EU Nationals and English Care Proceedings: In the Matter of E (A Child) [2014] EWHC 6 (Fam)

The President of the Family Division, Sir James Munby has delivered a judgment giving guidance on the approach to jurisdiction and practice in care proceedings in respect of children who are nationals of other EU Member States. http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html The case involved care proceedings in respect of a child who was a Slovakian national. There has been considerable parliamentary and media interest in Slovakia over the last 2 years or so where children of Slovakian origin have been the subject of English care proceedings. This in part arises from the difference between England and much of Europe in that a care order will often lead to adoption and a complete termination of the child-parent relationship which is not possible in many other EU jurisdictions. As a result there have been a number of cases where the Slovakian authorities have been involved in seeking to intervene in English care proceedings or to make representations on issues connected with jurisdiction and transfer. See Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] Fam 253; LA v ML & Ors [2013] EWHC 2062; (Fam); LA v ML & Ors [2013] EWHC 2063 (Fam) . The President made the following observations. The EU dimension Sir James emphasises time and again that within the European Union respect for the law and procedures of other Member States is fundamental to the proper operation of BIIR; even if those laws and procedures seem very different to our own. We must assume that child protection and judicial services are no less competent than our own. (As a matter of practise, if in fact it could be shown that in that city/region/state they were deficient it must be possible to rely on this but it would have to be fact specific rather than based on generalisations.) Jurisdiction Although the Children Act 1989 does not specify the jurisdictional basis of care proceedings the effect of BIIR (which applies to care proceedings as much as private law proceedings) is that care proceedings must be based on one of the jurisdictional grounds set out in Art 8, 12, 13 and 14 and that Arts 17 and 20 must also be considered. Thus the court must first ask: is the child habitually resident here or is the child habitually resident in another EU Member State. If the child is habitually resident in another Member State then the English court does not have jurisdiction and must pursuant to Article 17 decline to exercise jurisdiction although protective measures can be taken under Article 20 and a request for a transfer of jurisdiction could be made under Article 15. If the court cannot establish where the child is habitually resident but the child is present in England then the court may have jurisdiction under Article 13 (presence). In Re B [2013] EWCA Civ 1434 care proceedings had proceeded for a year and ultimately the Court of Appeal concluded that the child had been and might still be habitually resident in Sweden; hence they issued an Article 17 declaration declining jurisdiction. Guidance: Munby said in future in cases with a European dimension the court should (i) set out the basis of its accepting or rejecting jurisdiction (ii) the basis upon which it has decided to or not exercise its powers under Article 15 in relation to a transfer of jurisdiction. Judicial Liaison and Exchanges of Information The Court of Appeal had pointed out in Re B (above) the limits to judicial liaison both in the Hague Network and the European Judicial Network. In this case Munby P emphasised the importance of Article 55 BIIR in securing exchanges of information. The relevance of nationality Sir James drew attention to the provisions of the Vienna Convention on Consular Relations which imposes obligations where nationals of another state are either ‘detained’ or where a ‘guardian’ is appointed for a minor or an adult who lacks capacity. The primary obligation is to inform the consular authorities of the position. In the case itself Munby P permitted a member of the consular staff to attend all hearings in a non-participatory role. Guidance for judges: The consular authorities for the country concerned should be informed where; - A child national is subject to a secure accommodation order ( ‘detained’) - A child national has had a guardian appointed. In addition the court should restrict communication between a national and his consular authority and section 12 AJA should not be permitted to have this effect Permission should be granted for a consular official to attend hearings which would be private and to obtain transcripts. Reporting Restrictions In imposing reporting restrictions involving a foreign national great care must be taken not to attempt to control foreign media. A parent cannot be prevented from publishing what they like in foreign print or broadcast media and can publish on the internet what they like provided it is not in the English language. Munby P referred to the precedent for a reporting restriction order that he set out in Re P[2013] EWHC 4048 (Fam).