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Court clarifies its powers in respect of non-British European children present in this country

Reporting restriction order is limited to English language media

The President of the Family Division, Sir James Munby, has clarified the English courts' powers in respect of non-British European children who are present in this country.

In Re E (A Child) [2014] EWHC 6 (Fam) care and wardship proceedings concerned E, a 12 year old Slovakian boy, which concluded in the court approving a care plan for E to be placed in the care of the local authority but living with his maternal aunt. The proceedings attracted significant media attention in Slovakia.

Sir James Munby noted the sharp rise in care proceedings involving children from other European countries and "the frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction" in such cases. The judgment set out guidance to practitioners and the courts in respect of the application of the following within care proceedings:(a) Brussels II revised [BIIR];(b) Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963 [the Vienna Convention]; and (c) Reporting restriction orders.

BIIR
In the case of a child from another European country, jurisdiction will be determined by BIIR, Articles 8(1), 12, 13(1), 14, 17 and 20. Generally, English courts will have jurisdiction in a care case involving a child only if either (i) the child is habitually resident in England and Wales (Article 8(1)), or (ii) the habitual residence of a child "present" in England and Wales "cannot be established" (Article 13(1)).

In determining habitual residence the court will apply the principles set out in A v A and another (Children: Habitual Residence) [2013] UKSC 60.

Article 12 provides that if the court of a Member State is exercising jurisdiction on an application for divorce, legal separation or marriage annulment, it shall have jurisdiction in "any matter relating to parental responsibility connected with that application". Article 14 provides for a residual jurisdiction where no court of a Member State has jurisdiction pursuant to Articles 8 - 13.

Article 20 provides for 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. Article 20 contemplates "short-term holding arrangements": Re B (A Child) [2013] EWCA Civ 1434, para 85.

Where the court does have jurisdiction under BIIR it may exercise the power in Article 15 to request the court of another Member State to assume jurisdiction where (a) the child has a particular connection (as defined in Article 15(3)) with that other State, (b) the other court would be better placed to hear the case, and (c) it is in the best interests of the child. The courts of a Member State without jurisdiction could make a request to the courts of the Member State with jurisdiction, through its Central Authority, to exercise its power under Article 15.

In circumstances where the court does not have jurisdiction under BIIR, Article 17 requires the court to declare that of its own motion, whether or not there are extant proceedings in the court of the other Member State: Re B (A Child) [2013] EWCA Civ 1434.

Munby P stated that, from now on in any public law case with a European dimension, good practice would require the court to set out explicitly in its judgment and order:

(a) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(b) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

Where Article 17 applies it will be the responsibility of the judge to decline jurisdiction. Judges will also wish to make appropriate use of Article 55 to obtain information from the other Member State where necessary.

The Vienna Convention
Munby P remarked that:

"[I]n cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state…If anyone thinks this is an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot."

He went on to set out the following steps in all public law cases:

(a) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. 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.

(b) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state for

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

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

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

Reporting restriction orders
The judge endorsed the principles he has enunciated previously in Re J (A Child) [2013] EWHC 2694 (Fam) and in Re P (A Child) [2013] EWHC 4048 (Fam) and he made a reporting restriction order adopting the same approach. He recognised the "obvious and compelling" need for public debate to be free and unrestricted and for the mother to be allowed to tell her story to the world. However he concluded that those aims would not be advanced by identifying E or his carers.

The reporting restriction order does not prevent the mother from publishing "whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet". The only restriction is on publication in the English print or broadcast media, or using the English language on the Internet in such a way as to identify E (identification of E must not be in any of the forms specified in the order).

The judgment states that, as a general principle, it is impermissible for the English court to attempt to control foreign media, whether directly or indirectly. However a different approach might be justified where Internet or satellite technology was involved, due to the extra-territorial effect of such media. Therefore attempts by a court to control the Internet would not be subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign state.

Martin Downs of One Crown Office Row represented the applicant (local authority). William Tyler of 36 Bedford Row represented the first respondent (mother). Jacqueline Roach of One Crown Office Row represented the third respondent (E by his children's guardian). Mary Lazarus of 42 Bedford Row represented the fourth respondent (maternal aunt). The second respondent (father) was neither present nor represented.

For the judgment and case summary, largely reproduced above, by George Gordon of 1 King's Bench Walk, please click here.

17/1/14