Found in Translation

Meeting the costs of translation.

In the matter of Z (A Child) [2017] EWCA Civ 157

The Court of Appeal outlined the approach to translation and interpretation costs and disapproved of a 'rule'  that the costs should fall on the party who produces the document. In particular the obligation of disclosure required documents to be produced which might be ‘against interest’ and so it could not be a general rule that in producing the document the party was deploying it for his benefit.

The Court of Appeal judgment approves the following approach

a) Interpretation in court is the responsibility of HMCTS

b) Out of court interpretation falls to an individual party's public funding certificates

c) The cost of translating pre-proceeding documents falls to the local authority in any event (LAA Guidance on Remuneration of Expert Witnesses paragraph 6.21)

d) Only those documents which are necessary should be translated (Re L)

e) Which documents need to be translated is a matter which needs to be determined during the case (and probably done on a Section of the Bundle basis….)

f) The determination of which document should be translated has to be made by the judge if the parties are unable to agree or a likelihood the LAA will not accept the disbursement has been reasonably incurred.

g) Once that decision has been made, the burden of paying for the translation of a document will depend on the context

-           where they relate to establishment of threshold the Local Authoruty should usually pay subject to the caveat that:

"it is essential to focus on the forensic context… it is necessary for K to understand the case as a whole and to be aware of the important substance – not the fine details – of the various other witness statements, reports and assessments". (See Re L (Procedure: Bundles: Translation) above).

-          In other cases it may be appropriate for the party who seeks to adduce it to meet a burden which falls on him to meet the costs

 

-          However there is no definitive rule; all must depend on the circumstances of the cases.

Jurisdiction to vary orders relating to children: CJEU decision of 15.2.17

Not really any dramatic new law but this decision adopts a the same sort of approach to applications to vary custody/contact order that the Court of Appeal adopted in Re G (jurisdiction: art 19 biia) [2015] 1 flr 276.  Basically once you have a final order in Member State  A you cant apply to ‘vary’ it where the child is now HR in Member State B.

In Case C‑499/15, W-v-X

REQUEST for a preliminary ruling under Article 267 TFEU from the Vilniaus miesto apylinkės teismas (District Court, Vilnius, Lithuania).

Article 8 of 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, repealing Regulation (EC) No 1347/2000, and Article 3 of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, must be interpreted as meaning that, in a case such as that in the main proceedings, the courts of the Member State which made a decision that has become final concerning parental responsibility and maintenance obligations with regard to a minor child no longer have jurisdiction to decide on an application for variation of the provisions ordered in that decision, inasmuch as the habitual residence of the child is in another Member State. It is the courts of the Member State of habitual residence that have jurisdiction to decide on that application.

http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d5d2151ef70249448d87e4bf9f4636339c.e34KaxiLc3qMb40Rch0SaxyKchn0?text=&docid=187865&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=209917

Ex parte orders II

The President has given guidance on the duration of ex parte  orders. It is wrong in principle to make them without limit of time.
Even in cases where an order is made for 6 or 12 months a return date within 14 days MUST be provided for.


https://www.judiciary.gov.uk/wp-content/uploads/2017/01/pfd-practice-guidance-ex-parte-orders.pdf

Ex parte orders - how long?

Duration of ex parte orders

In Re W (Minors) [2016] EWHC 2226 (Fam) Mostyn J was dealing with a final hearing in respect of an application for a

location order. His judgment provides practitioners with guidance in respect of the duration of ex parte orders.

The mother had obtained an ex parte non molestation order which had been made for a period of one year, with provision in the order for it to be considered at a further hearing on a date to be fixed by the court officer on request by the respondent.

Mostyn J clarified that the order clearly flouts the guidance set out by the President in the President's Practice Guidance of 13 October 2014 in which it is made clear that the duration of an ex parte order prior to a review at an inter partes hearing should not normally exceed 14 days and that provision must be made for a specific return date.

Mostyn J draws practitioners' attention to the editorial notes in the Red Book in respect of ex parte orders, which criticises the President's Guidance as unworkable in practice and which reduces the protection for victims.

"It is perhaps unsurprising that this order was made in this form given the terms of the editorial note which prefaces the Guidance as it is printed in the 2016 edition of the Family Court Practice at p.2681. This note, which in my judgment is intemperate, disrespectful and legally wrong, in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate."

An` ex parte order must specify a return date providing for a full inter partes hearing in order to review the hearing as soon as possible.

Article 15 Transfers; The CJEU give judgment

Child and Family Agency v D [2016] CJEU case 428/15 (27^th October 2016) L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský (Rapporteur), M. Safjan and D. Šváby, Judges – Curia link http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d579fb7ee630aa40c1a6a3ca3d4fbbcde3.e34KaxiLc3qMb40Rch0SaxyKaxr0?text=&docid=184896&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=796653

 

Summary

The Irish Supreme Court referred to the Court of Justice of the European Union for a preliminary ruling the matter of whether a request for the transfer of Irish Public Law children proceedings from the Irish High Court to the courts of England and Wales fell within the scope of Art 15 BIIa. The CJEU (differing from the Opinion of the Advocate-General) concluded that it did, notwithstanding that the parties would be different and possibly the factual matrix in each state. Any other interpretation would run counter to the purpose of the Regulation and Art 15.  

Issue: Does Article 15 apply to public law care applications by a local authority in a Member State, when, if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?
Answer: Yes, it does

Issue: was guidance given on the approach to ‘particular connection’ under Article 15(1)?

Answer: Yes – in order to rebut the ‘strong presumption’ that an Article 8 jurisdiction would be maintained, the establishment of a ‘particular connection’ was essential for there to be eligibility to transfer, and the criteria under Article 1(3) were exhaustive, and were in character evidence of a relation to proximity.




Issue: was guidance given on the approach to ‘a court that is better placed to hear the case’?
Answer: Yes – in addressing that question, the court having jurisdiction must ask itself whether a transfer to the other court was ‘such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child’,




Issue:  was guidance given on the approach to ‘the best interests of the child’?
Answer: Yes – the requirement that the transfer must be in ‘the best interests of the child’ implied that the court with jurisdiction must be satisfied ‘having regard to the specific circumstances of the case’ that the transfer was ‘not liable to be detrimental to the situation of the child’

Internal Abduction

Re R (child) [2016] EWCA Civ 1016.
The Court of Appeal have said that the test in relation to internal abduction is purely a paramount welfare test. They do acknowledge that the approach set out in Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 may be of some utility. That being so it may be argued that a starting point for a judge hearing an application for the return of a child 'abducted' within England could be that an immediate return would be in the child's welfare interests.
The Court of Appeal declined the invitation to formally adopt the Re J starting point in internal abductions.

Asylum and abduction

Re H (a child) (international abduction: asylum and welfare) [2016] EWCA Civ 988, [2016] All ER (D) 79 (Oct)

 

The Court of Appeal, Civil Division, allowed a mother's appeal from High Court orders for her son to be returned to Pakistan. The mother had claimed asylum in the UK for herself and her son, but subsequently agreed a consent order to return with the child to Pakistan, where the father was living. When she failed to comply with the order, the High Court ordered it to be enforced, even though she and the child had, in the meantime, been granted asylum because her fear of persecution in Pakistan was well founded and there was a real risk of them being subjected to serious harm. However, the Court of Appeal held that the High Court had paid insufficient attention to the asylum claim when it made the consent order and to the grant of refugee status when it decided the order should be enforced. The Court of Appeal set aside both the consent order and the subsequent order enforcing it.

 

What was the background to the case?

 

The father, mother and child were of Pakistani origin. They moved to live in Saudi Arabia. The mother and child visited the UK and refused to return to Saudi. The mother and child applied for asylum in the UK based on allegations of violence and possible exposure to radicalisation.

 

The father sought the child’s ‘return’ to Pakistan using the inherent jurisdiction of the High Court. At the final hearing, the mother agreed to return and the court made an order by consent. Shortly afterwards she resiled from that agreement, and her and the child’s asylum claims were granted.

 

The father sought to enforce the return order and the mother in turn sought to set it aside on the bases of duress by her legal team and a change in circumstances. The court refused her application and made an order enforcing the return order.

 

The mother appealed to the Court of Appeal. The child saw a solicitor and was joined to the proceedings and appealed in his own right on the basis that the High Court should never have approved the original consent order and should have in any event varied it following the grant of asylum. The father cross-appealed, arguing that the High Court had no power to set aside its own order.

 

What issues did the case raise?

 

The case raised a host of issues:

 

• the duty of a judge presented with a consent order to independently consider the child’s best interests
• the circumstances in which a child should be joined as a party
• the powers of a court to set aside its own orders
• the effect, if any, on the courts' powers to order the return of a child where the child has been granted asylum from the ‘return’ country in his own right by the Secretary of State
• whether a grant of asylum can be set aside where it was granted on the basis of allegations denied by the other parent, and whether it can be set aside by the family court or only the Secretary of State
   
   What did the Court of Appeal decide?
   
  The court allowed the appeal on all grounds and set aside the original consent order, observing that the child should have been made a party at that stage. The court also set aside the subsequent order enforcing the original consent return order. The application was remitted for re-hearing with a direction that the child should be a party and the Secretary of State should be joined so that the asylum issues could be properly explored. The reasons for doing so were, in short summary, as follows.
   
  A judge (particularly in wardship) presented with a consent order has a duty to independently consider whether the proposed order is in the child’s best interests. In unusual cases, such as this and in particular where domestic violence is a feature, the court should not rubber-stamp a parental agreement but must instead carry out its own evaluation and, if necessary, adjourn to enable the child to be separately represented so that his interests are not obscured by the parental agreement.
   
  In unusual circumstances, the court of its own motion must consider whether the child’s interests require separate representation. Where factors referred to in Practice Direction 16A of the Family Procedure Rules are present, separate representation may be required.
   
  The grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State may constitute an absolute bar to the return of those children to the country from which they have been granted asylum. An order for return might place the state itself in breach of the protections provided by the UN Convention on the Rights of the Child and the EU Directives. In the alternative, if the grant of asylum (or humanitarian protection) to children in their own right is not an absolute bar, at the least such a grant is  a very significant welfare factor. The Court of Appeal did not determine this issue. The interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State is a very important issue, of which there is no reported case to date, and will require  careful examination at the remitted hearing in the High Court.
   
  The Court of Appeal concluded that because this was a wardship case where welfare was paramount, it did not need to determine the thorny problem of the  powers of a court to set aside its own orders. Where welfare was paramount, the court could always vary its own order on the basis of a fresh welfare evaluation. It was not constrained in the same way as a court considering, for instance, a 1980 Hague Convention order.
   
  What are the practical implications of the decision?
   
  Although the asylum issues are the most complex and interesting, there are a limited number of cases where they will raise their head. As set out above, the remitted hearing will determine the interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to the child in his own right by the Secretary of State and is therefore a work in progress.
   
  In relation to day-to-day practice, the most significant feature is the reminder to practitioners, Cafcass and judges that whilst parental agreement is a good thing, that does not absolve the court from the duty to independently consider the child’s welfare. Rubber-stamping parental agreement, in particular where there is some ‘flag’ such as domestic violence, should be a thing of the past. It is also a reminder that orders under the Children Act 1989 can be re-visited by a court at first instance, albeit not without some change of circumstances.
   
  How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?
   
  The focus in the judgment on the need for judges to independently consider welfare, irrespective of parental agreement or how the parents formulate the issues in a dispute, is powerfully emphasised. The possible need for independent representation of the child is also helpfully highlighted.
   
  Grey areas remain in the interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State, and in the ability of a court at first instance to set aside its own orders where they are not based on a paramount welfare jurisdiction. 
   
  How does the decision fit in with other developments in this area?
   
  Perhaps the most powerful message from the judgment viewed as a whole is the focus on the child and not the parents and their issues. That is wholly in line with the tidal flow in relation to the rights of the child. There is an interesting tension between the emphasis of appellate courts on the need for parents to ‘own’ decisions over their children and the need for the court to ensure the position of the child is not obscured by the position taken by the parents. The asylum issues are a whole different area and we await developments in the remitted proceedings before the High Court.