C (Hague Convention Application: Interim Powers), Re

On 17th October 2003, when adjourning to a later date the substantive hearing of this originating summons brought under the Child Abduction and Custody Act 1985 (CACA), I also gave directions for a hearing for consideration of the nature and extent of the court's ability 'to require a child to be accommodated or looked after by or on behalf of a local authority'. I invited Cafcass Legal to assist the court on that jurisdictional issue, and heard argument on the question on 23rd and 27th October 2003. I received very careful and helpful written and oral submissions from Mr Henry Setright QC on behalf of the plaintiff father, from Miss Alison Ball QC on behalf of the defendant mother, from Mr David Turner QC who was instructed on behalf of the local authority in question, the Metropolitan Borough of Wirral (which I will call LA), and from Mr Michael Nicholls as the friend of the court instructed by Cafcass Legal.

This judgment contains my conclusions on the interesting and important issues which arose for consideration for the first time (so far as anyone present could ascertain) concerning the basis and extent of the court's power to give directions under section 5 of CACA, which is in these terms:

Interim powers

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

The factual background which gives rise to the issue can be simply stated. The American father and the Irish mother married in California in 1994. Their only child S was born in the same year and is now nine. Until December 1998 the family home was in California, but in that month the mother kept S in Ireland after the end of an agreed holiday there. The father instituted Hague Convention proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It was envisaged that mother and child would both arrive there in time for a hearing before the California courts later that month, but the mother did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in the father's favour. What had apparently happened was that shortly after her and the child's return to America the mother re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than four years later. Prior to the first hearing before me on 17 October S had on 15 October been removed from her mother and placed pursuant to a police protection order in foster care provided through the good offices of LA.

That order was due to expire later on the evening of the first day of that hearing, and Mr Setright on behalf of the father invited me to give directions to ensure, so far as possible, that mother and child should still be within the jurisdiction for the duration of the Hague proceedings, by continuing (at least for the time being) the separation of mother and child so as to prevent yet further removal and disappearance. It was then that I expressed concern about the potential clash between the power, if it existed, to give such directions under section 5, on the one hand, and the scheme and some particular provisions of the Children Act 1989 (CA), on the other. So far as the practical outcome was concerned, the mother's counsel (then Mr Gatenby) indicated that she was prepared to accept a direction for LA to continue to look after S, and LA helpfully agreed that they would accept such an invitation from the court notwithstanding the fact that (from their perspective) they saw no welfare reason sufficient to justify continuing separation of mother and child.

It is a very common, if not indeed an almost invariable, practice in proceedings in this jurisdiction brought under CACA where wrongful removal or retention are alleged and an order for the return of the child forthwith to the territory of the requesting State is sought, that protective measures are put in place designed to prevent any disappearance or removal of the child from England and Wales designed to thwart the proceedings. Thus, routinely, orders are made for passports and travel documents of both child and accompanying adult to be handed over and retained to the order of the court, and injunctions are granted to inhibit removal of the child from the address at which he or she has been located, and restraining removal from England and Wales. The Port Alert procedure can be activated in cases where there is a 'real and imminent' risk of removal. Sometimes further requirements are imposed, such as an obligation to report at specified times to a local police station. As it happens in this case a very innovative suggestion was made by the mother herself, that she should voluntarily subject herself to electronic tagging: a topic with which I will deal below.

In a very small minority of cases, however, powers such as these may not appear adequate to meet the degree of risk which pertinent circumstances suggest. Thus, here, this mother had for more than four years gone to considerable lengths to escape detection. Her roots and her immediate family are in the Republic of Ireland, a country to which travel from Liverpool is easy and unregulated. Thus the removal of passports might not to a determined or to a desperate individual represent any great or effective obstacle to flight and disappearance. That certainly seemed to me to be the position, on the face of it, as this case presented itself to me that first Friday afternoon when I was being asked to reunite S after two days of separation from her mother. If the mother and LA had not on that occasion been prepared to accede to her continuing foster placement until alternative secure protective measures were in place, then the question of the extent of the court's powers would have been in sharp focus. (In fact, by the time of the conclusion of the hearings which took place before me what were, in my view, satisfactory alternative security arrangements were stipulated which shortly thereafter led to the return of S to her mother's care.)

Analogous problems can arise in rare cases of perceived 'high flight risk' when a direction for a child's collection is issued to the Tipstaff, authorising him not only to locate but also to remove a child. Because of the level of risk it may be necessary for such removal to take place at a time when there is no suitable alternative adult carer known to the family, and where the left-behind parent is either unable to travel to assume the child's care or has not yet arrived, or where the circumstances of the case would suggest that that would be inappropriate. It has certainly been the practice (but I emphasise again that it is rare) for the Tipstaff in those situations, with the approval of the judge, to invite the local authority in whose area the child has been found to assume the responsibility of making arrangements for the child's care for what is almost invariably a quite short period of time. The necessity for someone to make such arrangements can arise in other diverse circumstances, such as where the parent has been arrested and retained in custody. These are but examples which tend only to underline what may be obvious: that the need to arrange for a child to be cared for does arise from time to time in Hague Convention cases. In practice what has hitherto happened (such at least was the common experience of counsel and the solicitors involved in this case) is that local authorities have accepted the task without demur. Given then that the need exists, upon what legal foundation can it be met?

It is convenient first to consider the treaty obligations which Parliament undertook in ratifying the Hague Convention (and the European Convention), for it was in order to enable the United Kingdom so to ratify that CACA was passed: see the preamble to the Act. In this connection it is helpful to remind oneself of the objects of the Hague Convention as set out in its Preamble and in Articles 1 and 2 (notwithstanding that none of these is reproduced in Schedule 1 to CACA). Section 1(2) of the Act specifies that 'the provisions of [the] Convention set out in Schedule 1 to this Act shall have the force of law in the United Kingdom', but that does not mean that one can or should disregard provisions which are not there reproduced but which remain a legitimate aid to interpretation. Mr Nicholls drew to my attention Articles 26 and 27 of the Convention on the Law of Treaties between States and International Organisations or between International Organisations first opened for signature in Vienna in March 1986 (the Vienna Convention) which, he submits, represents the codification of public law principles to which it is legitimate to have regard notwithstanding that although this Convention was ratified by the United Kingdom in June 1991 it has not yet entered into force. Article 26 proclaims that 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith.' The first paragraph of Article 27 stipulates that 'A State party to a treaty may not invoke the provisions of its internal law as justification for its failure to perform the treaty.'

The Preamble to the Hague Convention recites that its States signatory desire '… to establish procedures to ensure [the] prompt return to the State of their habitual residence' of children wrongfully removed or retained elsewhere. Articles 1 and 2 are in these terms:

Central Authorities are the building-blocks with which the Hague Convention cements together the internationally protective wall of its member states, now totalling 74 in number. Their function is 'to discharge the duties which are imposed by the Convention upon such authorities': see Article 6. Article 7 requires (so far as is relevant for present purposes) that:

Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures – …

b)

to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

For this purpose clearly one competent authority is the High Court with its concentrated and exclusive jurisdiction in applications made under CACA (see section 27(2)). As Mr Nicholls submitted, no directly applicable jurisdictional code is established by the Convention, and the nature and extent of the 'provisional measures' to be promoted are left to be settled as a matter of domestic law in each of the Contracting States.

This is further underlined at paragraph 91 of the Explanatory Report of Ms Elisa Péres Vera, where she states:

In addition to finding the whereabouts of the child, when necessary (sub-paragraph a), the Central Authority must take or cause to be taken any provisional measures which could help prevent 'further harm to the child or prejudice to interested parties' (sub-paragraph b). The drafting of this sub-paragraph clearly brings out once again a fact which was emphasised above, namely, that the ability of Central Authorities to act will vary from one State to another. Basically, the provisional measures envisaged are designed in particular to avoid another removal of the child.

I observe that in the French text both of the Convention and of the Explanatory Report it is the phrase 'mesures provisoires' which is rendered in the English translation as 'provisional measures', that is to say interim measures.

It is clear that section 5 of CACA reflects the aim of Article 7(b) and the explanation afforded at paragraph 91. The powers are to be used in the interim pending the determination of the application, and the purpose of the power to give interim directions is to secure the welfare of the child concerned or to prevent changes in the circumstances relevant to the determination of the application. That last phrase clearly meshes with the objective referred to in the Report, 'in particular to avoid another removal of the child'. FPR 1991, rule 6.13 makes manifest that in case of urgency such an application under section 5 (or under section 19 which is the corresponding provision in the case of an application for registration or enforcement of a custody order under the European Convention) may be made without notice which is (as I mentioned) the normal practice at the time of service but before issue of the Originating Summons, to secure orders to locate, if necessary to collect, and to stabilise the child. It is right that this should be so, for there could be no change of circumstance more injurious to the determination of the application than the onward removal of the child. Nor should such robust opening manoeuvres on the part of the plaintiff as are customary in this jurisdiction preclude amicable settlement or, in appropriate circumstances, a mediated outcome.

The scope of section 5, against this background, and in the light of its language, is very broad indeed. Unless therefore there are legitimate and well-founded restraints on its exercise which arise from the consideration of its interrelationship with other statutes and other sources of law, I see no reason in principle why it should not extend to an invitation (such as is in issue in this case) to a Local Authority to assist the court in making arrangements for the child in the interim, including arranging for people with whom and for a place where the child may live. I am reassured by the fact that, in Re N (Child Abduction: Jurisdiction) [1995] Fam 96 (also reported as A v A (Abduction: Jurisdiction) [1995] 1 FLR 341) Wilson J with reference to (in particular) section 5 of CACA said:

I interpret the language both of the Articles of the Convention and of the text of the Act as being deliberately wide in its instruction to this court to co-operate with all other Contracting States in making orders which will secure the return of wrongfully taken children; and in this case its duty can be discharged only by making the orders for the boy's initial restoration into his mother's care in England if, as there are substantial grounds for expecting, he does land here with his father during the next few days.

Finally (in this context), in relation to the statutory scheme introduced to enable the courts to play their part in fulfilling the State's treaty obligation under the Hague Convention, section 9 gives effect to the requirement of Article 16, which latter provision imposes upon the judicial authorities a moratorium in decision-making 'on the merits of rights of custody' (a Convention term of art: see Article 5) once notice of wrongful removal or retention has been received and pending determination that the child is not to be returned (or, but this would scarcely happen in this jurisdiction, unless a Hague application is not lodged within a reasonable time after such notice is received). Section 9 spells out what types of order under what legislative provisions are to be construed as 'decisions on the merits of rights of custody' for the purposes of Article 16. This section includes references to provisions of CA substituted, upon its implementation in October 1991, for references to earlier legislation which it repealed.

The purpose of section 9 is thus directly related to the treaty obligations under Article 16, and fits neatly and necessarily with the philosophy of the Convention, that merits disputes should be decided in the court of the country of the child's habitual residence upon the child's return there if and when an Article 12 order for return is made. What section 9 does not do is to trespass in any way on the section 5 powers which are not concerned with the merits of rights of custody, but rather with securing the immediate welfare and the preservation within the jurisdiction of the child pending the outcome of the Hague application.

By way of helpful and to some extent illuminating comparison I was shown how some other common law jurisdictions have dealt with the necessary assimilation of their domestic law and procedures with the aims and the obligation of the Hague Convention. Thus in Ireland section 12 of the Child Abduction and Enforcement of Custody Orders Act 1991 is very largely in terms identical to our section 5. But in addition it explicitly envisages interim directions being given where an application is about to be made, as well as where it has been made, and that the court may do so of its own motion, and may do so ex parte in a case of urgency.

In New Zealand the operative parts of section 15 ('Interim Powers') of the Guardianship Amendment Act 1991 are in identical terms to our section 5. Furthermore, section 25 confers express jurisdiction to make orders preventing removal of a child to defeat an application where there are reasonable grounds for believing that any person is about to take a child out of New Zealand with that intent.

In Hong Kong the domestic legislation implementing the Hague Convention is the Child Abduction and Custody Ordinance of which section 7 ('Interim Powers') is essentially identical to our section 5. There too the practice is to seek a 'stop order', that is to say an order preventing removal from Hong Kong, in almost every case and on a without notice basis. This automatically triggers the equivalent of a Port Alert. This is perhaps more likely to be effective in Hong Kong which has not suffered the benefits (or, in the present context, the disadvantages) of the Schengen Agreement.

In America (as I gather from a 1997 publication entitled International Child Abduction: Guide to Handling Hague Convention Cases in US Courts written by The Hon. James Garbolino, who is the Hague Liaison Judge for the United States) 'provisional remedies' are dealt with on a federal basis by a provision of the International Child Abduction Remedies Act. Subject to a reservation prohibiting an order for the removal of a child from the person having physical control of the child unless the applicable requirements of State law are satisfied, the court has power to 'take or cause to be taken measures under Federal State law, as appropriate, to protect the well-being of the child involved or to prevent the further removal or concealment before the final disposition of the petition.' At page 60 of this work Judge Garbolino furthermore makes the point that the Article 7(b) requirement for Central Authorities 'to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures' is interpreted as allowing the Central Authority 'to call upon the individual State child welfare authorities to provide whatever protection is deemed necessary.' The placement of children in a foster home is cited as one protective measure to which recourse has been had.

Mr Nicholls also drew my attention to the distinctive route chosen by Australia, where Regulations provide a complete code without incorporating the Convention by reference. Regulation 14 of the Family Law (Child Abduction Convention) Regulations 1986 enables the Central Authority to apply, amongst other protective orders, for 'an order requiring such arrangements to be made as are necessary for the purpose of placing the child with an appropriate person, institution or other body to secure the welfare of the child pending the determination of [a Hague return] application …'.

Since the submissions to me were concluded I have made my own enquiries (so that the results are therefore subject to the caveat that none of the parties has had an opportunity to investigate or comment upon them). Thus I have it on the authority of M. Yvon Tallec (Premier Substitut du Procureur, and Chef du Parquet des Mineurs at the Tribunal de Grande Instance at Paris) that in the context of a Hague application and in circumstances such as those under consideration resort would be had to Articles 375 and following of the French Code Civil. These are of general application, and thus no specific provisions are in place equivalent to section 5 of CACA. Their effect enables the Juge des Enfants to order 'placement provisoire' in a case where the child is in danger from one or both of his parents, for instance of removal. The child would then become the responsibility of the local Département's organisation, l'Aide Sociale à l'Enfance. In an emergency the Procureur can himself direct that the local authority or some other institution shall look after the child. In such a case there are then 8 days during which the Juge des Enfants must be seized of the matter, whereupon he or she can then give appropriate directions in accordance with the general law applicable to such situations.

The position in Germany was explained to me by Judge Eberhard Carl, a judge of the Oberlandesgericht who is currently seconded to the German Justice Ministry where his areas of involvement include Hague cases. He was not aware of an order such as that under consideration ever having been made, but referred me to a provision (contained in paragraph 6(2) of the Sorgerechtsübereinkommens-Ausführungsgesetz (SorgeRÜbkAG) which is specific to Hague and European Convention cases ) which is to the effect that in order to prevent or avoid a dangerous situation for a child the court may make a provisional order at the request of a party or of its own motion. Where a child is in danger the court may in principle (but only as a last resort, which caveat derives from the general law) order that the child is removed from the abducting parent and request a local authority to arrange for the child to be looked after.

In short, the primary submission of Mr Nicholls was that where domestic legislation is passed to give effect to an international convention, there is a presumption that Parliament intended to fulfil its international obligations: and that section 5 of CACA did precisely that in terms of the duties which arise pursuant to Article 7(b).

These submissions and this outcome to what one might call the first part of the question were in line with the arguments advanced by Mr Setright. He, furthermore, submitted that in the light of the treaty obligations any construction that stopped short of permitting and providing for a remedy such as here postulated could give rise to a breach of Articles 8 and/or 6 of the European Convention on Human Rights: as the Hague Convention as a whole is intended to protect and preserve the right to family life, and the elimination of the risk of further flight is critical to the ability to enjoy a fair trial. Thus, he suggested, if I were to be constrained to conclude in the light of other legislation that what he maintained was the clear import and intent of section 5 was impaired, then a situation of incompatibility would arise, with the concomitant obligation so to declare under the Human Rights Act 1998. However, in the light of my ultimate conclusion this daunting scenario remains over the horizon.

The next part of the question is indeed to consider whether other legislation, and in particular any provision of CA, superimposes an embargo upon what I construe to be the very permissive and broad terms of section 5 of the antecedent 1985 Act.

Miss Ball on this topic commenced from the viewpoint which had first aroused my anxiety: that the 1989 Act swept away the competing and fragmented approach to both the private and the 'local authority care' or public law aspects of child law, and introduced an all-embracing code which left no scope for that diversity which had proved in the past to be so counter-productive. She submitted that whether or not section 5 of CACA had had the wide scope which its words suggested (and initially she argued that it did not have that scope), and in particular the power to involve a local authority in 'minding' a child pending a Hague application, then CA had curtailed it. For the 1989 Act allows only one gateway into local authority care and only one means whereby a local authority can acquire parental responsibility for a child. Thus CA was intended to be of universal application. The difficulty with this approach is to ascertain by what means, before or after CA came into force, a child could be assisted in the manner so plainly (in appropriate circumstances) foreseen and required both by the Convention and by section 5.

Looking first at the situation after CA came into force, there are grave conceptual hurdles in the way of regarding and treating a child who is the subject of Hague proceedings as accommodated or looked after by a local authority or as being it its care. Each category connotes a status far more formal than is asked for by a court invoking the supposed power under section 5: to invite or indeed to direct the local authority to arrange and maybe to provide a safe haven for the child for a limited period and purpose. The most evidently inappropriate is a care or an interim care order which (save in the restricted circumstances envisaged by section 38(1)(b) of CA) can only be made on the application of a local authority, vests the local authority with parental responsibility, and then imposes a series of requirements upon and after reception into care which would not be apt for a child the subject of a Hague application. During the pendency of any interim care order made in such circumstances the local authority rather than the court would regulate where the child lives and with whom, and indeed the local authority could without recourse to the court choose to place the child back with the abducting parent, irrespective of the flight risk (as indeed in this case LA would have been disposed to do).

Another perceived problem might arise from the interaction of CACA with section 100 of CA. As part and parcel of the new statutory architecture previous routes into local authority care were blocked off, including for the court to order that a ward should be in a local authority's care or supervision, or that the High Court's inherent jurisdiction should be used to the same effect: see section 100(1) and (2) of CA. If, however, the court's power under section 5 of CACA is wide enough to enable the court to invoke assistance from a local authority of the sort under consideration, then that power is statutory, and not affected by the provisions of section 100.

Mr Setright pointed out that it is instructive to consider what types of order originally were (and since the implementation of CA now are) regarded as constituting decisions 'on the merits of rights of custody' for the purposes of Article 16 of the Convention and section 9 of CACA. The effect of the section is that, once Article 16 applies, no 'custody order' may be made, varied or revoked. For the meaning of 'custody order' one goes via section 27(1) to Part I of Schedule 3 to the Act. The post-Children Act position is that CA care orders are 'custody orders' for this purpose (as are pre-CA orders deemed to be care orders under the transitional provisions), residence orders, and orders made pursuant to a number of enactments repealed by CA. When, however, CACA was enacted the original Schedule contained reference to the provisions whereby in 1985 a child could enter local authority care, whether in the context of wardship, guardianship, matrimonial or inherent jurisdiction proceedings, domestic proceedings in the magistrates' court or as a result of local authority resolutions passed and juvenile court orders made under the Children and Young Persons Acts. Notice of a Hague wrongful removal or retention had the effect of staying all of these. That left section 5 as the only effective means whereby the court could and can regulate the child's welfare and circumstances in the interim, while the section 9/Article 16 stay operates.

The historical comparison also assists to understand why CA left section 5 untouched (although other aspects of CACA were subjected to amendment): the terrain over which section 5 operates was intended to be and is the same since CA as it was before.

Miss Ball revised her position over the adjournment in the light of the propositions advanced before it. Her final stance was to suggest that the combined effect of Article 16, sections 9 and 27 of CACA and Schedule 3 did not preclude an interim care or residence order being made, a submission which I am unable to accept.

Mr Turner for LA found it surprising that this question has apparently not yet arisen for judicial determination. One reason which he suggests is that consideration of the underlying jurisdiction has been unnecessary because local authorities have been willing to assist the High Court and to make pragmatic arrangements at the request or behest of the court. This is a factor which I gratefully acknowledge, in the hope that such co-operation will continue for the future. If, of course, a local authority found itself in serious difficulty in complying with such a direction it should of course have the ability without delay to refer the problem back to the court in the hope that a different solution might be found.

Mr Turner conceded that the submissions advanced by Mr Setright have force in so far as he asserts:

He however, as Miss Ball, emphasises what a section 5 direction cannot be and cannot create. In essence, it cannot be an order in wardship or under the inherent jurisdiction, nor under either the private or the public law provisions of CA. And it cannot create a care or interim care status for the child, nor an order for care and control, residence, a specific issue or prohibited steps order or any other form of injunction designed to prevent the removal of the child (CA, section 9(5)).

But the dilemma remains that neither is a section 5 CACA order one of the permissible routes whereby a child can become 'looked after' by a local authority, the status defined by CA s.22(1) to include not only children in local authority care, but also those 'provided with accommodation by the authority in the exercise of any functions which are social services functions within the meaning of the Local Authority Social Services Act 1970 ...'. Mr Turner's rigorous analysis leads him to the conclusion that the consequences in terms of the quality and nature of the duties imposed upon a local authority by a CACA section 5 order are undefined, and that there may be a lacuna in the law. Thus a direction from a court pursuant to this section to a local authority to provide physical and emotional care for a child and to secure a child's immediate welfare needs creates for the local authority a position he described as embodying 'some legal uncertainty'. Furthermore, the legal basis upon which a local authority might fund such arrangements is, at best, unclear.

It may well be the position that hitherto pragmatic solutions have been found to these problems, and maybe (not least because of their relative rarity) that will continue. The alternative would be for local authorities (preferably by a representative body rather than individually) to negotiate a framework with the responsible Secretary of State and (if appropriate) the Central Authority.

My conclusion is therefore unhesitatingly that section 5 of CACA does enable the court to give directions concerning the manner in which a child's welfare and whereabouts are to be managed if circumstances require removal from the abducting parent or are otherwise such as to require temporary arrangements to be put in place. CACA (both in regard to Hague and to European Convention applications) establishes a self-contained code, specific and specifically tailored to the sui generis nature of such applications in our domestic law. CACA applications and CA applications proceed on parallel tracks but with separate operating systems and a different gauge.

Section 5 directions may, in my judgment, extend to a local authority. But local authorities should however only be involved when all other alternative arrangements have been considered and found wanting. The direction should be for the local authority to make such arrangements as are necessary for the child to be placed (pursuant to the order of the court expressly made under section 5 of CACA) with an appropriate person, institution or other body. The order should always provide for liberty to apply on the part of the local authority (or any person, institution or other body affected by the order) and all those affected should be made specifically aware of the willingness of the court to entertain applications for further directions or guidance in the light of events as they transpire and difficulties as they may emerge. The responsibility will remain the court's to shape and to control whatever the provisional measures necessary to comply with the Article 7(b) treaty obligation.

The section 5 power is to Hague applications what section 19 of CACA is to European Convention applications. Analogous provisions in comparable situations are to be found in section 2(3)(b) of the Family Law Act 1986 ('where the court considers that the immediate exercise of its powers is necessary for [the] protection' of a child over whom it has no jurisdiction); and in section 29(2) of the same Act (on an application to enforce a registered Part I order 'the court may … give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application').

Provisions comparable to Article 7(b) of the Hague Convention are to be found in other international instruments, both in force and in prospect. Thus Article 12 of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II) provides that:

On 1 March 2005 Brussels II will be repealed and replaced by a new and wider-ranging instrument, the Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, the terms of which have recently been settled by political agreement of the European Union Member States (excluding Denmark). Article 20(1) of this instrument is in identical terms to Article 12 above. Article 20(2), emphasising the stop-gap nature of this interim power, adds that:

It is to be expected that the necessary domestic implementing legislation will contain a power to order such provisional and protective measures in terms which may well prove comparable to the formula employed in section 5 of CACA and (as can be seen) elsewhere.

Finally, as mentioned in [6] above, an innovation in this case was the mother's suggestion that the package of protective measures should include a section 5 direction that she undergo electronic tagging. I take the view that such a direction may be made under that provision if it is necessary 'for the purpose of securing the welfare of the child' and/or 'to prevent change in the circumstances relevant to the determination of the application'.

I am extremely grateful to Ananda Hall (the Family Division Lawyer) and to the Director of the Electronic Monitoring Team at the National Probation Service for the rapidity, within a couple of hours, with which they were able to respond positively to this request, the first of its kind in their experience. Although in future cases there may be funding issues to be resolved, in principle arrangements for electronic tagging can be made if the court so orders, which I assume it would ordinarily only do with the consent of the individual concerned (or perhaps as a condition non-compliance with which might bring about alternative safeguards against the perceived risk). I emphasise that such requirements are unlikely to be appropriate save in a very few cases. Where however tagging is under consideration representatives for the parties should contact Ms Hall at the Office of the President to assist in making enquiries and arrangements.

I give leave for this judgment to be publicised on condition that the names of the family members are not disclosed.