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Thoughts on child rights and Brussels IIA after EU withdrawal

Date:26 JAN 2018
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Solicitor Advocate

Latvian children, care proceedings and Art 15 

The case of G and H (Children: Article 15 Brussel II Revised Regulation) [2018] EWFC 60 is a troubling one: including the parties, the children’s view (if appropriate) and operation of Brussels IIA after EU withdrawal. The first concern – only a minor point, but which must be mentioned at the beginning – is that though the case is reported the judge gave it no 6.1 certificate enabling it to be cited (see Practice Direction of 9 April 2001: Citation of Authorities Lord Woolf LCJ [2001] 1 WLR 1001 para 6.1; and see 'Precedent, or just a law report?'  where the precedent/para 6.1 point is considered more fully). That said this note will set out and refer to the judgment.
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In G and H a local authority applied for care orders for two Latvian children aged 12 and 8. The judge had before him an application issued by the Latvian Orphan’s Court seeking transfer of these proceedings to Latvia (Brussels IIA Art 15), which he refused. In April 2010 the children and their mother had come from Latvia to join their father who was already living in England. G was then aged 5. H was then aged 1. They settled in England. In February 2012 G presented at school with a bruise on her left leg. She said that her father had hit her with a stick. In April 2014 the local authority issued care proceedings. Interim care orders were granted. The children were removed from their mother’s care and placed in foster care. The father was in prison. The mother conceded that the Children Act 1989, s 31(2) threshold had been met.

The maternal grandmother lives in Latvia. She was assessed then as an alternative carer for the children. The assessment was positive. It was agreed that the most appropriate outcome for the children was that they should return to live in Latvia in the care of maternal grandmother, cautiously supported by the children’s guardian. In March 2015, by consent, an order was made which provided that the children should live with their maternal grandmother. She also applied in Latvia and was granted ‘an order appointing her as guardian for the children’ in April 2015. In July 2015 the mother returned to live in Latvia. She lived with her mother (maternal grandmother) and the children. The children returned to the mother’s care, on application to the Latvian court, in May 2016. She later returned to England.

Art 15(1), the law underlay to the application by the Latvian court, says:
‘Transfer to a court better placed to hear the case
1 … 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 [stay the case, or transfer to the court of nother member state].’

Grandmother as a party

In the care proceedings before the court Judge Bellamy seems to have raised the question of whether the grandmother should be served. He put the issue as follows:
‘[35] The first care proceedings ended with the making of a child arrangements order in favour of maternal grandmother. Children Act 1989 s 12(2) provides that: “Where the court makes a child arrangements order and a person who is not a parent or guardian is named in the order as a person with whom the child is to live, that person shall have parental responsibility for the child while the order remains in force so far as providing for the child to live with that person.” It follows, therefore, that as a consequence of the child arrangements order the grandmother acquired parental responsibility for the children.’
He then asked himself the question:
‘[36] As a matter of law, in light of the orders made by the Latvian Orphan’s Court, does the grandmother still have parental responsibility for the children or has the order made by this court on 31st March 2015 ceased to have effect? This is not simply an academic point. Rule 12.3(1) of the Family Procedure Rules 2010 provides that “Every person whom the applicant believes to have parental responsibility for the child” is an automatic respondent to care proceeding relating to that child…’
It seems the local authority did not serve the grandmother. The judge was undecided as to whether he should say that she should be served; but said he was not willing to decide the point. Despite that he refused the Latvian court’s application; that is without hearing from the grand-mother.
‘[37] … I have come to the conclusion that it would not be appropriate for me to determine the point at this juncture. The local authority accepts that the grandmother should be given notice of the proceedings. She should be informed of her entitlement to apply for party status and of the fact that it is possible she may be entitled to automatic party status. If the grandmother wishes to be a party to these proceedings she can make an application. If she makes an application it is open to her to contend that she is entitled to automatic party status. Then and only then does it become necessary for the point to be determined.’
The judge refers to FPR 2010 r 12.3(1) as setting out who should be parties to care proceedings (see row 12 of col 3 of the table in r 12.3(1)). He says it means ‘every person whom the applicant believes to have parental responsibility for the child’. He is probably right if ‘As above’ refers back to row 1 in the table. It must mean that, but it is not clear. The table has confused court staff, Legal Aid Agency decision-makers and even Black LJ (as she then was) in the Court of Appeal in Re W (Representation of a Child) [2016] EWCA Civ 1051, [2017] 2 FLR 199.

The law

In parallel with D, E, F and G (Children: Art 15 – transfer of the proceedings) [2017] EWHC 3078 (Fam) (19 September 2017), HHJ Carol Atkinson as High Court judge arrived at a similar conclusion to Judge Bellamy, though without the grandmother issue. In that case Judge Atkinson was dealing with four children, who were in UK foster care. Their parents are Romanian nationals, of Roma heritage, and had returned to Romania. They applied for the proceedings to be transferred to Romania under Council Regulation (EC) No 2201/2003 (‘Brussels IIA’) Art 15. The oldest child (aged 10) had stated that she wanted to remain in UK (see Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24: views of a child considered further below).

HHJ Atkinson fully considered recent CJEU, Supreme Court, Court of Appeal and High Court law as she set out her decision, enunciating for herself a series of principles (at [31] and [32]) which guide her decision-making and based on:
  • AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517, Munby J
  • Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152, [2014] 2 FLR 1372
  • Re N (Adoption: Jurisdiction) [2016] UKSC 15, [2017] AC 167, [2016] 1 FLR 1082
  • Child and Family Agency v JD; RPD intervening C-428/15, [2017] 1 FLR 223
She emphasised that Re N and the CJEU decision emphasised that jurisdiction should remain with the state where the proceedings had started unless there was added value in transfer and it served the child’s best interests to transfer ([54]). The arguments were finely balanced. The parents’ application was refused; but its applicability was to be kept under ‘constant review’.

The Art 15 questions

Both judges considered the three questions posed by Munby J in AB v JLB (Brussels II Revised: Article 15) at [35]:
  1. Has the child ‘a particular connection’ with the relevant other member state within the meaning of Art 15(3)?
  2. Would the court of the other member state be ‘better placed’ to hear the case or part of it?
  3. Would transfer to the other court be ‘in the best interests of the child’?
Said Judge Atkinson of Munby J’s summary:
‘[30] … The first of these questions is a simple question of fact and the second and third questions an exercise in evaluation undertaken in the light of the circumstances of the particular child.’
Of the children’s position in relation to England and Latvia best interests Judge Bellamy said:
‘[47] These children are Latvian children of Latvian parents. They were born in Latvia. They are Latvian nationals. Until April 2010 they had lived in Latvia all their short lives. They returned to live in Latvia in April 2015 and remained living there until May 2016. During that period they lived with their maternal grandmother and also, from July 2015, with their mother. They still have both maternal and paternal family members living in Latvia. In my judgment it is plain that they have “a particular connection” with Latvia for the purposes of Article 15(1).
[48] Would the Latvian court be “better placed to hear the case, or a specific part thereof”? In light of the extent of the children’s connection with Latvia described in the previous paragraph coupled with the involvement of the Latvian social services and the Latvian court in 2015 and 2016, to which I referred earlier, I accept that it is arguable that the Latvian court is “better placed to hear the case”.’
But said the judge, there were ‘factors that point the other way’ (though it is not possible to tell how any of these factors would have operated differently if the children had been with their grandmother in Latvia: if that remained an option for the court); and in particular:
  • the witnesses required to prove the local authority’s threshold allegations are all based in England;
  • there is an ongoing police investigation; that investigation may be handicapped if G and H and the proceedings themselves were transferred to Latvia;
  • the concerns about G’s health are the subject of expert assessments by two very experienced and highly regarded experts; the experts are likely to be key witnesses in the care proceedings both as to issues relating to threshold and as to issues relating to welfare;
  • the children are settled in foster care; the foster carers understand and are addressing the issues relating to G’s health issue; transfer of the proceedings to Latvia would lead to a change of placement which, in the particular circumstances of this case, could be detrimental to G’s progress;
  • G is receiving appropriate medical treatment for her health issue; transfer of the case to Latvia could be detrimental to her development and progress.

In combination these factors – all of them surely capable of remedy in Latvia? – lead the judge to conclude: ‘I am not persuaded that the Latvian court is “better placed to hear the case”.’

Children’s views and Brussels IIA

Art 15 is derived from Brussels IIA. Recital (33) to that Regulation reads:
‘(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union.’
Art 24, like the Regulation is – at least at present – part of the law in England and Wales. Art 24 of the Charter (and, for the role of the Charter, see 'Child's views and court proceedings') says as relevant:
‘1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2 In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration….’
In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 (child’s ‘opportunity to be heard’ in a Brussels IIA decision) the child was 7. HHJ Atkinson took into account a 10-year-old’s views. There is no record of HHJ Bellamy having considered the views of either child, though they were aged 12 and 8; nor of recital (33) and Art 24 being considered in terms.

English law on the views of a child is indistinct. It is relegated largely to Family Justice Council ‘guidelines’. However, the judge records that the children were parties to the proceedings (as of course they would be). Yes, they had a children’s guardian; but were they told that – if they wanted to – they could ‘express their views freely’. The judgment does not say; and Art 24 is not mentioned.

The judge concluded that even if he held that all three questions applied then unless one of the parties supports a transfer then the judge’s discretion does not arise as a result of the provisions of Art 15(2). The difficulty of this is that if the grand-mother were a party and if the older child is permitted a view (per Art 24 above) either or both might have accepted the transfer within the terms of Art 15(2). Will the court permit another later application; or is the application res judicata?

And after EU withdrawal?...

After EU withdrawal (Brexit) Brussels IIA will not be ‘retained law’. It cannot apply to UK (as mentioned in R (Miller & anor) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 1 All ER 593 at [71]). There will be no requirement for co-operation between courts of EU member states in cases like this. It remains to be seen where this will leave children like these Latvian children.

The Charter of Fundamental Rights of the European Union, including Art 24, goes if European Union (Withdrawal) Bill cl 5(4) is part of the Bill which eventually receives Royal Assent; so the positive obligation of the family courts to receive children views will depend on the common law. It remains to be seen whether family judges treat their duty as Ryder LJ said they should – ie in accordance with Art 24 – in Re D (A Child) (International Recognition). As EU withdrawal bites children law, and the rights of children, enters uncertain waters.