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With the profoundest respect

 

Firstly, apologies. I know that to lawyers, using that title is the equivalent of me going into a Wetherspoons pub, finding the drunkest person there, giving them a lot of amphetamines and telling them that (a) you were the person who stole their wife back in 1984 and (b) that they should go around your house and shout what they think of you through your letterbox.

 

Non-lawyers may not be aware of the lawyer code which is “with respect” = You absolute moron, you’re wrong.  “with great respect”  = ffs do you have anything between your ears, you are utterly wrong , “with the greatest possible respect”  –  I am going to have to get Malcolm Tucker to concoct a sentence which truly construes how annoyed I am with you and how wrong you are.  I honestly didn’t even know it went up as high as “with the profoundest respect”

 

So why am I dropping the P-R bomb on y’all?  Well, because that phrase appears in a judgment, and it is used by a High Court Judge, and he is using it about the Court of Appeal.

 

The Judge is Mostyn J (who has had a busy autumn), and the case is Re D 2014  http://www.bailii.org/ew/cases/EWHC/Fam/2014/3388.html

 

I wrote about Mostyn’s initial decision here https://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

I’ve written about the particular Court of Appeal decision here (and you can see that I may have been somewhat bored by it, because a lot of it ends up being co-written by Snoop Doggy Dogg – apposite given post 500)

https://suesspiciousminds.com/2014/02/21/and-i-aint-talking-bout-chicken-and-gravy/

 

The gist of it, very quickly.

The father in the case was found to present a massive risk to children. I don’t think anyone (even Ian from Forced Adoption) could dispute that he would be a bad person to be around children. The real meat of the case was whether mother could separate from him and stay away from him.

The background this case is to be found in my fact finding judgment of 30 November 2012 to be found in section A at page 53. I do not repeat it here. Suffice to say that I found the father, Stefan D, to be guilty of truly bestial conduct. I recorded his conviction in the year 2000 in the Czech Republic of offences of the utmost seriousness involving the gross abuse and exploitation of women and girls. I found how, after his arrival in the UK, he meted out appalling domestic violence to his wife, Daniella D. I found how he engaged in serious criminal activity, largely centred around illegal drugs. I described how I was satisfied that he had seduced his 16 year old stepdaughter by plying her with drugs; how he had had unprotected sex with her; and how she became pregnant by September 2011 when she was only 17 years of age. I recorded how this sexual congress took place in the family home to the knowledge of the other minor children there, B and K. I recorded how he was even having sexual intercourse in the same time-frame with his wife as he was with his stepdaughter. I found that the statutory threshold in section 31 of the Children Act had been comprehensively crossed, both in respect of past harm and the risk of future harm.

Care proceedings, mum and dad were both Czech, and had gone back to live in the Czech Republic. The baby was in care in England and the care plan of the Local Authority, shared by the Guardian was for adoption.  Mostyn J had to decide a Brussels II application, and in doing so, he raised an important philosophical question – if the outcome of the case would be radically different in another country (because England has non-consensual / forced adoption and the Czech Republic does not) should that be taken into account? Mostyn J did take it into account and decided that the case (and future of the child) ought to be transferred to the Czech Republic.

 

That was appealed, and the Court of Appeal in Re M (A child) 2014  http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html decided that Mostyn J was wrong, that you decide Brussels II on the facts of the case and you give no regard at all to how another jurisdiction might decide the case.

Here are the 3 questions to be answered

” … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

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 – 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.”

 

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?”

 

 

So they told Mostyn J that the English Court would decide the case, overturned his decision and sent it back to him for determination.

 

I have never had the experience of going back into a case where the Court of Appeal have told the Judge he was wrong and then gave him the case back – it must be a somewhat trying situation. We now see from Re D, just how exasperating a Judge might find that experience.

 

[In the interests of fairness, I’ll throw my hat in the ring – I think Mostyn J first time got the right decision for the wrong reasons, and I think that the Court of Appeal had the right reasoning but reached the wrong decision, so I can see why there’s some rancour there.  ]

 

What follows is all genuinely from Re D (at least all the stuff in bold – a Judge thought of this, wrote it down and published it. For real – underlining is by me, for emphasis)

 

 

  • The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167.
  • It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of ED’s Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryder’s judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan.
  • In my defence I would say this:

 

(1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow.

(2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal.

(3) The conduct of this trial has shown how the Court of Appeal’s perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, “In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive” the experience of this case showed that this too was a misplaced view.

 

 

The technology all broke down (I have sad real-life experience of how awful it can be to be involved in video-link evidence overseas, and it is like the course of true love in that it never runs smoothly)

 

The video link to the Czech Republic frequently froze visually leaving me only with sound. I lost the chance in this case in respect of the three crucial witnesses from the Czech Republic to assess their demeanour. All the vital evidence from the Czech Republic had to be professionally translated. The translator gave a heroic performance but the exercise was completely unsatisfactory leaving me again unable, because of translation, to judge these important witnesses’ demeanour. The father also gave his evidence by video link or for much of the time only by audio link, again translated. It was very difficult for me to judge him in the way that I am required to do so.

 

 

  • In my judgment of 18 December 2013 I said at paragraph 40 (this is page A165, the final two sentences):

 

“But beyond these lofty expressions of principle are the simple practical facts that the parents are in the Czech Republic. Baby LD is in the Czech Republic and any proceedings in the Czech Republic will be conducted in the first language of the parents.”

Those practical facts loomed very large in the hearing before me. Those practical facts, or rather my inability to give expression to those practical facts, impeded the trial significantly. Notwithstanding that I had been found by the Court of Appeal to have erred, I am convinced that this case was at all times better tried in the Czech Republic. And had it been tried in the Czech Republic then no placement order, as contended for by the Local Authority and supported by the guardian, could have been made, as that order, in common with almost all other countries in the EU, with the exception of Ireland and Croatia, is beyond the powers of the court in the absence of parental consent.

 

 

The Judge discusses the expert witnesses from the Czech Republic who gave evidence via this flawed video-link. When you see that one of them said in writing that the mother could ‘definitely’ protect the child, you might have your antennae for “you’re going to collapse in cross-exam” twitching, and you’d be right

 

 

  • The next three witnesses were taken over the often malfunctioning video from the Czech Republic and they were the psychotherapist, Leona Hozova, the father and the social worker, Pavla Polakova. I will take the two professional witnesses first. Their written material was laconic indeed but it is not for me to criticise what may well be the usual practice for making professional reports in the Czech Republic. If it is the usual practice then as one who has to read these reports I can see a lot to commend it. Leona Hozova, a psychotherapist employed by the Domino Organisation, a well-known organisation in the Czech Republic, has provided three short statements at section C159, 193 and 195. I quote from the most recent dated 29 May 2014. It is so short that I can read it in full:

 

“From a position of a psychotherapist working with the family, I can respond within my competence as follows:

Ms M, dob 23.04.1994, is capable of recognising a danger and she is definitely able to protect her children, in this case her son ED, dob 27.06.2012. Ms M is an exemplary and loving mother. She is able to bring children up and to create them a relationship in harmony. From an attachment point of view, she is able to create safe and strong bond between her and her children. In a case of any possible danger she would be the first one to protect and defend her children.

At this time Ms M exhausted from the whole situation, psychologically very tired. This whole situation is very difficult for her and her family. Despite this she is still able to function as a mother without any problems and to carry out her child’s needs. During our consultations with Ms M we do not only talk about her psychological state, but we work together on developing her parental competency and smooth care of her child.

As a family psychotherapist I do not find any reasons to take Ms M’s child away, she is a caring and loving mother.

In terms of the psychological help which I am providing to the parents, so far I did not find any pathological elements in the behaviour of the father of Stefan D, dob 25.10.1972. Mr D is able to look after the daughter LD, dob 13.09.2013, without any problems and with love even at times when Ms M is away in England. Mr D is psychologically very broken from the whole situation, delaying of the whole matter has broken him psychologically. As a psychotherapist I can not express my opinion regarding his personal life and his actions at the time before our psychotherapeutic sessions.

Recommendation:

I recommend ED to be returned to his parents.

If it was not possible due to some particular reasons, then I recommend to place ED to foster care in the Czech Republic into a foster family who is experienced with foster care and who would live near to the parents, the reason is the most effective complying with ED’s needs and to enable ED’s contact with his biological parents.

I recommend to continue in regular psychotherapeutic consultations with the parents (both individual and in pair) and in strengthening their parental competence, further on in company of a family advisor who mainly focus in children in the family and in their care.

This opinion has been given on request of the High Court in London, England.”

 

  • In her oral evidence she confirmed that the mother and father had punctiliously attended all psychotherapeutic appointments. However, under cross-examination and significantly she accepted that she was not convinced, notwithstanding the mother’s assertions, that she would in fact ever leave the father, notwithstanding that in her assessment the mother was full of love and was a very careful mother to baby LD. She was satisfied that the mother authentically loved the father but she was of the view that that love was a search by the mother for a substitute father figure, a substitute for the father who abandoned her when she was a young child. She confirmed that she had spoken to both parents about the findings made by me in my fact finding judgment of 30 November 2012 but the father had told her unambiguously that they were not true. He told her that he rejects my findings of domestic violence meted out to his wife, Daniella D, although, in contrast to what he told me at the fact finding hearing, he accepted that he was actually and properly guilty of the criminal offences in respect of which he was sentenced in the Czech Republic in the year 2000. Similarly, but not nearly to the same extent, the mother told her, the psychotherapist, that she did not accept my detailed findings in which the relationship was begun and conducted.
  • Miss Hozova told me that in the Czech Republic there would be available foster parents who could look after ED and that such foster parents had full experience of caring for Roma children. Under cross-examination she accepted that she had tried hard to open up the topic of the father’s past conduct as found by me but that he simply would not co-operate. In a very significant statement for my purposes she stated whilst being cross-examined:

 

“For as long as he does not accept the findings there are considerable risks in placing ED with him and the mother.”

 

 

The Judge weighed up the evidence very carefully and rejected the proposals made by both sides (the mother seeking return of the child, the LA and Guardian seeking adoption)

 

 

  • These are my conclusions. First, I reject the proposal by the mother that these proceedings be dismissed and ED be returned to her and the father in the Czech Republic. That is manifestly not in his interests. Such a placement back with his parents would be replete with far too many risks in circumstances where the father categorically rejects the majority of the previous findings made in this case. He plainly cannot confront his demons until he has identified his demons. The same is true to a lesser extent in relation to the mother. If these parents were living here it is inconceivable that ED would be returned to them. That they are in the Czech Republic surely makes no difference. If a corollary of this finding by me is that I must conclude that baby LD should not be with her parents while deep professional work is done the first base of which is a full acceptance of the wrongdoing the father has done both to Daniella and to the mother, then I do not shrink from expressing that corollary.
  • I now turn to the choice urged on me by the Local Authority and supported by the guardian. In Re B-S at paragraph 19 the President, Sir James Munby, stated:

 

“It is to be remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and Another v H and Another [2006] UKHL 36 at paragraph 34 that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.”

 

  • In this case Janet Kavanagh in her second statement dated 14 June 2013 has adduced certain research extolling the merits of adoption. At paragraph 22 she said this:

 

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

 

  • The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocability of the orders sought has to play a prominent part in my judgment.
  • Therefore I turn to the two intermediate choices and ask myself if either of them will “do.” Only if neither will “do” will it be appropriate to make the order sought by the Local Authority. In my judgment a special guardianship order in favour of the current foster parents would be the preferred solution. I will not spring such an order on them or on any of the parties here pursuant to the Children Act 1989 section 14A(6)(b) and I cannot in fact envisage such an order being made of the court’s own motion other than by consent. Only if the foster parents apply for a special guardianship order will such an order be made. I invite them to decide within 14 days of today if they will apply for a special guardianship order. If they do I urge them to apply promptly so that a report under section 14A(8) can be prepared.

 

[You may remember the Court of Appeal case I recently discussed where the foster carers WERE putting themselves forward and the Court of Appeal said the Judge was not wrong to reject them – here they weren’t, but the Judge was trying to persuade them to do so]

 

I think that this is an important case – not for setting precedent – this won’t be relied upon in other cases and if it was attempted to be, I am confident that the Court of Appeal would have little hestitation in correcting Mostyn’s views here. But it frames an important philosophical debate – do the Court of Appeal really mean ‘nothing else will do”  – or do they mean “the other options must be considered and if adoption is the decision the Court must explain why they have been rejected”  – and Mostyn J raises the other major issue – are WE right in allowing forced adoption (together with two other countries in the EU, or are the other 25 countries right to have rejected it?

How long will it be before this is litigated, at length in the ECHR?  Y v UK set down the marker that Re B  and then Re B-S followed  [some observers, myself included think that ‘nothing else will do’ was an attempt to get English adoption law back in line with the ECHR view of it], but has there actually been a sea-change in the sort of cases that warrant adoption or have we all just swapped one set of ‘judicial window-dressing’  (draconian order) for a fresher one ‘nothing else will do’ ?

 

I have to say that it feels sometimes on the ground that we have just swapped our incantations for a newer form of words, rather than the radical re-think on adoption that Re B-S looked like a year ago.

 

What was Mostyn J’s plan if the current carers did not offer themselves up as Special Guardians? Well, here’s where it gets interesting. And remember, the Court of Appeal had said no to transferring this case to the Czech Republic under Brussels II.

 

If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised).

 

I.e, I’ll make a wardship order and place the children in foster care in the Czech Republic.

 

The LA and Guardian expressed some doubts on that, given that the agencies of the Czech Republic had been leaning more towards rehab to mother’s care.

 

 

  • If therefore there is no signification by the foster parents to seek a special guardianship order within 14 days I direct that the central authority, OILPC, be notified that this court is contemplating a placement of ED with Czech foster parents and ask them to set in train the identification of such foster parents in accordance with the terms of the letter which I have just read out. If foster parents have been identified by the Czech central authority pursuant to the procedure set out by 1st November 2014 the matter must be restored to me to consider the suitability of those foster parents. If they are suitable then I will make the order in wardship that ED be placed with those foster parents and such an order and judgment will explicitly provide that the question of contact or indeed discharge from foster care will be made by the Czech court.
  • In principle I consider that foster care in the Czech Republic is a preferable solution to the irrevocability of a care order and placement order although, in my judgment, it is not as preferable as a special guardianship order. My reason is that in this case the ethnicity factor and parental link I regard of critical importance and which must have the capacity of being preserved and should not be irrevocably severed on the facts of this case. I reject the argument made for the Local Authority by Mrs Rowley, and by Mr Veitch for the guardian, that this solution is replete with risks because the Czech court might return ED to his parents. If I might respectfully say so it is a highly chauvinistic, almost neo-colonial sentiment. If the Czech court does return ED to his parents it will be after a full hearing with the child represented by a guardian. Plainly there can be no serious suggestion made that the Czech court would not, in any hearing, properly promote the interests of ED. Only if both of these intermediate choices prove to be impossible will I be satisfied that nothing else will do and in those circumstances I would make on the evidence the care order and placement order.
  • I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality for ED. I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of ED’s life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.

 

So, to suggest that the Czech authorities might return the child to mother’s care is highly chauvinistic and almost neo-colonial…

 

Let’s see what the Czech authorities had to say (AFTER the judgment was handed down. Again underlining mine for emphasis)

 

 

  • On 29 September 2014 this court received a letter dated 23 September 2014 from Mr Zdeněk Kapitán, the Direct of OILPC. This was written and received well after I had orally given judgment. The letter reads as follows:

 

“The Office for International Legal Protection of Children, as the Central Authority of the Czech Republic under the 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 hereby states its position regarding the case of the child mentioned above.According to the information available to the Office, the child is currently removed from the care of his parents and is placed in the foster care.

As our Office is highly concerned about the best interest of the minor who is the Czech national we respectfully ask the Court to consider, while deciding in the Care Order proceedings the following rights of the Child arising from the international conventions named below that are binding for the United Kingdom of Great Britain and Northern Ireland.

Firstly, the Office would like to point out at the Article 8 of European Convention of Human Rights that regulates the right to respect for private and family life, the Office hereby highlights the case law of the European Court of Human Rights (hereinafter “ECHR’) in respect of the Article 8 of the Convention. In particular the ECHR constantly rules that “the fact that a child could be placed In a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents, there must exist other circumstances pointing to the effective ‘necessity’ for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with the child” (T v FINLAND, § 173)

Furthermore, the ECHR declared that “although the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may jn addition be positive obligations inherent in an effective ‘respect’ for family life. Thus. where the existence of a family tie has been established, the State must in principle act in the manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited” (KUTZNER v. GERMANY. § 61).

Secondly, the Office draws the attention of the Court to the Article 8 and Article 9 of the United Nations Convention on the Rights of the Child under which the States Parties undertake to respect the right of the child to preserve his or her family relations and shall ensure that a child shall not be separated from his or her parents against their will unless the certain conditions are met.

Finally, the Office understands that the habitual residence of the above child is in the territory of the United Kingdom and that the Court shall have the jurisdiction in the matter. Nevertheless if the Court considers that it is in the best interest of the child to proceed under the Article 15 and/ or the Article 56 of the Regulation, the Office supports such proceedings and is very open to offer the Court its further assistance in proceedings under the Article 15 and / or the Article 56 of the Regulation.

In conclusion, the Office appeals to the Court to take into consideration the aforesaid and not to interfere with the right to respect for family life unless it is necessary and justifiable.

This statement is to emphasize the importance and priority of the work with the biological family over the very extreme measure of separating the child from his parents and placing him into foster care. Accordingly, we are of the opinion that in case the parents are not able to take care of the child, the members of wider family should be always considered as potential carers.”

 

I might be highly chauvinistic and almost neo-colonial, but I read that as the Czech authorities dropping a pretty big hint that if the child is in their control, they view foster care as the last resort and a very extreme measure.

 

Now, one could of course argue – this is a Czech mother, a Czech father, a Czech baby – let the Czech Republic get on with it and make their own decisions, it is really their baby to make decisions about.  Except… that’s exactly what Mostyn J decided first time out and the Court of Appeal rejected that.

 

We don’t know yet what has actually happened. Here is my guess – either the LA and the Guardian began drawing up an appeal claim straight away OR a lot of pressure was put on the current foster carers to take up the offer of Special Guardianship to avoid further ligitation.

 

I’m not a huge fan of how Mostyn J has necessarily gone about this, but it is a real practical issue on the ground – we are having more and more babies in England and Wales whose parents are from other parts of the EU, those countries being ones who don’t have non-consensual adoption – should we be spending huge amounts of taxpayers money litigating these cases in England, or should the decisions about the children be taken in the parents country of origin?   (It gets ludicrously tricky if mum and dad are from different countries within the EU, of course)

 

The ECHR’s already tough line on non-consensual adoption was in a case where the UK was making decisions about the children of its own citizens – might they take an even tougher line when the first case of a foreign national’s children goes before the ECHR?  The Italian C-section case drew a lot of overseas attention – and if we have 3 countries within the EU who support non-consensual adoption and 25 who don’t, the UK government may not be preaching to the converted if a case of that kind comes up before the ECHR.

 

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

One response

  1. stella aka toni macleod

    looks like a good argument to me tbf personally i think they should hand the child to the czech authorities forced adoption is nothing more than a money making load of BS and i think Mostyn was right in his views the first time round n the rcj was totally wrong -_- xx

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