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What’s really in the bests interests of children from other European countries involved in care proceedings?

Sarah Phillimore, barrister, of St John's Chambers considers the 'best interests' test under Article 15 of Brussels IIR in the light of the Supreme Court's judgment in Re N.

Sarah Phillimore, barrister, St John's Chambers

Sarah Phillimore, barrister, St John's Chambers

Free movement of families within the European Union has led to many children being born and living in countries other than those in which their parents were born and raised. Sometimes those children come to the attention of Children's Services and sometimes their parents wish to return to their country of origin rather than participate in care proceedings in England or Wales.  The tensions are heightened by perceptions abroad that our child protection system shows lack of respect or even arrogant disregard for the cultural or linguistic ties a child has with another country. This has led to clear expressions of discontent internationally – from demonstrations on the streets in Slovakia to pointed criticism from Latvian politicians on the Today programme.

The importance of the issues and the likely strong reactions they generate are – in my opinion – reflected in the timing of the Court of Appeal judgment in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 which was handed down on November 2nd 2015 (although the case was heard in the preceding March).

It looks likely from the chronology that this judgment was delayed by about seven months in order to be presented to the European politicians who were visiting London on a 'fact finding' mission on 5th and 6th November 2015. The stated aim of the 'fact-finding' was:

"… to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents …"

The President confirmed in Re N [2015] that the audience for this judgment was anticipated to go beyond the purely domestic; see paras 4 and 5:

"During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

"Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call 'the United Kingdom') there are three quite separate legal jurisdictions…"

Therefore, these are issues of sensitivity and importance and we need to understand what is going on. What happens in care proceedings if the parents say they want the case transferred to another European country?

Council Regulation (EC) No 2201/2003 aka 'Brussels II' or 'BIIR' 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.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. However, 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.

It definitely does NOT apply to adoption proceedings or measures preparatory to adoption; see paragraphs 19-23 of the judgment inCB (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.

However, it remains an open question as to whether it does then apply to care proceedings when the final care plan is for adoption. This question has NOT been decided yet by the CJEU (European Court of Justice) who at the time of writing in April 2016 are currently considering a case referred by the Supreme Court of Ireland.

However, the Supreme Court in Re N took the view they would continue on the basis that article 15 does apply to care proceedings with final plan for adoption, otherwise the considerable delay already incurred in these proceedings would increase. But we clearly need to watch out for the decision of the CJEU on this issue.

Determining the child's habitual residence
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 will have 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.

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' has often been described as a 'simple test of fact' but I suspect that this is more an expression of hope than a reflection of the reality, given the number of Supreme Court decisions in the past two years that have been directed at flushing it out. The most recent, Re B (A Child) [2016] UKSC 4, involved a 3:2 split of opinion.

But it seems clear now that we apply the principles set out in A v A and Another (Children: Habitual Residence) [2013] UKSC 60 and to be 'habitually resident' in a country you will require some degree of integration in that country. The test approved by the Supreme 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. It is possible that a child may have no country of habitual residence at a particular point in time but the courts have said this will be exceptional. It is obviously in a child's interests to have an identifiable habitual residence.

Habitual residence alone doesn't determine jurisdiction
Once habitual residence is decided, the court deals with the issue of whether or not it should stay or transfer to another country by looking at three issues: 

To understand the ambit of article 15 we need to start with the case of Re E in 2014. This 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 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". 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 had provoked considerable controversy, especially as a particular myth has grown up that only three countries in Europe permit 'forced adoption', being the UK along with Croatia and Portugal. In fact, every European country has a legal mechanism for enforcing the adoption of a child without the parent's consent (but it has to be conceded that we are by far and away the most enthusiastic practitioners of 'non-consensual' adoption).

Thus the President set out guidance with regard to the following issues 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."

Good practice for care proceedings with a European dimension now requires the following: the court must set out clearly in both its judgement and order:

And UK family practitioners must be aware of 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 in Re N (Children) [2016] UKSC 15. 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 transferred 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 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, it necessarily followed that 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:

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.

The 'elephant in the room' – what informs a 'best interests' decision?
When the Court of Appeal and Supreme Court in Re N reach different conclusions on such a fundamental concept as 'best interests' we know that there will be some interesting times ahead in addressing this concept in court. I am quite clear that issues of respect for other jurisdictions weighed heavily on the analysis of the Court of Appeal – and were less weighty for the Supreme Court. Who knows what weight will be attached to this aspect in future proceedings?

The problem, in my view, is that 'best interests' is often in the eye of the beholder. In adoption cases, judges are charged with making a decision to promote a child's welfare for the whole of his or her life. Different people put different weight on such issues as maintaining ties with language and culture. Some consider this profoundly important for a person's sense of psychological integrity as they grow; others will focus more on the child's immediate and urgent needs for safety and security – which in turn provide the foundations for a healthy and happy adult life. It isn't an easy decision and it involves a whole raft of value judgments. I think all we can do is be aware of that and to check from which assumptions and values we operate.
This is the 'elephant in the room'. The principle of mutual trust requires that we assume other jurisdictions will act competently to protect children and they assume the same about us – but there are clearly existing and stark tensions between how the UK deals with permanency for children and how other jurisdictions approach non-consensual adoption.

In 2015 Dr Claire Fenton Glynn1 provided a report 'Adoption without consent' to the Peti Committee of the European Parliament Policy Department.

She made a number of recommendations directed to promoting co-operation between Member States under BIIR and setting out guidance as to the correct test on assuming jurisdiction under article 15. Of particular interest, in light of my comments above, is her recommendation

"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."

The time for wider dissemination and understanding of the research that underpins decisions we make for children's long terms best interests is urgent. Without some clear evidence base for decisions about 'best interests' we run a serious risk that they become decisions based on the subjective assumptions of the decision maker.

Mostyn J was incorrect to state in Re D (A Child) [2014] EWHC 3388 (Fam) that 'only 3' countries permit 'forced adoption' but he asked a reasonable question – why, if adoption really is the 'gold standard' for children, aren't other European countries keen to follow where we wish to go?


[1] Sarah Phillimore will be providing feedback on the recommendations of Dr Fenton Glynn at a mult-disciplinary conference, organised by The Transparency Project, on 3 June 2016. For details click here .