Artwork by Julia Giles

Our Recent Reported Cases

20th August 2013
Our Recent Reported Child Law Cases

We recently represented a 5 year old child in the High court who had suffered non-accidental injuries.  Both parents of the child were Slovakian nationals.  The mother had been granted a residence order for the child on 30th May 2011 and the father was to have contact.  On 28th May 2012 the mother moved to the United Kingdom to pursue her relationship with the stepfather whom she had met on the internet earlier that year.  They lived together in East London where the child attended school. The mother married the stepfather shortly after her arrival in the United Kingdom. Care proceedings were issued on 4th March 2013 following injuries being observed on the child’s back at school, which he reported as having been caused by his stepfather.  The child was removed under an interim care order and placed in foster care.  Without prior to notice to the other parties the mother returned to Slovakia on 26th March 2013 and on 30th April gave birth to another child, whose father was the mother’s new husband.  On 16th April 2013 the Centre for International Legal Protection of Children and Youth in the Slovak Republic (the Central authority) intervened and sought the child's return to Slovakia under Article 15 of the Brussells II Regulations.

The case was first reported as LA v ML & Ors [2013] 2062 (Fam) as to whether the High Court had jurisdiction to hear the case under Articles 8 or Article 13(1) of the Brussels II Regulations.  On behalf of the child it was successfully argued that the High Court did have jurisdiction, as the child was habitually resident in England and Wales.  Mrs Justice Theis found the child had been habitually resident, as the evidence clearly pointed to the mother coming to the UK with the intention of settling here.  The father had acquiesced to and accepted the move in that he had taken no steps either before or after the proceedings were commenced to suggest the mother came to England without his consent and took no steps to secure their return to Slovakia.  In relation to Article 15 of Brussells II Regulations Mrs Justice Theis described it as a finely balanced test and that the “gravitational force of the proceedings remaining here” was more persuasive, at least until the conclusion of a finding of fact hearing, to determine the cause of the child’s injuries.  The reasons for this included: (i) if the proceedings did not satisfy the threshold criteria then the case would fall away and there would be no need to transfer the proceedings to Slovakia; (ii) the majority of the evidence in the fact finding was in this jurisdiction; and (iii) Mrs Justice Theis could list the matter for a finding of fact hearing in only 2 weeks’ time.  The question of transfer was therefore to be re-considered at the finding of fact hearing.

In the finding of fact hearing LA V ML & Ors [2013] 2063 (Fam) on behalf of the child we successfully argued that the mother and stepfather had injured the child, failed to meet his health needs and that the mother had failed to protect the child form the actions of the stepfather.  The case was then transferred to Slovakia for determination of where the child should live under Article 15 of the Brussells II Regulations.  Mrs Justice Theis found that whilst the balance had been tipped in favour of the proceedings remaining in the United Kingdom, mainly by the presence of witnesses here, the balance had now tipped in favour of transfer.   The reasons for her conclusion included: (i) all of the child’s biological family were now in Slovakia; (ii) the child’s first language was Slovakian; and (iii) he had been habitually resident there for the first 4 years of his life.  There were clear advantages that the measures that would be put in place for the future care of the child following the welfare assessments, should be imposed in the jurisdiction where the child had spent most of his life and where his mother was now residing.



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