I’m afraid that I have to tackle the Court of Appeal decision in Re M (A Child) 2014, but it relates to Brussels II, article 15 and the Vienna Convention, and frankly it is hard for even me to have any enthusiasm for it
So this is better – not sure who wrote this translation of a Human Rights blog article so that Snoop Doggy Dogg is the only person alive who could understand what is being said, but courtesy of John Bolch over at www.familylore.com it did entertain me
In relation ta tha straight-up original gangsta requirement, dat shiznit was blingin ta recognise dat tha hood was tha real crew: judgments had ta drop a rhyme ta tha public, as well as ta tha lawyers n’ litigants, n’ you can put dat on yo’ toast. They should therefore be sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about.
Sigh, onto Re M
This is the appeal from Mostyn J’s decision
in which, to be fair, he had clearly grasped that there were some wider public policy issues that were worthy of being looked at by the Court of Appeal, so gave a judgment which made it plain that he expected / indeed wanted to be appealed.
The issue that troubled him was the argument in the case that where one of the parents is from a European country that DOESN’T have non-consensual adoption, shouldn’t the presumption be that the case SHOULD be transferred to that country under Brussels II article 15. That’s what he went for in the end.
[You can see some force in it, but the consequence of it is that you get a “Get out of Adoption free” card so long as one of the parents is from a country in the EC that isn’t Britain]
You may also recall, that although this appeal was pending, the President got stuck into many of the Brussels II issues that Mostyn J had raised in Re M, and gave a judgment in a case called Re E
I speculated at the time that this was something of a pre-emptive strike to the Re M appeal, and I also speculated that (a) The President would find himself sitting on that appeal and (b) that the Court of Appeal would probably not stray far from Re E
Well, how wrong I was
(Wait, no, I wasn’t)
The Court of Appeal’s panel of three Judges did include the President, and Re E was greatly preferred to Mostyn J’s decision in Re M
The Court of Appeal heard the argument that where a parent is from an EC country and adoption is an issue, there should be a presumption that the case SHOULD transfer to the country that DOESN’T countenance non consensual adoption.
They also heard the argument that the opposite presumption should apply, as only a Court that can hear and consider ALL of the options can do it properly.
The Court of Appeal, being no mugs, decided instead that there was no presumption either way and that BRII should be decided on the circumstances of the case and that the wording of article 15 needed no gloss or subtext
15. ) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. 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.
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.”
51. There is, in my judgment, no room for a “sub-text” in the interpretation of B2R, as the judge held at . Still less is there any room for a sub-text that directly contradicts the basic policy of B2R as set out in recital (12). So the real question is whether the judge’s view that there was a sub-text of the kind that he identified vitiated his balancing exercise. It is difficult, in any event, to shake off the impression that the text of the judge’s judgment had its own sub-text, which he had articulated at . But even allowing for the fact that he posed himself the right questions, I agree with Ryder LJ, for the reasons that he gives, that his answers were vitiated by his mistaken view of the underlying policy of B2R.
- The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child’s interests. Judges should focus on the language of Article 15: will a transfer be “in the best interests of the child”? That is the relevant question, and that is the question which the judge should ask himself.
v) In relation to the second and third questions there is one point to be added. In determining whether the other court is “better placed to hear the case” and whether, if it is, a transfer will be “in the best interests of the child”, it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is “territory into which I must not go.” I refer in this context, though without quotation, to what I said in Re E, paras -.
vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”
vii) Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. 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. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 “will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.”
Note the strong remarks made by each of the Judges about the need for the issue of which jurisdiction should properly hear the case to be fully considered at an early stage
47 Jurisdiction must be considered in every children case with an international element and at the earliest opportunity i.e. when the proceedings are issued and at the Case Management Hearing.
And the President
- The ultimate outcome of this appeal should not be allowed to obscure the great importance of Article 15. In the nature of things one cannot be sure, but I have an uncomfortable feeling that Article 15 has hitherto played far too little part in the daily practice of our courts and that its great importance has not been as widely appreciated as it should be. I repeat what I said in Re E, paras -:
“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.”
I added: “Judges must be astute to raise these points even if they have been overlooked by the parties.”
- It is also vital, as this case has demonstrated, that the Article 15 issue is considered at the earliest opportunity, that is, as Ryder LJ has pointed out, when the proceedings are issued and at the Case Management Hearing. I agree with him that the Family Procedure Rules Committee should be invited as a matter of urgency to consider appropriate alterations to Practice Direction 12A to ensure that this happens in future
I’m not sure, if I read this judgment that it is sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about, but that’s no easy task, you get me?