Tag Archives: jurisdiction

Keep on Running

“Every family that I am aware of that have fled have kept their kid yet in the UK they wouldn’t have that – to me speaks volumes.”

This is a post from Stella, a mother who has faced many care proceedings. She is now living in France with her baby son. She explains why she is a ‘mum who runs’ and makes some suggestions for what we could do to make the situation better/safe for other mothers and children in the UK. She makes a powerful case for more targeted support for parents – given the massive impact on families when a child is removed for adoption, surely it’s worth thinking about?

 

They are all running abroad ????……. But WHY???

That really is the million dollar question isn’t it? All are aware the UK child protection system is failing, we the parents know it, you the professionals know, hell even the big fella president Munby admits it.

But why what’s changed in the UK from 10/20 years ago ? Why when parents flee abroad do we sing the local authority praises keep our kids and vow to never return ?

Curious that the UK say we will never be “capable” “safe” “the risks outweigh the benefits “it’s not in the child’s best interests” “not in their time scales” “haven’t got the support required” sound familiar ?

Yet abroad France, for the example I plan to use here, in particular we are given the all clear and stay with our children. Personally the differences I’ve found that stick out in my mind predominantly are the level of support offered freely from everyone here, the level of care, the community compassion and oddly that I am yet to see a single child misbehave.

It’s not a resources and funding issue – its about a way of life

This isn’t a resources and funding issue, France is very much in my view a poorer country than the UK and very much behind in a lot of ways compared to the UK. People still get water out the well, the areas are rural and many buildings in desperate need of upgrades and proper plumbing yet they are very much ahead of the UK in many areas, yet oddly are how the UK child protection services used to be years ago and flourishing from it

It’s mainly a quality over quantity difference from what I’ve seen. Everyone goes the extra mile works together, chips in, there’s no snobbery or segregation most of the shops are second hand shops and most items are bought from boot sales you can pick up some of the most fantastic well made solid wood quality furniture for under the equivalent of £20 (I’m sad yes but I’m a sod for a bargain !) women are helped with their shopping doors are opened everyone is polite and evening meals involve a get together of friends and neighbours eating together, everyone brings a little bit of something  – how I remember it being back when I was a kid.

What support is offered to new mothers by the health system?

Health care is another vast difference that immediately jumps out at you when you come here. Maternity care is very, very intense –  lots of appointments blood tests, scans, internals, midwifes, nurses, consultants, doctors, anaesthesiologists etc ……. All well and good until you need to translate into French you’re a wimp scared of needles, blood and need the kids numbing Emla cream put on, someone to hold your hand another to hide them doing the bloods and ten minutes to stop the crying panic attack and throwing up. Yep I am THAT wimp and it’s not fun for monthly blood tests.

Following labour, after care is amazingly different to the UK – you stay in on average 4 days which unlike the horror that is a NHS hospital stay it’s like staying at the Hilton no kicking out the door after 6 hours with a healthy dose of mrsa and the flu for good measure here nope ….

You’re given your “room” which consists of a wardrobe, a table, a bed, a chair, a nursing chair, a meal table tray, a set of drawers, a bed side table and an ensuite with your basic vanity mirror sink toilet and shower facilities and also a baby goldfish bowl bed if you want your tiny human in the room with you and don’t want to take advantage of the attached room which is your personal tiny human nursery consisting of cot, baby bathing sink, and changing unit weighing scales, all medical equipment type stuff for newborns etc.

Bedding is changed daily, the rooms are cleaned daily, hairdryers, towels, nappies, underwear sanitary products, toiletries, vitamins, meals, tea, coffee, juice fruit etc is provided several times a day. DO NOT try and use your own products or help strip the bed or tidy up for them  – you are there to rest and recover they are VERY strict on that.

You have a call button for your care and a telephone for babies care, they each use their own separate entrance doors to your room so you know whether to hand the tiny human over and breath a sigh of relief it’s not your turn or prepare to be prodded and poked temperature blood pressure and every other thing taken this happens several times a day and don’t for a second think hiding will make you safe. Even the food lady and cleaners are in on this prodding and poking torture treatment there’s something oddly disturbing having to share your toileting n personal hygiene habits with every single person that enters your room. They are VERY big on noting everything for baby and you but primarily if baby is gaining weight well they descend on you with a vengeance.

During your 4 day stay whether you are a first time mum or in my case on your 6th tiny human, you are shown how to do everything – change a nappy, give vitamins, clean eyes, nose, ears, cord, dress them, bath them, feed them.  They make you watch them the first time round then they note if you can do it next time round.  To be discharged you must complete the task to their standard  – no skipping ahead and doing it yourself in day one thinking you get out quicker. You are banned from doing anything day one other than resting.  Day two you get to do exciting stuff like watch them wash your baby, day three you get allowed to try stuff and baby gets their hearing test and by this 3rd day baby must be registered here for their birth certificate. On the 4th day bloods are done and they see if they will let you home.

You are given your health visitor appointment, introduced to them in the hospital before you can leave and you look back quite disappointed you’ll actually have to cease this being waited on hand and foot never did I think miss anti hospital here would want to stay longer ????

If they don’t think you’re managing you get referred to assistant social who will offer additional support. They also help with housing money childcare etc and visit you regardless before u leave to see if you want any help you are not punished for refusing this additional support and they leave with a smile and a card to show their door is always open.

 

What’s the attitude of the French local authorities? Back to basics social work

Which is really what you want to know what are the local authority is like here ….. Fantastic is the answer.

There’s a real air of get it right first time or fix it so it works here from the hospital birth onwards everything is geared towards making the family unit work which is the key difference “if it’s broke fix it don’t replace it” is a running theme from household items to their child protection system and it works.

Another key thing here is future emotional harm isn’t recognised your children only get taken if there has been actual harm such as sexual or physical. With neglect they tend to support rather than remove, such as help with housing food household items cleaners mother and baby units etc unless it’s alcohol or drugs in which case numerous drink and drug blood and urine tests are done to ensure your clean and capable but again rehabilitation is the aim all round here.

It’s primarily back to basics social work where social workers actually work with the community without fear of criticism or reprisal. None of the finger pointing and blame culture the uk now has against social workers who try to give families a chance resulting in social workers unwilling to take a risk and families not seeing the point in working with them as the decision is already made therefore the court system being fit to burst and the whole system being in tatters from start to finish.

Is the UK spending its money in the wrong places?

This isn’t a case of France having more funding and resources it’s more of money being well spent in the right places like their road tax only gets spent on repairing roads and ta Dar …. They’ve got the best roads I’ve ever seen !

Just think how much the UK spends on foster carers residential units, cp meetings, court costs contact workers, venue costs, shrink and psych assessments, therapy, counselling, parenting courses, mother and baby units etc etc for a single family …..

Then think of stopping all of that putting the money in a pot so that some of that money can go towards:

  • a basic child care course covering safe and practical care including bathing feeding dressing cleaning caring parenting playing and teaching a child that course could have maybe THIRTY parents on it in a big enough venue: Or
  • Cooking classes for another group of parents: Or
  • A playgroup day care day for a group of 30 kids so that their parents can have time to clean their house: Or
  • Cleaners for a parent that struggles to motivate to tidy: Or
  • To pay a wage to someone to ring the parents every morning to wake them up for school runs if they struggle with mornings or pop round and help them prepare the kids for school if they struggle managing them in a rush.

The possibilities are endless and after all that’s simply what some families need that bit of support, it clearly works because it’s worked and is still working here and used to work for the UK when it used to be like that there to.  Every family that I am aware of that have fled have kept their kid yet in the UK they wouldn’t have that  –  to me speaks volumes

Yes it won’t work for every family but for the professionals here, think back how many cases you’ve thought if the family got this and that it could work but I darent mention that because if it goes wrong it’s on my head so didn’t dare say it. Or how many times you’ve seen the same families come through your door time and time again nothing changing because the support simply isn’t there to help them…

Where one might argue you are providing a better future for the child by removing are you really though –  and what about the family as a whole, what about mums, dads, siblings, uncles cousins, aunts, grandparents etc. Having a kid removed rips the entire family apart there’s no heads nor tails about it it does. Then from that you lose the family bond and support network not to mention the mental scars and trauma left on all involved.

When surely if the current system clearly isn’t working admitted by all from top to bottom then it’s worth a try doing it the way that worked and is working ….. Surely ? ?

The woeful state of our debate Part IV – Cascading the judgment in Re N

This is a post by Sarah Phillimore

On November 2nd, ironically as I attended a workshop on cross-border child protection issues, I received an email with the judgment in the case of Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. This was a judgment from a hearing heard at the end of March 2015 but only now did it ‘cascade’ throughout our legal ranks.

The judgment covers a wide range of already familiar territory on matters of jurisdiction in care proceedings involving children from other countries. When the case was emailed I wondered if it was merely coincidence that this wider ‘cascading’ occurred just before the European Parliament Petitions Committee were to conduct their ‘fact- finding’ mission in London:

The Committee on Petitions is organising a Fact-finding visit to London on 5 – 6 November 2015. The aim of the visit is to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents.

When I read Re N I saw that it was unlikely to be coincidence; this judgment appears to be a deliberate attempt to explain the practices and procedures of our court and I assume was thus ‘cascaded’ at this time for the benefit of the Petitions Committee. As the President comments at paras 4 and 5 of his judgment:

During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call ‘the United Kingdom’) there are three quite separate legal jurisdictions: England and Wales (which for ease of reference I shall call ‘England’), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.

I am a little taken aback that the parties in this case thus presumably had to wait 7 months for the judgment in this case so that it could also stand as an ‘Introduction to Care Proceedings’ for our European brethren.

I certainly don’t dispute the need for greater clarity about what we do in the family courts and why we do it but why should the vehicle for this educative mission be a judgment in a case involving children? Matters concerning children should be resolved with the least possible delay.   If matters really need spelling out for the European Parliament, hasn’t that already been done in the report of Dr Fenton-Glynn? 

My unease is compounded by what the President then goes on to say about section 20 accommodation from paragraph 157 onwards. in his eagerness to show that we are putting our house in order with regard to the abuse of this section we now appear to have lost a useful and pragmatic mechanism to take some of the heat out of care proceedings.

It was common practice, when a LA was worried about a child returning to live with parents but the parents would not or could not agree to an interim care order, that the parents would consent to section 20 accommodation but agree that they would not exercise their right to remove their child without giving a period of notice, for example 2 weeks. This was a workable compromise which kept the child safe without pushing the parties into an early adversarial battle about whether or not an ICO should be made.

The President says this at para 169:

This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

“Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

Because of this judgment, I have already had to have conversations at court about whether or not the LA needed to apply for an ICO given the doubt now cast on the legitimacy of allowing parents to agree to a ‘notice period’ before withdrawing their consent to section 20.

This is potentially a very unhappy position to be in. The President may well be right that the parent cannot lawfully contract out of a statutory provision BUT the signing of such an agreement must surely mitigate against any later accusations that the LA have committed a crime! If the parties to care proceedings are not encouraged to make these kind of sensible and pragmatic ‘holding’ arrangements then what we are inevitably looking at is more contests at an early stage, more pushing parties into adversarial positions, more ‘findings’ being made at shorter hearings. The impact on the court lists will be obvious and severe.

As I keep saying (because it seems very few are listening) we will not solve the problems in our current system by demonising local authorities and those who work there. Is it not possible to point out problems without creating more? Judgements from our courts should not be delayed by many months in order to play to an audience far wider than our own jurisdiction. We are surely entitled to a system that we do not have to keep continually defending.

LATER THIS EVENING EDIT

I understand better the President’s anxiety to make sure his views are heard, when I remind myself who is discussing these issues with the European Committee.

 

 

FURTHER EDIT THIS MORNING

John Hemming confirms what he has been saying to the European Parliament. When a debate is predicated on the ‘immorality’ of a system, then hope of a constructive debate is seriously diminshed.

Recommendations to the institutions of the European Union

Set out below are the recommendations of Dr Claire Fenton-Glynn in her study submitted to the European Parliament in June 2015; ‘Adoption without consent’

The full study is an excellent and clear guide to existing law and practice.

Recommendations to the institutions of the European Union

Co-operation between member states in cross border cases

  • That a guide to good practice be drawn up by the European Union concerning cooperation between Member States under the “Brussels II a” Regulation, and in particular focusing on:
    • Guidance for child protection services in dealing with cross-border cases;
    • Providing information on the workings of child protection systems in different Member States;
    • Setting out guidance as to the correct test for asking another state to assume jurisdiction under article 15.
  • That consideration be given to strengthening the provisions of the “Brussels II a” Regulation, including:
    • Placing a duty to inform foreign authorities of child protection proceedings before the court be made mandatory, unless the safety or welfare of the child demands otherwise;
    • Including a common, autonomous understanding of habitual residence, as defined by the Court of Justice of the European Union;
  • Strengthening cooperation in cases of placement of a child in another jurisdiction under article 56, including:
    • Creating a specific mechanism for a request for transfer to be made under the Convention;
    • Setting clear rules for when a transfer should take place, and what factors should be considered.

To encourage greater understanding between Member States

  • That a greater understanding is encouraged between Member States of the different approaches to child protection. In particular:
    • That research be undertaken concerning different forms of public care be used in each jurisdiction, including both short-term and long-term care options;
    • That statistics and information be compiled concerning the outcomes for children in different forms of public care in different jurisdictions;
    • That statistics be compiled concerning the number of adoptions in each jurisdiction, disaggregated by age, gender, reasons for adoption, ethnic and religious minority status, immigration status and socio-economic background, and whether parental consent had been given;
    • That statistics be compiled concerning successful reunifications of the child with their birth family, following a period in state care.

 

Recommendations to the UK Government

Proper allocation of resources, training and staffing

  • That adequate financial and human resources be allocated to local authorities to be able to fulfil their duties in relation to child protection, and that such services be protected in times of austerity.
  • The government must ensure that social services are adequately staffed with qualified personnel who are paid appropriately for their work. That families continue to be provided with assistance where they are experiencing difficulty, in order to prevent, where possible, children being taken into public care. In particular:
    • Authorities should ensure that all families are able to practically access offered services, and that language is not a barrier in this respect.That the right of the child to communicate in their own language with their family be recognised, including: that children be permitted to communicate with their parents and family members in their native language; that adequate resources be allocated to ensure that appropriately qualified interpreters are available for the purposes of the social worker.

 

Improve the outcomes for children in care and promote open adoption

  • That greater emphasis be placed on improving the outcomes for children in public care, and developing alternatives to adoption for children who cannot return to their families.
  • Where adoption is necessary, emphasis should be placed on establishing open adoptions, and ensuring post-adoption contact between the child and his or her birth family, unless this is contrary to the child’s best interests.
  • The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family.
  • That despite the removal of the explicit requirement to consider the child’s cultural and linguistic origins, local authorities continue to give due consideration to the child’s needs and background, and place the child in a compatible placement wherever possible. This factor should be given particular importance where the child has a connection with another jurisdiction.
  • That disaggregated data be compiled concerning the frequency with which children from other EU member states are taken into public care, and the rate at which they are placed for adoption.

 

Development of good practice regarding co-operation with foreign authorities

  • That the good practice set out by the President of the Family Division in relation to cooperation with foreign authorities be included in Practice Directions for the court. In particular, the following should be emphasised:
    • That there should be no obstacle imposed on free communication and access between a party who is a foreign national, and the authorities of the relevant foreign state;
    • That permission be granted for accredited consular officials to be present at hearings as observers in a non-participatory capacity;
    • That permission be granted for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
    • That social workers be given training on the appropriate steps to be taken when working on a case involving a child, parents, or potential carers in another jurisdiction. Such training should include knowledge of the relevant guidance set out by the Department of Education, and involve:
      • Ensuring that when carrying out an assessment of a child, where he or she has links to a foreign country, local authorities consider engaging with social work authorities in the other jurisdiction in order to understand the child’s case history and/or to help them to engage with the family;
      • When a child with links to a foreign country becomes the subject of a child protection plan, has required immediate protection, or is made subject to care proceedings, the social worker should consider informing the relevant foreign authority, unless doing so is likely to place the child or family in danger; and
      • Ensuring that potential carers and care in the foreign jurisdiction are adequately considered.
    • That greater knowledge of the provisions of the “Brussels II a” Regulation be promoted amongst legal and child protection professionals, in particular concerning the division of responsibilities under that instrument, including:
      • That requests under the Regulation must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation;
      • That the agency given primary responsibility for cooperation and communication under the Regulation is the Central Authority;
      • That Central Authorities, and other foreign State Agencies, are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England;
      • That courts of other Member States are under no obligation to make a request under article 15, the obligation being on the courts of England and Wales;
      • That embassies and consular officials are given no role under this Regulation, and should not be used as proxies for Central Authorities.

 

Continuing recognition of the importance of transparency

  • That there continues to be recognition of the importance of transparency in the family justice system, including:
    • Ensuring open and public debate in the media;
    • Allowing parents to express their views publicly about their experiences, while recognising the need to protect the child’s best interests;
    • Providing clear and easily accessible information to parents concerning their rights in this respect, while also highlighting the reasons why the child’s identity cannot, and should not, be revealed.

Care proceedings and children from other European Countries

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

Article 8.1 of Council Regulation (EC) No 2201/2003 known as ‘Brussels II revised regulation’ or ‘BIIR’ sets out the primary rule that a child’s case should be heard by a court in the country where that child is ‘habitually resident’ (i.e. the country where the child is integrated into social and family life). BUT under article 15 the courts of the country of habitual residence can transfer the case to another country IF that court would be ‘better placed’ to deal with it and such a transfer is in the best interests of the child. 

This is an increasingly important issue for care proceedings in England as free movement of families within the European Union has led to many children living in countries which are not where their parents were born. Sometimes those children come to the attention of Children’s Services because there are concerns about how they are being parented. 

BIIR is discussed in more detail below, along with the two important cases of  Re E (A Child) [2014] EWHC 6 (Fam) and the Supreme Court decision in Re N [2016] which set out the principles an English court must use to determine if such a case should be heard in England or should rather be transferred to the European country from which the parents’ originate. 

The Court of Appeal considered the issues in Re N in 2015. See further our post with regard to the timing and content of that judgment

Brussels II revised – what is this?

Brussels II Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a ‘ conflict of law’ between member states in family law; in particular those issues relating to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000. It is usually referred to by the shorthand ‘BIIR’.

BIIR will be important to consider when the court deals with care proceedings involving people from different European countries who may not wish to accept the jurisdiction of the court of England and Wales.

The court has confirmed that it does NOT apply to adoption or measures preparatory to adoption, see paragraphs 19-23 of the judgment in  CB (A Child) [2015] EWCA Civ 888, a long running case involving direct intervention from the Latvian authorities as the LA had not informed them of the care proceedings in 2012, when they should have done.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. See Recital 12:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

So when can the courts in England and Wales have jurisdiction?

The usual approach in the family courts is that if a child is habitually resident or even just physically present in England and Wales, the court will have jurisdiction to deal with care proceedings about that child. (See Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449).

However, if the child in question comes from another European country this general position has to be looked at again in the light of BIIR.  If BIIR applies the court in England and Wales does NOT have jurisdiction just because the child is physically present in the country.

Article 8(1) of BIIR sets out that the jurisdiction will depend on habitual residence and this must be the starting point of any inquiry into jurisdiction. However, a court can make orders if the child is physically present but his habitual residence cannot be established  – see Article 13(1).

 

Habitual residence – what does this mean?

This will be decided looking at the principles set out in the case of A v A and Another (Children: Habitual Residence) [2013] UKSC 60. See paragraph 54 of the judgment. See also the Supreme court decision in Re B (A Child) [2016] UKSC4.

To be ‘habitually resident’ in a country you will require some degree of integration in that country, such as going to school there. Whether or not a child is ‘habitually resident’ in a particular country is essentially a question of fact:

  • habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
  • The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
  • The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
  • The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
  • The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
  • It is possible that a child may have no country of habitual residence at a particular point in time.

 

Urgent cases

This is dealt with by Article 20 of the Regulation, which allows a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate.

See further Re B (A Child) [2013] EWCA Civ 1434,  where the mother’s appeal was allowed against a decision that a court had jurisdiction to make orders with regard to her child who was habitually resident in Sweden. Instead, the Court of Appeal made a declaration under Article 17 of BIIR that the court had no jurisdiction.

 

Article 15 transfer – Asking another country to get involved.

See paragraph 5 of the Supreme Court judgment in Re N. Even if the court does have jurisdiction under BIIR, article 15 allows it  to request the court of another Member State to take over the case, via its Central Authority IF:

  • the child has a particular connection with that other State – for e.g. the child is a national of another country.
  • the other court would be better placed to hear the case, and
  • it is in the best interests of the child – this is the crucial issue which was subject of argument before the Supreme Court in re N and is discussed further below.

 

The Vienna Convention – what is it?

The Vienna Convention on Consular Relations of 1963 is an international agreement that sets out  a framework for consular relations between independent countries. It is clear that prior to 2014, LAs and lawyers were not aware of their obligations under the Convention. Hopefully that situation is now remedied. In care proceedings no court should stand in the way of  free communication and access between a party who is a foreign national and the relevant consular authorities of that foreign state. A consul normally operates out of an embassy in another country, and performs two functions:

  • protecting the interests of their citizens who are in the host country; and
  • promoting the commercial and economic relations between the two countries.

Article 36 of the Convention is headed “Communication and contact with nationals of the sending State.” It states that:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Guidance relating to the Vienna Convention in care proceedings

In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

Further, whenever the court is sitting in private it should normally allow any request from either the foreign national or from the relevant consular authorities for an accredited consular official to:

  • be present at the hearing as an observer in a non-participatory capacity; and/or
  • to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

Whenever a party, whether an adult or the child, who is a foreign national

  • is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
  • is detained

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.

 

Re E 2014 – Slovakia

Re E involved a 12 year old boy of a Slovakian mother and a British father. E had lived in the UK all his life but had Slovakian citizenship. During the care proceedings, his mother went back to Slovakia.

The Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of Brussels II Revised (BIIR). Article 55 provides that countries co-operate on matters relating to parental responsibility for children. The Central Authorities in Member States must collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child. Central Authorities must also help the courts in different countries communicate with one another.

The request referred to the fact that a media campaign had been started in Slovakia and that the case had become “extremely sensitive” and “a focus of attention”. It sought information about the outcome of a forthcoming court hearing.

The court ordered the LA to disclose information to the Slovakian Central Authority and the Head of the Consular Section of the Embassy of the Slovak Republic in London was allowed to be present in court as an observer.

The Central Authority in this case confirmed that it did accept the jurisdiction of the court. However, there have been other cases where the right of the English court to make orders regarding children from other European countries has provoked considerable controversy, particularly as a particular myth has grown up that only three countries in Europe permit ‘forced adoption, being the UK along with Croatia and Portugal. (This is untrue – every European country permits adoption without the parents consent. See further discussion in this post by the Transparency Project). Thus the President set out guidance with regard to the following issues:

  • Brussels II revised [BIIR]
  • Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963.

The President stated at paras 13 and 14 of his judgment:

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.

In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.

He made it clear that good practice will from now on require that in any care proceedings with a European dimension, the court must set out clearly in both its judgement and order:

  • the basis upon which it either accepts or rejects jurisdiction,  in accordance with the relevant provisions of BIIR;
  • If the court decides to exercise or refuse to exercise its powers under Article 15, what are the reasons for this.

 

The lesson for UK family practitioners – the ‘sins of insularity’.

The President repeated what he had said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.

Re N [2016] – the real ‘best interests test’.

Interestingly, the Supreme Court took a rather more bullish approach to the issue of respect for other jurisdictions. As Lady Hale commented in para 4 of that judgment:

It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between member states …. this principle goes both ways. Just as we must respect and trust the competence of other member states, so they must respect and trust ours.

The issue which was at the heart of the judgment was what exactly was meant by ‘best interests’ when looking to transfer a case to another country under article 15. The first judge to hear Re N decided that it should be transfered to Hungary as the country where the children’s parents came from. The local authority and the Guardian appealed as they thought it would be better for the children to be adopted by their current foster carers and they had lived in England all their lives. The Court of Appeal decided to uphold the first judge’s decision to order a transfer and thus a further appeal was made to the Supreme Court.

Lady Hale identified the key question at para 28 of her judgment:

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

The court was critical of the development in the case law of the ‘attenuated welfare test’ which appeared to have arisen out of considering what ‘best interests’ meant in regard to a different article entirely (article 12.3). Lady Hale commented in para 44

The court is deciding whether to request a transfer of at the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different but it is wrong to call it ‘attenuated’… there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself….

Therefore the Supreme Court were clear that the first Judge was wrong to accept that because he found the Hungarian court was better placed to hear the case, that it necessarily followed it would be in the best interests of the children to transfer it. He should have addressed the short and long term consequences of the transfer. The short term consequences of transfer were:

  • the children would be removed from where they had lived for most of their lives where they were happy and settled;
  • they would be transferred to a Hungarian foster placement about which the court knew nothing other than the carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to them.

Also, when considering long term consequences, it was wrong to present the case as involving simply two options – foster care in Hungary or closed adoption in the UK. The Supreme Court noted that there were ‘several other options’ in between.

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

This issue is yet to be determined by the CJEU who are currently considering a case referred by the Supreme Court of Ireland. But the Supreme Court took the view they would continue on the basis that article 15 does apply otherwise the considerable delay already incurred in these proceedings would continue. Watch this space.

Further Reading

For an example of what goes wrong if the issues of jurisdiction aren’t grappled with at an early stage, see the case of Re F (A Child) [2014] EWCA Civ 789.

See this post from the Transparency Project about the discussions at a workshop dealing with cross-border child protection issues, hosted by Dr Claire Fenton-Glynn and Dr Lamont in November 2015.

See the advice from the Department of Education in July 2014: ‘Working with foreign authorities: child protection cases and care orders’

This advice is non-statutory and is not meant to be a complete statement of the relevant law. It was intended to be reviewed before July 2015. It sets out:

  • a set of principles for social workers working on child protection cases and care orders, where the child has links to a foreign country;
  • a summary of the main international legislation;
  • guidance on agencies and organisations that social workers can seek help and advice from, or provide information to when working on these cases; and
  • sign-posts to other relevant guidance.

The International Child Abduction and Contact Unit (ICACU) has published a form and guidance notes where co-operation into and out of the jurisdiction under either Brussels IIa or under the 1996 Hague Convention is required in care proceedings.

For a case involving a ‘relinquished baby’ where the parents wanted an adoption in the UK but the Latvian authorities disagreed see in the Matter of RA [2016]. This case considers the impact of ‘limping adoption’, i.e. adoption orders recognised in the UK that may not be in other European countries.