Re E (A Child) (Care Proceedings: European Dimension) [Family Division]
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 14 January 2014 |
| Neutral Citation | [2014] EWHC 6 (Fam) |
| Court | Family Division |
| Date | 14 January 2014 |
[2014] EWHC 6 (Fam)
Sir James Munby
President of the Family Division
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Downs for the applicant (local authority)
Mr William J Tyler for the first respondent (mother)
Ms Jacqueline Roach for the third respondent (E by his children's guardian)
Ms Mary Lazarus for the fourth respondent (maternal aunt)
The second respondent (father) was neither present nor represented
The names of the solicitors are omitted to protect E's identity
Hearing dates: 17–20 December 2013
Sir James Munby, President of the Family Division:
I have been hearing care and wardship proceedings in relation to a 12 year old Slovakian boy. The case has drawn attention to three issues of very considerable general importance on which it is convenient that I give a public judgment, separate from the judgment I shall give explaining the reasons for my decision in the particular case.
The issues
These three issues are common to many care cases involving families from other countries in the European Union. They concern the application in such cases of (i) 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 regulation, commonly known as Brussels II revised (BIIR), (ii) Articles 36 and 37 of the Vienna Convention on Consular Relations of 24 April 1963, and (iii) the jurisprudence on reporting restriction orders which I recently considered in Re J (A Child) [2013] EWHC 2694 (Fam) and again in Re P (A Child) [2013] EWHC 4048 (Fam).
Before addressing these issues in turn I need to say a little about the particular proceedings which have been before me. I confine myself in this judgment to what is required to put the points I wish to make in context.
The background facts
E was born in 2001. Although he was born in this country and has lived here all his life, both he and his mother are citizens of the Slovak Republic. E is also a British citizen. His father is British.
On 19 March 2013 the local authority began care proceedings, which were transferred the same day from the Family Proceedings Court to the County Court. On 21 March 2013 the District Judge made an interim care order. It was extended on 2 April 2013. On 22 April 2013 the same District Judge made a further interim care order and transferred the matter to the High Court on the ground that there were significant complexities in the case (one being the potential use of section 3 of the Mental Health Act 1983) and that it might be appropriate to invoke the wardship jurisdiction. The order recorded that the matter was listed for hearing in the High Court on 3 May 2013.
On 1 May 2013, and without the prior sanction of either the court, the mother or the local authority (which at that time shared parental responsibility with the mother), E was transferred to hospital and detained pursuant to section 2 of the 1983 Act. The local authority applied urgently the same day to Pauffley J, who made E a ward of court. The matter came before Sir Peter Singer, sitting as a Judge of the High Court, on 3 May 2013. He ordered that E remain a ward of court, discharged the interim care order, and gave comprehensive directions, including directions in relation to E's treatment, which there is no need for me to rehearse.
Thereafter the matter came back before Sir Peter on 28 May 2013, 8 July 2013, and 15 August 2013. On the last occasion the court was told that the mother had left the country and returned to Slovakia. Sir Peter permitted Mr Igor Pokojný, Counsellor-Minister and Head of the Consular Section of the Embassy of the Slovak Republic in London to be present at the hearing "in a non-participatory capacity as an observer." The order records concerns about reporting of the case in the Slovakian press. Sir Peter directed that the matter be listed before me for a further hearing on 21 August 2013.
On 16 August 2013 the Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of BIIR. The request referred to the fact that a media and social media campaign had been started in Slovakia and that the case had become "extremely sensitive" and "a focus of attention" in Slovakia. It sought information about the outcome of the forthcoming hearing on 21 August 2013.
At the hearing on 21 August 2013 I gave Mr Pokojný permission to be present, again as an observer in a non-participatory capacity, both at that hearing and, subject to any further order of the court, at all future hearings. I gave various directions, including a direction giving the mother's solicitor leave to come off the record as the solicitor acting for her. In response to the Article 55 request, I permitted the local authority to disclose to the Slovakian Central Authority the order I made at the conclusion of the hearing and, subject to any further order of the court, any further orders; I permitted Mr Pokojný to provide an account of the hearing to the Slovakian Central Authority; and I permitted the Slovakian Central Authority to obtain a transcript of the hearing.
There were further hearings before me on 30 August 2013, 25 September 2013 and 21 October 2013. Each was attended by Mr Pokojný. By now the mother was again represented. At each I gave various directions designed in part to encourage the mother, who was still in Slovakia and refusing to return, to participate in the proceedings (one of the issues was as to her capacity to conduct the proceedings).
On 24 September 2013 the Slovakian Central Authority had submitted a formal statement to the court, addressed to me, stating that "we do not intend to dispute jurisdiction of the court in England and Wales and fully accept the competence of the English Court." Amongst other helpful things, the statement concluded with the observation that "the minor child being also a citizen of the Slovak Republic, we would like to assure the Court that should the need arise, the Slovak Republic is fully prepared to provide the Court with cooperation and assistance" — as indeed it, and its representative Mr Pokojný, have since done, for which I am most grateful. The order I made the following day, 25 September 2013, included a direction that the local authority disclose various documents to the Slovakian Central Authority.
The final hearing took place before me over four days starting on 17 December 2013. Again, Mr Pokojný attended throughout. It suffices for present purposes to note that I decided that, since it had not been demonstrated that the mother lacked litigation capacity, the hearing was to be conducted on the basis that she did. I approved a care plan providing for E to be placed in the care of the local authority but living with his maternal aunt. The wardship was to be discharged. I decided to make a reporting restriction order. I reserved judgment.
The wider context
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.
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: see Re B-S (Children) [2013] EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34. 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.
Before turning to address the three specific issues I have identified, a more general point needs to be made. Its importance cannot be over-stressed.
The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR.
In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he...
To continue reading
Request your trial
-
London Borough of Sutton v AH (Mother) and Others
...brought require me, by way of preliminary adjudication in accordance with the guidance given by Sir James Munby P in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, sub nom Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) ......
-
Child and Family Agency (Ireland) v M and Others
...Sanità (Case C-283/81) [1982] ECR 3415, [1983] 1 CMLR 472. E (a child) (care proceedings: European dimension), Re, (Practice Note)[2014] EWHC 6 (Fam), [2014] 2 FCR 264, [2014] 1 WLR 2670, [2014] 2 FLR 151. F (mental patient: sterilisation), Re [1990] 2 AC 1, [1989] 2 WLR 1025, [1989] 2 All ......
-
London Borough of Hackney v P
...Act 1989, Sir James Munby P observing as follows: “[10] In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FCR 264, [2014] 2 FLR 151 (forthcoming) I referred (para 23) to the fact that the jurisdictional reach of the courts of England and......
-
Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention)
...As has been pointed out by, among others, Sir James Munby P in In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] 1 WLR 2670 (“ Re E”), at [23]: “It is a curious fact that the jurisdictional reach of the courts of England and Wales in relation to public law (care......
-
Essential Daily Guidance for Proceedings Concerning Children
...▪ Re K (A Child: Wardship: Publicity) (No 2) [2013] EWHC 3748 (Fam); ▪ Swansea v XZ & Anor [2014] EWHC 212 (Fam); ▪ Re E (A Child) [2014] EWHC 6 (Fam); ▪ Haringey LBC v Musa [2014] EWHC 1200 (Fam). RE-REGISTRATION OF A BIRTH AND DECLARATION AS TO PARENTAGE Declarations as to parentage (a) A......
-
Essential Practice Guidance
...concerning a child of a foreign nationality either pursuant to Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151 or at all as that is not a central authority duty or function. Consular authorities, not the ICACU, should also be conta......
-
Instructions and Case Preparation in Family Proceedings
...member state, in accordance with, in particular, Articles 15 and 55 of the BIIR. See the case of Re E (A Child: Habitual Residence) [2014] EWHC 6 (Fam), in which the then President of the Family Division, Sir James Munby, referred specifically to the BIIR. The President set out that in ever......