An English Local Authority v X & Ors

In this case, English care proceedings have been issued in respect of X, a Scottish boy of primary school age, who has been in foster care in England since July. When the proceedings began, X was (as I have determined in an earlier judgment) habitually resident in Scotland. This court’s jurisdiction is therefore limited to taking provisional, including protective, measures.

X’s circumstances are very unusual and it is not appropriate to give details that might identify him. A decision urgently needs to be taken about his future, and in particular whether he can safely grow up within his family. The represented parties submit that this is a decision that should be taken by the Scottish courts, but there are currently no proceedings in Scotland and the relevant Scottish local authority has not so far been willing to place matters before the Scottish court, arguing that it has no power to do so as X is in England.

The parties to these proceedings submit that the Scottish court is best placed to determine X’s future for these reasons:

I accept the validity of each of these arguments individually. Collectively, they compellingly demonstrate that it is in X’s best interests that his future should be decided by a Scottish court if this can be achieved. There are in my view no good arguments in favour of the English court making a decision of such significance for X, even if it had the power to do so.

What then is the state of English law in relation to the transfer of these proceedings to Scotland? I am afraid that it mirrors the situation on the ground and that X is also marooned legally. I reach that conclusion having heard submissions from the represented parties and read the submissions of Mr Simon Murray as the Advocate to the Court, instructed by the Solicitor General.

The submissions consider the provisions of the Family Law Act 1986 (‘the FLA’) and of the Council Regulation (EC) No. 2201/2003, known as Brussels II Revised (‘BIIA”).

The FLA governs the jurisdiction of the courts of the three territories of the Untied Kingdom (England and Wales, Northern Ireland, Scotland) in relation to private law matters. It advisedly does not apply to care proceedings: Re M (Care Orders: Jurisdiction) [1997] Fam 67, considering Re R (Care Orders: Jurisdiction) 1995 1 FLR 711; I prefer the arguments of the parties to those of Mr Murray as to its ambit.

The English court’s powers in relation to care proceedings are to be exercised in accordance with BIIA: see most recently the decision of the Court of Appeal on 2 November 2015 in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 at paragraph 67: “It is well established by both European and domestic case-law that BIIA applies to care proceedings: see, in particular, Re C (Case C-435/06) [2008] Fam 27, [2008] 1 FLR 490.”

Article 8 of BIIA provides that the courts of a Member State shall have general jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. That, as I have found, is not the case here.

Article 13 provides that where a child's habitual residence cannot be established, the courts of the Member State where the child is present shall have jurisdiction. Again, this does not apply.

Article 20 provides that in urgent cases, the provisions of the Regulation shall not prevent the courts of a Member State from taking provisional, including protective, measures as may be available under its law, even if the courts of another Member State have jurisdiction as to the substance of the matter. This is the basis on which this court now acts.

In the light of my conclusion about this court’s lack of general jurisdiction, Article 15 is not engaged, but I address it briefly in deference to the detailed arguments that I have heard.

Article 15 provides that the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State, or (b) request a court of another Member State to assume jurisdiction. Since this court does not have “jurisdiction as to the substance of the matter”, otherwise referred to as general jurisdiction, this power does not arise in X’s case.

It is settled law that Article 15 applies to public law as well as private law proceedings: Re T (A Child)(Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC (Fam) 521 per Mostyn J, and Re LM, HSE for Ireland v AM and others [2013] EWHC (Fam) 646 per Cobb J.

Leading and junior counsel for the local authority note that the received orthodoxy is that Article 15 does not apply as between territories of the United Kingdom. They refer to observations to this effect made by the Court of Appeal in Re W-B (A Child) (Family Proceedings: Appropriate Jurisdiction within UK) [2012] EWCA Civ 592 and by Baker J in Re PC, YC and KM (Brussels IIR: Jurisdiction within the United Kingdom) [2013] EWHC 2336 (Fam) otherwise known as London Borough of Camden v Carratt and Others.

Counsel also note that the preponderant view elsewhere in the UK favours the same result: Re ESJ A Minor (Residence Order Application; Jurisdiction within United Kingdom; Applicability of Council Regulation (EC) No 2201/2003 [2008] NI Fam 6, a decision of Morgan J in the High Court in Northern Ireland. This position has been endorsed by the Sheriff’s Court in Scotland by Sheriff George Jamieson in GOT v KJK on 12 December 2012.

Counsel nonetheless develop the argument that the terms of Article 66 allow for Article 15 to apply as between the constituent parts of the United Kingdom. This argument has been rejected by Morgan J and by Baker J for reasons with which I respectfully agree. As Mr Murray observes, the law has now crystallised. Article 15 provides for transfer between Member States, not between territorial units within Member States.

In any case, it would be unfortunate and lead to futile results if the Regulation was to be interpreted differently in the different parts of the UK. That would be a situation that could only be resolved by the Supreme Court.

As has fairly been pointed out during these proceedings, it might be thought anomalous that there is no internal UK procedure akin to Article 15, and a priori that there is no such procedure in the more striking case such as this where the requesting territory has no general jurisdiction while the requested territory does. As a result, a child such as X is deprived of a judicial determination in the requested territory as to whether a transfer of the proceedings should be accepted.

The Scottish local authority has expressed the view that X’s move to England was a permanent move away from its area. It points to the terms of the Children (Scotland) Act 1995, the parallel legislation to the Children Act 1989, which imposes duties in relation to children “within its area”. It contends that X is not in its area and says that it will therefore not be planning for the child. It offers its co-operation to the English local authority, in effect as an assistant, not as a principal.

In my judgment about habitual residence, I have respectfully rejected the assertion that X moved permanently to England or that he is habitually resident here.

As to the extent of the powers and duties of the Scottish local authority, it is not of course for this court to seek to interpret Scottish legislation. Mr Murray nonetheless draws attention to the duty of a Scottish local authority under s.22 of the Children (Scotland) Act 1995 to “safeguard and promote the welfare of children in their area who are in need”. This provision is functionally identical to the equivalent provision at s.17 of the Children Act 1989, which was recently considered by the Court of Appeal in R (J) v Worcestershire County Council [2014] EWCA Civ 1518. The court rejected a local authority’s assertion that it was unable to provide services to a child during periods when he was out of its area due to his family’s travelling lifestyle. The expression “within their area” was interpreted purposively to support the child welfare purposes of the legislation.

These proceedings have now reached a hiatus. In common with the two previous judges who have examined X’s case, I consider that the Scottish court would be better placed to make the important decisions that he needs. That being the case, this court must take such steps as it can to explore ways of achieving this. As the Guardian submits, X is in a legal “no-man’s land”. The decisions that need to be taken are difficult enough without this complication: if the situation cannot be resolved, X will be at a disadvantage that may have lifelong consequences.

The English local authority submits that this disadvantage may be such as to amount to a breach of X’s right to a fair hearing under Article 6 of the European Convention on Human Rights. I do not think it necessary to determine that matter at this point, but it may become necessary if the situation is not urgently resolved.

The English local authority has also invited the court to consider a stay of these proceedings, but that would only cause delay. This court will continue to act as necessary in the short term until the issue of jurisdiction is resolved.

I will direct that this judgment, and the unpublished judgments on the issues of habitual residence and service of the proceedings upon X’s father, should be disclosed by the English local authority to the Scottish local authority. I will send the judgments to the Office of International Family Justice so that they can be disclosed to any bodies that might in its view be able to assist. These might include the Central Authorities in England and Scotland and the National Convener of Children’s Hearings in Scotland. I will also send a copy of the judgments to the President of the Family Division.

I respectfully hope that this court’s conclusions on habitual residence and on X’s pressing need for the best available decision about his future will assist authorities elsewhere to give further consideration to this matter, though that is, of course, entirely a matter for them. If this court can assist by disclosing other documents from these proceedings, it will gladly do so.

I thank the parties and the Advocate to the Court for their assistance. Their submissions have, in some cases at my request, ranged more widely than is apparent from this judgment. A number of arguments were predicated on other outcomes to the habitual residence issue, and I have in the end restricted my consideration to matters that bear directly on X’s actual predicament.