X, Y & Z (Children : care proceedings), Re

In care proceedings, the threshold is satisfied where children are beyond the control of their carer and are consequently at risk of significant harm. Once the threshold is crossed, the court must treat each child’s welfare as paramount and balance the advantages and disadvantages of the available placement options. Approval for children to live outside England and Wales under Schedule 2, paragraph 19 of the Children Act 1989 requires satisfaction of the statutory conditions, including best interests, suitable arrangements for reception and welfare, the children’s consent, and parental consent or the inability to locate a person with parental responsibility.

These were final care proceedings concerning three children who had lived with their maternal grandmother. The proceedings arose from concerns about neglect, poor school attendance, criminal behaviour, and risks of physical, emotional and sexual harm. Two children were subject to interim care orders and were living with foster carers; the third had moved to live with his father.

In an earlier judgment, the court had requested that a Czech court assume jurisdiction under Article 15 of Council Regulation (EC) No 2201/2003 (Brussels II Revised): [2014] EWHC 1221 (Fam). The request was refused. The central issues were whether the threshold criteria were met, what orders served each child’s welfare, and whether the two younger children could return to the Czech Republic with their grandmother.

1. Threshold. The threshold criteria were satisfied. At the commencement of proceedings, all three children were beyond the control of their grandmother and at risk of significant harm. The risks included criminal involvement, sexual exploitation, physical harm, emotional harm and serious educational neglect.
2. Welfare assessment. The welfare of each child was the court’s paramount consideration under section 1(3) of the Children Act 1989. The court had to balance the competing placement options, analysing their advantages and disadvantages. For X, no order was appropriate because he had settled with his father, his welfare needs were being met, and that arrangement accorded with his wishes.
3. Children living abroad. Under Schedule 2, paragraph 19 of the Children Act 1989, the court approved arrangements for Y and Z to live outside England and Wales. It was satisfied that living in the Czech Republic with their grandmother was in their best interests; suitable arrangements had been or would be made for their reception and welfare; both children consented; and the persons with parental responsibility consented, or, in the case of the unavailable father, could not be found within paragraph 19(5)(a).
4. Article 15 guidance. The court identified two procedural lessons. Before making an Article 15 request, the court should obtain clear information about the procedures required in the receiving jurisdiction. Any Article 15 order should be drawn and sealed urgently, because procedural uncertainty and delay may harm children’s welfare.
5. The arrangements for Y and Z to return to the Czech Republic with their grandmother were endorsed. The local authority sought no order concerning X, and that course was approved.

This was a first-instance final determination. An earlier judgment made an Article 15 request to the Czech court: [2014] EWHC 1221 (Fam). The request was refused, and the present court determined the care and welfare issues.