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Care Proceedings and the European Dimension: Article 15 Transfers

Michael Jones, barrister of 15 Winckley Square, considers recent developments in respect of care proceedings involving another European state.

Michael Jones, barrister, 15 Winckley Square

Michael Jones, barrister, 15 Winckley Square Chambers

Following my previous article on the subject of public law cases involving a European element, this article is intended to provide an update in respect of recent case law in this area. Increasingly, practitioners are finding themselves having to grapple with applications for care orders being brought by local authorities, which involve a child or parents originating from another European state. There has been an increasing volume of reported cases dealing with BIIR and, in particular, Article 15 transfers. Here I will deal with the recent judgments, which have set down further guidance in this area.

In London Borough of Barking & Dagenham v C & Others [2014] EWHC 2472, the court was concerned with the issue of transferring care proceedings involving a family who were Romanian nationals, back to Romania. In coming to her decision, Parker J considered both the "pros and cons" of transfer, concluding that the balance lay overwhelmingly in favour of the case being one that should be heard by the Romanian Courts. Factors considered to support transfer were that the father was putting himself forward as a carer for the child, the question of whether the support which could be offered to the father in Romania could be underpinned by any form of order or state charitable or voluntary sector intervention could only be answered by the Romanian authorities and only the Romanian authorities could decide how this fundamentally Romanian child would be served by the placement options and whether any negatives in the father's assessment would rule him out in Romanian terms. The father could best litigate in Romania and was likely not to be able to do so effectively here.

What can be seen from this and from other recent judgments, is that the courts are employing a "pros and cons" balancing exercise of the positive and negative aspects of transferring a case under Article 15. It may well be advisable for practitioners to consider utilising the "balance sheet" approach endorsed by the Court of Appeal in Re B-S (Children) [2013] EWCA Civ 1146, in respect of considering adoptive placements; here this would involve a balance sheet listing the "pros" and "cons" of transferring a case under Article 15 and formulating an analysis in support of, or opposition to, transfer. This "balance sheet approach" was employed by Parker J in both London Borough of Barking & Dagenham v C and in Suffolk County Council v DL [2014] EWFC 29.

Leicester City Council v S [2014] EWHC 1575 (Fam) sets down useful guidance in respect of the procedural aspects of liaising with the Central Authorities of other European states in accordance with Article 55 BIIR. This case involved a family who were Hungarian nationals; the local authority had instigated assessments of the family members residing in Hungary, carried out by English speaking social workers. Moylan J noted that the local authority had failed to enquire into whether it was legal for English social workers to carry out such assessments in the Hungarian jurisdiction; the judgment stresses the importance of making such enquiries prior to commencing any assessments abroad (the CFAB website is a useful tool in ascertaining the legality of conducting social work assessments in specific countries).

Moylan J gives detailed guidance in respect of the role of central authorities and consular officials. These points are broadly summarised within the following passage of the judgment:

"50. I would also draw attention to the fact that the word used in Article 55 is "information" and not "evidence". Evidence is governed by the Evidence Regulation.  Member States appear to have different approaches to what information can be supplied pursuant to a request under Article 55 (and how that can be achieved) and what can only be supplied under the Evidence Regulation (and pursuant to the specific procedure required by that Regulation).  It may be (as referred to above) that, for example, the request in the present case for the health, police and social services records should have been made under the Evidence Regulation, and was accordingly not being made appropriately.  ?

51. Central Authorities are also typically small agencies, and are not equipped to deal with a broad range of enquiries.  They are not enquiry agents or general evidence gatherers.  Any requests made pursuant to the provisions of BIIR must be focused on a specific provision within that Regulation.??

52. I do not propose to undertake a detailed analysis of the provisions in BIIR relating to cooperation and communication.  The important features to which I am currently drawing attention are, to repeat:

(i) that the agency given primary responsibility for cooperation under Chapter 4 of BIIR is the Central Authority;

(ii)  that Embassies and consular officials are given no role in BIIR (or the 1996 Convention) and should not be used as proxies for central authorities; and ?

(iii) that Article 55 relates to the provision of information.

53. Dealing with point (ii) in a little more detail, both the Hungarian Embassy in this case, and the Lithuanian Embassy in Bristol City Council v AA, made clear that they were only forwarding correspondence and had no other role.  Given the structure and the provisions of BIIR, it is not appropriate to expect, let alone seek to require, an Embassy or consular officials to play any part in care proceedings other than at their request as set out in Re E."

It is therefore clear that local authorities will now have to be increasingly alive to the limits of exactly what documentation they can request under Article 55.  Article 55 has often been used in attempts to obtain police disclosure, medical records and other evidential materials; this is clearly blurring "evidence" with "information". If evidential materials are sought, they should be obtained via the correct procedure in accordance with the evidence regulation (EC Council Reg no 1206/2001 on cooperation between Courts of member states in the taking of evidence in civil and commercial matters). Central authorities must not be treated as evidence gatherers or enquiry agents.

From Moylan J's judgment, the following points can be taken:

It is clear that local authorities will have to display vigilance in how they approach gathering evidence from foreign jurisdictions and how they go about obtaining assessments of individuals residing abroad. Cross border child protection cases: the 1996 Hague Convention - Departmental advice for local authorities, social workers, service managers and children's services lawyers is recommended reading for any local authority practitioner (this guidance specifically recommends that local authorities contact ICACU in the first instance in order to ascertain the most appropriate way to make a request for information from a foreign state, something which was endorsed by Moylan J).

In both Leicester City Council v S and in Bristol City Council v AA and Another [2014] EWHC 1022 (Fam), the courts have impressed the fact that the additional delay to the proceedings, which would inevitably be caused by transfer, was not in itself undermining of the Article 15 procedure (it cannot therefore be argued by either a local authority or the Children's Guardian, that transfer should not be permitted due to the delay that the instigation of the transfer mechanism would cause). 

Another issue which has arisen in a number of reported cases is the issue of the competence of social services departments within foreign jurisdictions; referring to the judgment in Re K (A Child) [2013] EWCA Civ 895, it is very clear that the judicial and social care arrangements in member states are to be treated by the courts in England and Wales as being equally competent.  Parties to proceedings cannot therefore argue against transfer on the basis of any criticism of the proposed long term care planning that will be instigated by their foreign counterparts.

A further case of particular note is that of Coventry City Council v A [2014] EWHC 2033 (Fam). In this case a Romanian mother gave birth to a child and abandoned her in England. The Romanian authorities requested return of the child on the basis that they did not agree with a care plan of non-consensual adoption. Hogg J found that it was not in the child's best interests to transfer as she was born in England and had formed all attachments since birth in this jurisdiction. Hogg J noted that the Romanian authorities had failed to attend any hearings despite invitations to do so, had failed to provide a skeleton argument as requested and had given no clarity as to alternative placement options in Romania. This judgment reinforces the fact that, in the event that an authority from another jurisdiction voices opposition to a care plan and requests return of a child, it does not necessarily follow that a transfer of proceedings will be inevitable. The courts will come to a final decision in relation to transfer based on the application of the Article 15 criteria and any foreign state seeking repatriation of a subject child should be prepared to actively involve itself in the ongoing proceedings if invited by the court to do so.

The court in this case adjourned the matter in order to allow for further investigations to be made into family members in Romania. This is becoming a common approach, with the courts having to ensure that "no stone is left unturned" in line with Re B-S

Finally, at paragraph 19 of the judgment in the case of Southampton City Council v A Mother & Others [2014] EWFC 16, Baker J gives a useful overview of the developing case law and guidance in the area of Article 15 transfers:

(1) "The power to transfer a case or part of the case to the courts of another Member State in exception to the general principle as the opening words of Article 15(1) make clear" (per Lewison LJ in Nottingham City Council v LM [2014] EWCA Civ 152 at paragraph 15).

(2) "The Article 15 power may only be exercised where all three questions identified by Munby J in AB v JLB are answered in the affirmative" (per Ryder LJ in Nottingham City Council v LM at paragraph 16).?

(3)  "The question of whether a court or another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child" (per Lord Justice Ryder in Nottingham City Council at paragraph 19).??

(4)  "The starting point for the enquiry into the second question is the principles of comity and co-operation between Member States of the European Union" (ibid).??

(5)  "The child protection services and the judicial services of other Member States are to be taken as no less competent than those in this jurisdiction" (per Thorpe LJ in Re K at paragraph 24, endorsed by Ryder LJ in Nottingham City Council v LM at paragraph  19).??

(6)  "The difference in practice and principle relating to the measures to be taken in different Members States to meet risk and/or to meet the needs of a child including the use of non- consensual adoption is not a basis under Article 15 to decide the second or third questions" (Per Ryder LJ  in Nottingham City Council v LM at paragraph 39).?

(7)  "Questions of fact that might inform the court's evaluation of whether a court is better placed to hear a case. This might include the availability of witnesses of fact, whether assessments can be conducted and if so  by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court's knowledge of the case provides an advantage,  for example by judicial continuity between fact finding and evaluation and so on") per Ryder LJ in Nottingham City Council v LM paragraph 20).

(8)  The evaluation of a child's best interests under Article 15(1) is limited in its extent to the issue of forum. The approach to be followed in this evaluation under Article 15  is the same as under Article 12(3) as described by Baroness Hale in Re I (A Child) (Contact Application : Jurisdiction) [2009] UKSC 10, [2010] 1 AC 319 at paragraph 36 namely that: 'This question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings will be in the best interests of the child?" It will not depend upon a profound investigation of the child's situation and upbringing but upon the sorts of considerations which come into play when deciding upon the most appropriate forum" (per Ryder LJ in Nottingham City Council v LM  paragraph 21).?

(9) "The question of whether there should be a request under Article 15 should be considered alongside other jurisdiction issues at the earliest opportunity" (per Ryder LJ and Sir James Munby P in Nottingham City Council v LM at paragraphs 47 and 50 respectively).   "The longer the delay the more damaged the child's situation will become" (per Moylan J in Leicester City Council v S at paragraph 8).??

(10)  "It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the Court should set out quite explicitly, both in its judgment and its order:

(i) the basis upon which, in accordance with the relevant provisions of Brussels II Revised, it is, as the case may be, either accepting or rejecting jurisdiction; ??

(ii) 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" (per Sir James Munby, P in Re E at paragraph 35.)