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Limping Infants and Article 15 BIIA: the “magisterial” judgment in In the Matter of N (Children) (Adoption: Jurisdiction)

Alex Laing, barrister of Coram Chambers, considers two aspects of the decision in N (Children) (Adoption: Jurisdiction): (1) the jurisdiction of the courts of England and Wales to order the non-consensual adoption of a foreign child; and (2) the construction and use of Article 15 of Brussels IIA to transfer care proceedings.

Alex Laing, barrister, Coram Chambers

Alex Laing, barrister, Coram Chambers

Following the Court of Appeal handing down its long-awaited judgment in In the Matter of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, this article addresses two issues of particular interest to practitioners: (1) the jurisdiction of the courts of England and Wales to order the non-consensual adoption of a foreign child and the applicable law; and (2) the construction and use of Article 15 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 ("BIIA") to transfer care proceedings.

Flashback: the facts

First, a recap of the facts. At first instance, having wended its way through a sentence of judges (including seven in the High Court alone!) the local authority's applications for final care and placement orders in relation to two Hungarian children (now 2 and 3) reached HHJ Bellamy. Earlier, the mother had applied for the transfer of the proceedings to Hungary under Article 15 BIIA. This was twice considered: once adjourned; and once refused, albeit accompanied by a suggestion that it might later be re-opened. Latterly, the mother renewed her application. The expectation had been that it would be further considered at the start of the final hearing.

Unhappily (due to father's counsel being unaware of this expectation and the Hungarian Central Authority not having arrived on time) HHJ Bellamy felt unable to consider the application then and heard submissions instead at the conclusion of the evidence. At that point, despite being in a position to "hand down a written judgment on welfare issues without delay" (at [102] of HHJ Bellamy's judgment), the court decided to transfer the case pursuant to Article 15. The local authority and the children's guardian sought and were granted permission to appeal.

On appeal, the issues broadened. The Court of Appeal considered and gave judgment on "a number of… fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element" (at [4]).

Jurisdiction to adopt foreign children and applicable law

Two of the primary issues are, in the terms as articulated by the President (in a judgment described by Sir Richard Aikens as 'magisterial'), (1) does the English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national and (b) to dispense with the consent of a parent who is a foreign national? And (2) If the English court has jurisdiction to do so, how should it exercise that jurisdiction?

The simple answers, in short, are: (1) (a) yes; (b) yes; and (2) in accordance with English law, which in turn requires consideration of the child's non-English background under s.1 (4)(c) and (d) of the Adoption and Children Act 2002 (the ACA welfare checklist).

The real question, though, is why?
In relation to the founding of jurisdiction to adopt foreign children and dispensing with the consent of a foreign parent, the President relies on the silence of the 2002 Act as to any jurisdiction-establishing criteria beyond the domicile or habitual residence of the adoptive parents (and the presence of the child) (at [75] – [76]) as fortified by his tracing of the statutory provisions for adoption through successive legislation, Parliament, case law and academic theory ([78] – [90]). This analysis is mirrored by Black LJ ([176] – [180]).

As for the applicable law, the argument that the English court should consider not only our law but also the law of the country/ies in which the natural parents and/or the child are domiciled is one that deserves to be taken seriously. At heart, the point is this: adoption (permanently and powerfully) affects the status of the natural parents and the child; status is universal; the status of a person is determined by the law of his domicile (see, for example, Lord Denning in Re Valentine's Settlements [1965] Ch 9831 at p 842, D-F, or Scott LJ in Re Luck's Settlement Trusts [1940] Ch 864, at p 894).

Or, in the words of James LJ, 296 – 297, in In re Goodman's Trusts (1881) 17 Ch D 266:

"suppose [a father] were to come … to this country … would it be possible to hold that he would lose his right to the guardianship of the child in this country because of the historical or mythical legend that the English barons and earls many centuries ago cried out in Latin, Nolumus leges Angliæ mutare? Can it be possible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child had become a stranger in blood and in law, and a bastard, filius nullius?... I can see no principle, no reason, no ground for this, except an insular vanity, inducing us to think that our law is so good and so right, and every other system of law is naught, that we should reject every recognition of it as an unclean thing."

There is also a welfare point: the 'limping infant'. This, in the words of Cheshire's Private International Law, where the phrase is coined, is: "to impose a status on a child in conflict with that which he possesses in his domicile of origin, to create as it were a 'limping child', would be a doubtful blessing to bestow upon him" (7th edn, 1965, p 1159).

Nevertheless, having explored these arguments at some length (at [93] – [101], [181]), the Court of Appeal has held that the approach of Goff J in In Re B(S) (An Infant) [1968] Ch 204 is the correct one. Namely, that "the true import of the domiciliary law is purely as a factor – albeit an important one – to be taken into account when considering whether the proposed order will be for the welfare of the infant, a matter upon which the Statute expressly provides that the court must be satisfied before making an order" (208 – 210) – i.e. as required by s.1 (4)(c) and (d) of the 2002 Act.

What does this mean in practice?
It means a renewed emphasis by the court, professional witnesses and the children's guardian on: (1) giving "the most careful consideration… to the child's national, linguistic, ethnic and religious background" (at [105]); (2) securing evidence of and considering whether the order will be recognised abroad (including in relation to liability for military service, taxation and succession to properties) (at [110]); and, if not so recognised (3) taking in to account the disadvantages to the child of the 'limp' to be bestowed upon him (at [110]).

And surely it means a tension between the need to do the above in a "rigorous, analytical and properly reasoned" (at [105]) B-S-compliant manner, without turning a case in to a "major forensic battle" and "expensive and time consuming 'satellite litigation'" (at [192]).

Oh, and within 26 weeks.

Article 15, BIIA

The fundamentals of Article 15 will, to those who practise in this field, be by now well known.

In short, Article 15 operates as an exception to the basic rules of jurisdiction set out in BIIA, beginning with Article 8's founding of jurisdiction on habitual residence. Article 15 is a discretionary mechanism whose operation is governed by three, distinct criteria (i.e. the court is required to exercise its discretion either in favour or against transfer if, and only if, it finds those three criteria satisfied).

The first, a 'particular connection' to another Member State, is a question of fact and is defined by Article 15(3). The second, 'better placed', is an evaluative question to take account of issues including the availability of witnesses, the undertaking of assessments and judicial continuity. The third, 'best interests of the child' is also evaluative: it is an attenuated (or forum-specific) question of best interests asking whether it is in the child's best interests for the case to be determined in another jurisdiction.

What has the Court of Appeal added to our current understanding of Article 15?
One, the question of discretion. On behalf of the children's guardian, it was submitted that only by giving (greater) voice to Article 15 discretion can Recital 12, BIIA assume its (necessary) significance: "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" (my emphasis) – i.e. this discretion allows Article 15 as a whole to apply a more child-focussed test than the narrow (or attenuated) best interests test of Article 15(1). This view, it was submitted, chimes with Article 24(2) of the Charter of Fundamental Rights of the European Union, which is explicitly recognised by Recital 33, BIIA.

This argument was not endorsed by the Court. Indeed, Munby P repeated his statement of AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517, that "it is not easy to envisage circumstances where, those two conditions having been met ['better placed' and 'best interests'], it would nonetheless be appropriate not to transfer the case" (at [36] of AB).

Two, whilst the "imperative" to consider an Article 15 transfer at the start of the proceedings remains, it is open as a matter of law to consider a transfer at any stage of the proceedings (at [117]).

Three, whilst repeat applications are to be "deprecated" and, without a change in circumstances, can expect to be summarily dismissed, there may be circumstances in which a renewed application is appropriate (at [118]). This includes, in exceptional circumstances, after the fact-finding hearing (at [119] – [120]). Such a case might be one where the availability of factual witnesses and the fear of delay point to a determination of the disputed facts in this jurisdiction but, say, the welfare-based assessments would better take place where the child has lived for most of his life and where his wider family live and intend to continue living.

Four, the need for judicial continuity will usually be a "weighty factor" (at [121]) – i.e. a weighty factor against transfer.

Five, consideration of Article 15 should be an "appropriately summary process" and dealt with without oral evidence. Interestingly, Munby P notes that: "Reference to either the burden of proof or the standard of proof is neither necessary nor helpful… If some touchstone is needed, the question is not one of burden or standard of proof but, rather, which side has the better of the argument" (at [122]).

And finally, and importantly, it has been confirmed that, given Article 1(3)(b) BIIA, care proceedings are within the scope of BIIA (and therefore within the scope of Article 15), even if the local authority's care plan is for adoption; but proceedings for a placement order are not. This, in the polite words of the Court of Appeal, is "in preference to the dicta of Ryder LJ in Re M (Brussels II Revised: Art 5) [2014] EWCA Civ 152, [2014] 2 FLR 1372" (at [69]).

A final thought: for whom was the judgment written?

The eagle-eyed reader will have noticed what is (to the author, at least) a curious start to the President's judgment. Explaining that "our judgments may be read by those not familiar with our domestic constitutional arrangements" (at [4]), Munby P sets out the separate legal jurisdictions that make up the United Kingdom and explains his particular role, that of Black LJ and the "cross-border jurisdictional" experience of the third member of the court, Aikens LJ.

In a week in which the contributors to the European Parliament's Directorate-General for Internal Policies: Policy Department C: Citizens' Rights and Constitutional Affairs 'Adoption Without Consent' study are in town on behalf of the PETI Committee to study the practice of non-consensual adoption in England and Wales, one might consider to what extent the President had the broader European view in mind when penning his judgment.

If the future of European-wide adoption is more joined-up thinking, how might our laws best fit in to this jigsaw? And, if the hard rule that English courts can adopt foreign children is doubly softened by the (appropriate) need to consider the child's roots and an increased willingness to transfer cases under Article 15, for how long will England remain "unusual in the degree to which it has recourse to non-consensual adoption… in the case of children who are foreign nationals" (at [7])?


For a short guide to good practice in relation to another issue addressed in In the Matter of N, namely section 20 agreements - "… this can no longer be tolerated": a short guide to the correct use of section 20, Children Act 1989' - please click here.