To care or not to care?
Date: 21 May 2009
Authors: Mark Jarman
Issue: Vol 159, Issue 7370
Categories: Features, Family, Immigration & asylum, Child law, Public
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In January 2008, police raided a property in Slough. They arrested a number of Romanian adults and found 13 children in a single property, some very small babies. One of them was a 13-year-old, E, who had been trafficked to England from a small village in Eastern Romania. She was a Roma gypsy who had fl own to England with two other unrelated adults on a ticket paid for with a stolen American credit card. Once E was in England she was made to sell the Big Issue for up to 12 hours per day on the streets.
The local authority became involved and commenced care proceedings. E was consequently made the subject of an interim care order.
E's father, Mr S, few to the UK within 24 hours of E going into police protection. He was arrested and charged with trafficking and exploitation pursuant to the Immigration Act 2004. In November 2008 he was the first to be convicted of the offence in the UK.
The local authority sought to return E to Romania and carried out, very diligently, their own assessments in Romania. However, they were less than impressed with the degree of child protection services in Romania and were concerned that on return to Romania E would simply be returned to her family and subjected to further trafficking to England or elsewhere in Europe.
Time passed and by July 2008, the local authority had sent their social work team to Romania on two occasions. They were not prepared to return E to Romania and the care plan became one of long-term foster care.
The mother remained in Romania. She had 12 children. She had been sent details of an English solicitor who had been able to get instructions through an interpreter and an agent lawyer in Bucharest. Her instructions were that E had come to see her sister for a holiday. She wanted E returned to her and her siblings.
On the basis that E was being wrongfully retained in England, by the local authority, the mother issued Hague Convention Proceedings pursuant to the Child Custody and Abduction Act 1985.
The matter came before Sir Christopher Sumner. The issues were summarised as such:
(i) Did the mother have rights of custody as defined under the Convention?
(ii) If so, was she exercising them?
(iii) Was the retention of E by the local authority in any event wrongful within the terms of the Convention?
(iv) Did the parents consent to E coming to England and, if so, was the consent still operative in January?
(v) Would the return of E to Romania expose her to a grave risk within the Convention?
(vi) If the answer to (iv) or (v) above is yes, should I exercise my discretion to order E's return to Romania or not?
While (i) presented little difficulty, the court held that in relation to (ii) there was no breach of the mother's rights of custody as they were being exercised unlawfully, ie to commit a criminal offence abroad or to exploit E.
The Hague Convention
Of most importance, however was the application of the Hague Convention to public law cases. The unusual feature in this case was that both parents and the child wanted to return to Romania. The local authority and guardian opposed this.
Sir Christopher Sumner stated in terms that: “I am anxious that nothing I say should prevent a Hague Convention application being made by a consenting parent, as described above, and seeking a summary remedy for the immediate return of a child. This is so even when the child is, as I find here, properly in the care of a local authority. I do not consider that ongoing care proceedings are a bar to such an application being made and pursued.” Having established the merits of the Hague process, the central question was whether the local authority had wrongfully retained E.
Article 20 of European Regulation (EC) 2201/2003 (Brussels II revised, (BIIR)) allows a member state in the jurisdiction in which a child is present, to take “provisional” and “protective” measures in urgent cases. Thus the taking of E into police protection and the subsequent making of an Interim Care Order were lawful pursuant to Art 20. Indeed, no challenge was made to the initial actions of the local authority.
The Hague application ultimately failed on two grounds. First that it was not a breach of the mother's rights of custody and second that the mother had consented to the child coming to England to commit crime. The court was anxious to provide some guidance to other local authorities concerned with children, sent or originating from outside England and Wales, whose welfare determined the need for immediate action:
● a prompt assessment of the needs and risks to the child in order to determine an action plan;
● immediate notification to both parents and any adult involved with the child to tell them what has happened, to inform them of their rights (including the Hague Convention, if appropriate), and to obtain their wishes about the placement they seek for the child;
● if both parents cannot be informed, notification to the Consulate of the relevant country to inform them of what has happened and to seek their assistance in finding the parents. Care should be taken to ensure this does not infringe any European directions relating to the reception of asylum seekers;
● in the absence of parental consent to the continued retention of the child by the local authority, a prompt hearing in court, on notice if possible, where the circumstances of the case, its international nature, and the local authority's proposals for the child's future should be set out;
● with the permission of the court if needed, a return of the child to its country of origin without unreasonable delay, unless a risk and security assessment shows that such a move is not in the best interests of the child.
While the mother's Hague application failed, the court did find that E was habitually resident in Romania, the court being reluctant to find that a child sent abroad for criminal exploitation would lose their habitual residence. In European cases a court, concerned with the immediate protection of a child, will have to determine the habitual residence of that child in order to determine which member state should seize jurisdiction.
Re S Part 2
The care proceedings went to final hearing. The local authority, having successfully defended the Hague proceedings, now sought a final care order, with a care plan of long-term foster care.
The matter came before Mr Justice Charles, [2008] EWHC 3013 (Fam) forthcoming). The immediate concern of the judge was the jurisdiction of the English court to make a care order, in light of the finding that E was habitually resident in Romania. The court therefore had to consider the application of Arts 8, 17, 20 and 55 of BIIR. Charles J found that the application of BIIR: founds a return of the child to Romania so that the courts and authorities in Romania can exercise their jurisdiction; the making of interim practical arrangements relating to the return of the child to Romania to protect her and promote her best interests pending decisions by the Romanian courts and authorities; and thus cooperation pursuant to the duty imposed by Art 55.
Therefore at the beginning of December, E was returned to Romania, accompanied by her social worker, and handed over to the national agency for child protection in Romania.
The European court
In April 2009, the European Court gave judgment in Case C-523/07, a reference from Finland to the European Court of Justice (ECJ). The court was concerned as to whether public law proceedings came within BIIR and the subsequent interpretation of BIIR, in particular with regard to Art 20.
At para 47, the ECJ emphasised the time-limited nature of Art 20: “It follows from the very wording of Art 20(1) that the adoption of measures in matters of parental responsibility by courts of member states which do not have jurisdiction as to the substance of the matter is subject to three cumulative conditions, namely:
● the measures concerned must be urgent;
● they must be taken in respect of persons or assets in the member state where the court seised of the dispute is situated; and
● they must be provisional.”
Those 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 to seriously 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 Art 20(2), 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.
Having emphasised the temporary and time-limited nature of Art 20, the court then gave further guidance on the measures needed to be taken as to any transfer. At para 64 of the judgment, the court indicated the mandatory duty the protective member state notifying the member state with jurisdiction, of any protective measures taken: “It follows that, in so far as the protection of the best interests of the child so require, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Art 53 of the Regulation, the court of another member state having jurisdiction.”
Local authorities must therefore act quickly in cases involving European member states. Parties to public law proceedings should consider the following issues:
● Which member state does the child originate from?
● Is the child habitually resident in England or the member state of origin. (If there is an issue the court should be asked to determine the issue as a matter of urgency.) Habitual residence will normally be determinative as to which member state has jurisdiction.
● Art 20 BIIR allows a local authority to take protective measures for a limited period of time.
● Notice needs to be given to parents in the member state of origin as to what measures have been taken and what proceedings are in existence.
● The Central Authority and court in the member state with jurisdiction must be notified in accordance with the duty imposed by Arts 53–55.
● What assessments or measures in the member state with jurisdiction need to be undertaken or put in place to ensure the return of the child to the member state with jurisdiction?
Re S may have been a unique case, whose application may well be limited within European cases in light of the European decision in C. However, in non-European cases, will a local authority have the same compulsion to return children to Hague countries such as Zimbabwe or Columbia? If not, Re S opens to door for parents to challenge a local authority by instituting Hague proceedings.
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