After Brexit: Jurisdiction to make care orders when child is a foreign national

London Borough of Hackney v P and Ors [2022] EWHC 1981 (Fam)

Judgment was handed down by Mr Justice MacDonald on 29th July 2022. This case concerned a 12 year old girl who was born and lived in France until her mother’s death in 2017 when she moved to Tunisia in the care of her paternal grandmother. In 2021 she came to the UK to live with a paternal uncle but was shortly after taken into foster carer amid a variety of serious allegations made against the grandmother and H’s father by the uncle.

The court was dealing with two applications. The first was an application for a care order issued in August 2021, the second by the paternal grandmother for the summary return of H under the inherent jurisdiction of the High Court.

The court had to deal with the following preliminary issues

i) Does the jurisdictional scheme under Chapter II of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility apply to care proceedings under Part IV of the Children Act 1989 and, if so, does it apply to these proceedings notwithstanding this case involves a non-Convention State?

ii) If the jurisdictional provisions of Chapter II of the 1996 Hague Convention do not apply to these proceedings under Part IV of the Children Act 1989 involving a non-Convention State, does jurisdiction arising out of the presence of the child in the jurisdiction subsist for the purposes of care proceedings pursuant to Part IV of the Children Act 1989?

iii) If the question of habitual residence falls to be determined in this case, whether under the jurisdictional provisions of Chapter II of the 1996 Hague Convention or otherwise, what is the relevant date for that determination?

Having heard extensive erudite and comprehensive submissions, the court was satisfied that the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State. If H was not habitually resident in England and Wales and thus the Hague Convention did not apply, the court could rely on the common law test of her physical presence to justify an order. The question of H’s habitual residence is to be determined at the date of the hearing and a further hearing was needed to determine this issue. 


H was born in France and said to have both French and Tunisian citizenship. Her primary language is French. She lived with her parents in France until she was 4. Her father was sent to prison and H and her mother were homeless for a long period, H was removed from her mother’s care in 2015 until returning to her mother in January 2017. Sadly, her mother then died in March 2017.

The paternal grandmother travelled from Tunisia to seek care of H and was assessed as safe to care for her in August 2017. H moved to live with her grandmother in Tunisia. Her father also moved to Tunisia and was reported to have a good relationship with H. The French proceedings were thus discontinued in June 2018. 

In June 2021, H travelled to England to stay with a paternal uncle. Shortly after, the uncle contacted the police to say that H had been sent to England to ‘ruin his life’ in the context of a family dispute. H alleged her uncle had hit her. She was taken into foster care. 

The local authority began investigation and the uncle claimed H was not safe in Tunisia as her grandmother was ‘sadistic’, physically abusing H and allowing her to be sexually abused by others. Further, he claimed H’s father was involved in people trafficking in Tunisia which led to others threatening the family. H’s grandmother denied these allegations, H herself said there were ‘good and bad’ times with her grandmother who sometimes hit and swore at her. 

H was then returned to the care of her uncle but he shortly after took her to the French Embassy in London reporting that H ‘bullies’ him. H went back to foster care. She was placed with a French speaking Algerian family on 3 August 2021 where she remains. 

H made a number of allegations against her paternal family and was noted to display a lack of understanding of socialisation and boundaries. The local authority thus issued care proceedings, correctly identifying that there may be an issue as to jurisdiction and citing the relevant provisions of the 1996 Hague Convention. A hearing was listed in December 2021 to consider “a declaration of habitual residence”. Significant delay occurred due to lack of time in the court lists and problems with the grandmother’s legal aid. The matter finally came before Mr Justice MacDonald in June 2022. 

The Tunisian authorities recommended that H be returned to her grandmother’s care but the local authority sought a care order, asserting that the court had jurisdiction to make this order based on H’s physical presence in the jurisdiction. The Hague Convention did not apply as Tunisia was not a contracting State and therefore habitual residence was not the relevant factor.

The grandmother sought summary return of H to the jurisdiction of Tunisia under the court’s inherent jurisdiction.  She argued the 1996 Hague Convention did apply and H’s habitual residence was in Tunisia. Alternatively, she argued that Tunisia was the more appropriate forum to undertake a welfare enquiry. 

The Guardian argued that the court did have jurisdiction by virtue of the 1996 Hague Convention and should make a care order. Interesting as the legal issues were, the Guardian reminded the court that the heart of the case is H, who has been clear she wishes to remain in the UK and refused to have any contact with her grandmother. 

The court first considered the relevant law. Following the UK’s departure from the European Union, jurisdiction in children’s cases is now governed by the Family Law Act 1986 and the 1996 Hague Convention. 

The Family Law Act 1986 has been described as a ‘thoroughly unsatisfactory statute’ It concerns only private law orders. Nor does the Children Act 1989 make any provision regarding jurisdiction for public law orders. This lack of statutory provision has been the subject of much discussion. The position prior to the UK joining the European Union was that where the Family Law Act was silent, the court was free to adopt such ‘territorial’ test for jurisdiction as seems most appropriate. However, this common law approach was then modified by (EC) Regulation 2201/2003 (Brussels IIa). The grandmother argued this represented a significant shift in international family law to a common jurisdictional framework premised on habitual residence, regardless of whether or not the other country is a Member State of the European Union, which survived the UK’s exit from the European Union. 

After Brexit, the courts then turned to the Hague Convention 1996, which was directly implemented in domestic law in 2020 by amendments made to the Civil Jurisdiction and Judges Act 1982. The intent behind the Convention, is to centralise jurisdiction in the authorities of the State of the child’s habitual residence and avoid the problems of competing authorities claiming concurrent jurisdiction.

The question then arose if the Hague Convention applied where the proceedings involve a non-contracting State, such as Tunisia as in H’s case.

The court noted that with regard to Brussells IIa  the Supreme Court had established that it applied in care proceedings, irrespective of whether the other country was  a Member State of the European. However, there was limited utility in considering the terms of other international Conventions, when each must be considered on its own terms and within the particular context in which it was agreed. 

A previous court decision involving a the non-contracting State of Gabon concluded that the Hague Convention would apply and in  H v R [2022] EWHC 1073 (Fam) Peel J appears to have accepted that it is the general jurisdictional provisions of Art 5 of the 1996 Hague Convention that will operate to determine whether England and Wales has jurisdiction in respect of a child who is in this jurisdiction notwithstanding the proceedings involving a non-Contracting State, in that case Libya. 

The relevant date for evaluation of habitual residence under Brussels IIa was the date on which the court is seized of proceedings. However, the Hague Convention does not specify the date on which the question of habitual residence falls to be considered. 

In re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1 FCR 16 at [24], Cobb J expressed the obiter view that the relevant time was the date of the hearing as the principle of perpetuatio fori does not form part of the Convention – i.e. a change of habitual residence during proceedings leads to a change of jurisdiction. This makes it important that the question of habitual residence in such cases is determined swiftly, in order to avoid habitual residence being determined by mere effluxion of time over the course of protracted proceedings.”

Having heard extensive erudite and comprehensive submissions, the court was satisfied that 

  1. If H was habitually resident in England and Wales, the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State
  2. If the Contracting State does not have, or loses, jurisdiction under Art 5(1) of the 1996 Convention, Art 5 ceases to apply and the national law of the Contracting State becomes operative. Therefore if H was not habitually resident in England and Wales, the court could rely on the common law test of her physical presence to justify an order
  3. The question of H’s habitual residence is to be determined at the date of the hearing. 

On behalf of the grandmother it was argued that it was no longer appropriate to argue that mere physical presence conferred jurisdiction – but the court was not willing to accept that ‘bold submission’. A particular object of the Hague Convention is that of the protection of the child and a residual common law jurisdiction with respect to public law proceedings based on presence is not incompatible with that object and, indeed, is consistent with it. 

The position of H demonstrated the point – if the court found in due course that she was not habitually resident in England and Wales, and the court could have no recourse to a residual jurisdiction based on presence, the court would be unable to make any substantive orders, notwithstanding that H had been in England for now over a year and has expressed a strong wish to stay. But it was vital to determine issues of habitual residence as soon as possible, in order to avoid establishing a habitual residence by mere effluxion of time. 

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.

EDIT May 2021 – the landscape of these cases will have shifted following Brexit. We need to see how law and policy respond to these changed circumstances and will update. In the interim, treat with caution any assertions about the applicability of European law as this post was mainly written pre Brexit. 

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 used to be that if a child is habitually resident or even just physically present in England and Wales, the court had 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, that has changed fundamentally with the application of BIIR.  The courts now hold that this applies even if the other country is NOT a member of the EU.

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.

However the Vienna Convention does NOT impose a duty in all circumstances to inform the foreign state – see the case of Re O in 2021 for an example of a case where it would be directly contrary to the child’s welfare to give information about her to the DRC.

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.