England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/06/2012

Mr. Justice Baker :

1. This application is made by the Health Service Executive of Ireland ("the HSE"), the statutory authority with responsibility for children taken into public care in the Irish Republic, for an urgent order under Article 20 of the Council Regulation (EC) 2201/2003 of 27^th 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 (commonly known as "Brussels II Revised") in respect of a 17-year-old girl whom I shall refer to as SF.
2. At the conclusion of the hearing on 4^th May 2012, I made the order sought by the HSE. This judgment sets out the reasons for my decision.

Background

3. SF was born in the Republic of Ireland on 22^nd April 1995. Her family are members of the travelling community. She has had many problems from an early age and has been diagnosed with an emotionally unstable personality disorder, severe depression with suicidal ideation, and post-traumatic stress disorder. In September 1998, she was received into the voluntary care of the authority then responsible for child protection in the part of Ireland where she lived, and she has remained in care to this day. Soon after her admission to care, SF disclosed that she had been subjected to severe abuse of a physical, sexual and emotional nature, and had also been neglected whilst in the care of her family. On 10^th April 2000, SF was made subject of an interim care order. A full care order was granted on 10^th January 2006.
4. She was initially placed in foster care, where she remained until 2008 when the placement broke down due to her difficult behaviour. She was then placed in a number of additional foster homes and residential services until 2^nd March 2010 when she was placed in a high support unit in County Monaghan. She remained there until January 2012. At that point, there was an escalation in SF's behaviours, which included absconding (and returning under the influence of aerosols and other intoxicants), aggression towards other residents and staff, and self-harm, ranging from superficial injuries to very serious wounds to her arms and legs and, on one occasion, tying a handbag strap around her neck in an attempt to choke herself. The staff at the high support unit considered that they could not keep her safe, and on 5^th January 2012 the HSE applied for, and was granted, an order permitting SF to be detained at a special care unit.
5. In view of her very serious difficulties, however, those responsible for her care reached the conclusion that there were no facilities appropriate to her needs in the Irish Republic. An approach was therefore made to a unit in England ("the English Unit") to see whether she could be admitted there for treatment and therapy. She was first assessed by staff from the English Unit on 27 January 2012 with a view to her placement there for a period of assessment and treatment. SF initially expressed very considerable opposition to any move to the English Unit, but by early March 2012, she was expressing the clear view that she wished to leave the Irish special care unit as soon as possible, and consented to a transfer to the English Unit for a three-month period of assessment.
6. Unfortunately, there then ensued a period of delay while efforts were made to obtain the consent for admission to the English Unit necessary under Brussels II Revised (as to which, see below). During that period, SF's behaviours became the source of very considerable concern. In particular, she made repeated threats of, and several significant attempts at, self-harm. On 23^rd April, a clinical psychologist reported:

"She says she cannot face another week in the SCU, and if she could, would kill herself, as it would put her out of her misery. Having known SF for 18 months, I have no doubt at all about the serious intent of her claim. My other concern is that if SF starts to repeatedly put herself at risk again, the SCU staff will have no choice but to more intensely control her immediate environment and confine her completely to the unit. This will most heighten her sense of hopelessness and lead to serious suicide attempts. SF must be transferred this week."

A consultant child and adolescent psychiatrist expressed similar concerns, adding:

"SF has been psychologically prepared to move to [the English Unit] for over 2 months now. One would anticipate a better prognosis if she was given the chance to engage positively with [the English Unit] while the time is right. I fear that as time goes on, with continued uncertainty, SF will become more frustrated and more negative, resulting in less chance of a positive outcome. SF is likely to continue to engage in risky self-harm behaviour as a result of her high levels of frustration, and once again I must say I am concerned that this could result in a serious untoward incident. Therefore it is my opinion that SF needs to move to [the English Unit] as a matter of urgency."

7. On 27^th April, the necessary consent under Brussels II Revised was finally obtained. On 3^rd May, Birmingham J sitting in the High Court in Ireland, in proceedings brought by the HSE to which the Respondents were SF (by her guardian ad litem) and her parents, made an order ("the Irish order") providing for the detention and treatment of SF at the English Unit. The order further stipulated, inter alia, that SF's circumstances (including the deprivation of her liberty to which she will be subject upon her transfer to and placement at the facility run by the English Unit) will be the subject of regular reviews by the High Court in Ireland, the next such review being on 14^th May.
8. Thereafter, the HSE decided to take two steps to obtain the necessary relief from the English courts. First, it was decided to apply (pursuant to procedural rules described below) for the recognition and enforcement of the Irish order. Secondly, pending the making of orders securing the recognition and enforceability of the Irish order, this urgent application has been made to the High Court for provisional relief pursuant to Article 20 of Brussels II Revised. The specific relief sought by the HSE is, first, an order that SF do reside at the English Unit for purposes of such care and treatment as may in the opinion of the Director of the English Unit be necessary; secondly, that there be leave to the staff of the English Unit to detain at or return SF to the English Unit and to use reasonable force (if necessary) in so detaining her or returning her, and third, that there be leave generally to Director of the English Unit and those under his direction (to include all or any of the multi-disciplinary team including clinical, care or similar professional and/or ancillary health care staff) to furnish such treatment and care to SF as in their opinion may be necessary. That application was listed ex parte before me on 4^th May and I duly made the order requested. This judgment sets out my reasons for that order.

Relevant Provisions of Brussels II Revised

9. The primary jurisdiction in matters of parental responsibility in English law is now derived from Brussels II Revised (see s. 2 of the Family Law Act 1986 as amended) and in particular the rules set out in Chapter II, section 2 of the Regulation. The basic rule, set out in Article 8, is that:

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised".

This rule is subject to a number of qualifications set out in articles 9 to 15 which do not arise in this case. In addition, however, Article 20 provides:

"1 In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

2 The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate."

The European Court of Justice ("CJEU") has stipulated in two cases - Re A (Area of Freedom, Security and Justice (C-523/07) [2009] 2 FLR 1 and Deticek v Sgueglia (C-403/09) [2010] 1 FLR 1381 - that such protective measures may only be taken if three cumulative conditions are satisfied, namely that the measure is urgent, is in respect of persons in the Member State concerned, and is provisional In Deticek v Sgueglia, the Court emphasised (at para [38]) that, in that it represents an exception to the system of jurisdiction laid down by the Regulation, the provisions of Article 20 must be interpreted strictly.

10. In addition to establishing common rules as to jurisdiction, Brussels II Revised also makes provision for the recognition and enforcement in one Member State of judgments made in another. The relevant provisions are set out in Chapter III of the Regulation – those governing recognition in section 1 (Articles 21 to 27), those in respect of enforceability in section 2 (Articles 28 to 36) and further provisions common to both in section 3 (Articles 37 to 39). Detailed consideration of the scope and interpretation of these provisions is unnecessary for the purposes of this judgment. It is important to note, however, the underlying principle, forming the cornerstone of the provisions, set out in Article 21(1):

"A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required".

Manifestly, this principle must guide the courts of a Member State faced with a case in which a judgment on matters of parental responsibility have been obtained in another Member State. This basic principle is subject to the exceptions set out in Article 23 ("Grounds of non-recognition for judgments relating to parental responsibility").

11. So far as enforcement is concerned, Article 28 provides:

"1 A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

2 However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom."

Articles 29 to 36 deal with procedural matters concerning declarations of enforceability. Articles 37 to 39 make provisions concerning documents required for the processes of recognition and enforcement, notably, in Article 39, provision for certificates concerning judgments on parental responsibility. Of the remaining provisions of Chapter III, it is only necessary for the purposes of this judgment to note Article 47 which provides, so far as relevant to this case:

"1 The enforcement procedure is governed by the law of the Member State of enforcement.

2 Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with section 2… shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State."

12. The procedure in England and Wales for registering a foreign judgment on the exercise of parental responsibility (and hence obtaining a declaration of enforceability) is now set down in Part 31 of the Family Procedure Rules 2010, as amplified by paragraphs 2.1 and 3.1 of the associated Practice Direction (31A). It is unnecessary to recite these provisions in detail for the purposes of this judgment. An application for permission to register the judgment is to be made to a district judge of the PRFD. Such an application must be accompanied by a witness statement or affidavit exhibiting certain documentation. By FPR r.31.6, the district judge is then required to give such directions as considered appropriate. By FPR 31.11, if the Court then decides that the judgment should be registered for enforcement, the judgment is then entered into the central index of judgments, and the order of the court shall be served on the parties endorsed with the court officer's confirmation that the judgment has been registered. By FPR r.31.11 (4), a sealed order with this endorsement stands as notification that the judgment has been registered in accordance with the provisions of Article 28(2) of Brussels IIR, and hence is enforceable. The FPR then provide a clearly defined route for appeals against such decisions, which must be brought within one month of service of the notice of registration, extended to two months in the case of a party habitually resident in another Member State. Importantly, as currently drafted (in FPR r.31.17), a Court will not enforce a judgment registered under r.31.11 until the expiry of any period for appeal, although FPR r.31.22 provides that an application for provisional (including protective) measures under Article 20 Brussels IIR can be made notwithstanding that the time for appealing against an order for registration of a judgment has not expired or that a final determination of any issue relating to enforcement of the judgment is pending.
13. Chapter IV of Brussels II Revised is entitled "Co-operation between Central Authorities in Matters of Parental Responsibility". The articles in this Chapter require each Member States to designate one or more central authorities to assist with the application for the Regulation, and the central authorities to co-operate on cases relating to matters of parental responsibility. Article 56 then provides:

"1 Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.

2 The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.

3 The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State."

14. The provisions of Chapter III and Article 56 of Brussels II Revised have very recently been considered by the CJEU in another case involving the proposed placement of an Irish child in a (different) residential establishment in England. That case, HSE for Ireland v SC (C-92/12 PPU) (26^th April 2012) concerned another child, SC, described by the CJEU as particularly vulnerable and having exceptional protection needs which necessitated her detention in secure care. Again, clinical professionals in Ireland considered that there was no institution in that country which could meet her needs and identified an establishment in England where she could be accommodated and appropriately treated. As in the present case, an application was made to the High Court in Ireland which, having received a consent from an English authority which it considered valid under Article 56, made an interim order on 2^nd December 2011 authorising the placement of SC in the establishment in England and embarked upon the process of seeking registration and enforcement of that order in England. As in the present case, an application was made ex parte to the High Court in England for provisional relief under Article 20 and an order granted (as it happens, by me). At the same time, however, the Irish court, having a number of concerns about the interpretation of the relevant provisions of Brussels II Revised and whether the processes adopted in that case complied with the Regulation, stayed the proceedings and referred the case for a preliminary ruling to the CJEU. Six questions were posed by the Irish Court of which numbers (1), (3) and (4) are relevant to the current case.
15. The first question was: "does a judgment which provides for the detention of a child for a specified time in another Member State in an institution providing therapeutic and educational care come within the material scope of the Regulation?" The CJEU answered this question in the affirmative:

"[A] judgment of a court of a Member State which orders the placement of a child in a secure institution providing therapeutic and educational care situated in another Member State and which entails that, for her own protection, the child is deprived of her liberty for a specified period, is within the material scope of the Regulation" (see judgment para 66).

16. The third and fourth questions posed by the referring Irish court were as follows:

"(3) Where a court of a Member State has contemplated the placement of a child for a specified time in a residential care institution in another Member State and has obtained the consent of that State in accordance with Article 56 of [the Regulation], must the judgment of the court directing the placement of a child for a specified time in a residential care institution situate in another Member State be recognised and/or declared enforceable in that other Member State as a precondition to the placement being effected?

(4) Does a judgment of the court directing the placement of the child for a specified time in a residential care institution situated in another Member State, and which has been consented to by that Member State in accordance with Article 56 of [the Regulation], have any legal effect in that other Member State prior to the grant of a declaration of recognition and/or enforceability upon the completion of the proceedings seeking such declaration of recognition and/or enforceability?"

17. To these questions, the CJEU replied as follows (at para 133):

"The answer to the third and fourth questions referred is that the Regulation must be interpreted as meaning that a judgment of a court of a Member State which orders the compulsory placement of a child in a secure care institution situated in another Member State must, before its enforcement in the requested Member State, be declared to be enforceable in that Member State. In order not to deprive the Regulation of its effectiveness, the decision of the court of the requested Member State on the application for a declaration of enforceability must be made with particular expedition and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect."

18. In passing, the CJEU referred to the fact that the English court had made an interim protective order under Article 20 pending registration and enforcement of the Irish order. The relevant passages of the CJEU judgment are in paras 130 – 132:

"130. …Article 20(1) of the Regulation provides that the courts of a Member State where a child is present may, subject to certain conditions, take such provisional, including protective, measures as may be available under the law of that State, even if, under the Regulation, a court of another Member State had jurisdiction as to the substance of the matter. In that it is an exception to the system of jurisdiction laid down by the Regulation, that provision must be interpreted strictly: Deticek v Sgueglia (C-403/09), [supra].

131. Such measures are applicable to children who have their habitual residence in one Member State but stay temporarily or intermittently in another Member State and are in a situation likely seriously to endanger their welfare, including their health or their development, thereby justifying the immediate adoption of protective measures. The provisional nature of such measures arises from the fact that, pursuant to Article 20(2) of the Regulation, they cease to apply when the court of the Member State having jurisdiction as to the substance of the matter has taken the measures it considers appropriate (A, paragraph 48).

132. In the main proceedings, on the application of the HSE, the Family Division of the High Court of Justice of England and Wales made an order under Article 20 of the Regulation imposing the provisional and protective measures needed to effect the placement for the protection of S.C. until the conclusion of the procedure for obtaining a declaration of enforceability of the order of 2 December 2011."

19. Although the CJEU did not expressly endorse the use of Article 20 in these circumstances, these observations amount in my judgment to a clear implicit approval. The focus of the judgment, however, was on the need for particular expedition on the part of all, and in particular the courts of the requested State. The greater the expedition, the less the need for emergency protective measures.
20. I understand that, following the CJEU judgment in HSE for Ireland v SC, urgent consideration is being given to the need for amendments to Part 31 of the FPR. It may be that those amendments will obviate the need to resort to Article 20. Unless and until any amendments are implemented, however, there may well be cases when a court in an EU country wishes to place a child in this country urgently, in circumstances where the child's welfare means that the placement cannot be postponed until the completion of the recognition and enforcement procedures under FPR Part 31. In such circumstances, Article 20 will have a crucial role.

The court's powers under Article 20

21. As set out above, the CJEU has emphasised in Re A (Area of Freedom, Security and Justice (C-523/07) (supra) and Deticek v Sgueglia (supra), that relief under Article 20 can be granted if the relief is urgent, is in respect of persons in the Member State concerned, and is provisional. The terms of Article 20 itself make clear that the measures are measures as may be available under the law of that Member State. The courts of this country have a wide range of powers under statute. In addition, the High Court has wide-ranging powers under its inherent jurisdiction to make orders for the welfare of children. It has long been recognised that the powers under the inherent jurisdiction extend to making orders for the detention of children for therapeutic purposes: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180. Accordingly, there is to my mind no question that the court has the power under Article 20 make the order sought in this case.

Conclusion: reasons for making the order in this case

22. I am satisfied on an interim basis upon the evidence placed before me (which includes the clinical evidence presented to the Irish court) that it is in SF's interests that she do reside and be treated at the English Unit, whether or not she continues to consent to remaining there. I am further satisfied that it is urgent that an interim order be made to allow for staff at the English Unit to detain and treat her. I am also satisfied for purposes of Article 20 of Brussels IIR that the proposed protective measures are provisional measures which will cease to have effect upon the completion of the process of the registration of the Irish order. I am satisfied that there is no cause to question the validity of the Irish order, or the process by which consent has been obtained from the relevant authority in England to the placement at the English Unit. I also note that SF's circumstances (including the deprivation of her liberty to which she is subject upon her transfer to and placement at the facility run by the English Unit) are to be the subject of regular reviews by the High Court in Ireland, the next such review being on 14^th May.
23. Accordingly, I am satisfied that it is appropriate in SF's best interests to make the interim orders sought under Article 20 pending the registration and enforcement of the Irish order.
24. I add these two final observations.
25. First, I apprehend that there may be similar applications in other cases. I am aware of a number of other cases involving children in Ireland. There may be other cases involving other countries. Each case will manifestly turn on its own facts. In this case, my decision has been greatly assisted by the great care with which the case has been dealt with by the Irish court, and the clarity with which the case before me has been presented by experienced leading and junior counsel. As a result, this court has felt able to make the order under Article 20 with limited scrutiny of the evidence. There may well be other cases which necessitate a far more detailed analysis of the situation, including the separate representation of the child in the proceedings in this country.
26. Secondly, it is of course no longer the case that judges in each country operate in isolation from their colleagues elsewhere. Judicial cooperation is not only encouraged but essential to facilitate the making and enforcement of orders for the welfare of children. Manifestly, it is appropriate that there be direct judicial communication between the High Court in Ireland and the High Court in England regarding SF's circumstances, so as to ensure that her circumstances are to be reviewed on a regular basis. I shall therefore include a recital to that effect in the order.

Order

UPON the Court reading:

27. the documents identified in the reading list submitted with the Applicant's Grounds and Skeleton Argument;
28. the skeleton argument filed on behalf of the Applicant entitled "Summary Skeleton Submissions on the Placement of Children following the Decision in Case C-92/12 PPU."

AND UPON the Applicant undertaking as soon as reasonably practicable:

29. to lodge at Court a signed copy of the Order of Mr Justice Birmingham dated 3 May 2012 and a signed copy of the certificate referred to in Article 39 of Council Regulation (EC) 2201/2003;
30. to issue an application for registration under the provisions of Council Regulation (EC) 2201/2003 of the Order of Mr Justice Birmingham dated 3 May 2012 in the Principal Registry of the Family Division.

AND UPON the Court being satisfied in light of the evidence it has considered that:

31. the matter is urgent;
32. the measures provided below constitute provisional protective measures within the meaning of Article 20 Council Regulation (EC) 2201/2003

AND UPON the Court noting that SF's circumstances (including the deprivation of her liberty to which she will be subject upon her transfer to and placement at the facility run by [the English Unit]) are to be the subject of regular reviews by the High Court in Ireland, the next such review being on 14.5.12

AND UPON the Court being satisfied that it is appropriate that there be direct judicial communication between the High Court in Ireland and the High Court in England regarding SF's circumstances, so as to ensure that her circumstances are to be reviewed on a regular basis

IT IS ORDERED AND DECLARED ON AN INTERIM BASIS, PENDING FURTHER ORDER OF THE COURT, THAT:

33. SF do reside at [the English Unit] for purposes of such care and treatment as may in the opinion of the Director of [the English Unit] be necessary.
34. There be leave to the staff of [the English Unit] to detain at or return SF to [the English Unit] and to use reasonable force (if necessary) in so detaining her or returning her.
35. There be leave generally to Director of [the English Unit] and those under their direction (to include all or any of the multi-disciplinary team including clinical, care or similar professional and/or ancillary health care staff) to furnish such treatment and care as in their opinion may be necessary.
36. The above orders are made as being in the best interests of SF and are exercisable whether or not she consents thereto.

IT IS ORDERED THAT:

37. The Principal Registry of the Family Division shall issue forthwith upon the same being presented by the Applicant the application herein for registration under the provisions of Council Regulation (EC) 2201/2003 of the Order of Mr Justice Birmingham dated 3 May 2012 in the Principal Registry of the Family Division. Any future hearings in this matter are to be listed before, and reserved to, Mr Justice Baker if available.
38. The Applicant shall inform the Court (by email) as soon as reasonably practicable any orders (and accompanying judgments, if appropriate) made by the High Court in Ireland pursuant to such reviews conducted by that Court.
39. There be liberty to all to apply to a puisne judge of the Family Division on 24 hours' notice, to be listed before, and reserved to, Mr Justice Baker if available.
40. No order as to costs.