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08 April 2014

CARE AND PLACEMENT ORDER CASES WITH A EUROPEAN DIMENSION

Introduction:

  • The importance of Re E: The recent case of Re E [2014] EWHC 6 (Fam) demands that we take particular care when handling any case with a European dimension.
  • General rule: The general rule is that jurisdiction is vested in the courts of the Member State where the child is habitually resident (Article 8), not the courts of the Member State of which the child is a national.
  • The absence of definition: B2R does not define the concept of habitual residence. It does however lay down a uniform jurisdictional scheme as between Member States.
  • This paper covers the application of B2R to the following:

                      - Public law children (care proceedings); and

                      - Placement order cases.

See Re M etc [2014] EWCA Civ 152.

  • Context of B2R: There is a direct and purposeful inter-action between “Best Interests” and “Habitual Residence.” The Regulation provides -

"The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.

This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's habitual residence or pursuant to an agreement between the holders of parental responsibility." {see para 48, Re M [ibid]}.

In other words, the test of “habitual residence” has been framed in the best interests of the child.

  • In Re E, the President said this.

B2R – future practice in care cases

  • “It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

                i) the basis upon which, in accordance with the relevant provisions of B2R, it is, as the case may be, either accepting or rejecting jurisdiction;
               ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

  • “This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital. Judges must be astute to raise these points even if they have been overlooked by the parties. And where Article 17 [no jurisdiction] applies it is the responsibility of the judge to ensure that the appropriate declaration is made.
  • “As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.”
  • The purpose of this paper is to explain what the President is driving at in Re E:

The context:

The sharp rise in cases: The number of cases involving children from other European countries has risen sharply in recent years. Significant numbers of cases now involve such children.

Adoption: This must be seen in a further context: The UK is unusual in Europe in permitting adoption - ie. The total severance of family ties without parental consent: Re B-S (Children) [2013] EWCA Civ 1146, para 19.

The tension between the UK and other B2R Member States:

       - 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 in the teeth of vigorous protests of the child’s non-English parents.

       - 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 B2R regime, may take a very different view and may indeed look askance at our whole approach to such cases; para 156 Re E [ibid].

B2R - the Jurisdictional Tests - Relevant Articles:

• How does the court accept/reject jurisdiction in cases with a European Dimension?

      - Article 8:

                “The child is habitually resident … at the time the Court is seised ….”

In other words, “actual residenceis not enough. The overriding principle is “habitual residence.” It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a European dimension is therefore, an enquiry as to whether the child is habitually resident.

      • Article 12: If the court of a Member State is exercising jurisdiction on an application for divorce, legal separation or marriage annulment it should have jurisdiction in:

                 “.. any matter relating to parental responsibility connected with the application.”

      • Article 13(1):

                 “Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.”

       • Article 14: This provides a residual jurisdiction where no court of a Member State has jurisdiction pursuant to Articles 8 to 13 [jurisdiction is then determined in each Member State by the laws of that State. In the case of England and Wales, therefore, this would be on the basis of either habitual residence or actual presence].

       • Article 15: Even if the court has jurisdiction, the court must consider whether it exercises its powers under Article 15 to request the court of another Member State to assume jurisdiction. Article 15 arises if the following three-part test is satisfied:

                - The child has a particular connection with that other State; as defined in Article 15(3). This is a question of fact.  Nationality is merely one gateway to establishing that the court has jurisdiction to consider making an order under Article 15; nationality can never alone determine whether it should.

                - The other courts would be better placed to hear the case.

                - It is in the best interests of the child.

Practice points and Article 15 will be covered in more detail, below including more detailed explanation of “better placed” and “best interests.”

        • Article 17: The English court should declare, of its own motion, that it has no jurisdiction in the following circumstances:

                - The English Court has no jurisdiction under B2R, and

                - A court of another Member State has jurisdiction under B2R.

        • This Article 17 provision is mandatory. It applies whether or not there are extant proceedings in the courts of another Member State: See Re B (A Child) [2013] EWCA Civ 1434 para 85. It is the responsibility of the Judge to ensure that the appropriate declaration is made: Re E [ibid]

        • Article 20: In an “urgent” case the court has jurisdiction to make “provision, including protective measures” until such time as the courts of the Member State having jurisdiction, have taken the measures it considers appropriate. Article 20 contemplates short-term holding arrangements: Re B (A Child) [2013] EWCA Civ 1434 para 85.

Habitual residence - the legal test:

• In determining questions of habitual residence the courts will apply the principles explained in A v A [2013] UKSC 60, [2013] 3 WLR 761.

• That case is authority for the following explanation of “habitual residence”:
i) Habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii) It was the purpose of the Family Law Act 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v) The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely relevant factors.

vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.

• As to the meaning of habitual residence, further clarification is provided by Re KL [infra] at paras 20 et seq:

           - “….habitual residence is a question of fact which "should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce" ……(A v A, para 54).

           - In both Proceedings brought by A and Mercredi v Chaffe, the operative part of the judgment of the CJEU stated that the concept "corresponds to the place which reflects some degree of integration by the child in a social and family environment".

           - In A the CJEU continued,

"To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration."

            - In Mercredi, the CJEU also pointed out, at para 55, that:

"An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . . . the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant."

• There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents.

• The proposition that a young child in the sole lawful custody of his mother will necessarily have the same habitual residence as she does, is to be regarded as a helpful generalisation of fact, which will usually but not invariably be true, rather than a proposition of law (see A v A, paras 44 and 73).

Parental intent does play a part in establishing or changing the habitual residence of a child: i.e.  parental intent in relation to the reasons for a child's leaving one country and going to stay in another.

• Has the move from one country to another a sufficient degree of stability to amount to a change of habitual residence.

• There is no rule that a child is “habitually resident” where the parent with custody is resident.

• The fact that the child's residence is precarious may prevent it from acquiring the necessary quality of stability.

Practice Check-List For Habitual Residence:

• These principles generate the following check-list:

           - Is it contended that there was residence in a particular jurisdiction? If yes:

                   • What jurisdiction?

                   • What are the facts relied on to advance that contention?

                   • What was the parental intent in the move to the new jurisdiction?

          - As to the residence so contended for:

                   • The child’s age?

                   • With whom does the child live?

                   • If different from (ii) immediately above, upon whom is the child dependent?

                   • By whom is the child in fact looked after and taken care of?

                   • Duration of residence?

                   • Regularity?

                   • Conditions and reasons for the stay on the territory of the Member State?

                   • Child’s nationality: [passport /  identification documents?]

                   • The place and conditions of the child’s attendance at school?

                   • Child’s and Mother’s linguistic knowledge?

                   • Family and social relationships of the child in that territory? [family networks, family relationships, clubs, associations, with whom does the child mix and in what language, with whom does his caring parent mix]?

                   • What are the geographic and family origins of the parent caring for the child, particularly in the context of the location where the child is presently living.

                   • Mother’s integration in other social and family environments: giving full details of “social” and “environment” [employment, housing, financial support, family support, relationships].

                   • Explore in careful detail, the reasons for the family's stay in the country in question.

          - In the event  of a move by the mother to another Member State:

                   • What are the reasons for the move [i.e. the reason  for a child leaving one country and going to stay in another]?

                   • What was the intention of the mother in moving to such territory.

                   • Does mother have a child by another relationship and if yes, where is that other child habitually resident? Does that impact on the habitual residence of the child in question and if yes, how?

                   • Does the move from one territory to another have a sufficient degree of stability to amount to a change of habitual residence?

                   • Nb: A child’s residence may change in the teeth of the opposition of one parent if this is permitted by order of a court: para 25 Re KL

          - In the context of an adolescent child also consider:

                   • what is the state of mind of the child during the period of residence with a parent?

                   • where does he/she wish to live?

                   • how does he/she view the future, e.g. school;

                   • social networks / relationships, employment, clubs etc?

                   • If the parents are separated, in whose home does the child primarily live? If he/she lives in two homes, what is the duration of stay in each, what are the family and social relationships vis a vis each?

                   • Did child leave his home country with the intention of emigrating? With what plans?

A Practical Working Example As To “Habitual Residence”:

• In Kent County Council v. G and others. [2014] EWHC 604 (Fam) Theis J found a child to be habitually resident in Latvia in the following circumstances:

          - The child’s connections were his social and family environment in Latvia:

                   • both his parents were Latvian,

                   • until January 2013 that was the only jurisdiction he had resided in,

                   • it was where his extended family lived,

                   • he went to school there,

                   • his and his parents' first language was Russian,

                   • the father did not consent or acquiesce to his removal to this jurisdiction and;

                   • the father undoubtedly remained habitually resident in Latvia.

          - There was very little evidence, if any, that the child became integrated into a social or family environment in England due to:

                   • the relatively short period of time that he had been attending school here,

                   • the circumstances that the mother and her then partner found themselves in,

                   • and the lack of any kind of link the mother had in relation to the circumstances in which they lived apart from her relationship with her partner.

Looking at the operation of Article 15 in detail:

• Who may request? The jurisdictional test set out in B2R is the same regardless of whether the application for a request originates from:

                   • A party,

                   • The court of its own motion or

                   • The court of another Member State with which the child has a particular connection.

                   • Similarly, the same test applies whether the request is made by a court or by a party at the invitation of the court.

• Article 15(1) provides:

"By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
                   (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member State in accordance with paragraph 4; or
                   (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5."

• Thus the three questions to be considered under Art 15(1) are {see AB v. JLB [2009] 1 FLR 517 at [35]} are

i) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other Member State. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child {see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c)}?

ii) Secondly, it must determine whether the court of that other Member State

                   'would be better placed to hear the case, or a specific part thereof'.

            This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case. This is intimately connected with the question of the best interests of the child. Relevant factors as to this issue include:

                   • The availability of witnesses of fact;

                   • Whether assessments can be conducted and if so by whom [i.e. whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course],

                   • whether one court’s knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation,

                   • whether evidence of fact or opinion would be unavailable in one jurisdiction or another, and so on.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.'

• This again involves an evaluation undertaken in the light of all the circumstances of the particular child but is limited in its extent to the issue of forum

• i.e. the best interests question asked by Art 15(1) is whenever it is in the child’s best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction. i.e. whether it is in the child’s best interests for a case to be determined in this country rather than elsewhere.

• The issue turns on the sort of considerations which come into play when deciding upon the most appropriate forum. Best interests means just that. The autonomous meaning should not be limited or enlarged upon by the domestic concept of paramountcy or any other reference to national law.

Practice points in relation to Article 15:

An exception: The Article 15 power is, as is stated on its face, an exception to the general rule of jurisdiction in Art 8 which is grounded in the habitual residence of the child. Exceptions to general principles should be narrowly interpreted: Re M [ibid] at para 50.

A power - not a steer: Article 15 contemplates the transfer of a specific part of proceedings where that is appropriate. The power to do so does not inform the question whether it should be exercised and the relative merits and demerits of such a possibility.

A positive answer to the three questions: 

            • The power under Article 15 may only be exercised when all the above three questions can be answered in the affirmative.

            • The corollary of that principle is that a court in England and Wales cannot divest itself of jurisdiction in respect of a child who is habitually resident in England and Wales simply because he or she is a national of another Member State or where one or more of the Art 15(1) questions cannot be answered affirmatively.

A summary process: Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil, see Re M at para 54. What is required is a summary process. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process.

Succinct submissions: Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days.

Securing the smooth operation of Article 15 - the inter-action with Article 55:

• To facilitate the smooth operation particularly of Article 15 cases, Article 55 is relevant.

• In this context, Sir James Munby P said in Re E:

• “Before parting from B2R, I must draw attention to Article 55. Headed "Cooperation on cases specific to parental responsibility", it provides, so far as relevant for present purposes, that:

               "The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:

(a) collect and exchange information:
      (i) on the situation of the child;
      (ii) on any procedures under way; or
      (iii) on decisions taken concerning the child;

(c) facilitate communications between courts, in particular for the application of … Article 15; …"

This process is plainly intended to work both ways.”

• Sir James Munby P went on to say in para 37:

              “As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.”

• As to how the Article 55 provisions operated in Re E, Sir James Munby P said:

               “The Article 55 mechanism worked smoothly and effectively, facilitating in the particular case the inter-State cooperation and assistance which is so desirable in every case.”

What if a party cannot be traced? This was the situation in Re B [2014] EWCAS Civ 375 when a father in France was not traced.

Practice Check-List for Cases with a European Dimension:

• Timing:

           • Social workers and Cafcass Officers in particular: If you think there may be a European Dimension, flag this up immediately with your line manager.

           • Issue, allocation, first CMH: During the process of issue, allocation and most importantly - at the first Case Management Hearing - practitioners must be alert to raise jurisdiction issues.

Habitual residence: If there is a European dimension, where is the relevant child habitually resident?

Jurisdiction - which Article?

           - Does the court accept jurisdiction? If yes, on what basis - by reference to which Article?

           - Does the court reject jurisdiction - if yes, on what basis - by reference to which Article?

           - If the position on jurisdiction is not clear:

                       • Why not?

                       • Which Article is to be relied upon?

• Does the Court exercise its powers under Article 15?

           - If yes, on what basis?

           - If no, on what basis?

The responsibility of the judiciary: Judges must be astute to raise these points even if they have been overlooked by the parties.

Vienna Convention: The Check-list is:

           - Openness etc: There must be transparency and openness as between English family courts and the consular and other authorities of a foreign state.

           - AJA: Do not shelter behind s. 12 AJA 1960

           - No obstacle: Do not [unless exceptionally] impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state.

           - No injunction: Do not make an injunctive order which might interfere with such communication.

           - When sitting in private: Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

                       • permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

                       • permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

           - Whenever a party, whether an adult or the child, who is a foreign national:

                        • is represented in the proceedings by a guardian, guardian ad litem or litigation friend;

                        • and/or is detained,
                       the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.

           - If exception to general rule: If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that:

                        •  the court hears submissions before coming to a decision, and

                        • that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision.

Iain Goldrein QC

• Co-Editor and Co-Author: Child Case Management Practice [Jordans 2009 and 2012] with Ryder J and others;
• Author; Media Access to the Family Courts [Jordans, 2009].
• Visiting Professor [the Sir Jack Jacob Chair] in Litigation at Nottingham Law School.
• Companion of the Academy of Experts.
• Fellow of the Royal Society of Arts.
• Fellow of the Institute of Advanced Legal Studies.
• Council Member: International Institute of Experts [Hong Kong].
• Advisory Editor, Hong Kong White Book; and Malaysian White Book.

Thursday 3rd April 2014

Iain Goldrein QC
Deputy High Court Judge of the Family Division
Iain.Goldrein@7hs.co.uk

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