AB, (A Child), Re

In remitting this case from the High Court to Sheffield County Court for a decision as to the future care of the appellant’s four-year-old daughter, Hedley J included in his order the following paragraph:

“9.

This matter shall be listed for a Final Hearing before Her Honour Judge Shipley, at the Family Hearing Centre, 48 West Bar, Sheffield, S3 8PH on the 18^th May 2012 at 10.00am marked as a clean start (as far as is possible) with a time estimate of 1 day, to determine the following issues:

a.

whether the 1^st Respondent mother is able to care for the child AB (dob [a date in].08), and in the event that she is not;

b.

the practical arrangements for compliance with the Article 56 request, likely to be made, by the Lithuanian Authorities, in the event that the assessments in respect of the 1^st Respondent mother are negative and the decision of the Court is that the child cannot be returned to the 1^st Respondent mother.”

The reason for this provision was that the child’s mother, the present appellant, is a Lithuanian national who since 2010 (that is to say, for half the child’s life) has lawfully resided in this country by virtue of Lithuania’s membership of the EU. For reasons which it is unnecessary to go into, but which were a direct response to a concerned communication from the Lithuanian authority responsible for child welfare, the local authority on 3 May 2011 obtained an emergency protection order in consequence of which the child has since been continuously in foster care.

Because it was believed, quite possibly rightly, that the Lithuanian authorities were going to seek the child’s return to Lithuania for placement there, Judge Shipley transferred the case to the High Court. It was there that Hedley J made the order for remission that I have mentioned. In so doing he said this:

“It is going to become increasingly common for the complex issues in these types of cases, where care proceedings are issued where the child is a part of the European Community Country, this is s such a case, both the mother and AB are Lithuanian citizens.

The Lithuanian Government is actively involved in these proceedings. It appears they are content for this court to adjudicate whether AB can be returned to her mother or not, but if she is not they have made clear they want to undertake her replacement in Lithuania.

They are entitled to do so under Article 56, which they have indicated they will do. There is no concomitant obligation on English authorities to make enquiries into the provision and arrangements to be made by the requesting state under Art. 56, the reason being that there has to be mutual respect between member countries and if they assert they are able to place then so be it, unless there is manifestly evidence to the contrary.

It is quite clear if we use parity of reason, the use of the abduction regulations and in particular Article 11 (4), the Courts in this country are required to accept the assertion that the Courts of the requesting state can meet the child’s needs.

I do not think that the Local Authority or the Children’s Guardian are under any obligation to seek any information other than an Article 56 request.

The mother has asked that her own mother be assessed, this request needs to be transmitted to the Lithuanian Authorities and then it is a matter for them.

Accordingly the issue for HHJ Shipley is “Is it consistent with the interests of the child to be returned to the mother, if yes, then the child will be returned (possibly with some supervision) and the proceedings end, but if, as seems highly likely, that can’t be done, then the Lithuanian Authorities shall be informed and the Article 56 request should be complied with, subject to travel and handover arrangements.

If an Article 56 request is not made then normal enquiries about placements will have to be made.

It is very likely that this is where we will be in a year or twos time, as the role of the court will be focused on whether the child should be returned or not and responsibility passes from the Court to the requesting state.

That is the way in which AB’s case should be progressed.

I had a conversation with HHJ Shipley yesterday and indicated that I would be giving a judgment today in the fond hope that she may find it helpful. I would invite an agreed note of the judgment to be submitted for approval along with the Order and then there will be no need to go to the expense of obtaining a transcript.”

Council regulation (EC) 2201/2003 concerns “jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility”. It thus has a wide scope which includes child abduction issues. But Art.56 reads as follows:

Article 56

Placement of a child in another Member State

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.

4.

Where the authority having jurisdiction under Articles 8 to 15 decide to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

Our present concern is with paragraphs (1) and (2) only. These give no member state an entitlement to call for the placement of a child within its jurisdiction. Nor therefore do they eliminate or constrict the domestic court’s ordinary obligation to make its own judgment of where the child’s best interests lie. The sole purpose and effect of art 56(1) and (2) are to require a court which is considering placing a child in institutional or foster care in another member state to consult any authority responsible for child placements in that member state and not to decide on any such placement without that authority’s consent. In short, it is to ensure that children at risk are not sent into a transnational void.

The provision is not helped by the vocabulary in which it is cast. The English version speaks of an “authority having jurisdiction” and of a “judgment on placement”, where the French more appropriately speaks of “une … autorité compétente” and of “La décision sur le placement”. But both versions tend to mislead by the use in paragraph (2) of the terms “requesting” and “requested” state, when no request is involved. What is meant are, respectively, the consulting state and the state consulted.

The meaning of art. 56 is fully and authoritatively explored and explained by the ECJ in Health Service Executive v SC and AC (C-92 / 12PPU, 26 April 2012), at para 62ff. It is not necessary to do more here than cite paragraph 80:

“80.

The aim of Article 56 (2) of the Regulation is, first, to enable the competent authorities of the requested State to give or refuse their consent to the possible admission of the child concerned and, secondly, to allow the courts of the requesting State to be satisfied, before taking the decision to place a child in institutional care, that measures will be taken in the requested State to permit placement in that State.”

The error made in this regard by Hedley J, whose order Judge Shipley has rightly treated as binding on her, was capable of having substantial practical and legal consequences. In March this year the Lithuanian authority reported that no familial placement could be found for the child, who is quite badly disturbed, so that she would be reliant, if returned, on foster care and whatever treatment is available. The local authority now considers that she cannot safely be returned to her own mother, and since her father has played no role in her life, return to Lithuania is under consideration. In this connection art 56 will have a role, but it is the consultative role described above, not a role which ties the hands of the English court or excludes or reduces its obligation to arrive at its own judgment as to the child’s best interests.

The parties have all asserted or accepted that the judgment and order are to this extent in error. MacFarlane LJ in granting permission to appeal stayed paragraph 9(b) of the order but encouraged resolution of the question set out in paragraph 9(a). A number of suggestions were before us as to directions which this court should or might give in disposing of the appeal, but it seemed to us that, with the high level of expertise at the bar of the court, directions should be able to be agreed by counsel, leaving as much as practicable to be determined in the usual way by the circuit judge. This has now been done, and we are obliged to counsel for their assistance.

We will therefore allow the appeal to the extent of directing the deletion of sub-paragraph (b) of paragraph 9 of Hedley J’s order. An edited version of the agreed directions for the further conduct of the case is annexed to this judgment.