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The Impact of the Vienna Convention on Consular Relations 1963 within Child Protection

Sian Young, Solicitor with Nottinghamshire County Council, provides guidance for practitioners.

Sian Young, Solicitor, Notts CC

Siân Young, Solicitor with Nottinghamshire County Council

On 30 April 2018, for the first time in the World, a court approved moving a child from a foster care placement in one country to a foster care placement in Poland, both placements were professional foster care placements within a family setting (as opposed to a residential unit).   Since children are not infrequently transferred from foster care in one country to kinship care in Poland, why is it that coordinated international foster care moves are so rare?

This article looks at addressing the practical steps and legal framework involved in utilising support and assistance from foreign authorities within public law proceedings brought under the Children Act 1989.

The first step is always to determine whether the child qualifies as a foreign national.  Asking for the parents' identity documents (such as birth certificates, ID cards or passports) will greatly assist; in addition, the parents' place of birth is usually recorded on a child's birth certificate, which is a helpful indicator in respect of nationality.  Research will ascertain whether the child in question qualifies for full or joint nationality.  Local authorities ought to obtain copy birth certificates early on in section 47 enquiries to assist in determining nationality.

The next step is to consider involving the relevant foreign authority in respect of the child, which is where the Vienna Convention on Consular Relations 1963 must be considered.  This convention does not apply to all countries and practitioners should ascertain whether the relevant foreign authority is a signatory to that convention and has ratified it.

On 24 April 1963 the UK joined the Vienna Convention on Consular Relations, this convention appears to have gone largely unnoticed by family lawyers until 14 January 2014 when the President of the Family Division, Sir James Munby, considered the impact of this convention within care proceedings in Re E (A Child) [2014] EWCA 6 (Fam). Sir James conceded that the 1963 Convention was not very familiar to most family lawyers [ibid. at paragraph 38] and he set out the obligations prescribed by Articles 36 and 37 of the 1963 Convention.

Article 36
Article 36 prescribes, inter alia, that a competent authority shall, if so requested by a national of a sending state, without delay, inform the consular officials that one of their nationals has been arrested, committed to prison, to custody pending trial or is detained in any other manner (Article 36(b)).  The consular officials shall then have the right to visit their national, howsoever he is detained, but will be prevented from taking any action on behalf of a detained national if he expressly opposes such action (Article 36(c)).

Sir James elaborated that it should be assumed 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 1983 or, in the case of a child, in accordance with section 25 of the Children Act 1989 [at paragraph 45].  But the President did not expand further upon this in the Re E judgment.  He was firm that, in care proceedings, in the absence of a prior earlier notification, the court itself will notify the relevant foreign authority without delay and will give reasons if it finds that it cannot do so.

Following the Re E judgment, the Department for Education's publication Working with foreign authorities: child protection cases and care orders dated July 2014 was designed to further illuminate the murky waters of improving communications between competent authorities and consulates.  The guidance was due to be reviewed before July 2015, but the author is unable to locate a revised publication.  This guidance is clear that local authority social workers should consider notifying the relevant foreign embassy as soon as practicable (but with consent), for example, when completing section 47 enquires, or if a foreign national is made subject to a child protection plan or where the local authority is looking to assess persons based in a foreign territory. 

On 6 August 2015, Sir James Munby revisited the 1963 Convention in Re CB (A Child) [2015] EWHC Civ 888.  Here, the President modestly acknowledges that the Re E 2014 judgment was made:

"to the court and not to local authorities.  I think it fair to acknowledge that, until I gave that judgment, the potential significance of the Vienna Convention in relation to care proceedings was not as well appreciated as perhaps it should have been.  My impression is that this is no longer the case. In particular, my impression is that the significance of the Vienna Convention is now, generally speaking, well recognised by local authorities, which are now appropriately pro-active, as they should be, in bringing to the attention of the relevant consular authorities the fact that care proceedings involving foreign nationals are on foot or in contemplation" [at paragraph 73].

It was clear that the impact of the 1963 Convention was now being assimilated within care proceedings.

On 3 March 2016, the 1963 Convention was considered again, this time, by Mr Justice Baker in Re JL and AO [2016] EWHC 440 (Fam).  This decision expanded upon the President's judgments in the 2014 and 2015 cases.  Baker J confirmed that, unless a child is taken into care with parental consent, a child will be considered detained for the purposes of Article 36 of the 1963 Convention [at paragraph 66].  However, practitioners must remind themselves that, whilst the placement might technically be a section 20 placement, if there is an element of compulsion to that placement then the child's placement might still be construed as a detainment.  Each placement should be considered on a case by case basis.  For example, in the event that parent/s feel compelled to attend an assessment unit to avoid impending care proceedings or must relinquish their child to foster care owing to bail conditions preventing them from providing care, then the child might be considered detained for the purposes of Article 36.  The child will not be considered detained if the parent/s freely relinquish the child to local authority care without any compulsion to do so.

Baker J confirmed at paragraph 69:

"[E]ven where a local authority is under no obligation to notify the embassy because the child is not being detained within the meaning of Article 36, it may conclude, in the exercise of its statutory powers and obligations to carry out assessments of children in need, that it is necessary to contact foreign authorities in order to improve its understanding of those matters to which it must have regard under s.1(4) of the 2002 Act, including the child's background, the effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, the child's relationship with its relatives, and the ability and willingness of any of the child's relative to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs. Whether or not the local authority needs to make such enquiries of the foreign country will depend on the circumstances of each case."

This reminds practitioners of the need to evaluate each case on its unique facts and circumstances; for example, one struggles to identify whether it will ever be appropriate to notify an appropriate foreign authority in respect of an asylum seeker.  Each case must be accompanied by a robust assessment outlining the local authority's rationale behind its decision to either inform a foreign authority, or not.

However, it is important to note that Article 36 does not purely apply to Children Act proceedings. The  article must also be considered, applied and assessed in the event that an adult is detained, which includes matters being considered by the Court of Protection under the umbrella of safeguarding adults.

Article 37
Sir James Munby summarised Article 37 at paragraph 40 of Re E:

"Article 37 is headed 'Information in cases of deaths, guardianship or trusteeship, wrecks and air accidents.' The only part that is relevant for present purposes is Article 37(b):

"If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

(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; …"

The clear distinction between Article 36 and 37 is that, whilst Article 36 provides a discretion to inform the relevant foreign authority, Article 37 appears to impose a duty to inform that foreign authority.  Again, this provision will apply in adult safeguarding cases as well as Children Act proceedings.

A relevant authority should inform the foreign consular post without delay of any case where the appointment of a guardian has been made for a child who is a national of the sending state (including guardian ad litem appointments under FPR 16.4). This means that a foreign consular post must be notified when a guardian ad litem is appointed for any child who qualifies for nationality with their country (including dual nationality).

Since the appointment of a children's guardian ad litem is inevitable in care proceedings following the operation of section 41 of the Act, it might be appropriate to expedite the notification to the relevant consular post as soon as the decision is made to issue care proceedings (i.e. following the legal planning meeting).  Local authorities could also seek parental consent to promote stronger cooperation with the relevant foreign authority and invite them to observe any public law outline meetings in the run up to issuing care proceedings. This will enable national and foreign authorities to share information and collaborate in the care planning for the child.

Assessments should robustly record any reasons why a local authority has decided that it is inappropriate to inform a relevant foreign authority.  The local authority can then invite the court to judicially sanction its decision not to inform the relevant foreign authority pursuant to Article 37 at the first hearing.

Where the child has no indefinite leave to remain in the UK and is a full national of another country, parties and the court should give careful consideration to granting intervenor status to the relevant foreign authority.  The foreign authority might wish for the child to return to their jurisdiction, for example if the parent/s fled their home nation to avoid social services intervention and/or the relevant child has siblings in state or adopted care in the foreign jurisdiction.  Granting the foreign authority intervenor status will enable them to seek leave from the court to make any application under Brussels IIR.  Foreign authorities can also assist in directing and coordinating assessments of family and friends within their country, which can avoid delay experienced with using ICACU (International Child Abduction and Contact Unit) and/or CFAB (Children and Families Across Borders). 

When care planning for the child, the local authority should be open to the possibility that the foreign authority may wish for the child in question to return to their home nation.  There is no automatic presumption that the child's welfare will be best promoted by an upbringing in the UK and there can be no assumption that British foster care is more sophisticated or nurturing than foster care in another country.  Decisions must be made without political, judicial or social bias.  The welfare checklist must guide the court and parties in determining the right outcome for the child.

In the event that there are no kinship care placements available in the UK and the parents have been ruled out as viable carers for the child, it is likely that either long-term foster care and/or permanence via adoption will be explored.  In these circumstances, it is unlikely that a local authority will be fully Re B-S (Children) [2013] EWCA Civ 1146 compliant unless the parents have provided extensive information in respect of all relevant family members within their home country.  In the event that both the national and foreign authorities both wish to place the child in long term foster care and/or place for adoption, the national local authority would have to provide convincing and cogent reasons as to why the child's welfare will be best promoted by remaining in the UK.  Perhaps the starting point should be to explore all reasonable opportunities to return the child to their homeland, since this will best promote the child's national and cultural heritages?  Of course, it may be easy to swiftly discount any return to the national country, for example, if the child is settled socially and educationally within England and Wales and wants to remain or in the event that the child requires a specialist provision that is available in the UK (for example specialist medical or educational provision).

In the event that the decision has been made to send the child to their country of origin, the foreign authority can also assist in procuring a passport for any child in the UK who does not qualify for a British passport.  In addition, social workers should consider asking the court to make an order that permits a worker to travel to the home country together with a child.  It might otherwise look quite suspicious to the UK Border Control for an adult to travel on a return ticket with an unrelated child who is travelling on a foreign passport and a one-way ticket …

Relevant foreign authorities are aware that it is difficult for a British foster care placement to promote the child's cultural and linguistic needs and are sympathetic to this.  They are usually an excellent source for materials to provide to children in foster care and are often willing to provide resources to ensure that the child can continue to learn their mother tongue within a foster care placement.

Local authorities need to fully grasp their duties under the Vienna Convention on Consular Relations 1963 and consistently apply its principles.  This might help to promote children having planned and coordinated international foster care moves on a more regular basis.