“I seem to have amassed a wealth cases with jurisdiction issues in them lately. The issues are centred around informing relevant central authorities. This article is a discussion around the procedure and a nod to potential changes we may all be grappling with in the near future”, writes Callum Brook.
We will all be aware of Re E. It sets out best practice for local authorities in care cases involving children attached other European member states.
It seems to be a neglected aspect of cases at the moment, or at least overlooked, that central authorities are not informed that their nationals are making their way through the UK’s care system.
This, of course, causes a multitude of problems as to whether final orders can be made in respect of any child, when the relevant consular body has not been informed or had the opportunity to engage with the proceedings.
A normal reaction to any failure in these circumstances would be to blame a corporate body or the advocates across the front bench, for not identifying the issue and bringing it to the court’s attention.
The court, however, bears its own responsibility in relation maintaining control of the situation and should it become aware the relevant consular bodies have not been notified, the court should itself notify them, see para 47 Re E  EWHC 6 (Fam).
This area of practice gets relatively complicated because of various operating treaties. The court is forced to grapple with the Vienna Convention, the Hague Convention, Hague Adoption Convention and Brussels II. Some of this is at least set to change.
If you believe the Government’s prevailing wind that Brexit will happen, the operation of Brussels II is expected to cease – the court will revert back to the Hague Convention and the Hague Adoption Convention.
This is problematic in a European context because whilst all member states operate within the remit of Brussels II, some, particularly those in Eastern Europe have acceded to the Hague Convention, however, have not necessarily ratified it.
The practicalities of this mean a different test is applied to any jurisdiction issue on the matter of cooperation between states. Brussels II is designed to create seamless cooperation and provide mechanisms for member states to issue relevant applications within this jurisdiction.
In fact, the point of Re E, was to garner cooperation and ensure that the English and Welsh courts were not running roughshod over the intervention of other jurisdictions – this is especially important, given there are only two jurisdictions in Europe that allow forced adoption; the UK and Germany.
Draconian orders are a likely territory for most of us. However, it is clear that local authorities cannot say that nothing else will do, if there are potential family members in other European states that could be potential carers for children in these circumstances.
Court’s should themselves be alive to the potential consequences of approving placement orders of children that could potential remain within the family and not necessarily in this jurisdiction.
Some parents may wish to consider the alternative of returning to their jurisdiction of origin to avoid placement orders being made and in fact, practitioners may consider that a parent’s best chance of remain with their child is for substantive intervention to take place from the jurisdiction of origin.
As our relationship with the European Union changes, if it does indeed change, we will find ourselves navigating waters, with countries, we ordinarily wouldn’t have to navigate – it may well prove a time consuming exercise in the short and long term.
What practitioners do need to be alert to, to avoid unnecessary delay in any such cases, is appropriate consular bodies have been informed and given the opportunity to intervene if necessary. Otherwise, the court may find itself in a position where it cannot affect a final order, until, the best practice, as set out in Re E has been followed.
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