Summary
The proceedings were in respect of a child, A, who was born in England on 27th May 2013. The mother was Romanian, and so too was believed to be the father.
On 22nd May 2013, the mother came to England on holiday. She gave birth to the child in England.
The mother subsequently left the country, leaving the new-born baby behind.
The LA got involved, and the English care proceedings were initiated in August 2013.
An application for a placement order was put forward in October 2013.
The English High Court established that it had jurisdiction under Brussels IIa, and refused to make a transfer request to the Romanian courts. Mrs Justice Hogg held:
“36 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.
[…]
41 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.
[…]
49 […] 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.”
[36, 41 and 49]