‘Working’ the international child protection case: a snapshot of local authorities’ experiences within an evolving legal context

ABSTRACT

Child protection proceedings often concern children with international connections. In recent years, the courts of England and Wales have handed down a number of significant judgments examining the application of international legal instruments (in particular Brussels IIa) to care proceedings. This article considers the impact of court judgments on the practical ‘working’ by Local Authorities of international child protection cases. A case study was conducted, oriented by socio-legal theory, consisting of a small number of qualitative interviews with Local Authority lawyers and social workers. The article concludes that some judgments have acted as a catalyst to change working practices for Local Authorities. However, international child protection cases present a variety of challenges for Local Authorities, and judgments provide an imperfect site for the provision of procedural and substantive guidance in this complex area. Further, there was often a tension between the need to conscientiously adhere to such guidance, and the welfare needs of the children with whom the Local Authority was concerned.

KEYWORDS:

• Care proceedings
• child protection
• social work
• Brussels IIa
• family law

Acknowledgments

This work was undertaken as part of an MSc funded by the Economic and Social Research Council

With thanks to Professor Judith Masson, the Editors and to the anonymous reviewer for their constructive comments on the draft manuscript.

Disclosure statement

No potential conflict of interest was reported by the author.

Table of Cases

A and B (Children: Brussels II Revised: Article 15), Re [2014] EWFC 40).

B (A Child), Re [2013] UKSC 33; [2013] 1 WLR 1911

B (A Child), Re [2017] EWCA Civ 1579

B-S, Re [2013] EWCA Civ 1146; [2013] 1 WLR 563

Bristol City Council v AA [2014] EWHC 1022 (Fam); [2015] 1 F.L.R. 625;

CK (Children), Re [2015] EWHC 2666 (Fam)

Child and Family Agency v D (R intervening) (Case C 428/15) EU:C:2016:819; [2017] 2 WLR 949

HA (A Child) (No 2, Re) [2015] EWHC 1310 (Fam);

Health Service Executive v S.C EU:C:2012:255; [2013] I.L.Pr.6

D (A Child), Re [2014] EWHC 3388 (Fam); [2015] 2 F.L.R. 47

E (A Child) (Care Proceedings: European Dimension), Re [2014] EWHC 6 (Fam); [2014] 1 WLR 2670

H-J (A Child) (Transfer of Proceedings), Re [2013] EWHC 1867 (Fam); [2014] 1 F.L.R. 430

J (A Child) (Brussels II Revised: Article 15: Practice and Procedure) [2014] EWFC 41; [2014] Fam. Law 129

Leicester City Council v S [2014] EWHC 1575 (Fam); [2015] 1 F.L.R. 1182

M (A Child) (Foreign Care Proceedings: Transfer), Re [2013] EWHC 646 (Fam); [2013] 1 Fam 308

Medway Council v JB [2015] EWHC 3064 (Fam); [2016] 2 F.L.R. 1360

Merton London Borough Council v B (Central Authority of the Republic of Latvia intervening) [2015] EWCA Civ 888; [2016] Fam. 123

MP (Fact-finding Hearing: Care Proceedings: Art.15), Re [2013] EWHC 2063 (Fam); [2014] 1 F.L.R. 702

N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening), Re [2016] UKSC 15; [2017] A.C. 167

N (Children) (Adoption: Jurisdiction), Re [2015] EWCA Civ 1112 [2016] 2 WLR 713

N (Children) (Welfare Decision), Re [2016] EWFC 44; [2017] 1 F.C.R. 203;

Norfolk County Council v VE and others [2015] EWFC 30 (Fam)

Northamptonshire County Council v AS, KS, DS (By his Children’s Guardian) [2015] EWHC 199 (Fam)

NH (1996 Child Protection Convention: Habitual Residence), Re [2015] EWHC 2299 (Fam)

Nottingham City Council v LM and others [2014] EWCA Civ 152 [2014] WLR (D) 092

T (A Child) (Care Proceedings: Request to Assume Jurisdiction), Re [2013] EWCA Civ 895; [2014] 2 WLR 1204

V-Z (Children), Re [2016] EWCA Civ 475

West Sussex County Council v H [2013] EWHC 2550 (Fam)

Z (A Child) (English Adoption: Egyptian Orphan), Re [2016] EWHC 2963 (Fam); [2017] 4 WLR 20

Table of Legislation

Adoption and Children Act 2002

Children Act 1989

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children

Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L 174/1

Council Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 [2007] OJ L 324/79

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1

Family Procedure Rules 2010, Practice Direction 12A

Vienna Convention on Consular Relations 1968

Notes

1. This study does not limit itself to consideration of intra-EU child protection cases, as it would seem the influence of the case-law discussed can be seen in cases involving countries outside the European Union. However, the rapid development of case law discussed in this article concerns care cases with a European element and there are fewer reported cases involving non-EU countries (see, for example, Z (A Child: Egyptian Fostering UK Adoption) [2016] EWHC 2963 (Fam) and Re NH (1996 Child Protection Convention: Habitual Residence) [2015] EWHC 2299 (Fam)). There are probably a number of reasons for this, which are outside the scope of this article, but may include the existence of a comprehensive instrument for the recognition and enforcement of judgments across the EU in the form of Brussels IIa, and the ‘opaque’ principle of mutual trust within the EU Area of Justice, a normative base which underlies intra-EU cases (Weller 2015, 64). Further, it is right to acknowledge the limited use of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Hague Child Protection Convention) due to Brussels IIa taking priority over the Convention in relation to children who have their habitual residence on the territory of a Member State (see Brussels IIa Articles 61 and 62). This may mean that there are fewer reported international child protection cases involving the UK and Contracting States to the 1996 Hague Child Protection Convention (but see West Sussex County Council v H [2013] EWHC 2550 (Fam)).

2. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L 338/1.

3. Article 15 of Brussels IIa had been used in cases involving the Republic of Ireland and England and Wales, and there are some reported judgments in this area (Health Service Executive v S.C (Case C-92/12) EU:C:2012:255; [2013] I.L.Pr. 6; Re M (A Child) (Foreign Care Proceedings: Transfer) [2013] EWHC 646 (Fam); Re H-J (A Child) [2013] EWHC 1867 (Fam)).

4. This is the term used by Munby P in Re N (Children) (Adoption: Jurisdiction) [7] in preference to the term ‘forced adoption’.

5. Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters [2001] OJ L 174/1.

6. Council Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 [2007] OJ L 324/79.

7. The International Child Abduction and Contact Unit is the Central Authority for England and Wales for the purposes of Brussels IIa, and for England only for the purposes of the 1996 Hague Convention.