European Nationals in UK Family Proceedings - some clarification.

25 Feb

Those of you who read the many newspaper and other media reports about Alessandra Pacchieri, the Italian national whose baby (identified in the reports as P) was taken into care by Essex County Council following a caesarean section while she was detained under the Mental Health Act 1983, might recall that certain commentators got very exercised by the fact that P was/might be an Italian national and yet it was the English courts that were making decisions about his future (even if that meant overlooking the inconvenient fact that P had never been to Italy). The same commentators were also very exercised by the fact that, so they maintained, the Italian consular authorities in the UK were not informed about either Ms Pacchieri’s detention in a mental hospital or the public law proceedings about P.

Read More

Royal Courts of Justice

Those of you who read the many newspaper and other media reports about Alessandra Pacchieri, the Italian national whose baby (identified in the reports as P) was taken into care by Essex County Council following a caesarean section while she was detained under the Mental Health Act 1983, might recall that certain commentators got very exercised by the fact that P was/might be an Italian national and yet it was the English courts that were making decisions about his future (even if that meant overlooking the inconvenient fact that P had never been to Italy). The same commentators were also very exercised by the fact that, so they maintained, the Italian consular authorities in the UK were not informed about either Ms Pacchieri’s detention in a mental hospital or the public law proceedings about P.

As usually happens when either Christopher ‘asbestos is harmless’ Booker or John ‘banned from Mumsnet for drinking and blogging’ Hemming get involved, the truth was the first casualty of their on-going war on the family justice system (for instance, both of them conspicuously forgot to mention that Ms Pacchieri’s 3 other children had been removed from her care by the Italian authorities because of her mental health difficulties). Ultimately, it proved impossible to ascertain from press reports what the Italian authorities knew (or didn’t), when the UK authorities told them (or didn’t), and what difference if any difference it would have made to the outcome of the case had the Italian authorities been told (if they weren’t).

In the end, even Munby P (who’s usually more than happy to play to the tabloid gallery) expressed his frustration with the way the story had been reported, branding the Daily Mail’s coverage ‘tendentious’ and, in parts, just plain wrong.

In the circumstances, it is not particularly surprising that he took the opportunity in Re E (A Child) [2014] EWHC 6 (Fam) (heard on 17-20 December 2013) to clarify what should and should not happen in cases involving European nationals who get caught up in the English family courts, particularly in care proceedings.

The facts of the case are these: E was born in 2001 in this country to a Slovakian mother and a British father. E had dual Slovakian/British citizenship but had lived here all his life.

On 19th March 2013, the local authority in whose area E lived began care proceedings in relation to him. On 21st March 2013, the matter came before a district judge in the county court and an interim care order was made. On 22nd April 2013, the interim care order was renewed and the matter was transferred to the High Court because of the complex nature of the issues involved. A hearing was listed for 3rd May 2013.

On 1st May 2013 (without prior sanction from anyone), E was transferred to hospital and was detained pursuant to section 2 of the Mental Health Act 1983 for a period of assessment.

On finding out what had happened, the local authority applied to court and E was made a ward. That order was renewed on 3rd May 2013 when the interim care order was discharged and extensive directions were given.

Two further hearings were followed by a third on 15th August 2013. By this time, mother had decamped to Slovakia and had stirred things up in the Slovakian press and on social media. As a result of that interest, Mr Pokojny, a diplomat based at the Slovakian Embassy, attended court on 15th August 2013 and was given permission to act as an observer in the proceedings. Unsurprisingly, given the interest that the case had aroused in Slovakia and the involvement of the Slovakian Embassy, the case was listed before Munby P on 21st August 2013.

Before that hearing, the Slovakian authorities requested information about the case from the English authorities pursuant to Article 55 of the Brussels II (revised) Convention (‘BIIR’).

On 21st August 2013, Munby P allowed Mr Pokojny to sit in court and to attend all future hearings. He also make various directions about the disclosure of information about the case to the Slovakian authorities as well as giving mother’s English solicitors permission to come off the record.

Further hearings followed. Mother instructed English solicitors but refused to attend any of the hearings or, indeed, to return to this jurisdiction.

On 23rd September 2013, the Slovakian authorities confirmed that they did not intend to dispute the jurisdiction of the English courts to deal with matters and said that they would cooperate with the English authorities if that became necessary to ensure E’s welfare.

At the final hearing in December 2013, Munby P approved a care plan with placement with a maternal aunt under a full care order. It is not entirely clear from the judgment but the aunt appears to be living in Slovakia.

As part of his judgment, Munby P discoursed at some length about 4 points that will no doubt become of increasing significance given the number of families from other European countries that are now or are likely to be living here in future.

Point 1 – A General Observation
English courts must proceed on the basis that the social and judicial services in every member state of the European Union are just as competent (or not) as the social and judicial services in this jurisdiction. English courts cannot therefore proceed to deal with matters simply on the basis that views of English judges and/or English social workers are inherently superior to their French, German, Dutch, Cypriot etc equivalents.


Point 2 – Brussels II Revised
Part IV of the Children Act 1989 says nothing about the jurisdictional reach of the English courts in relation to public law proceedings. Case law indicates that what normally founds jurisdiction in such cases is either habitual residence or physical presence in England and Wales at the relevant time.

BIIR fundamentally modifies that in the case of children from other European countries. Article 8(1) provides that jurisdiction is dependent on habitual residence. Physical presence in England and Wales is not sufficient to establish the jurisdiction of the English courts and, in every case where there is a European dimension, the habitual residence of the child in question must be considered.

The test for habitual residence is set out in A v. A (Children: Habitual Residence)(Reunite International Child Abduction Centre & Others intervening) [2013] UKSC 60.

In addition to Article 8(1), the courts of member states will have jurisdiction to deal with children matters if they are exercising jurisdiction on an application for divorce, legal separation, or marriage annulment (Article 12) or where the child’s habitual residence cannot be established (Article 13(1)).

If the courts of none of the member states has jurisdiction, Article 14 says that jurisdiction in each state is to be determined by the laws of that state.

Article 20 allows the courts of the member states in urgent cases to make provisional, including protective measures until such time as the court of another member state that has jurisdiction has taken appropriate measures to protect the child.

Even if the courts of a member state have jurisdiction, Article 15 says that they must consider whether they should ask the courts of another member state to assume jurisdiction because (a) the child has a particular connection with that country, (b) the other country would be better placed to hear the case, and (c) it is in the best interests of the child.

Article 17 obliges courts without jurisdiction to declare that this is so where they conclude that the courts of another member state do have jurisdiction.

In future, both judgments and orders in cases with a European dimension must explicitly mention of those provisions of BIIR that have led either to the acceptance or the rejection of jurisdiction and, in the case of Article 15, the basis on which the court has decided (or not) to exercise its powers.

Point 3 – Vienna Convention
Articles 36 and 37 of the Vienna Convention on Consular Relations requires signatory states to allow consular officials access to the citizens of their home country in certain circumstances.

Article 36 concerns adults who are arrested, committed to prison or to custody pending trial, or who are detained in any other manner. If a foreign national requests it (he must be told that he has the right to make the request), the authorities in the state in which he/she is detained must without delay inform the authorities of the person’s home state that they have been detained and give consular officials from the home state access to the person and allow them to arrange for the detained person to be legally represented.

In the case of minors (or other person lacking full capacity), if a guardian or trustee is appointed to represent the interests of a minor, the authorities of the state appointing the guardian or trustee must without delay inform the minor’s home country of that fact.

In future, Munby P said that courts might be the competent authority responsible for reporting the appointment of a guardian/trustee to the consular official of a minor’s home state.

In any event, the courts generally should not impose or permit any obstacle to free communication and access between a foreign national and the consular authorities of his/her home national. In family cases, that means that foreign nationals generally cannot be stopped from talking about their case to consular officials who are assisting them. Such officials should generally be allowed to act as a non-participatory observer in any hearing.

Point 4 – Reporting Restrictions
The final point that Munby P makes is in relation to attempts by the English courts to impose reporting restrictions on foreign media outlets. Basically, this is not permitted although the courts have the ability to make orders restricting the reporting of information about cases with a European dimension in England and Wales.

Therefore, you could (if you were so minded) read all the gory details of a case involving a French child that was tried in England on the internet site of a French newspaper while being simultaneously unable to read anything about it in the English press. I wonder how long that rule will last and how rigidly it will be enforced, particularly if the child is returned to his/her home jurisdiction.

Graeme Harrison

For more information on Family Law, click here.