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.

1980 and 1996 Hague Conventions: new members

The EU has recommended that the accessions of Kazakhstan and S Korea are accepted.
Serbia will join the 1996 Hague Convention on 1 November 201
A Bill has been presented to the Indian Parliament  to permit the country to join the 1980 Hague Convention

Brussels IIa re-cast

Summary of the main changes proposed

 

The Commission proposes to re-cast BIIa. This means repeal and replacement by a new Regulation. The old Regulation will therefore lapse (subject to any transitional provisions) and new cases which do not fall within BIIa Recast will for those who do not adopt BIIa not be covered by either BIIa or BIIa Recast.

For the UK we would be like Denmark – although the 1996  HC or the Luxembourg Convention might apply.

 

Introduction of measures increasing efficiency and improving the functioning of the "overriding mechanism"

• Several substantial modifications are proposed with the aim of improving the efficiency of the return of an abducted child and the problems relating to the complexity of the "overriding mechanism" under the Regulation.
• First of all, the proposal clarifies the time limit for issuing an enforceable return order in line with the view prevailing among those Member States which handle return cases under the 1980 Hague Convention most quickly. A separate six-week time limit would apply to the proceedings before the first instance court and the appellate court, respectively. In addition, the proposal would oblige Central Authorities to also work under a six-week time limit to receive and process the application; locate the respondent and the child; promote mediation while making sure that this does not delay the proceedings, and refer the applicant to a qualified lawyer or file the case with the court. Moreover, the measures proposed include an obligation for Member States to concentrate jurisdiction for child abduction cases in a limited number of courts while respecting the structure of the legal system concerned.
• The proposal limits the number of possibilities to appeal a decision on return to one and explicitly invites a judge to consider whether a decision ordering return should be provisionally enforceable.
• it obliges the Member State where the child was habitually resident immediately before the wrongful removal or retention to conduct a thorough examination of the best interests of the child before a final custody decision, possibly implying return of the child, is given. In this context, when conducting this examination of the best interests of the child, any child who is capable of forming his or her own views has the right to be heard, even if not physically present, using alternative means such as videoconferencing as appropriate.
• The cooperation between the Central Authorities or a direct communication by a judge with the relevant court in the Member State of origin should be facilitated to assess measures ("ad-equate arrangements") put in place in the Member State to which the child should be returned.
• Where the child might be at a grave risk of harm or might otherwise be placed in an intolerable situation if returned to the country of the child’s habitual residence without any safeguards, it should also be possible for the court of the Member State of refuge to order urgent protective measures required there and which, if necessary, can also "travel with the child" to the State of habitual residence where a final decision on the substance has to be taken. Such an urgent measure would be recognised by operation of law in the Member State where the child was habitually resident immediately before the wrongful removal or retention but would lapse as soon as the courts of that State have taken the measures required by the situation.
  Creation of an autonomous consent procedure to be applied to all cross-border placements, flanked by a time limit of eight weeks for the requested Member State to respond to the request
  The proposal concerning cross-border placements foresees the introduction of the following new rules:

• Making consent of the receiving State mandatory for all cross-border placements originating from a court or authority in a Member State
• Introducing uniform requirements for documents to be submitted with the request for consent: the requesting authority has to submit a report on the child and set out the reasons for the contemplated cross-border placement
• Introducing a rule on translation requirements: the request has to be accompanied by a translation into the language of the requested Member State
• Channelling all requests through Central Authorities
• Introducing a time limit of eight weeks for the requested State to decide about the request.

 

Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement, i.e. to challenge the recognition or enforcement of the decision given by the State of origin or to challenge concrete enforcement measures ordered by the State where enforcement is sought, in one and the same procedure in the State where enforcement is sought

NB: This is not quite what it sounds!

• As a substantial change, the proposal therefore abolishes the exequatur procedure for all decisions covered by the Regulation's scope. The abolition of exequatur will be accompanied by procedural safeguards which ensure that the defendant's right to an effective remedy and the right to a fair trial as guaranteed in Article 47 of the EU Charter on Fundamental Rights are adequately protected.
•  The defendant parent would have remedies at his/her disposal by which he or she could in exceptional circumstances prevent a decision given in one Member State from taking effect in another Member State. Where there is a concern that any of the grounds of non-recognition or grounds to challenge concrete enforcement measures might apply, the defendant could make an application to challenge recognition and/or enforcement in the Member State of enforcement in one and the same procedure.
• The proposal includes uniform rules to define in which situations not only cross-border enforceability but also enforcement as such could be opposed. The latter rules would govern for example the situation where a change of circumstances occurred. In addition, the rules settle in unified manner situations where the child opposes enforcement or enforcement cannot be carried out due to temporary factual obstacles.
• As such, the time and costs of the exequatur procedure will be saved while the necessary protection of defendants will remain ensured.
  Introduction of an obligation to give the child an opportunity to express his or her views
• The proposal leaves Member States' rules and practices on how to hear a child untouched, but requires mutual recognition between the legal systems.. Notably a distinction is made, as it is the case in the respective Article of the Charter of Fundamental Rights, between the question when the child needs to be given the opportunity to be heard on the one hand (i.e. when he or she is capable of forming/expressing his or her own views) and the question what weight the judge shall give to the child's views on the other hand (which depends on the age and maturity of the child). This distinction has to be recorded in the decision and in a certificate annexed to it. For a parent seeking recognition of a decision on another Member State, this means that a court in that country will not refuse to recognise it on the mere fact that a hearing of the child in another country was done differently comparing to the standards applied by that court.
  Introduction of targeted measures to improve the efficiency of actual enforcement
• Where a decision from another Member State needs to be further detailed or adapted in order to be enforced under the national law of the Member State of enforcement, the competent court of that Member State should make the necessary specifications or adaptations while respecting the essential elements of the decision.
• A party challenging the enforcement of a decision given in another Member State should, to the extent possible and in accordance with the legal system of the Member State addressed, be able to invoke, in the same procedure, in addition to the grounds for refusal of recognition, the grounds for refusal against enforcement as such. The incompatibility with the child's best interests which has been caused by a change of circumstances (such as serious illness of a child) or by the strength of the objections of a child of sufficient age and maturity should only be considered if it reaches an importance comparable to the public policy exception.
• The proposal also foresees an indicative time limit for the actual enforcement of a decision. In case the enforcement has not occurred after the lapse of 6 weeks from the moment the enforcement proceedings were initiated, the court of the Member State of enforcement would have to inform the requesting Central Authority in the Member State of origin (or the applicant, if the proceedings were conducted without Central Authority assistance) about this fact and the reasons for the lack of timely enforcement.
• The proposal further provides that the court of origin could declare a decision provisionally enforceable (i.e.e pending appeal) even if this possibility does not exist in its national law..
  Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an article on adequate resources
• The proposal clarifies the following aspects: (1) who can ask (2) which assistance or information (3) from whom and (4) under which conditions.. It makes clear that this is (for courts) a cost-free alternative (except for possible translation costs) to the Evidence Regulation and creates a legal basis for child welfare authorities to obtain the necessary information from other Member States through the Central Authorities. For example, a court in a Member State, before making its decision on taking a child into care who is currently present in its jurisdiction, may obtain information through Central Authority channels on whether there are pending proceedings in another country and ask for copies of any decisions ordering protective measures for other children from the same family, and for any social reports on the siblings and their relationship with each other, or on the parent, which are of relevance for the pending proceedings.
• the proposal states that Member States shall ensure that Central Authorities have adequate financial and human resources to enable them to carry out the obligations assigned to them under this Regulation.
   
  the following Articles remain unchanged in the meaning of a Recast: 1, 2, 3, 4, 5, 6, 7, 8(2), 9, 10, 11(1), (2), (3), (5), (7), 12(2), (4), 13,14, 15(1)-(5), 16, 17, 18, 19, 20(2), 21(1), (2), (4), 22, 23(a), (c)-(f), 24, 25, 26, 27, 41(2), 42(2), 44, 48, 49, 51, 53, 54, 55(b)-(e), 56 (2), (3), 58, 59(1), 60(a)-(d), 63, 66, 67 (a), (b).
   
  David Williams QC

The 1996 Hague Convention will enter into force for Norway on 1 July 2016.

Norway deposited its instrument of ratification with the Hague Bureau.

The habitual residence see-saw

Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

The Supreme Court allowed the appeal of a parent against the Court of Appeal’s decision to uphold the High Court’s finding that the English court had no jurisdiction to determine her application for a shared residence or a contact order in respect of her child, B, because B had ceased to be habitually resident in England immediately she was removed to Pakistan by her other parent. The Supreme Court ruled that a child’s loss of its habitual residence was no longer to be determined on the basis of parental intention, as held in Re J (a minor) (abduction: custody rights), Re [1990] 2 All ER 961, but occurred when the child had disengaged sufficiently from the environment of that residence. Usually a child would not become sufficiently disengaged until they had integrated elsewhere and thus habitual residence would usually be lost at the same time another was gained. That had not occurred in the instant case by the time the parent in England had made her applications. The Supreme Court also confirmed that in cases where the court considered exercising the parens patriae jurisdiction on the basis of British nationality that the reasons why extreme circumspection was to be used was not because exceptionally serious welfare concerns had to be demonstrated but because in such cases there was a risk of a clash of jurisdiction and risks that any order made could not be enforced.

 

 

Radicalisation Cases in Wardship: Guidance from Munby P

On 8 October the President issued Guidance on dealing with radicalisation cases:  http://flba.co.uk/blog/2015/10/08/presidents-guidance-radicalisation-cases/
 

Contempt: A reminder from the Court of Appeal

In the matter of L and Gous Oddin [2016] EWCA Civ 173

78. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:

(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.
(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.
(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.
(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.

RE C (INTERNAL RELOCATION) [2015 EWCA Civ 1305

the proper approach to the whole issue of relocation may be stated in summary as follows:


a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.
b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child
c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

New Guidance on role of ICACU in cross border placement cases

Care cases with an international element: New ICACU form for requests for cooperation

under Brussels IIa and the 1996 Hague Child Protection Convention and

guidance notes

The International Child Abduction and Contact Unit (‘ICACU’) discharges the day to day

duties of the central authority in England and Wales for Council Regulation (EC) No

2201/2003 (‘'Brussels IIa’) and in England for the 1996 Hague Child Protection

Convention. It acts as a contact point for requests for co-operation into and out of this

jurisdiction made under either Brussels IIa or under the 1996 Hague Convention.

A request for co-operation can be made where the issues are covered by Brussels IIa or the

1996 Hague Convention and the other country is a Member State of the European Union

and/or the 1996 Hague Convention is in force between the other country and the UK

including, for example, if:

• a local authority needs information to assist it in developing a care plan for a child either

because the child or their family are originally from the other country or because they

have family in the other country who may be able to care for the child; or

• because the local authority needs to share information about a child with the authorities

in the other country.

The ICACU has published a form and guidance notes

https://www.gov.uk/government/publications/international-child-abduction-unit-request-forco-

operation-form

for local authorities to use in child protection cases to make a request for co-operation to

another country. The form is intended to help local authorities check their request is covered

by the Regulation or Convention and to ensure that they include enough information to enable

the ICACU to process their request. The form can be completed by a local authority lawyer

or social worker.

The aim of the form is to:

• to reduce delay and improve care planning for the child where the case has an

international element and

• to help local authorities make better formulated requests for information or assistance

to the other country and

• to improve communication when sharing information about the child with the other

country.

The form should be read in conjunction with:

1. the guidance published by the President of the Family Division about the ICACU’s

role in these cases:

http://www.judiciary.gov.uk/publications/presidents-guidance-on-the-internationalchild-

abduction-and-contact-unit-icacu-and-its-role/

2. Departmental advice published by the Department for Education for local authorities

where a case has a cross border element:

2

a. October 2012: Cross-border child protection cases: the 1996 Hague

Convention:

https://www.gov.uk/government/publications/cross-border-child-protectioncases-

the-1996-hague-convention;

b. January 2013: Advice on Placement of Looked After Children across Member

States of the European Union:

https://www.gov.uk/government/publications/placement-of-looked-afterchildren-

in-eu-member-states

c. July 2014: Working with foreign authorities: child protection cases and care

orders: Departmental advice for local authorities, social workers, service

managers and children’s services lawyers.

https://www.gov.uk/government/publications/child-protection-working-withforeign-

authorities

Costs of returning abducted children

B-v-B [2015] EWCA Civ 1166

Richards LJ, Sale LJ, Bodey J

A court can order payment of travel costs and costs of returning the child in Hague Convention proceedings but Art 26 1980 Hague Convention does not extend to domestic proceedings seeking a return.

Article 26 in its relevant parts reads: "Upon ordering the return of a child …. the judicial ….. authorities may ….. direct the person who removed or retained the child …. to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child."

Care Proceedings and Adoption of Foreign Nationals: Further Guidance from the Court of Appeal

In the Matter of CB (A Child) [2015] EWCA Civ 888
The President
The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues  [about non-consensual adoption]. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:


i) local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;


ii) the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 31, 35-36;


iii) if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625;


iv) in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family.
In this connection, everyone concerned with such a case needs always to remember the powerful point made by Mostyn J in Re D (Special Guardianship Order) [2014] EWHC 3388 (Fam), [2015] 2 FLR 47, para 1:

1. "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."

That is not, I wish to make clear, a reason for not making an adoption order where the circumstances demand and where nothing else will do. But it does serve to underscore the gravity of the decision which the court has to make in such cases and the pressing need for care and rigour in the process.

Funding of Litigants through Ministry of Justice: Court of Appeal applies the brake

The decision of the Court of Appeal  on 22 May 2015, in Re K & H (Children) [2015] EWCA Civ 543, reversed the decision of Clifford Bellamy in Re K & H (Children: Unrepresented Father: Cross-Examination of Child) [2015] EWFC 1 and disapproved various decisions of the President.

This case focussed on the principle of whether the court could order HMCTS to fund legal representation in the absence of legal aid.

The Court of Appeal held that the judge had no power to make the order made and therefore allowed the appeal.  The Court found that "it is not possible to interpret either section 1 of the Courts Act 2001 or section 31G(6) of the Matrimonial and Family Proceedings Act 1984 as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under the Legal Aid and Sentencing and Punishment of Offenders Act 2012.  The court must respect the boundaries drawn up by Parliament for public funding of legal representation.

Complex Financial Remedy Cases at the Central Family Court FRU

The Financial Remedies Unit at CFC has issued guidance in respect of cases which will be accepted at the CFC FRU together with a form which needs to be completed.

Certificate of Financial Complexity

 

In the Family Court

In the Financial Remedies Unit of the Central Family Court

 

The marriage of				1. Outline background
[Applicant]				a. Date of Marriage			[Date]
and
[Respondent]				b. Date of Separation			[Date]
c. There are	[Number]		children of the family.
Please provide dates of birth of any children.
d. The Petition / Answer [delete as appropriate] was issued on							[Date]
at Bury St Edmunds Divorce Centre
Other court [please state]			[Name of issuing court]
and given case number
[Case Number]
e. The Decree Nisi was pronounced on					[Date]
f. The Decree Absolute was granted on					[Date]
g. There is / is not [delete as appropriate] a dispute about the jurisdiction of the Family Court. The reason for the dispute is:
Please provide brief reasons.
[Name]			Counsel / Solicitor for the Applicant/Applicant
Signature
[Name]			Counsel/Solicitor for the Respondent/Respondent

 

I/We certify that this application should be allocated to the Financial Remedies Unit of the Central Family Court because it is a case of such complexity that is appropriately dealt with in a Specialist Financial Court for the reasons stated overleaf.

Explanation of Complexity Issues

 

Delete/complete as appropriate

 

1. The assets in this case are currently estimated to be in the order of:
	a. Under £1 million
	b. £1 - £3 million
	c. £3 - £10 million
	d. Over £10 million
If the assets are in categories a., b. or c., please identify reasons as below why the case should be heard at the FRU and is not appropriate for hearing at a local hearing centre.
A. Potential allegations/issues may arise which include: [please tick all that apply]
	(1) Complex asset structures				(7) Expert accountancy evidence will be required
	(2) Complex income structures				(8) The parties’ respective contributions.
	(3) Non disclosure of assets				(9) There are/may be disputed allegations of “obvious and gross” conduct.
	(4) Assets are / were held through the medium of offshore trusts / settlements or otherwise held offshore or overseas				(10) There are substantial arguments concerning the illiquidity of assets.
	(5) Assets are/were held through the medium of family/unquoted corporate entities.				(11) There may be substantial arguments about:-which assets are “matrimonial assets” or “non matrimonial assets”
	(6) The value of family assets, trust and/or corporate entities.				(12) The application involves a complex or novel legal argument.
B. Any other reason why the case has the appropriate degree of complexity
	Yes
C. In respect of all Answers ‘Yes’ to A(1)-(12) or B please give brief details

 

Guidance Note: Financial Remedies Unit at the Central Family Court

 

The Financial Remedies Unit (FRU) is a specialist unit within the Central Family Court. It currently comprises seven full time courts conducted by specialist financial judges. It is headed by His Honour Judge Martin O’Dwyer.

 

1              Administratively it is supported by dedicated FRU staff and clerks who deal with all issuing, listing and drawing orders in Financial Matters.

2              The purpose is the efficient handling of complex financial cases.

3              The overriding criterion for a case being retained in FRU is complexity, i.e. is a case of such complexity that it is appropriately dealt with in a specialist financial unit.

4              The FRU has a number of internal procedures for the efficient managing of financial cases and an Enforcement Unit headed by DJ Robinson in cooperation with the Legal Advisers.

5              The contact email address is cfc.fru@hmcts.gsi.gov.uk.

 

Bury St Edmunds Divorce Centre

6              All Forms A subject to the following should will be issued at Bury St Edmunds (BSE) Divorce Centre or other Divorce Centre and allocated to the appropriate Family Court centre on a local court basis.

 

Issuing at CFC

7              Forms A may be issued directly in FRU at the Central Family Court upon completion of the Certificate identifying the appropriate level of complexity.

8              If it appears on the face of the Certificate that the criterion of complexity is or may not be met the matter will be referred to a judge of FRU who may decide to return the application or to refer the Form A to BSE for allocation on the appropriate local court criteria or to list the matter up to First Appointment in FRU.

9              Cases inappropriately issued in FRU which have to be referred to BSE may be subject to delay as the matter is transferred between courts. Similarly those whose first appointment is listed in FRU when the matter is not appropriately retained may suffer delay as the matter is then transferred to the appropriate local family court.

10           Transfers between courts

a.    To FRU.  Any family court may transfer cases to FRU where by reason of complexity or other good reason it is not convenient to retain the hearing in the local family court.

b.    From FRU. Nothing in these procedures is intended to restrict the judicial decision as to appropriate venue and FRU will liaise with other family courts for the efficient conduct of judicial business.

11           Petitions and Forms A may be issued at the CFC and other Family Court Centres in addition where

a.    There is a jurisdictional “race” between issues between competing jurisdictions

b.    Urgent relief is required e.g. freezing orders

Such applications once issued and the urgent matters dealt with, the normal test of rules of complexity or locality should determine venue.

 

HHJ Altman, Senior Designated Family Judge for London

Rachel Jones, Operations Manager, Central Family Court