The decision of the President in Re E (A Child) 2014.
You may recall from my last blog, which was about Mostyn J’s decision about a Brussels II application, in which Mostyn J posited certain ideas about whether the English Courts needed to be more proactive about alerting foreign EU authorities that the English Courts were dealing with a child who could be said to be a resident of that country rather than England, the case ending up with permission to appeal so that the Court of Appeal could give some general guidance.
Well, before that appeal comes to pass, the President has given a decision in a case involving a child where the mother was from the Slovak Republic, lived for a time in the UK and then moved back to the Slovak Republic.
In this case, the Slovak consulate were actively involved in the UK proceedings although were not making any application under BRII to have the proceedings transferred to the Slovak Republic.
However, the President makes a lot of important remarks within the judgment, which may well be echoed in the Court of Appeal judgment when that case is finally heard – the Court of Appeal might well be quoting and relying upon Re E. Perhaps, as happened quite a bit in 2013, it might be the President himself quoting his own words – he does also sit in the Court of Appeal.
In saying that, I don’t actually disagree with much if any of what he is saying here
- Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.
- In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.
- It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent: see Re B-S (Children)  EWCA Civ 1146, para 19, referring to the speech of Baroness Hale in Down Lisburn Health and Social Services Trust and another v H and another  UKHL 36, para 34. Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents. No doubt, from our perspective that is in the best interests of the child – indeed, unless a judge is satisfied that it really is in the child’s best interests no such order can be made. But we need to recognise that the judicial and other State authorities in some countries that are members of the European Union and parties to the BIIR regime may take a very different view and may indeed look askance at our whole approach to such cases.
- Before turning to address the three specific issues I have identified, a more general point needs to be made. Its importance cannot be over-stressed.
- The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR
The Italian C-section case, together with a raft of cases where the Slovak authorities have intervened, have really highlighted this as an issue. If what is said within this judgment is to be believed, this particular mother’s case is as big a cause-celebre in the Slovak Republic as the C-section case is here.
If one stops being parochial for a moment, every time a British citizen gets arrested for breaking the laws of a foreign country (smuggling drugs, having sex on a beach, calling a teddy bear Mohammed to name but a few) our press gets outraged and demanding that the person be brought back to the UK for trial and punishment, or even set free. Heck, even when the foreign country is one with whom we have a special relationship, we get twitchy about our citizens being dealt with by a foreign court (google Gary McKinnon if that is leaving you baffled)
So, if you are a person walking around in the Slovak Republic and you hear that a woman who was born in the Slovak Republic and now lives in the Slovak Republic had her child taken off her in England and can’t get the child back, you’d probably be outraged and offended too. Fair enough.
The President points out the dangers of being patrician and parochial and assuming that our justice is better than anyone elses here
- In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction)  EWHC 521 (Fam),  Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he characterised as “a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen”. He added that the court “should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.” I profoundly and emphatically agree. That was a case which, as it happened, also involved Slovakia. But the point applies with equal force in relation to every country which is a member of the European Union.
- On appeal in the same case, Re K (A Child)  EWCA Civ 895, para 24, Thorpe LJ said that:
“there is a fundamental flaw in [counsel’s] submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State. That is, in my view, impermissible. We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction”.
Again I emphatically agree.
We don’t get too far into the judgment before the President quotes himself (he is always rigorously transparent that he is about to do so, in fairness)
- Perhaps I may be permitted in this context to repeat what I said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:
“Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …
For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.
It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.”
The guidance that the President gives about the operation of BRII in care cases generally in the future – subject of course to what the Court of Appeal say (hint, Ray Winstone is urging me to wedge heavy on them agreeing with this more or less verbatim) is important. We need to think about this in any case where a parent has come from another European country.
- BIIR – future practice in care cases
- What of the future?
- 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 BIIR, 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 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 President then gives some guidance about the Vienna Convention, prefacing this by saying
“Articles 36 and 37 of the Vienna Convention on Consular Relations are probably not very familiar to most family lawyers”
He is quite right
He sets them out in full, so if you want to read them, follow the link at the top.
The gist of them, however, is these three points
- I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:
i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.
ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is “detained”; and where a foreign national is detained the “competent authorities” in this country have the obligations referred to in paragraph (b).
iii) Third, Article 37(b) applies whenever a “guardian” is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular “duty” on the “competent authorities” in such a case.
The President then gives general guidance for future cases (and again, Ray Winstone is telling me that I should lump on that the Court of Appeal will echo these sentiments – he adds that it is an “andsome tickle”)
Underlining mine, because this is pretty dense stuff.
- The Vienna Convention – future practice in care cases
- What of the future?
- I express no views as to the effect of Articles 36 and 37 of the Convention as a matter of either public international law or English domestic law. There is no need for me to do so and it is probably better that I do not. Nor do I take it upon myself to proffer guidance to local authorities, health trusts and other public bodies as to how they should interpret whatever obligations they may have under the Convention. That is a matter for others. What I do, however, need to do is suggest how as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions.
- In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a “competent authority”. They should also assume that there is a “detention” within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.
- In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.
- Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:
i) The court should not in general 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. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.
ii) 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
a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or
b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
iii) Whenever a party, whether an adult or the child, who is a foreign national
a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
b) 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, 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
This is interesting – if one of the parents of the child is from another European country, they should have the ability to share documents and information with official members of that EU State without permission of the English Court and without fear of consequence.
That sounds to me like a good thing, but I do note that in the many changes to the provisions of Family Procedure Rules, English citizens USED to be able to share information and documents from care proceedings with their Councillor or MP and now can’t. So you have a situation in which European citizens have greater rights in English Courts than English ones. (anyone got Nigel Farrage’s email address?)
[See Family Procedure Rules 2010 12.75, or the nice handy table in Hershman McFarlane at C2965 – we USED to have provision for a parent to discuss information or disclose documents about their case to their local Councillor or an MP, but it isn’t there any longer. Not that you would necessarily know that]
The final issue dealt with in this case was a Reporting Restriction Order application, and the President is forgiven here for quoting himself, since Re J is of course both the leading and transformative case.
Again here, the President says that short of reporting the name of the child or anything that would identify the name of the child anything else is permissible, and the RRO is drafted in that restrictive way.
This goes a little further than Re J however, because of the foreign element, and the existing interest of the foreign press in the story. (I wonder what was in the President’s mind when he coins the name “The Daily Beast” as a hypothetical newspaper rather than say “The Voice of Reason”)
- In relation to foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible. In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular State are to be controlled that must be a matter for the relevant authorities in that State. For the courts of another State to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other State. What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other State authorities in Ruritania were handing a case involving an English mother? Secondly, the exercise of such a jurisdiction would be inconsistent with the principles I explained in Re J, paras 44-65. Thirdly, any such attempt would in all probability be an exercise in futility.
- On the other hand, a different approach may be justified where internet or satellite technology is involved, for there the media have an extra-territorial effect. It is of the essence of the internet that, wherever the service provider or the service provider’s servers may actually be located, the information is accessible throughout the world. So, in principle, attempts by a court to control the internet are not subject to the complaint that they are thereby interfering with the purely internal affairs of a foreign State.
- Applying this approach, proviso (ii) to paragraph 15 makes clear that the English court is not seeking to interfere in any way with the print or broadcast media in any foreign country, including but not limited to Slovakia, even if it is the English language which is being used. And in relation to internet and satellite services, proviso (iii) confines the potential application of the order to those services using the English language.
- So the mother can publish whatever she wants in the foreign print or broadcast media or, so long as it is not in the English language, on the internet. The only restriction on the mother’s freedom to publish her story is that she must not do so in the English print or broadcast media or, using the English language on the internet, in such a way as to identify E in one or other of the ways referred to in paragraph 15 (including by the use of her married surname).
The obvious thing that occurs to me that in a document written in the Slovak press where none of this is understandable to an English reader can legitimately include the mother’s surname and child’s name. There can be a mirror story in the UK press which contains a translation of everything but those words. And the UK press can link to the Slovak article.
That is all within the Reporting Restriction Order. The fact that you don’t need to speak the language of the Slovak Republic (sorry Andrew, I’m not even going to try to guess) to quickly work out which bits of the Slovak story give the name of the mother and child seems neither here nor there.
If the headline contains nine words, and there’s a word that follows the mother’s first name (which we know and is allowed to be published in the English print media) you don’t need to be a genius to work out that this word is probably her surname.
In order that nobody inadvertently breaches the RRO, I’ll print it in full here
- Reporting restriction order
“1 The applicant is E (“The Child”)
The First Respondent is M (“The Mother”)
The Second Respondent is F (“The Father”)
The Third Respondent is [name] (“The Local Authority”)
The Fourth Respondent is S (“The Maternal Aunt”)
9 Upon the making of this order the local authority shall be treated as the Applicant. Any duties an Applicant is expected to meet, shall be met by the local authority.
10 This order binds all persons and all companies or incorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.
11 In respect of persons outside England and Wales:
(i) Except as provided in sub paragraph (ii) below, the terms of this order do not affect anyone outside the jurisdiction of this court.
(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:
(a) The first and second respondents and their agents;
(b) Any person who is subject to the jurisdiction of this court;
(c) Any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and
(d) Any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order;
(e) Any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.
Nothing in this paragraph prevents the publication referred to in the proviso at the end of paragraph 15.
Undertakings to the court
13 The applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.
IT IS ORDERED THAT:
15 Subject to the “territorial limitation” above, this order prohibits the Respondents and any or all other persons from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service of any information, including the mother’s married surname (as set out in Schedule 2) that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1) or the identity, or name or address of his carers (whose details are set out on Schedule 3) or the identity, or name or address of F (whose details are set out in Schedule 2) if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:
(a) A child who is or has been the subject of proceedings under the Children Act 1989 and the Inherent Jurisdiction; and/or
(b) A child who has been removed from the care of his parents; and/or
(c) A child whose contact with his parents has been prohibited or restricted; and/or
(d) A child who has been treated or hospitalised at a psychiatric unit; and/or
(e) A child who has been placed in the care of his maternal aunt; and/or
(f) A child of Slovakian descent;
PROVIDED that nothing in this order prevents:
(i) the publication of the mother’s first name; or
(ii) the publication of anything in the print or the sound or television broadcast media in any country other than England and Wales; or
(iii) the publication of anything on any public computer network, internet website, social networking website, or satellite program service in any other language than English.”