This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

Case No: ME16C00163
Neutral Citation Number: [2016] EWFC 72
IN THE FAMILY COURT
Sitting at Canterbury

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/05/2016
Before:

MRS JUSTICE THEIS DBE

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Between:

	Kent CC	Applicant	
	- and -		
	C	1st Respondent	
	- and -		
	D	2nd Respondent	
	- and -		
	A and B
(By their Children’s Guardian, Ms Elaine Mitchell)	3rd & 4th Respondents 	

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Ms Katie Phillips (instructed by Kent CC) for the Applicant
Mr Mike Batt (instructed by Rootes & Alliott) for the 1st Respondent
Mr John Swales (instructed by Kingsfords Solicitors) for the 2nd Respondent
Mr Philip McCormack (instructed by Davis Simmonds and Donaghey Solicitors) for the 3rd & 4th Respondents 

Hearing dates: 18th, 19th & 20th May 2016

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Judgment
Mrs Justice Theis DBE: 

Introduction
1.		I am giving this short judgment to summarise the outcome of these proceedings.

2.		On any view this a deeply troubling case, concerning two young children A, 5 years and B, 4 years. They arrived here from Slovakia with their mother, M in December 2015 for what she said was a holiday, in circumstances where she had made no reliable or practical arrangements for them to stay anywhere. She left her older child, C, age 7, in Slovakia in the care of her father, S. For the next four weeks their accommodation here was very unsatisfactory, including spending time staying overnight in a car. They came to the attention of the authorities when they presented at an A&E department in late January 2016. Both the mother and the 4 year old had suffered significant injuries, which some four months later there is still no clarity as to how they were caused, and by whom. 

3.		Both children were placed with foster carers on 25 January 2016, where they remain. 

4.		The mother alleged the injuries had been caused by the father, F, who lives here. According to her the father kept her and the children in accommodation against her will for a number of days in January 2016, she alleges he physically assaulted them during this time and sexually assaulted her. 

5.		The father has been arrested, charged with physical and sexual assaults in relation to the mother and children and is currently in prison awaiting a criminal trial regarding these charges.

6.		The police investigation has been hampered by the inconsistent accounts given by the mother of the events that took place. In her most recent interview she has made allegations of pressure and threats and has withdrawn some of her allegations, to the extent that she says she either did not know or consented to the alleged sexual assaults on her by the father.

7.		The Local Authority (LA) initially sought an emergency protection order on 28 January, to secure the children’s placement with foster carers. The LA subsequently issued care proceedings. The children have remained placed with foster carers, pursuant to interim care orders made in favour of the LA. These orders have been made under Article 20 Council Regulation (EC) No 2201/2003 (“BIIR”), as the issue of jurisdiction was identified at an early stage. The mother does not accept that she was habitually resident here at the time proceedings were issued, in late January 2016. 

8.		The Slovak Central Authority was contacted and the court has the benefit of a number of helpful reports prepared by the Head of Centre for the International Legal Protection of Children and Youth. Those reports indicate that if jurisdiction is established they supported an Article 15 transfer of the proceedings to Slovakia. The reports provided also included information about the circumstances of the children and maternal family in Slovakia. 

9.		The issue of jurisdiction was listed for a three day hearing on 18 May 2016. The mother, father and his brother, X, gave oral evidence. 

10.	At the conclusion of the oral evidence the LA, on whom the burden of establishing habitual residence rested, realistically accepted that they were not going to be able to establish habitual residence, in accordance with the principles set out by Baroness Hale in Re A (Children) [2013] UKSC 60 at para 54. In those circumstances they accept that these proceedings cannot continue in this jurisdiction, save to the extent they need to in accordance with the jurisdiction conferred by Article 20. 

11.	In the light of the LA’s position all this judgment will do is summarise the position to date and set out the basis upon which this court considers it needs to exercise its powers for the continued protection of these two young children.

Relevant background
12.	The parents are in their late twenties and both are Slovakian nationals. They have known each other since they were teenagers and have been in a volatile relationship for the last eight years. They have three children; C born in 2009, A born in 2010 and B born in 2012.  That relationship has been marked by frequent separation and alleged violence. The father has been largely based in this country and the mother has come here and then fled back to Slovakia, usually after alleged violence towards her at the hands of the father. The father has, on occasion, returned back to Slovakia and again there have been allegations of violence there too, when he has fled back to this jurisdiction.

13.	According to the information from the Slovak Central Authority court orders made by the Slovakian court in January 2011 determined the parental rights in relation to C were entrusted to his maternal grandfather, S. This is reported to be due to the neglect of C’s care by both parents. Then maternal grandfather was imprisoned in October 2011, his wife sought the care of C, which the mother did not agree to. In May 2012C’s care was entrusted to the Crisis Centre. In August 2012 both A and B joined C in the Crisis Centre, due to orders made by the court in Slovakia. The main reason for that decision was because the mother had escaped the household due to an alleged physical attack from the father, he had robbed her and made threats to the children. The mother lived with relatives and the father returned to the UK. By orders made in September 2012 C was placed back in the care of his mother, A and B returned to their mother’s care by court orders made in December 2012. Since that time the family have received support from the social services office and the family have been supported by the maternal grandfather. The current position is C is cared for by his maternal grandfather, whose wife has died. The grandfather currently lives with his partner, who is a widow too. She has two children and there is a child born in 2015 whose parents are the grandfather and his partner. C is at school. The Slovak Central Authority report that the mother received parental benefit in May 2015, and since July 2015 monthly payments have been made to her as specified in the report. The report continues ‘From the statement of grandfather it is clear he did not agree with the departure of mother to UK. After the previous experience he has reasonable concerns of minor children’. The report continued that he would put himself forward to care for the two younger children and, if required, was willing to travel to the UK and be questioned by the UK authorities.

14.	The LA have records of referrals to them when the mother and children have previously been in the UK. In 2009 the mother alleged the father had physically abused her and threatened to kill her, two weeks later there is a report that the mother had returned to Slovakia. In 2010 there was a referral by a midwife about the mother due to concerns about allegations of domestic abuse against the father. Shortly afterwards the mother withdraws the allegations to the midwife. A month later the LA are contacted by a health visitor who reports the mother’s allegations about domestic abuse and control by the father and his family. Three days later the LA supported the mother returning back to Slovakia. In August 2011 there is a referral that the family are homeless and living in a car. A was very young and they request support to return back to Slovakia. In February 2012 the mother reports the father had returned to Slovakia and his violent behavior resulted in the police being involved, and he has since fled back to the UK.

15.	The mother together with A and B arrived at Luton airport on 20 December. They had come on single flight tickets and had nowhere to stay. The mother has given varying accounts of why she came here; ranging from visiting for a two week holiday to possibly looking for work. She has given differing accounts as to whether the father knew they were coming; such accounts ranging from her stating she had had no contact with him for the previous five years, to there being facebook contact between them in the period leading up to her arrival in December. It is not necessary now to deal in any detail with these differing and confusing accounts, which are set out in some detail in the written statements from the parties and their interviews with the police.

16.	Bearing in mind the volatile background to her relationship with the father and her lack of support here, it is very clear the mother’s decision to bring these two young children here in December was reckless and, without doubt, contrary to their best interests. It put the children at risk of significant harm as they had nowhere to stay and no means of supporting themselves. Within a very short period of time she had contacted the father to seek his help. Again there is a lack of clarity about precisely when they met and in what circumstances, but it appears they started meeting sometime	in December. The father was not in a position to provide any financial or practical help, as he had nowhere to live and was not working. 

17.	The family first came to the attention of the authorities here on 11 January, when the police record speaking to the parents due to reports of the children being left alone in a car. According to one of the mother’s later accounts the father was driving them to the seaside to drown them, but had run out of petrol. The mother was observed to have bruising which at the time she reported had come from dental treatment. They were taken to the father’s brother’s house, where he says he paid for some accommodation for them. He described in his statement the children were cold, hungry, dirty and were in an ‘awful state’.

18.	The family next came to the attention of the authorities on 25 January when social services received a referral from the Police that the mother had attended at hospital with the children A and B and made allegations that she and children had been kept against their will by the father since 9 January. According to the mother she had coach tickets for her and the children to return to Slovakia on 9 January, the father had offered them a lift to the coach station and had kept them against her will since then. She made allegations of repeated physical and sexual violence by the father against her and his physical violence against the children.

19.	The records from the hospital describe both children as smelling of urine, being unkempt and appeared hungry, it was not thought they had eaten during the previous two days. Although A appeared to interact well with nurses B was described as being ‘very distressed when he arrived, shaking and appeared very cautious and wary of adults. No eye contact at first, just stood in room. Very Hungry and thirsty…’. The mother was noted to have bruising on her body, scratches on her neck and an alleged bite mark to her upper abdomen. DNA confirmed recent sexual contact between the mother and father. B had multiple bruises throughout his body (including his face, trunk and extremities) which were of different shapes, sizes and ages. He also had a comminuted facture of the right distal humerus, which required urgent surgery. The Consultant Paediatrician concluded in his report, following his examination of B, ’the presence of multiple bruises of different sizes, shapes and ages along with the comminuted fracture of the right humerus are very much suggestive of non-accidental injuries’.   Although A did not have any signs of physical injury there were concerns about her behavior; which included her spitting, kicking and punching at staff and her family and there was evidence of very poor attachment between the children and their mother.

20.	The children were placed with foster carers. They initially had contact with their mother twice a week, this has recently reduced to once a week due to the social worker’s concerns about the mother’s behaviour in failing to engage with the children and the children’s wishes not to attend contact with their mother. The LA are currently supporting the mother to enable her to be more responsive to the children during contact, and will review the frequency of contact in two weeks.

21.	In her initial interviews with the police and her written statements filed in these proceedings, the mother describes in great detail the violent behaviour by the father towards her and the children during the period she says they were held against their will by the father. She describes the children witnessing the repeated violent and sexual assaults on her by the father and the father’s violence towards the children. According to the mother the father also took drugs during this time. In her statement in these proceedings she stated

“[the father] took us to the house where everything happened that was very bad.  He had beaten me up and he punched me.  I fell down on the floor and the children were crying a lot.  He took them to stay in the hallway where they were standing.  I really do not know exactly what had happened.  I came round and saw myself naked and B was crying.  There was such a darkness.  I was shouting at [the father] about what he had done to him.  He said to me he just fell down the stairs.  He was beating me up all the time.  B was receiving slaps all the time but he did not do anything to A. It was horrendous…he was very nervous and he locked us up.  He punched me on my nose and I was bleeding.  He was calling me a whore. Then he started snorting something in front of us.  Somebody called him and he ran away.”

22.	The mother gave a further interview to the police in late April. In that interview she states she had been threatened, that B told her he injured his arm when he fell down the stairs, and the father may have slapped him to stop him crying. For the first time she states she met up with the father soon after her arrival here and had a discussion with him about staying in the UK and that she was not raped or sexually assaulted by the father, what took place was with her consent. When asked if she saw the father assault B she said “I don’t know if it was him because when he hit me I fell down and they, the children were in another room.  He didn’t wanted the children to be, to see how he is beating me up, but the children were crying (sic)”

23.	The father has denied the mother’s allegations. He has given no account of how B received the serious injuries that he had.

24.	It is clear from the recent police disclosure they are considering their position in the light of this recent evidence.

Legal Framework
25.	In the light of the acceptance by all parties that these children were not habitually resident here when these proceedings started the court is exercising its jurisdiction pursuant to Article 20, which provides

“Provisional, including protective, measures

1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.”

26.	For a court in this jurisdiction to make interim orders for children to be placed in the care of the LA the court has to be satisfied that there are reasonable grounds for believing that the children have suffered or are likely to suffer significant harm due to the care they receive or are likely to receive from their parents (see section 38 Children Act 1989). If the court is so satisfied in considering what order to make the children’s best interests and welfare is the court’s paramount consideration (see s 1 Children Act 1989), having regard to the matters listed in s1(3) Children Act 1989.

Discussion and Decision
27.	There can be no doubt that due to the actions of each of these parents, both A and B have suffered significant physical and emotional harm and are at risk of that harm in the future if they were returned to either of their parent’s care. Both parents have failed to protect the children from harm. 

28.	The children’s best interests can only be protected if they remain placed with foster carers here, until the LA here have liaised with the authorities in Slovakia to make suitable practical arrangements for their return to Slovakia in a way that is in their best interests, so they do not suffer any more harm. 

29.	The mother’s reckless action in bringing these two children to this jurisdiction in December, with no suitable arrangements in place for them to be accommodated or supported was not in their best interests and has caused each of them harm. The fact that she has been unable to give a coherent or consistent account of what has happened to the children since they have been here has also caused them physical and emotional harm. The evidence points towards her making contact with the father, who has allegedly harmed her and the children in the past, and putting the children in a situation where they were both harmed again. B suffered very serious physical injuries and both children have suffered significant emotional harm due to the mother’s inadequate care of them. The mother has shown no real recognition, or understanding, of the damaging effect of her actions on the children. Her behaviour during contact, where she has not been able to relate to the children or show emotional warmth to them is continuing to cause the children emotional harm. 
30.	Equally, the father’s actions have also been contrary to the interests of these two young children. He has given inconsistent accounts about his contact with the children and the mother, has not supported the mother and children and has failed to give a proper account, if he knows, of how the mother or B were injured.

31.	The allocated social worker saw the children in a joint visit with the police on 21 April 2016, where A alleged she was beaten by her mother. The social worker’s record of that meeting states as follows:

“A held her fist clenched and demonstrated with her clenched fist that her mother beat her cheek.  She held her clenched fist to her left and right cheek and also her left and right shoulder and her right thigh.  She also held her fist at her stomach.  A then said that [the father] beat B.  She held her clenched fist to her left and right cheek, her nose and then said he made B’s nose bleed…She said that she was beaten in Slovakia and England by her mother but B was beaten in England by [the father].  A said that [the father] beat her mother and she held both hands at her throat as if being strangled.  She also held her fist at her stomach and said he thought she was asleep but she saw and heard [the father] hurting her mother.  A said she was scared…A confirmed that it was not a slap and held both fists clenched in front of her and pulled an aggressive face her nose and face scowling.  A was asked what her mother would do afterwards.  A said she was upset when she beat her.  A said that her grandfather in Slovakia was aware of this and did nothing.” Within the same interview B indicated he was “kicked, he held his leg up with his foot out and kicked it into the air and he said [the father] did this to him.  B also said that [the father] beat him and he said he hurt his arm.  B held his right arm up, he held his hand drooped forward and then with his other hand he showed how it was bent at the wrist. B said he cried.”

32.	On the information available to this court it is clear neither the mother or father can protect these two young children, they are not able to act in the children’s best interests and if the children returned to their care they would very likely be physically and/or emotionally harmed again by their parents.

33.	The long term future care of these children is a matter for the Slovakian authorities. Pending arrangements being made for the physical transfer of these children to the Slovakian authorities, the only order that will protect these children from further harm from their parents is for them to remain in the interim care of the LA placed with foster carers.

34.	I will direct that this matter will return to court in early July and make directions, to be agreed between the parties, for liaison through the Central Authority regarding practical arrangements for the children’s return to Slovakia in due course.