Hampshire County Council v C.E. and N.E. (Urgent preliminary ruling procedure – Jurisdiction, recognition and enforcement of judgments in matters of parental responsibility – Opinion)  EUECJ C-325/18PPU_O (07 August 2018)
The following opinion of an Advocate General in the European Court of Justice (NB notthe European Court of Human Rights at Strasbourg) is an interesting investigation as to how the courts of two different EU Member States work together to deal with the situation where parents have unlawfully removed their children from one country to the other – together with some strong criticism of how those countries failed to abide by important procedural safeguards to protect the rights of both the parents and the children.
It is important to note that, despite appearing on BAILII, this is not a ‘judgment’ or definitive ruling about anything, but the opinion of an Advocate General in the European Court of Justice. The analysis of the law and its application to the facts by an AG is often followed and agreed by the European Court but, occasionally, it isn’t. There’s a helpful discussion here.
So while this opinion is a good indication of what the court WILL say, when it gives judgment, the European Court is not bound to follow the AG’s opinion. However, given the very clear and unambiguous comments and recommendations set out in this preliminary view, it will be interesting to see how this matter proceeds.
The discussion is very useful for English family lawyers, not just for the detailed examination of the various Chapters and Articles of international law, but more broadly in the re-statement of how procedural safeguards exist to underpin access to and enjoyment of fundamental rights at law. There is very strongly worded criticism from the AG of both the English and Irish authorities for acting too quickly to remove children from their parents in a situation where there was no urgent risk. The analysis, language and focus of much of the deliberations is much more ‘pro–parent’ than many of us are used to in English proceedings.
The facts of this case also underscore the grave dangers to parents of attempting to flee the jurisdiction to evade care proceedings. It’s unlikely to be a helpful solution, and seems often just to make things much worse; the author of this post Sarah Phillimore has commented about these cases in more detail here ‘Mums on the run – where do they go and how safe are they?
Its not clear what will happen when we finally Brexit –
presumably possibly [amended – see comments] the effect of Brussels II Regulation will be retained and continued by virtue of the EU Withdrawal Act, until further notice. But even if we can no longer apply the Regulation, the more general lessons about the importance of due process and the need to focus on what actually requires an urgent response, will remain relevant.
EDIT 20th August 2018. For further discussion about how the legal framework may look post Brexit, see David Burrows’ discussion here – ‘Retained law and the EU Withdrawal Bill’.
The current legal framework
The relationship between two sets of provisions that govern return of a child if ‘wrongly removed’ from or retained in one Member State of the EU was considered:
- Regulation (EC) No 2201/2003, known as ‘the Brussels II bis Regulation’ (‘The Regulation’)
- The provisions of the Convention on the Civil Aspects of International Child Abduction, concluded at The Hague on 25 October 1980 (‘the Convention’).
The primary objective of the Convention is to secure the ‘prompt return of children wrongfully removed or retained in any Contracting State’ in breach of ‘rights of custody’ of a person or institution in the place where the child was habitually resident. Article 12 requires the immediate return of the child, provided the application is made within a year. Article 13 provides two exceptions to this – where there is a ‘grave risk’ that return would expose the child to physical or psychological harm’ or if the child is old enough to say and objects.
The Regulation applies to civil matters relating to ‘attribution, exercise, delegation, restriction or termination of parental responsibility’. This covers a wide range of circumstances including placing child in foster or institutional care.
However the Regulation does NOT apply to ‘decisions on adoption, measures preparatory to adoption or the annulment or revocation of adoption.
Article 21 of Chapter III provides that a judgment given in a Member State shall be recognised and enforced in the other Member States without any special procedure being required.’ UNLESS (see Article 23) this would be ‘manifestly contrary to public policy’ or the child/other party didn’t have a proper chance to be heard.
Section 2 of Chapter III provides that any interested party can apply for a declaration of enforceability. When such an application is made, Article 31 of the Regulation says the court must make a speedy decision. This application can only be refused for one of reasons set out in Articles 22, 23 and 24:
If anyone wants to appeal, Article 33 gives strict time limits – two months if the party appealing is habitually resident in a Member State which is different to the Member State that made the declaration.
Factual background to the case
The Irish court asked the European Court to consider the law about enforcing judgments made in the English court when children were wrongly removed to Ireland by their parents. The Advocate General (AG) considered a number of questions and gave a preliminary view, to assist the court in reaching its judgment. We discuss that in more detail below.
In September 2017, just a few days after the birth of their baby, the parents travelled via ferry from England to Ireland with the mother’s elder two children then aged 5 and 3 years.
The family had been on Hampshire County Council’s (the LA) radar for a number of years, with concerns about poor home conditions, domestic violence, possession of cannabis plants and that the father of the baby remained in the pool of perpetrators regarding an unexplained injury to his children by a former partner. In June 2017, the LA got an interim care order (ICO) regarding the two older children and said would also apply for an ICO for the baby once born. The care order allowed the LA to share PR with the parents and also prohibited the parents from removing the children outside the jurisdiction.
Very shortly after the baby’s birth, the LA changed their care plan. Prior to this the children had been at home. Now the LA wished to remove all three children and demanded that the father leave the family home immediately. Thus the mother, then aged 23 years, was suddenly left on her own with three young children, facing imminent court proceedings to remove all of them. I have not seen the LA documents that support this change in care plan but with the benefit of hindsight it seems an unwise strategy.
The AG commented:
‘it is not impossible that there is a causal link between the way in which HCC administered the file of the family in question, on the one hand, and that family’s flight to Ireland, on the other hand.’
Once in Ireland, the parents rented a house and enrolled the two older children in school. The Irish police and Irish child protection services monitored the family and the Irish court ordered all three into foster care on 13 September, so I shall assume that the Irish social workers came to share the concerns of their English counterparts.
On 6 September, the LA in England obtained an ICO concerning the baby and on 8 September made a wardship application for all three children. The High Court ordered the immediate return of all the children. The parents were not present at the hearing and did not receive a copy of the order made until 11 September.
On 21 September, the Irish High Court made an order recognising and enforcing the English wardship order. Without informing the parents, Irish social workers collected the children from their Irish foster carers and handed them to the LA at the Rosslare Ferry Port in Ireland. The two older children went to live with the father of the second child and the baby was taken into English foster care. The English social worker then telephoned the parents to tell them what happened. The parents got a copy of the enforcement order on 22 September.
On 26 September, the parents appealed against the English wardship order of 8 September but permission was refused. On 24 November the parents sought to appeal against the Irish order enforcing the wardship order. They were 48 hours outside the time limits for such appeal.
On 21 December, the English court made a placement order regarding the baby which allowed the LA to look for adoptive parents.
On 18 January 2018, the Irish court dismissed the parents’ appeal against the September enforcement order on the basis that it could not extend the time limits allowed. The English LA meanwhile told the Irish court that it would not participate in these proceedings and did not intend to return the children, no matter the outcome of the appeal.
The Irish Court of Appeal decided to request an urgent preliminary ruling from the Advocate General of the European Court. [UPDATE 23/8/18. Judgment available via Courts Service Ireland website: Hampshire County Council -v- C.E. & Ors  IECA 154. ]
The Irish court asked the following questions:
On 23 May 2018, the parents applied for an injunction against the LA to prevent it from proceeding with the adoption of the baby and from initiating an adoption procedure in respect of the two older children. The LA replied that it was intending to find adoptive parents only for the baby and the elder two would remain with the father of the second child.
Where the LA allege that children have been wrongly taken from the country of their habitual residence by their parents, in breach of an English court order, can the LA apply to have any court order directing the return of the children enforced in the courts of another Member State pursuant to the Regulation, or would this amount to a wrongful circumvention of Article 11 of the Regulation and the Convention or otherwise amount to an abuse of rights or law?
The preliminary view of the AG was that the LA did not have to go down the ‘Hague Convention route’. This is because when the family travelled to Ireland, the LA was not sure that it had rights of custody over all three children, therefore it asked the English court to make the children wards of court and then applied to the Irish court for a declaration to enforce this order under the Regulation. The AG agreed it is possible for someone to be granted parental responsibility in one State only AFTER the child is removed to another State, so that person could not rely on ‘wrongful removal’ which is required under the Hague Convention. The AG commented it is ‘inconceivable’ that in those circumstances that person should find they could not seek enforcement of the judgment awarding parental responsibility.
An argument that the Convention provided more safeguards than the Regulation because Article 13 of the Convention gives ‘more reasons’ for refusing to require the return of a child was rejected because the Regulation provides similar and overlapping grounds for refusing to enforce an order for return. There are similar overlapping protections regarding the right of parties to be heard.
The second question was whether the parents should have been given leave to appeal against the Irish courts declaration that the English wardship order should be enforced, even though the parents were 48 hours out of time in making their application.
The AG was clear in the view that yes, they should. There was no dispute that the parents were late. However it was relevant that they had not received the LA’s application for a declaration of enforceability at the time of the service of the Irish court’s enforcement order. This damages the effective protection of the fundamental rights conferred on individuals by EU law, which requires that they are given ‘a complete statement of reasons in order to be able to defend themselves in the best possible conditions’.
Strict time limits are to avoid delay in enforcing judgments given in another Member State. But the AG commented that it did not follow that an extension of time is therefore precluded, in particular, where there is no risk that it will unduly delay enforcement of a judgment. The parents were only 48 hours out of time.
The AG made some very critical comments about the behaviour of both the English and Irish courts, which ‘constituted a particularly serious breach of the parents’ right to an effective remedy which was in no way necessary in order to preserve the safety and the best interests of the children and which was therefore not justified’. In September, the children were safely placed with a foster family in Ireland and thus there was no real risk to the children’s welfare by any actions of their parents. Further, the LA had waited almost two weeks to enforce the wardship order.
The AG commented that It is only in ‘extraordinary circumstances characterised by absolute urgency and where the best interests of the child imperatively so require’that a decision to enforce the judgment of another Member State should be enforceable before the close of an appeal procedure. And further, returning the children to England in this way was likely to give rise to ‘irreparable harm’ because even the temporary separation of the parents and children which could ‘result in an irreparable deterioration of the relationship between the children concerned and their parents and to cause irreversible psychological damage’.
The AG further criticised the English court for making the children wards of court and directing their return in the absence of the parents, thus depriving the parents of an effective opportunity to be heard. The parents were then refused leave to appeal against this order ‘on the basis of extremely succinct reasoning which does not seem to have taken account of the manifestly problematic nature of the English High Court order of 8 September 2017 in the light of the parents’ right to be heard.’
Further comments gave explicit recognition to the imbalance of power between the parents and the agency they were challenging: ‘As the parents’ representatives correctly observed at the hearing, it is important, in that context, to bear in mind that the parents are socially and economically disadvantaged persons who no doubt had fewer resources at their disposal when organising their defence than the administration which they were challenging.’
The criticism of both the English and Irish authorities is trenchant: ‘The conduct of those administrations is all the more inexcusable because it is the conduct of administrative authorities which, unlike an abandoned parent in a classic ‘cross-border’ removal situation, are not supposed to have an interest of their own in the return of the children, but should act with the sole aim of doing their utmost to preserve the best interests of the children’.
The third and final question is very interesting. Is it compatible with EU law and, specifically, the provisions of the Regulation for the courts of one Member State to make an order stopping the LA from arranging the adoption of children in the courts of another Member State, where that injunction arises from the need to protect rights of the parties in enforcement proceedings arising under the Regulation?
In this case, the AG was scathing in criticism of the LA’s attempt to circumvent proper procedural safeguards and answered that yes, it was perfectly possible to injunct the LA in order to stop it presenting the parents with a fait accompli.
The AG commented that this case did not involve interfering with the ‘internal judicial, executive and administrative sovereignty of the United Kingdom’ as the injunction would be directed to the LA in its capacity as a party to the appeal procedure before that court.
Would such an injunction order the LA not to continue or commence adoption proceedings, being a judicial procedure, risk being a form of an ‘anti-suit injunction’ (prohibited by two earlier judgments of the European Court in 2004 and 2009)? The AG noted that the placement order had already been made on 21 December 2017 and any future request for an adoption order would be made by potential adoptive parents and NOT the LA. It was therefore not at all clear whether an injunction preventing the LA from continuing the procedure to adopt the baby would actually entail a prohibition on the LA making application to an English court.
However, even if it did, the AG commented that this would NOT be prohibited by the Regulation or other provisions of EU law. The injunction sought by the parents was not an ‘anti –suit’ injunction but rather a ‘freezing’ injunction – it wasn’t to prevent the LA making an application but to stop the LA from creating an irreversible fait accompli before the conclusion of legal proceedings.
The AG further suggested that it should not normally be necessary to grant a protective injunction against a public body of another Member State which is a party to such proceedings, since such a body should participate in those proceedings and agree to comply with the decision that will be taken. However, and sadly in this case, the behaviour of the LA indicated that it had failed to provide guarantees necessary for the implementation of principles of mutual recognition and mutual trust, on which the Brussels II Regulation is based.
Feature Pic by Sickcert on Flickr (Creative commons licence – thanks)