Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
President of the Family Division
|In the Matter of E (A Child)|
Mr William J Tyler for the first respondent (mother)
Ms Jacqueline Roach for the third respondent (E by his children's guardian)
Ms Mary Lazarus for the fourth respondent (maternal aunt)
The second respondent (father) was neither present nor represented
The names of the solicitors are omitted to protect E's identity
Hearing dates: 17-20 December 2013
Crown Copyright ©
Sir James Munby, President of the Family Division :
The background facts
The wider context
"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.
"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."
"Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction."
This provision is mandatory and applies whether or not there are extant proceedings in the courts of the other Member State: see Re B (A child)  EWCA Civ 1434, paras 76, 80.
"The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:
(a) collect and exchange information:
(i) on the situation of the child;
(ii) on any procedures under way; or
(iii) on decisions taken concerning the child;
(c) facilitate communications between courts, in particular for the application of … Article 15; …"
This process is plainly intended to work both ways.
BIIR – the present case
BIIR – future practice in care cases
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.
The Vienna Convention
"1 With a view to facilitating the exercise of consular functions relating to nationals of the sending States
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2 The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."
"If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:
…(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments; …"
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 Vienna Convention – the present case
The Vienna Convention – future practice in care cases
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.
Reporting restriction orders
"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."