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An exception that is becoming exceptionally common? Re CB, the involvement of foreign states, Article 15 of BIIR and leave to oppose adoption

Date:21 AUG 2015
Chris Miller, FOURTEEN


The recent case of Re CB (A Child) [2015] EWCA Civ 888, [2015] 2 FLR (forthcoming) has attracted a significant amount of press coverage in recent days. One broadsheet has used the case as a platform to analyse the tension that exists between a state's wish to determine the future of its own citizens and the best interests of a specific child. A radio interview explored whether or not adoption is a proportionate response to the type of neglect that CB suffered. Whilst there is crucial guidance as to procedure and law given in the judgment, the issues that have preoccupied the press were not explicitly central to the determinations in Re CB. Rather, they provide a context to the arguments made and a potential explanation for why a number of European countries are taking an increasing interest in the decisions that are made about their minor citizens by English and Welsh courts.

 This article will focus on the detail of the decision and the implications for future practice, rather than the wider debates.

The facts

CB was born in 2008 in England and has been habitually resident in this country for the whole of her life. CB is a Latvian citizen, as are both of her parents. CB's father has played no role in her life. CB was taken into care in March 2010 as a result of her being found by a police officer in a profoundly neglected state and without adult supervision. Plans were put in place to rehabilitate CB to her mother's care but these were eventually abandoned in light of growing concerns as to the mother's capacity to care for the child. Eventually, public law proceedings were issued and these concluded with final care and placement orders being made. Appeals were brought by CB's mother and sister at Circuit Judge level and then to the Court of Appeal and each in turn was unsuccessful.

 The Latvian embassy was not notified of the care proceedings until after they had concluded. It was the mother who notified the Latvian embassy, and not the local authority.

 In time,CB was placed with prospective adopters and adoption were issued. The mother applied for permission to oppose the application, for transfer of proceedings to Latvia (pursuant to Art 15 of BIIR) and for contact. Those applications were each dismissed at a hearing before Moylan J at which the Latvian Ministry of Justice (in the role of the Central Authority of the Republic of Latvia) was given permission to make oral and written representations. The mother sought and was granted permission to appeal to the Court of Appeal (the grant was based on then existence of a compelling reason to grant permission, not on the basis that there was a real prospect of success) and the Central Authority of the Republic of Latvia sought, and was granted, intervener status within that appeal.

 On 6 August 2015, in a reserved judgment following a full hearing, the panel, consisting of Sir James Munby P, Lady Justice Black and Lord Justice Vos, unanimously dismissed the appeal.

The issues

The key issues which were determined are:

a) the interface between Articles 1(3)(b) and 15 of BIIR,

 b) the extent to which there is a requirement to assess a parent who seeks permission to oppose adoption under s 47(5) of the ACA 2002,

 c) best practice in relation to public law cases involving children who are foreign nationals and whether or not a failure to follow best practice, of necessity, is relevant to substantive issues in the case,

 d) does English adoption law 'need' to change to be more similar to the approach taken in many other European countries?

Article continues below...

Does English adoption law 'need' to change?

The argument put forward by the mother was that most other European countries do not countenance non-consensual adoption or, if they do, make far less use of non-consensual adoption than domestic courts do. This argument was roundly rejected by the President, who concluded that there can be no suggestion that our law is incompatible with the UK's international obligations generally and its obligations under the ECHR. However, he stressed again (see Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6, [2014] 2 FLR 151) that it is crucial that courts in England and Wales are aware of the concerns expressed by other countries about the domestic approach to non-consensual adoption. Also of great importance is the imperative to apply rigorously the test of 'only adoption will do' and to ensure that best practice is followed in relation to all the aspects of the case including those relating to international dimensions (more on best practice will be set out below).

The interface between Articles 1(3)(b) and 15 of BIIR

As readers will be aware, Art 15 of BIIR provides a mechanism to transfer a case or a part thereof to another Member State that is better placed to try the matter and would not otherwise have jurisdiction pursuant to BIIR. However, Art 1(3)(a) specifically excluded from the remit of BIIR matters relating to adoption or 'preparatory to adoption'.

 It was argued by the mother that a leave to oppose application is not a move preparatory to adoption, but, in fact, the complete opposite. Both the mother and the Latvian Central Authority argued that, whilst the mother still held parental responsibility, the case could be transferred to Latvia because Latvia was better placed to determine all issues relating to parental responsibility (including which type of placement CB should have). Lastly, it was argued that the failure to notify Latvia in good time meant that the local authority could not rely on the exclusion under Art 1(3)(b) to prevent transfer that might have been considered at an earlier stage, were Latvia to have been notified in good time that CB was in care.

 The court found that there was no jurisdiction to consider an Art 15 transfer and approved arguments that the use of Art 15 is specific to a case of a part thereof. It does not connote a power to transfer jurisdiction at large in relation to a child. Further, leave to oppose adoption is an integral part of the process preparatory for adoption and so BIIR does not apply.

Best practice in cases involving foreign nationals

It was argued by the mother and by the Latvian Central Authority that the admitted failure of the local authority to notify Latvia of the care proceedings in good time meant that:

a) there was a material change in circumstances within the meaning of s 47(5), once Latvia was notified,

 b) the local authority should, in effect, be estopped from relying on its own default in relation to the Art 15 argument (see above),

 c) the late involvement of Latvia meant that new options were available for the placement of CB which were not previously available and which should be explored in preference to adoption.

 The court again rejected all the above arguments because the involvement of the Latvian state did not bring about any tangible change in circumstances relevant to decision-making about the child. The case leaves open what approach would be taken if the impact of a belatedly notified embassy was more significant.

 The court provided comprehensive guidance as to best practice that should be followed in all care cases involving a foreign national child:

a) local authorities should notify embassies that a foreign national child is in care at the earliest opportunity. It is noteworthy that the President was careful (as he was in Re E) to form no conclusion as to whether or not a failure to notify an embassy was actually in breach of the Vienna Convention on Consular Relations 1963. He merely states that local authorities should act as if a failure to notify was in breach of international obligations,

 b) the court should consider whether or not a case is suitable for an Art 15 transfer at the outset of proceedings,

 c) there must be rigorous attention paid to considerations pertaining to the child's national cultural, linguistic, ethnic and religious background, However, the loss of culture, heritage and language are not in themselves a reason not to make an adoption order when circumstances demand (on the high threshold already required) that an adoption order must be made.

A requirement to assess parents seeking permission to oppose under s 47(5)

The mother complained that she had last been assessed in 2012 and that her rights protected under Arts 6 and 8 of the ECHR required that she be given an opportunity for further assessment.

 This argument was rejected. There is no requirement to assess a parent unless the information available indicates that such assessment is required. This is a critical finding, given the increasing trend for parents to seek permission to oppose adoption.

Christopher Miller acted for the local authority.