![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Y & E (1996 Hague Convention: Article 11) [2023] EWCA Civ 817 (12 July 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/817.html Cite as: [2023] EWCA Civ 817 |
||
[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[Help]
ON APPEAL FROM THE FAMILY COURT AT DERBY
HH Judge Williscroft
DE22C50190
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE NEWEY
and
LORD JUSTICE BAKER
____________________
| Y AND E (1996 HAGUE CONVENTION: ARTICLE 11) |
____________________
KC
and Faye Edwards (instructed by Local Authority Solicitor) for the Appellant
Hannah Markham
KC
(instructed by JMW Solicitors LLP) for the First Respondent
Patrick Bowe (instructed by Eddowes Waldron) for the Second Respondent
Andrew
Bagchi
KC
and Anne Williams (instructed by Kieran Clarke Green) for the Third and Fourth Respondents, by their children's guardian
Hearing date : 21 June 2023
____________________
Crown Copyright ©
LORD JUSTICE BAKER :
The 1996 Hague Convention
"The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property."
"Article 8
(1) By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either – request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or – suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.
(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are
a) a State of which the child is a national,
b) a State in which property of the child is located,
c) a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage,
d) a State with which the child has a substantial connection.
(3) The authorities concerned may proceed to an exchange of views.
(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child's best interests.
Article 9
(1) If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child's best interests, they may either – request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or – invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.
(2) The authorities concerned may proceed to an exchange of views.
(3) The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request."
"(1) In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.
(2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.
(3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question".
"(1) Subject to Article 7, the authorities of a Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take measures of a provisional character for the protection of the person or property of the child which have a territorial effect limited to the State in question, in so far as such measures are not incompatible with measures already taken by authorities which have jurisdiction under Articles 5 to 10.
(2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken a decision in respect of the measures of protection which may be required by the situation.
(3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in the Contracting State where the measures were taken as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question."
"This regulation applies where—
(a) a local authority in England and Wales thinks that the conditions in section 31(2)(a) and (b) of the Children Act 1989 (threshold for care and supervision orders) apply in relation to a child, and
(b) one of the following applies in relation to the child—
(i) Article 11 of the Convention (measures of protection in cases of urgency),
(ii) Article 12 of the Convention (measures of a provisional character)."
"(1) Where—
(a) a local authority makes an application for an interim care order or interim supervision order in relation to a child, and
(b) one of the following applies in relation to the child—
(i) Article 11 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996 (measures of protection in cases of urgency) ("the Convention"),
(ii) Article 12 of the Convention (measures of a provisional character) …
the court may make an interim care order or an interim supervision order with respect to the child concerned.
(2) A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2).
…
(4) An interim order made under or by virtue of this section shall have effect for such period as may be specified in the order, but shall in any event cease to have effect on whichever of the following events first occurs—
…
(c) in a case which falls within subsection (1)(b)(i) or (ii), when—
(i) the authorities in another Contracting State with jurisdiction under the Convention have taken the measures required by the situation, or
(ii) measures taken by the authorities of another State are recognised in England and Wales…."
"A court may only make a care order or supervision order if it is satisfied
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
(ii) the child's being beyond parental control."
(1) the court of the other country has primary jurisdiction to take child protection measures in respect of the children under Article 5;
(2) the English family court has the power to take urgent measures under Article 11 or provisional measures under Article 12 in respect of the children, which may take the form of interim care orders under s.38 of the Children Act 1989 modified by regulation 5 of the 2010 Regulations;
(3) those urgent or provisional measures shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken a decision in respect of the measures of protection which may be required by the situation;
(4) if the English court considers that it is better placed to assess the child's best interests, it may submit a request under Article 9 that it be authorised to exercise jurisdiction to take the measures of protection which it considers to be necessary.
Background
"if the court determines that the children's habitual residence is Spain but considers that a request should be made to Spain in accordance with Articles 8 and 9 of the 1996 Hague Convention, it was appropriate to proceed to a finding of fact hearing as a matter of urgency without awaiting the determination of any Article 9 request in accordance with Article 11 of the Convention."
The order listed the matter for a fact-finding hearing on the first available date after 1 March 2023, gave the parties permission to jointly instruct Dr Daniel Haines, forensic physician, to provide an expert report in respect of mechanism and force in relation to E's injury, and gave various case management directions.
"… the parties agree that the English Court is in a better position to determine the facts of the present case, in particular what happened to E on the evening of 9 July 2022. I agree that is clearly the case. The incident took place in England, all the witnesses, both of fact and the medical witnesses, are present in the UK and all speak English rather than Spanish. Therefore, it is appropriate that a request under Article 9 be made and in the interim this case is case managed towards a fact finding hearing in the Derby Family Court."
"In my opinion, given the positioning and sizes of the damage features observed to each other, they cannot have been caused by the same single action. The larger damage feature is as I would expect given the stab injury that I understand the wearer sustained and is fitting with the fabric having been penetrated by a sharp relatively broad blade. However, the lower four, smaller damage features are as I might expect if the fabric had been penetrated by the tip of a sharp item and potentially through a fold in the fabric."
Mr Smith also examined a booster seat in which E was said to have been sitting. He concluded:
"given the appearance of the large, solid central strut to the rear of the chair, and the location of the booster seat as it is attached to this chair it would seem highly unlikely that the damage to the clothing and hence the injury to E could have been caused whilst/if seated correctly in this booster seat."
He also noted "a small area of recent cut damage is present to the rear left leg of the dining chair".
"The parents accept that they were having a heated verbal argument in front of the children. They accept that during the course of that argument E suffered a very serious and life-threatening penetrating injury caused by a knife such that E required immediate surgical intervention.
The parents are not able to say how and when the injury occurred but accept:-
a) That had they not been careless E would not have been injured.
b) They are responsible for the fact of the injury regardless of precisely how it occurred.
c) Neither prevented their child from suffering such a serious injury whilst in their care.
d) This was not a deliberately inflicted injury, it was negligent and careless.
The parents sought immediate medical attention for E; had they not done so, E's life would have been at risk."
Andrews,
and listed the matter for a further hearing after her report was filed. Meanwhile, the interim care orders continued. The parties agreed that the parents' contact with the children should be up to fourteen hours a day supervised by the children's uncle.
Andrews
completed a risk assessment which she supplemented on 13 May with answers to questions posed by the local authority. On the basis of her interviews with the parents and her observation of a contact session, she concluded that the mother was the dominant parent and that this was likely to undermine the father. She advised that restorative work was needed "to help the couple better understand their relationship and how they interact". Although the couple had engaged with Relate, Ms
Andrews
suggested an investigation into more direct therapy. She advised that the mother's wish to return to Spain during the summer was "too soon and not realistic", in part because it would limit "some of the safeguards the family need, as extended family will not be as available to monitor or step in to help if issues arise".
Andrews
made these observations:
"[i]n terms of the incident, they still feel unable to explain how the injury occurred. Seeing the environment and understanding that the entry point for the injury was behind E who was sitting in a booster seat on a dining chair, I am somewhat confused as to how this happened. Listening to the parents I can appreciate they were so 'in the moment' that they are unable to recall all events, but looking at the police transcripts its evident that they attempted to correct or answer what they say they cannot explain. ……Whilst I appreciate this is their position, I would expect them to be able to offer more detail. If they were so engrossed that they missed significant issues, then this might reoccur, so their commitment to further work to address their relationship is essential".
Andrews
made these final observations as to the risk of future harm (at paragraphs 6.2 – 6.3):
"I am assured the couple appreciate the risks this poses and would do their best to avoid similar arguments. Thus, while not totally mitigated there is evidence that the parents are working to address the risks, their respective needs, and pressure points within their relationship. They have accepted the concessions and, equally as important, continue to accept responsibility in terms of not having had the children's needs in mind whilst arguing……………. the couple relationship has pressure points, which have creeped into their behaviour patterns. Therefore, there will always be a risk that a similar argument could occur but as best as they can, the couple have confirmed their commitment to avoiding such disputes in front of the children, so I reinforce the need for them to continue to engage with therapeutic support."
Andrews'
conclusion, however, that there should be a "fairly swift" reunification of the family. In her answers to questions from the local authority, Ms
Andrews
confirmed that it was her view that the risks she had identified were not sufficient to prevent the reunification of the children with their parents. She described the risk of a similar event occurring as "extremely low".
"3. AND UPON the Court not being satisfied the Interim Care Order could be discharged until it is established that Relate and/or an identified therapist is in place to undertake the parental work as recommended by JaneAndrews
but expressing the view that in the event that this is in place then the court endorses the Guardian's position that the children should return home for the May half term.
4. AND UPON the Court indicating the parents and local authority should turn their minds to agreeing a working agreement, which can be in place when the children are in the unsupervised care of their parents."
A hearing was listed for an hour on 24 May to consider whether a final order would be made in order to end the proceedings.
Andrews.
It seems that the local authority had known about this information for several months and it is unclear why it was not identified as an issue to be considered by Ms
Andrews
when she was first instructed.
"They accepted negligent parenting in a threshold document which I and social services were prepared to accept. Like others I find it hard to accept neither has a physical memory of this, but I was clear the court process was unlikely to provide more clarity."
Andrews'
assessment, including the following:
"14. The expert recommends some obvious steps to reduce risk including a clear agreement in writing setting out who will do what checks to make sure all is going well and the ongoing supportive role of wider family. Given home is where this event took place the children's feelings about this, when they haven't been there for a long time, need to be discussed and supported. More importantly, a clear narrative about what took place and whose responsibility it was, has to be shared with the children and the whole family - an agreed narrative. The expert also suggested considering ways in which the children could explain either did not feel safe. To my mind the involvement of the wider family while in the UK is a key part of this. A plan needed to be formulated that considered how this would take place, and ongoing meetings. This needs to consider also what they could offer in the long run in Spain.
15. The expert did not have the information social services have only just provided about the eldest child in Spain and difficulties there. They suggest this is relevant to risk but while I am sure it is relevant to relationship based work, I consider it is unfair to bring in this information after the agreed expert instruction was sent and received and to try to rely on it to suggest greater risk and lack of open working, and I do not take it into account in more terms than an issue I have been aware of since the start.
16. It was the local authority's view the experts work was superficial and flawed. I do not share that view but I consider it could have been clearer in the language used. I thought it was notable social services were anxious about the "huge undertaking" she had thought would be sorting out an agreed narrative for all but in fact at court and later professionals and parents were able to sort this out. In the same way I am confident social work with children and parents can look at the children's feelings about returning home and support them very quickly and I do not accept that social workers should have done this already since it likely would only cause uncertainty.
17. The biggest issue is the parents' relationship. The expert did not think a return to Spain this summer was a good idea. I agree. It is very early days in them beginning to negotiate a different relationship and I consider this is a bigger task than they may expect. If one or both is charged with criminal offences this will inevitably cause stress. It must not result in a repeat of the row they had and its consequences. I agree with the expert something more than traditional relationship work is needed to change the axis of their relationship and it may be such challenge in fact these challenges whether it continues. This is difficult, painful work for them both. Her observations of the mother's dominance in decision making and the father's acquiescence was notable and her assessment that they "will do their utmost to avoid arguing", about which she was more confident a statement of intent only. I did not think the possibility of either or both being imprisoned was a reason to prevent reunification taking place as soon as therapy is available and an agreed protective plan in place.
18. Her final analysis was risk of a similar incident was extremely low but the power balance means ongoing risks. This she advised best explored in a therapeutic environment. She suggested in paragraph 3.5 of her addendum that more in-depth and challenging work would assist and should be commenced prior to any return of the children to the couple's care. I accept she meant what she said and could not put any other interpretation upon it, but that more challenging therapy should be available and begun."
"19. Here the risk from the event that took place was as high as it can be. The risk of that life threatening event being repeated I consider low. It relates to parents' management of their own relationship and greater understanding of that but even were they to row no one who has observed them with their children considers they would deliberately harm them or did on this occasion. The guardian describes the conclusions of the expert report as "perhaps not overt" but concludes "the risks are manageable" in the guardian's professional opinion and "there is no justification for the continued separation of the children from their parents "and as in any case to be balanced against the real risks of separation for children who would self-evidently want to live as a family in their own home from all the observations of them." I accept that advice.
20. The balance of harm and risk caused by separation is something I consider social services while understandably anxious are not considering enough in the overall balance. I have considered the social work statement and position statement as well as the updating evidence provided since I began to draft a judgment. I am sympathetic to the anxieties social workers have but they accept the larger picture is a trustworthy family support system and loving care. I consider their own analysis does not fully reflect what to my mind is self-evident which is the children will very much miss their own home and parents care all the time. Understandably social services have had a hands-off approach in their care to date, reflecting the safe care they are receiving. For smaller children weeks feel like months to an adult. Being separated and away from your own home is something I must weigh very heavily in the balance.
21. I have heard from parents today that they swiftly established Relate which they will continue with will not provide the therapeutic challenges they require and they had last night a first meeting with a therapist whose CV shows he is well equipped to provide what they need. While I am sure it was an introduction, he already had the reports of the expert and mother's lawyer reported the meeting was challenging. I am satisfied I can accept this is the beginning of a therapeutic process which the expert required and have been told of the further booked sessions.
22. Parents hope for the children to be home as soon as possible. It is half term next week so Y is not at school but E's child minder still available. The uncle plans to take a holiday himself from 4th June so this would mean at least a short-change for the children should the current plans remain. I do think ideally this would take place while at school but I do not consider it is necessary since I already assess the risk that exists as manageable and consider the family involvement already agreed which is extensive is suitable.
23. A risk exists I accept that if proceedings end in this court and are not proceeded with in the criminal courts, I cannot ensure parents will complete this therapeutic work they have begun before any return to Spain. The level of support available there and the stresses there may be there are currently unknown. Overall however, I consider they are devoted to being parents to their children and I would not foresee them abandoning therapy, which I consider both will find helpful as well as challenging for their own plans to take precedence.
24. I consider the risks manageable if the therapy and family support are in place along with an agreed narrative and oversight which will be considerable from social services family and other agencies. I consider how very difficult it must be for the children not to be living in their own home with their parents and in the end, they are the ones that have been most affected by their parents' negligent care.
25. I therefore discharge the interim care order as I consider it is not an urgent and necessary order now to keep these children safe. This brings the proceedings to an end."
The appeal – grounds and submissions
(1) failed to give proper and sufficient weight to the risks identified by Ms
Andrews
that such an incident as had befallen E could recur in the unsupervised care of the parents;
(2) gave undue weight to the parents' engagement with the therapist, the first meeting only having taken place the day before the hearing;
(3) failed to give proper and sufficient weight to the outstanding charging decision awaited from the Crown Prosecution Service.
KC
and Ms Edwards relied on the fact that neither parent has been able to provide a cogent explanation as to how the injury was inflicted. The parents' evidence demonstrated that they can become so engrossed in a domestic argument or, to adopt a phrase they had used, 'in the moment' that the risks to the children elevated to a point at which neither parent had been able to protect E from near fatal injuries. As such, the risks to the children became heightened around the parents' ability to manage conflict, their relationship with one another, stresses and trigger points. It was submitted that, although the judge had identified the risks, she failed to analyse them properly, in particular the risk of unintentional harm. Mr Nuvoloni cited the observations of Lord Nicholls of Birkenhead in Re H (Minors) (Sexual Abuse: Standard of Proof ) [1996] AC 563 at page 585 that
"if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case….Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school."
(1) There was a material procedural error in the framing of the decision taken on 25 May 2023 to discharge the interim care orders under Article 11 of the Hague Convention 1996 in that even by that date, some 10 months after the inception of the proceedings, no decision had been taken as to whether the English court or the Spanish courts or authorities should assume authority for making enduring welfare orders in relation to the children.
(2) The court erred by failing to consider whether the proceedings should continue with the making of interim care orders as provisional measures under Article 12 of the Hague Convention as an alternative to their continuation as urgent measures under Article 11.
Bagchi
KC
and Ms Williams were as follows.
Bagchi
and Ms Williams adopted the submissions made on behalf of the local authority, adding that, against the background of the concerns and anomalies in the parents' accounts of the incident on 9 July and the limited nature of the concessions accepted by the court, the risks to the children were augmented by the lack of information as to how E's injuries were sustained.
Bagchi
and Ms Williams submitted that the clear intention behind Articles 5, 8 and 9 of the Convention is that, following liaison between the relevant authorities, a decision is taken either for jurisdiction to remain with the state of habitual residence or by agreement to be assumed by the state where the child is present but not habitually resident. The scheme of the Convention is for this issue to be addressed and resolved one way or the other within a sensible timeframe. This is fortified by consideration of the 'interim' protective measures provided by Articles 11 and 12 which limit the operation of either 'urgent' or 'provisional' measures so that "they shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation" or, in the case of Article 12, "have taken a decision in respect of the measures of protection which may be required by the situation". Here that did not happen because in the absence of an Article 9 request the Spanish authorities have apparently remained in ignorance of these proceedings. A proper engagement with the provisions of Article 9 would have resulted either in the English court being able to assume full jurisdiction with the agreement of the Spanish authorities or a decision that the Spanish authorities would exercise their own protective jurisdiction. Therefore, the English court exercising its emergency or provisional powers under the Convention would have been in a position either to make long term welfare orders under section 31 of the Children Act 1989 or to hand the case back to Spain with a view to that state taking its own protective measures. Mr
Bagchi
and Ms Williams submitted that, had the court been clothed with the powers to make enduring orders, it would readily have accepted that the conclusion of the proceedings on 24 May was premature and would have had little difficulty in extending the proceedings at least to a stage beyond the point at which the children would have been returned to their parents and been assessed as being settled in their care. Ultimately, it would have seriously considered the possibility of the making of a supervision order for 12 months to enable the local authority to have formal oversight of the children's care for that period.
Bagchi
submitted that, by this point in the proceedings, the court should have been considering the request for interim care orders less as 'urgent' and 'necessary' measures as framed under Article 11 and more as 'provisional' measures as contemplated by Article 12. If the judge had considered the proposed continuation of the proceedings to permit the court to control the process of rehabilitation under interim care orders as being 'provisional' measures rather than ones demanded by the 'urgency' of the children's situation, some months following the commencement of the proceedings, the question she asked herself would have been a different one, the need for such measures not having to satisfy the requirement of being urgent but merely whether they were designed for the protection of the children. The inaptness of the Article 11 measures sought made it much more likely that the court would favour the option of ending the proceedings - the only other option - whereas the choice between an Article 12 provisional measure and ending the proceedings was much more nuanced.
KC
told this Court that her client had not pressed for the proceedings to come to an end. Her concern had been that her children should come home as soon as possible. Ms Markham submitted that it could not be said that the judge's decision was so beyond the range of her reasonable discretion as to be considered wrong. Ms
Andrews
had been instructed on the basis of the agreed concessions, accepted by the local authority and endorsed by the court. Ms
Andrews
acknowledged that there is always a risk of any number of things occurring and that, if the parents do not engage in work and are not able to recognise issues again the future, then a similar incident "might" recur. Overall, however, it was Ms
Andrews'
opinion that the risk of a similar incident reoccurring was "extremely low". The court was entitled to look holistically at the question of risk alongside that of necessity and balance of harm to the children. It was acknowledged that this is not a case where there is no risk but, within the context of what is known about good care of the children, it was proportionate to order that the children should return home.
Andrews.
Ms Markham's submissions were adopted by Mr Patrick Bowe on behalf of the father. In short, it was the parents' case that, whilst the local authority clearly disagrees with the welfare analysis conducted by the judge, it was properly and proportionately conducted and the mitigating factors for identified risks were taken into account. She had a great deal of evidence on which she concluded that it was neither necessary nor proportionate for the interim care orders to continue and this Court should not interfere with her decision which was based on her evaluation of the totality of the evidence.
Discussion
"It might be said that a situation of urgency within the meaning of Article 11 is present where the situation, if remedial action were only sought through the normal channels of Articles 5 to 10, might bring about irreparable harm for the child. The situation of urgency therefore justi?es a derogation from the normal rule and ought for this reason to be construed rather strictly. The jurisdiction provided in Article 11 is, as an exception to the principle on which the Convention is based, a jurisdiction which is concurrent with that of the authorities of the State of the child's habitual residence. Its justi?cation is precisely the existence of a case of urgency. If this jurisdiction had not been provided, the delays which would be caused by the obligation to bring a request before the authorities of the State of the child's habitual residence might compromise the protection or the interests of the child. This concurrent jurisdiction will have occasion to be exercised, for example, if it is necessary to ensure the representation of a child who is away from his or her habitual residence and who must undergo an urgent surgical operation, or yet if it is necessary to make a rapid sale of perishable goods belonging to the child."
"This text arose from a proposal of the delegation of the United Kingdom accepted by the Special Commission and inspired by the concern for ensuring the protection of children present in a foreign country for a stay of limited duration (vacation, short periods of schooling, harvest, etc.). Without there being, strictly speaking, urgency, it might be desirable, it was said, to help the family receiving this child, which is perhaps a little overburdened, by placing the child for the duration of his or her stay in a shelter or in another family, but under the supervision of the local social authorities. If such a measure were to prove to be desirable, the authorities of the place where the child is present would be the best placed to take it. At the Diplomatic Session, the desirability of keeping this article was discussed, since certain delegations feared that it might be utilised by the authorities of the State where the child is present, in order to take measures characterised as being provisional, but which might touch on questions as important as the attribution of the custody of the child, which would thus have devolved in a separate fashion on the territory of this State. This fear was ?nally judged to be excessive because of the limitations set out in the text."
"1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate."
"Any interim measures relying on article 20 (or in other cases where a return to another country so that it will make the future decisions is necessary or contemplated) are by definition interim. What will be required, and properly regarded as interim, will be case and fact sensitive and will be informed by co-operation and liaison …. It will be unusual for this court under article 20 (or in other such cases) to embark on fact-finding hearings…."
Andrews'
report. I have not of course heard the parents give evidence, but like her I am troubled by the absence of any useful detail whatever in their accounts.
(1) In what circumstances did the parents come to have a heated argument in the presence of the children?
(2) Who was holding the knife? Why were they holding it? How was it being held?
(3) How did it come about that E was stabbed?
(4) What was the cause or causes of additional cuts in her clothing? What was the cause of the damage to the dining chair?
(5) Is it true that neither parent is able to recall the details of this incident? If it is true, what is the explanation for their inability to recall? If it is untrue, why are they concealing information?
Andrews
to be informed about the allegations, so that she could consider what further steps, if any, should be taken about them to inform the risk assessment.
Andrews
and emphasised by the local authority which were extended by the troubling absence of information about how E's injuries were caused. Far from the reducing the level of risk, the information vacuum increased it, as it was not possible for the court to form a view of where the danger lay and what might lead it to recur. In those circumstances, the fact that the parents had only just embarked upon therapy was an additional reason for not discharging the orders. Given that the extent of the risks was unknown for the reasons set out above, the parents' progress in therapy was of particular importance in the management of those risks. At the date of the hearing, the parents had not engaged with therapy to any material degree. The fact that the police have yet to reach a charging decision, and the uncertainties about the reaction of the parents to that decision when it comes, are an additional factor, although for my part I would not consider this factor by itself to justify interfering with the judge's decision. I accept that this Court must tread carefully before interfering in an evaluation conducted by the judge on the totality of the evidence. I recognise that she was presented with strong evidence that the children were suffering as a result of their continued separation from their parents. But for the reasons stated, I reached the conclusion that the judge's decision to discharge the interim care orders was wrong, even on the narrow basis on which the case was argued before her.
Bagchi's submission that the judge was led into error by the way the case was presented on the basis of the binary options of concluding the proceedings or extending the "urgent" interim care orders. She ought to have been reminded of the scheme of the Convention and that, beyond the limited powers available to her under Article 11 (or Article 12), jurisdiction to make welfare decisions about these children remained with the Spanish authorities unless a request under Article 9 was granted. Had she been reminded of the scheme of the Convention, the limits of her powers, and that primary jurisdiction remained with Spain, it is likely that she would have taken a different course. In particular, she would have made inquiries to establish what had happened to the Article 9 request. In those circumstances, she would in all probability not have discharged the interim orders and in my view certainly not have brought the proceedings to an end.
(1) the continuation of the interim care order and separation of the children;
(2) interim contact arrangements;
(3) the progression of the Article 9 request;
(4) whether any interim powers should be exercised under Article 11 or Article 12;
(5) whether a valid risk assessment can be conducted following the outcome of the finding of fact hearing in March 2023; and
(6) whether, in the light of his change of position, the children's guardian should continue to act.
Thirdly, we directed that by 4pm on 30 June 2023 the local authority should update the parties as to enquires made as to the progress of any Article 9 request. Fourthly, we ordered that, if any applications were to be made for orders under s.34 of the Children Act 1989 in respect of contact, those shall be made by 4 July 2023 with a meeting being convened by no later than 30 June 2023 to discuss arrangements for the summer. Finally, we made a number of ancillary case management orders to ensure as far as possible that the judge was able to address the issues identified above at the hearing.
LORD JUSTICE NEWEY
LORD JUSTICE PETER JACKSON