I was very pleased to be invited to this workshop by Dr Claire Fenton-Glynn and Dr Ruth Lamont, to hear them speak along with Dr Julie Doughty, fellow Transparency Project member.
Dr Fenton-Glynn in particular has done excellent work in attempting to disseminate information about what is happening in other jurisdictions, particularly in light of the ‘pernicious myth’ that England is one of only 3 European countries to permit non consensual adoption.
It was ironic that during the workshop most of us were emailed a copy of the President’s judgment in Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112, handed down in March 2015 but only publicised now, where he repeats this myth and yet cites Dr Fenton-Glynn’s research in a footnote. [EDIT sorry – the case was heard in March 2015 but judgment not prepared until November; see this post from the Child Protection Resource for further comment about that].
The aim of the workshop was to bring together academics and practitioners to discuss these issues of importance. It was organised by Dr Claire Fenton-Glynn, Lecturer at University of Cambridge and Dr Ruth Lamont of University of Manchester.
Practice and Procedure in child protection cases with a European dimension.
Dr Lamont opened the workshop with a useful precis of the applicable practice and procedure. She referred to two cases in particular as illustrations of the legal issues that are raised; Bristol CC v AA  EWHC 1022 (Fam) and Bristol CC v HA  EWHC 1031 (Fam).
These two cases involved the same Lithuanian child. He was born in 2006 and came to UK in 2013 in circumstances which were unclear but there were fears his mother had been trafficked. His mother was found to be incapable of caring effectively for him; the school had significant concerns.
the LA intervened after the police exercised their powers under the Children Act 1989. The child was then accommodated via section 20 of the Children Act and care proceedings followed. There was clearly an international dimension to this case as all his wider family were in Lithuania. The maternal grandmother was put forward as a possible carer.
The English court were faced with the question – which court takes the decision about what happens in the future? It must be noted that this is not a question involving a substantive welfare assessment but rather which court should be making that kind of holistic assessment. The English court decided to transfer to Lithuania who accepted jurisdiction.
However, Lithuania then declined to act further. The maternal grandmother withdrew as possible carer and Lithuania suggested the child should return to Lithuania to be placed in a children’s home. The child’s father became involved and instituted his own proceedings. The English court now had a new problem; how to resolve this disagreement between the respective jurisdictions. The child remained in England in a foster placement which then broke down. He was clearly a very troubled child. The English court decided they would retain jurisdiction in the second set of proceedings.
Procedure for determining jurisdiction
Regulation 2201/2003 commonly known as ‘Brussels IIa’ governs jurisdiction over matters of parental responsibility, which includes care proceedings but NOT proceedings relating to adoption. The practice and procedure is set out clearly in re E (A child) (care Proceedings: European Dimension) Practice Note 2014 EWHC 6 Fam.
The English court must ask:
- Does the English court have jurisdiction over the proceedings
- And even if it does, should the care proceedings be transferred to another member state under Article 15?
The court usually can claim jurisdiction by virtue of the child being habitually resident in England and Wales. If this is not the case, the court must decline jurisdiction but can hear urgent hearings under Article 20 of the Regulation.
First question is habitual residence – focus is on the ‘centre of child’s interest’. It is a factual assessment looking at the child’s integration into country, whilst bearing in mind that for children in care proceedings those factual levels of integration may be disrupted.
See for example Leicester CC v S  EWCH 1575 – the child was abandoned by Hungarian parents and cared for by English foster parents.
If habitual residence is established, the court then moves to consider Article 15 of Brussels IIa. This requires 3 things:
- A particular connection to another member state;
- Foreign court ‘better placed’ to hear case; and
- The transfer is in the best interests of child.
All elements of that test must be made out before transfer is made. How that is decided is central to care proceedings.
This approach was further defined in Nottingham City Council v LM  EWCA Civ 152. Once a particular connection has been identified, the question of whether the foreign court is ‘better placed’ to hear case is practical one – for example, consider the availability of witnesses, conduct of assessments, the court ‘s knowledge of the case and judicial continuity.
The transfer must be in the child’s best interests but it is a truncated assessment, limited to question of transfer.
What is NOT permitted in this assessment is any comparison of outcomes in the different systems. The reason for this is the key principle of international law, ‘mutual trust’. We must trust our European partners to protect children. That principle of mutual trust runs throughtout private international law. Thus, in transfer cases it shields what happens in foreign jurisdiction. From the foreign court’s perspective, jurisdiction must be accepted within six weeks and the foreign courts carry out their own assessment.
[EDIT April 2016 – this analysis of ‘best interests’ on transfer now cannot stand in light of the Supreme Court decision in re N  UKSC 15 where the ‘attenuated’ best interests test was rejected and a rather more bullish approach taken towards the issue of ‘mutual trust’.]
Weakness in Article 15
We then moved to discuss the potential weaknesses in Article 15.
There is no defined process of seizure when there is a request to transfer. The English court approaches the foreign court to find out if they are likely to accept. This has met with mixed success on the ground as it can be difficult to identify which court should be approached. The physical transfer of the child also a potentially difficult issue.
These are issues of practical difficulty and require co-operation. The difficulties can be compounded by the involvement of embassies. This produces an extra level of information transfer which sometimes goes to the wrong place. It is not clear how the evidence before the English court is either translated or provided to the other court.
Cases between England and Ireland were noted to run a lot more smoothly, due to the similarities between the system and knowing the identities of the respective judges who would deal with transfers.
But when it doesn’t work well, the problems are considerable. One very important issue identified in the discussions was the ‘blurring of the lines’ between a transfer of jurisdiction and a transfer of proceedings. Other jurisdictions may well take a different view of our thresholds for intervention and will not proceed to any substantive hearing, despite willingly accepting jurisdiction.
This is the ‘elephant in the room’. The principle of mutual trust requires that we assume other jurisdictions will act competently to protect children but there are clearly existing and stark tensions between how the UK deals with permanency for children and how other jurisdictions approach non consensual adoption.
The strength of feeling against ‘non-consensual adoption’
What clearly came out of discussions is the need to be aware of the real strength of feeling against the UK practices in the central and eastern European countries, who regard it as an attack on the cultural identity of the child. There is a political dimension now to these cases which cannot be ignored.
Professor Judith Masson pointed out that most other European countries make greater use of section 20 style accommodation for children – a practice that has attracted serious judicial criticism in England and Wales. There is a lack of understanding about how the UK system operates. We appear to treat section 20 accommodation now as something that must be avoided when there are concerns over parents’ ability to care. Other European jurisdictions appear to deal with child protection concerns outside the court system to a far greater degree than we are now encouraged to do.
What can we do?
It is clear that it is vital to consider issues of jurisdiction and transfer as early as possible and be alive to the practical issues. It is unclear to what extent consideration of the political dimensions is either possible or appropriate.
The workshop hoped that the forthcoming Family Justice Council debate on November 24th about adoption without parental consent would be a useful venue to discuss some issues.
Participants pointed out that there are worries, not only about how we are viewed by other jurisdictions but by some in this jurisdiction who continue to promote a narrative about the family court system which is often based on either misunderstanding or misinformation. We need to be able to have a more open and honest debate about our system, otherwise the gaps will be filled by people who are offering little that is constructive.
The need for dialogue and communication
This issue of the need for dialogue and communication was tackled squarely by Sir Matthew Thorpe in his role as head of International Family Law who discussed the work he has done since retirement from judicial office, to encourage understanding and promote trust between the jurisdictions.
He noted a shift in his own attitudes when considering as a judge in 2012 the return of two Slovak boys to their grandmother. He found the fervour of anti English sentiment about these children’s cases in Slovakia striking. There were organised demonstrations and people taking to the streets, their focus usually on criticism of English social workers and the quality of judicial oversight.
There has been criticism of our domestic system raised with the European Parliament, particularly by the Latvian authorities. However, meetings between senior officials of different jurisdictions had worked well. The consular authorities felt they had been heard – in particular pointing out the demands that such cases put on their time. With a small staff it is simply impossible to become involved in 100s of care proceedings across the country. The total number of care proceedings involving a European jurisdiction dimension was around 650 last year, which is a considerable burden.
Brussels IIa is also going to be revised early next year, which may assist and the European Parliament is sending a delegation to London to ‘fact find’ and also to attend a workshop on adoption matters on 1st December in Brussels. Dr Fenton-Glynn has also reported on these issues.
Sir Matthew Thorpe commented:
Communication is the key – you have got to talk. States have got to talk and express their concerns and their anger and distress and other states have got to listen. A great deal has been done in diplomatic community in London to reduce tensions and improve future collaboration.
He points out that sending English social workers to investigate in other states is either unlawful or deeply resented. Should get in touch with opposite numbers and ask for help.
It is clear that we need more research about the mechanisms in different jurisdictions about how children are removed and what then happens; hopefully those participating today will be shortly filling some of those gaps. Dr Fenton-Glynn provided further information about her research where she has explored some of those different mechanisms.
I was particularly interested in the comments about section 20 type accommodation – and whether those critics of our current system might find the alternatives offered to place children away from home may not be a huge improvement.
It was interesting to note the UN Convention on the Rights of the Child, Article 8 which calls on signatories to respect the child’s right to identity, with our recent amendments to the Adoption and Children Act which mean that adoption agencies no longer have to give due consideration to a child’s religious persuasion, racial origin and cultural and linguistic background when placing him or her for adoption.
There is clearly a tension here which we did not have time to explore.
Julie Doughty provided a useful overview of current practice in the English courts. She noted her dislike of the term ‘forced adoption’, but that it was this aspect of lack of consent together with the irrevocability of adoption that were the two key driving issues to explain the suspicion other jurisdictions feel about our practices. The legacy of Re B-S appears to have been to give birth parents unfair ‘false hopes’ and increase anxiety and delay for adoptive families.
Adoption rates are clearly falling and there are concerns about whether Special Guardian Orders can now bear the weight put upon them.
Dr Doughty expressed doubts on whether ‘closed adoptions’ are still tenable in light of the rise of social media; a view which other participants shared.
As Dr Doughty commented:
Our energies clearly need to be diverted into finding what are the right options for children.
This was a fantastic opportunity to meet and discuss issues with practitioners and academics who are eminent in their field and I am very grateful to have been included. It was simply not possible to cover all the issues raised without producing a document of probably ten times this length, but I hope this gives readers a useful flavour of its range and just how useful it was.
I hope it is the first of many.