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Care Proceedings: The European Dimension

Michael Jones, barrister of 15 Winckley Square Chambers, offers a guide to practitioners conducting care proceedings involving families with European origins.

Michael Jones, barrister, 15 Winckley Square Chambers

Michael Jones, barrister, 15 Winckley Square Chambers

In recent years, family practitioners within the public law arena have found that an increasing number of families who are the subject of care proceedings brought by local authorities originate from outside of the United Kingdom. That development has been underlined in recent days with the publication of the judgment in A (A Child) [2014] EWHC 604 and the publicity which has been given to the comments of Mrs Justice Theis (as to which see below).

These cases can be divided between those in which the subject families originate from within the European Union and those in which they originate from outside of Europe, for example, areas of Asia and Africa. This article will concentrate on those cases in which there is a connection, or potential connection, with another European Union member state. It is essential that any practitioner dealing with such a care case has an understanding of the law in this area, whether they represent parents or the local authority.

There is a large volume of case law in respect of care proceedings with a European element and this article is intended to provide practitioners with a guide to the recent case law and other guidance in this area. The main focus will be on the relevant EC Regulation, international conventions and the guidance provided by case law, in particular, the process which must be followed by the courts pursuant to Brussels II Revised (BIIR).

Jurisdiction: Brussels II Revised

The starting point in relation to any public law Children Act matter where the subject family originates from within the Europe Union will be BIIR. BIIR, or EC Regulation No 1347/2000 as it is less commonly referred to, is – perhaps surprisingly – actually a reasonably accessible document. Many will relate BIIR to cases involving international child abduction; however, its reach extends far beyond this and a number of its provisions are applicable to the issue of jurisdiction within the context of care proceedings.

The first question that needs to be asked in respect of any public law case involving a family originating from another European state, is whether the English courts have jurisdiction to deal with the matter. The issue of jurisdiction is governed by BIIR articles 8(1), 12, 13(1), 14, 17 and 20.

Article 8(1) reads as follows:

The Courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the Court is seised.

Therefore, applying Article 8(1), if the child is habitually resident within England and Wales at the time the application is made, then it follows that the English courts "shall" have jurisdiction. The next question concerns the definition of "habitual residence". Unfortunately, the answer to this is not as clear as many would hope. In the recent case of Re E (A Child) [2014] EWHC 6 (Fam) (a case involving a family originating from Slovakia which is essential reading for any practitioner involved in this particular area of law), the President of the Family Division states at paragraph 25 of his judgment, that the question of habitual residence is determined by applying the principles in A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60 where at paragraph 50 of her judgment in that case, Lady Hale , citing the judgment in the case of Mercredi v Chaffe (Case C-497/10 PPU)[2012] Fam 22, states the following:

"The operative part of the judgment put it this way:

"The concept of 'habitual residence' . . . must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother's move to that state and second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that member state."

There is a large volume of both English and European case law involving the issue of habitual residence, the most recent judgment of particular note perhaps being A (Children) [2013] UKSC 60 which is analysed in detail here. For any practitioner who is unfamiliar with the law in this area, the case of A is a helpful starting point for gaining a basic understanding of the concept of habitual residence. For those representing parents, the priority will be assisting the court by obtaining information from the parents in respect of how long they have resided within the jurisdiction, whether the children are registered with GPs, whether they attend school, what the parents intentions are in respect of remaining within the UK and other points relating to the integration of the family into the community.

Further reading on the issue of habitual residence can be found within the judgment of Cobb J in the recent case of Re LM (A Child) [2013] EWHC 646 (Fam) where he comments that "ordinary residence" and "habitual residence" are "broadly synonymous".

Following on from Article 8(1) of BIIR:

In respect of the determination of jurisdiction under Article 14, in the case of England and Wales, this would be on the basis of either habitual residence or actual presence.

The English courts will have jurisdiction in any matter where the child is habitually resident within the jurisdiction (Article 8(1)) or where habitual residence of a child "present" within the jurisdiction "cannot be established" (Article 13(1)).

Transfer pursuant to Article 15
The next Article of crucial importance within BIIR is Article 15. Article 15 reads as follows:

Transfer to a court better placed to hear the case

1. By way of exception, the courts of a member state having jurisdiction as to the substance of the matter may, if they consider that a court of another member state, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member state in accordance with paragraph 4; or
(b) request a court of another member state to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another member state with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another member state must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a member state as mentioned in paragraph 1, if that member state:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the member state having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other member state shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other member state may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

In analysing Article 15, the President, at paragraph 31 of his judgment in Re E, states:

"Assuming that the court does have jurisdiction, the judge in every care case with a European dimension will need to consider whether to exercise the court's powers under 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) this is in the best interests of the child."

Therefore, in respect of any care case involving a European dimension, the court "will need" to consider whether transfer under Article 15 is appropriate; in respect of cases being heard in the county court, this will result in transfer to the High Court in order for consideration to be given to this issue. It is essential that any practitioner involved in such a case has at least a basic understanding of BIIR and is well versed in the case law relating to Article 15 (for a recent example of such a transfer see Re M (A Child) (Foreign care Proceedings: Transfer) [2013] EWCH 646 Fam ).

Furthermore, in respect of Article 15, in the recent judgment in the case of Re M (A Child) [2014] EWCA Civ 152 Ryder LJ, citing the judgment of Munby J (as he then was) in AB v JLB (Brussels II Revised: Article 15) [2009] reiterates the process that the court should follow when applying Article 15:

" ... as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c)).
ii) Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
iii) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."

The court can only consider whether to use its discretion under Article 15(1) if all three above questions are answered in the affirmative.

Article 15 therefore presents a 3-stage test in which all 3 questions must be answered in the affirmative in order for the court to consider transfer. It should also be noted that under Article 15, it is open to the court of another member state to request transfer of the proceedings to its jurisdiction; the practicalities of transfer in circumstances where a request has been made for transfer by the Court in another jurisdiction are addressed in detail by the judgment of Cobb J in Re LM (A Child) [2013] EWHC 646 (Fam) (a case where the Irish courts sought to transfer care proceedings to the English courts and in which, Cobb J found that, whilst the court of the state requesting transfer must have regard to the entirety of the Article 15 criteria, the role of the court of the requested state should be limited to consideration of the issue of "best interests" having regard to the "specific circumstances of the case").

Good practice in court

Article 55 BIIR
Having dealt with the concept of jurisdiction, it is important to note that, from the perspective of local authorities, there is a certain level of expectation in relation to the steps a local authority should take. At paragraph 55 of Re E, the President stresses the importance of Article 55 BIIR. The Article reads as follows:

Cooperation on cases specific to parental responsibility
The central authorities shall, upon request from a central authority of another member state or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that member state in matters of personal data protection to:

(a) collect and exchange information:

(i) on the situation of the child;
(ii) on any procedures under way; or
(iii) on decisions taken concerning the child;

(b) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child;
(c) facilitate communications between courts, in particular for the application of Article 11(6) and (7) and Article 15;
(d) provide such information and assistance as is needed by courts to apply Article 56; and
(e) facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.

The President makes clear that the process outlined by Article 15 is plainly intended to work both ways. Local authorities must be alive to the contents of Article 15 and the judgment in Re E; good practice would require any local authority that is the applicant in care proceedings involving a European dimension, to notify the consulate of the relevant country or state and keep them updated as to the situation in respect of the subject child or children, the dates and locations of any upcoming hearings and, most importantly, the long-term care planning (this is particularly important as a care plan of adoption can raise multiple issues given the fact that non-consensual adoption as a legal concept is alien to most of Europe).

The Vienna Convention on Consular Relations 1963
Further reinforcing his comments in respect of Article 55, the President also alluded to the Vienna Convention on Consular Relations 1963, Articles 36 and 37 of which reads as follows:

Article 36
Communication and contact with nationals of the sending state
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending state:

(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 be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(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.

2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.

Article 37
Information in cases of deaths, guardianship or trusteeship, wrecks and air accidents
If the relevant information is available to the competent authorities of the receiving state, such authorities shall have the duty:

(a) in the case of the death of a national of the sending state, to inform without delay the consular post in whose district the death occurred;
(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending state. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving state concerning such appointments;
(c) if a vessel, having the nationality of the sending state, is wrecked or runs aground in the territorial sea or internal waters of the receiving state, or if an aircraft registered in the sending state suffers an accident on the territory of the receiving state, to inform without delay the consular post nearest to the scene of the occurrence.

In respect of the above provisions and good practice in care cases, the President stated the following at paragraph 41:

"This is not the occasion for any elaborate discussion of the effect of these provisions as a matter of either public international law or English domestic law (as to which see the Consular Relations Act 1968 and the Diplomatic and Consular Premises Act 1987). I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:

i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.
ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is "detained"; and where a foreign national is detained the "competent authorities" in this country have the obligations referred to in paragraph (b).
iii) Third, Article 37(b) applies whenever a "guardian" is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular "duty" on the "competent authorities" in such a case."

Again, in order to avoid any potential criticism in court, those representing local authorities must be alive to the contents of Article 55 BIIR and Articles 36 and 37 of The Vienna Convention on Consular Relations. The starting point should be communicating with the relevant consulate but it is essential that a regular flow of information in respect of any ongoing proceedings takes place. In a number of the reported cases, representatives from the relevant consulate have been invited to attend hearings and have done so, although the experience of the author is that this will often depend upon the extent to which the parents request assistance from the consulate involved.

Future conduct of care cases with a European dimension

Re E further sets out, at paragraphs 44-48, good practice guidance in relation to the future conduct of care cases with a European dimension:

"What I do, however, need to do is suggest how as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions.

"In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a "competent authority". They should also assume that there is a "detention" within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.

"In 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. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this 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.??

"Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) 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.?
ii) 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.

iii) 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 itself without delay.

"If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision."

It should also be noted that the President comments that future good practice should dictate that all case management orders in respect of any hearing where the court has ruled upon jurisdiction, should set out:

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.

A suggestion in relation to proposed directions for consideration at the Case Management Hearing would be for a specific direction for the local authority to notify the consulate of the relevant state of the proceedings (if it has not already done so – see below), and a further direction permitting limited disclosure of documentation to that consulate (for example the chronology and case summary from the CMH).

The case of A (A Child), involving Kent County Council, is the most recent decision of note in this area, particularly in respect of future good practice in cases where one or both of the parents of a child who is subject to public law proceedings, resides outside of the jurisdiction. In her judgement, Theis J set out the following actions as being essential in such cases:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent's whereabouts can be obtained through an Article 55 request via the Central Authority.

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. Most solicitors who practice in this area have experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case.

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court's jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party's legal representatives. ?

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures.

Further guidance

Whilst Re E is a case of great importance in respect of care proceedings with a European dimension, the other recent case of Re M (A Child) [2014] EWCA Civ 152 is also essential reading. Like Re E, Re M involved a family from Eastern Europe, in this case the Czech Republic.  In his judgment, Ryder LJ makes clear that it is not the role of the English courts to conduct an evaluation of the child protection services in another European member state and that the court should accept that all judicial and social care services in member states are as equally competent as those with England and Wales. In light of this judgment, any court determining jurisdiction should be very conscious of the need to avoid making any criticism or taking any judgmental stance in respect of the efficiency of child protection services in other member states.

Ryder LJ recommends within his judgment that Practice Direction 12A Family Procedure Rules should be amended in order to alert practitioners to the need to raise jurisdiction issues when making an application, during the process of issue and allocation (so that the necessary directions can be made) and then at the Case Management Hearing so that further directions can be made in respect of contacting the central authorities and other state bodies. Having this in mind, any local authority issuing care proceedings in respect of a child or children and in which there is a European dimension, would be advised to make this clear within the actual application and to include details of any potential issues over jurisdiction within its case summary for the Case Management Hearing.

Under the PLO local authorities are increasingly being expected to "front load" assessments and provide the court with as much information as possible upon the issuing of proceedings. It may well be advisable for local authorities to follow the President's Protocol for Communicating with the Home Office at the earliest stage possible; by following this protocol and issuing the form EX660 with the court, it is possible to obtain information in respect of the immigration status of any named parties, be they the parents or the subject children. From the perspective of local authorities, this could be seen to be an increasingly important means of information gathering at the earlier stages of proceedings.

In respect of social work assessment, Re B-S [2013] EWCA Civ 1146 has reinforced the duty upon local authorities to consider every possible alternative before pursuing an adoptive care plan. Predictably, this will inevitably bring up issues in relation to the assessment of extended family members living within another European state; local authorities have to be increasingly prepared to complete viability assessments of such individuals and the inventive use of mechanisms such as Skype have been used for "face to face" interviews as part of the initial assessment process. Obtaining information in respect of family members from the authorities in that member state will also be vital and again provides an example of the importance of a two-way flow of information between the authorities in both the UK and other European states.

To Conclude

As family practitioners within the public law arena, we are seeing an increasing volume of cases involving international and more often than not, European, elements. It is important that all of us, whether representing parents or local authorities, are aware of the guidance set down by the case law and the suggested "best practice". A working knowledge of BIIR is also required and it may be that we have already reached the stage where such an understanding is indispensable to any public law practitioner.

25/3/14 (and revised in the light of A (A Child) [2014] EWHC 604 (Fam) on 30/3/14)