Care Proceedings: Jurisdiction and Placing Children in the EU, post Brexit

Friday 23 December 2022

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Practitioners will have become familiar with the rules and procedures under Brussels IIa for cases where children were to be placed with family members in an EU country. Since Brexit, the framework has changed and placements now need to be made under the Hague Convention. This short article will consider the legal framework for placing/returning a child who is the subject of care proceedings.

Since 1 January 2021, local authorities considering placing a child in an EU country must apply for and obtain consent for extra-jurisdiction placement in the EU under the Chapter II of the Hague Convention, which all EU and EEA member states have ratified. The Family Procedure Rules from Article 12.61 – 12.70 provide further information regarding the transfer of proceedings under Articles 8 and 9 of the Hague Convention 1996 (which are the same as in relation to Article 15, Brussels IIa).

It is likely that the guidance and principles will remain similar to that decided under Brussels IIa. In AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 at paragraph 35, Munby J, as he then was, distilled the route to the exception contained within Article 15 of Brussels II into three essential questions:

a. Does the child have “a particular connection” with the relevant other member state within the meaning of Article 15(3)?
b. Would the court of the other member state be “better placed” to hear the case or part of it?
c. Would a transfer to the other court be “in the best interests of the child”?

If the three questions above have been answered in the positive, the court may request that the other Member State assume jurisdiction (Article 15 (1) (b)). There is discretion over whether or not to make the request of the other Member State, notwithstanding a positive answer to the three questions above; however, as Mrs. Justice Pauffley noted in Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure) [2014] EWFC 41), confirming the comments of Munby J in AB v JLB (Brussels II Revised: Article 15) (ibid): "…since the discretion is exercisable only if the court has satisfied itself both that the other court is 'better placed' to deal with the case…and that it is in the best interests of the child to transfer the case, it is not easy to envisage circumstances where, those two conditions having been met, it would nonetheless be appropriate not to transfer the case."

The cases of In the matter of N (Children) [2016] UKSC 15 (“Re N”) and Re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152, set out the essential principles of Article 15. Under Art 8(1) of the 1996 Hague Convention, however, what would be the second and third questions under Art 15 of Brussels II Revised, are subsumed into a single question, would the judicial or administrative authority of another contracting state be 'better placed in the particular case to assess the best interests of the child'? 

The case of Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request) [2021] EWHC 1970 (Fam) concerned whether the court should make a request to the Swiss authorities pursuant to Article 9 of the 1996 Hague Convention ["the 1996 Convention"], for the transfer to this jurisdiction of all matters relating to D's contact with F who was a sibling placed for adoption in the UK. Mrs Justice Knowles noted that: “Given that these provisions are likely to take on a greater degree of prominence as the United Kingdom has exited the transitional arrangements with the European Union, it is possible that this decision may assist future decision-makers.”  

There is some helpful guidance, but it is limited, given the court had accepted that by the time the care proceedings were issued, D was habitually resident in Switzerland and that under Article 5 of the Convention, the authorities in Switzerland had jurisdiction. The local authority did not pursue a request for transfer as they accepted that the Swiss authorities were best placed to make decisions about the child, who had lived in Switzerland since birth and was placed for adoption. In respect of contact to F, the Judge found that D's Article 8 right to private life in exploring the potential for contact between him and F did not require the proceedings to be transferred to the High Court since a clear legal framework already existed in Switzerland for the exploration of and establishment of contact between D and F.  The Judge permitted the local authority to withdraw its application for an Article 9 transfer and its application for a care order on the basis that the two sets of proceedings no longer served any forensic utility.  The judgment concludes by making a number of recommendations of (a) practical steps that could be taken by the Local Authority to assist the Swiss authorities, and (b) areas that the Swiss authorities may wish to consider in future decision-making concerning D.

As addressed in Re D, the court has to determine first where the child is habitually resident and this is a point at which there may be some legal argument. Under UK law, habitual residence is a question of fact (Re R [2016] AC 76) and requires “not the child's full integration in the environment of the new state but only a degree of it” (Re B (A Child) [2016]).

Should it be determined that the child is in fact habitually resident in another jurisdiction, then the question of jurisdiction becomes one of practicality, and a need to request that the other jurisdiction assumes responsibility for the proceedings. The views of the parties on this question should be made known as early as possible in the proceedings, as well as the views of the relevant state. If the child is habitually resident in England or Wales, the court will need to make determination by the Court that the child is habitually resident in England or Wales and in particular, that the child is: 

(i) a national of  [EU country] and the child has a substantial connection with the jurisdiction concerned, and
(ii) that the courts of [EU country] are best placed to assess the best interests of the child.

Article 33 contains the procedures for the placement of children for cases since 1 January 2021. It requires consultation between central authorities in the requesting and requested states. As part of this, a report must be sent to the requested state, setting out the reasons for the proposed placement or provision of care.  The contracting state into which the child may be placed will need to consent to the placement, taking into account the child’s best interests.  In practice, this will be done by keeping the Embassy/Consulate informed directly, and also, informing the International Child Abduction and Contact Unit (ICACU) and obtaining their views. Often, the representative of the country concerned will have a clear view of jurisdiction and where they say the child should be placed, in the event that the child cannot remain with parents/family members. The representative and the ICACU will also be important points of contact regarding any assessments of family members in the relevant state.

To conclude the proceedings, the court will expect to see a comprehensive transition plan and clear information about the intended placement that satisfies the court that it is in the best interests of the child. Clearly, again, there can be scope for contested hearings if one party is not in agreement with the care plan for removal, or any part of it. Once there is a determination, proceedings may need to be extended to cover the period where the child is moved to the country concerned, with the local authority retaining parental responsibility through a care order. This will require further orders in addition to those above, providing for an extension of the ICO, confirmation that the court has accepted jurisdiction under Article 8(1) and the granting of permission to remove the child from England and Wales.

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