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)  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.
— John Hemming (@johnhemming4mp) November 6, 2015
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.
— John Hemming (@johnhemming4mp) November 12, 2015