the issuing of care proceedings. It wasn't. This local authority relied on the parents' consent under s.20 to keep these children in foster care for eight months before finally issuing proceedings. That should not have happened. 90 There has also been delay since the proceedings were issued. At the time these proceedings were issued the revised Public Law Outline, then being piloted, required that cases should be completed within 26 weeks. Since 22nd April there has been a statutory requirement that care proceedings should be completed within 26 weeks. Eight week extensions may be granted but should only be granted if the court is satisfied that an extension is ‘necessary to enable the court to resolve the proceedings justly’ ( s.32(5) ). Although it would appear from previous orders that in this case no extensions have been formally granted, it is the case that this hearing took place during week 41 and that judgment is being handed down during week 43. 91 As for the second, it is inevitable that there will be some delay in settling the children's future in the event that the proceedings are transferred under Article 15 . I do not know what the timescale will be for concluding the proceedings in Hungary. What can be said with confidence is that any delay which may be occasioned by transfer will be exacerbated by the significant delay thus far, much of which is attributable to this local authority. 92 I accept that in this case delay is a relevant factor to weigh in the balance. However, the issue of delay must be seen in the context of the points made from §88 to §91 above. Put in that context, I am not persuaded that significant weight should be accorded to it.” [86 and 88-92]