N (Children) (Adoption: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Black,Sir Richard Aikens |
| Judgment Date | 02 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1112 |
| Docket Number | Case No: B4/2014/3844 and 3846 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 November 2015 |
[2015] EWCA Civ 1112
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Sir Richard Aikens
Case No: B4/2014/3844 and 3846
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
His Honour Judge BELLAMY (sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Roger McCarthy QC and Mr Mark Twomey (instructed by the local authority) for the local authority
Mr Iain Goldrein QC and Ms Martha Cover (instructed by Hanne and Co) for the children's guardian
Mr William Tyler QC and Mr Malcolm MacDonald (instructed by Lawrence and Co) for the mother
Mr Alistair MacDonald QC and Mr Dorian Day (instructed by Hecht Montgomery Solicitors) for the father
Hearing dates: 25–27 March 2015
Sir James Munby, President of the Family Division:
These are appeals, pursuant to permission granted by my Lady, Black LJ, on 3 December 2014, from a decision of His Honour Judge Bellamy, sitting as a Deputy High Court Judge. His judgment, handed down on 11 November 2014, has been published and can be found, available to all, on the free, open-access, BAILII website: Re J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45.
Introduction
Judge Bellamy was conducting the final hearing of care and placement order proceedings in relation to two Hungarian children, J born in January 2012 and E born on 6 May 2013. He directed that the proceedings were to be transferred to Hungary in accordance with Article 15 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly referred to in this country as Brussels II Revised, BIIR or, as I shall refer to it here, BIIA.
The essential issue is whether Judge Bellamy was right to proceed as he did under Article 15. The local authority, represented by Mr Roger McCarthy QC and Mr Mark Twomey, supported by the children's guardian, represented by Mr Iain Goldrein QC and Ms Martha Cover, submit that Judge Bellamy was wrong. The mother, represented by Mr William Tyler QC and Mr Malcolm MacDonald, and the father, represented by Mr Alistair MacDonald QC and Mr Dorian Day, submit that he was right and that the appeals should accordingly be dismissed. My conclusion is that, subject only to one matter which does not affect the substance, Judge Bellamy was right, essentially for the reasons he gave, and that the appeals should accordingly be dismissed.
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: England and Wales (which for ease of reference I shall call 'England'), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.
I should also explain that, as President of the Family Division, I am Head of Family Justice for England and Wales. Black LJ in addition to being a judge of the Court of Appeal is also Head of International Family Justice for England and Wales. The third member of the court, Aikens LJ is a judge of the Court of Appeal whose primary experience and expertise lies in other areas of law but who, in those fields, has great experience of cross-border jurisdictional issues of the kind that arise here. We are glad to have him sitting with us: it is important in cases such as this that we, and the litigants, have the benefit of a judge who is not primarily a family lawyer and who can bring to bear a non-family law perspective.
The wider context
The background to these appeals is the fact that England is unusual in Europe in even permitting adoption without parental consent, indeed in the teeth of parental opposition – what I shall refer to as 'non-consensual adoption' – and even more unusual in the degree to which it has recourse to non-consensual adoption, both domestically and in the case of children who are foreign nationals. 1 The key provision in English law is section 52(1) of the Adoption and Children Act 2002, which provides that:
"The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that –
(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed with."
In the present case, as in most such cases, we are concerned with section 52(1)(b).
I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as 'forced adoption' but which I prefer, and I think more accurately, to refer to as non-consensual adoption. There is no shirking the fact that our approach in these matters has given rise to controversy abroad and particularly in Europe. I make no apology for repeating what I said, sitting at first instance, in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151, paras 13–15, a case involving a child from Slovakia:
"13 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 [on Consular Relations of 24 April 1963].14 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.
15 It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent … Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child's non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child's best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases."
In Re D (A Child) [2014] EWHC 3388 (Fam), para 35, speaking of practice in this country, Mostyn J commented:
"The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment."
Earlier in his judgment he had described in powerful words (para 1) the reality of what the English court is doing in such cases:
"If any case illustrates the momentous and very difficult nature of the decisions that have to be made in the Family Division it is this one. My decision will determine whether ED grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman. On this latter footing, being realistic, his Czech Roma heritage will either be extinguished or reduced to insignificance."
In the context of care and adoption we rightly disavow 'social engineering' as something which has no place in our law or practice (see for a recent example Re A...
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