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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Z, Re (Recognition of Foreign Order) (rev 1) [2016] EWHC 784 (Fam) (08 April 2016) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2016/784.html Cite as: [2016] Fam 375, [2016] WLR(D) 178, [2017] 1 FLR 1236, [2016] EWHC 784 (Fam), [2016] Fam Law 684, [2016] 3 WLR 791 |
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FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF Z
(
RECOGNITION
OF FOREIGN ORDER)
Strand, London, WC2A 2LL |
||
B e f o r e :
IN THE MATTER OF COUNCIL REGULATION
(EC) 2201/2003 OF 27 NOVEMBER 2003
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND
IN THE MATTER OF Z
(
RECOGNITION
OF FOREIGN ORDER)
____________________
THE HEALTH SERVICE EXECUTIVE OF IRELAND |
Applicant |
|
- and - |
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![]() ![]() ![]() ![]() ![]() ![]() AN ENGLISH NHS TRUST (4) |
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____________________
David Williams QC (instructed by Penningtons Manches) for the 2nd and 3rd Respondents
Melanie Carew (of Cafcass Legal) as Advocate to the Court
Hearing dates: 23rd March 2016
____________________
Crown Copyright ©
THE HONOURABLE MR JUSTICE BAKER :
Introduction
Background
(1) Does this case fall within Brussels IIA?
(2) If so, (a) does the court have power under the inherent jurisdiction to make an order for the recognition
and enforcement of the Irish High Court order and (b) does the case fall within Article 56?
(3) Is it necessary for Z
to be
represented
for this court on an application for
recognition
and enforcement of the Irish order?
(4) If the case does not fall within Brussels IIA, what power does the court have to make an order for recognition
and enforcement of the Irish order?
(5) Should the court extend the order under the inherent jurisdiction recognising
and enforcing the Irish order and, if so, on what terms?
Brussels IIA
"whatever the nature of the court or tribunal, in civil mattersrelating
to ... (b) the attribution, exercise, delegation,
restriction
or termination of parental
responsibility."
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Article 1(2) provides that
"The matters referred
to in paragraph 1(b) may, in particular deal with
(a) rights of custody and rights of access;
(b) guardianship, curatorship and similar institutions;
(c) the designation and functions of any person or body having charge of the child's person or property,representing
or assisting the child;
(d) the placement of the child in a foster family or in institutional care;
(e) measures for the protection of the childrelating
to the administration, conservation or disposal of the chart's property."
The list of matters in Article 1 (2) is not exhaustive. In Case C-435/06 [2008] 1 FLR 490, the CJEU stated (at paragraph 30) that
"the use of the words 'in particular' in Article 1 (2) of thatregulation
implies that the list contained in that provision is only to be used as a guide."
The Court further attention to recital
5 in the preamble to the
regulation
which provides that
"in order to ensure equality for all children, thisregulation
covers all decisions on parental
responsibility,
including measures for the protection of the child …."
The question in that case was whether the jurisdiction extended to an application to take a child into the care of a local authority, and the court was therefore able to rely
in addition on the terms of Article 1 (2) (d), accepting the opinion of the Advocate General that
"…taking into care and placement are closely linked acts …the placement of a child against the will of the parents is possible only after that child has been taken into care by the competent authority" (paragraph 35).
More recently,
the CJEU has also held in HSE v SC and AC (Case C-92/12) [2012] 2 FLR 1040 that a judgment of a court of a member state which ordered the placement of a child in a secure institution providing therapeutic and educational carer situated in another member state, and which entailed that, for her own protection, the child was declined of the liberty for a specified period, was within the material scope of Brussels IIA.
Recognition
and enforcement under the inherent jurisdiction
"a judgment given in a member state shall berecognised
in the other member states without any special procedure being
required".
Article 23, headed "Grounds of non-recognition
for judgements
relating
to parental
responsibility",
provides that
"A judgment relating
to parental
responsibility
shall not be
recognised
(a) if suchrecognition
is manifestly contrary to the public policy of the member state in which
recognition
is sought taking into account the best interest of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in whichrecognition
is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence, unless it is determined that such person has accepted the judgment unequivocally;
(d) on therequest
of any person claiming that the judgment infringes his or her parental
responsibility,
if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgmentrelating
to parental
responsibility
given in the member state in which
recognition
is sought;
(f) if it is irreconcilable with a later judgmentrelating
to parental
responsibility
given in another member state or in the non-member state of the habitual
residence
of the child provided that the later judgment fulfils the conditions necessary for its
recognition
in the member state in which
recognition
is sought; or
(g) if the procedure laid down in Article 56 has not been complied with."
Article 28 (1) provides:
"a judgment on the exercise parentalresponsibility
in
respect
of a child given in a member state which is enforceable in that member state and has been served shall be enforced in another member state when, on the application of any interested party, it has been declared enforceable there."
"… where, as here, Parliament has spelt out in considerable detail what must be done in a particular class of case, it is not open to litigants to bypass the special Act, nor to the courts to disregard its provisions byresorting
to the earlier procedure, and thus choose to apply a different jurisprudence from that which the Act prescribes."
On the other hand, as Lord Donaldson of Lymington observed in the Court of Appeal in Re
F (Mental Patient: Sterilisation) 1990] 2 AC 1 at p30, in a passage approved by the House of Lords on appeal:
"The common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process—that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle."
The correct approach was summarised by Roderic Wood J in Westminster City Council v C [2007] EWHC
309 at para 119, in a passage subsequently approved by McFarlane LJ in the Court of Appeal in
Re
DL [2012] EWCA Civ 253 at para 62. Roderic Wood J observed that
"consistent with long-standing principle, the terms of the statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the statute or any supplementaryregulatory
framework."
As Lord Sumption succinctly observed recently
in
Re
B [2016] UKSC 4,
"the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme."
For this reason,
in a different context, I declined in a
recent
case to exercise the inherent jurisdiction so as to place a child for adoption abroad in circumstances prohibited by statute: see
Re
JL and AO [2016]
EWHC
440 Fam.
" … The court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of 'comity' has assumed an expansive meaning. 'Comity' oncereferred
simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations stepping on one another's toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with
related
foreign laws, so that together they can more effectively achieve common objectives."
Article 56
"where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and whereas such placement is to take place in another member state, it shall first consult the central authority or other authority having jurisdiction in the latter state where public authority intervention in that member state isrequired
for domestic cases of child placement."
Representation
of the child
"This is an area where the principles of comity and co-operation between courts of different countries are of particular importance in the interests of the individual concerned. The court asked torecognise
a foreign order should work with the grain of that order, rather than raise procedural hurdles which may delay or impede the implementation of the order in a way that may cause harm to the interests of the individual. If the court to which the application for
recognition
is made has concerns as to whether the adult was properly heard before the court of origin, it should as a first step raise those concerns promptly with the court of origin, rather than simply
refuse
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recognition.
The same observations apply in children's cases.
What if Brussels IIA does not apply?
Conclusion – the order in this case
UPON the High Court of the Republic
of Ireland having made inter alia the following findings and Orders on 2 March 2016:
i) That Z
has a mental disorder of a nature and degree that warrants her detention in hospital to
receive
treatment and that
Z
is at
real
and immediate risk of death without such detention and treatment;
ii) That Z
lacks capacity to make decisions about treatment for her anorexia by
reason
of her age and the effects of her mental disorder
iii) That the Health Service Executive, its servants or agents, be authorised and permitted to transfer the defendant from her current placement in [the Irish hospital] on the 7th March 2016 or as soon as practicable thereafter to [the English hospital] and place her there pending further order of this Court for the purposes of receiving
treatment there together with any welfare and therapeutic services subject to
review
and further Order of this Honourable Court;
iv) That the Director/Manager of [the English hospital] his/her servants or agents, his/her servants or agents, be authorised to do the following:
i. Take all proportionate andreasonable
measures to prevent
Z
from absconding from [the English hospital];
ii. In the event ofZ
absconding from [the English hospital] and/or during the course of any authorised mobilities the Director/Manager of [the English hospital, his/her servants or agents, be authorised to seek the assistance of the police force to immediately search for, arrest without warrant, detain in their custody for a
reasonable
period of time and to
return
as soon as practicable
Z
into the custody of the Director/Manager of [the English hospital] in the event that
Z
absconds from the said care facility pending further order of this Honourable Court;
iii. To take all necessary measures to provide the defendant with such hydration, sustenance, medication and treatment as may be clinically and/or medically indicated to include the following:
a. Passing a nasogastric tube should the current tube be displaced orremoved;
b. Administering nutrition through the nasogastric tube;
c. Inserting an intravenous cannula should efforts to hydrate orally or via nasogastric tube fail;
d. Performing blood sampling and other means of physical monitoring, includingregular
monitoring of her vital signs, ECG
readings,
and other necessary assessments as they arise.
e. To administer such minimal sedation or anaesthesia to the defendant as may in their opinion be necessary for the purposes of carrying out such medical treatment.
iv. Use proportionate and/orreasonable
force and/or
restraint
in the course of the said medical procedures to the extent to which it may
reasonably
be necessary and in the best interests of the defendant, which said force and/or
restraint
is to be conducted by appropriate personnel trained in therapeutic management of aggression and violence
v. to take all necessary steps to promoteZ's
welfare in accordance with their policies and procedures and to provide to this Honourable Court such medical
reports
as may be
requested
from time to time in the currency of this order;
vi. in the event of the clinical team at [the English hospital]reaching
an opinion that
Z
would not meet the criteria for detention under section 3 of the Mental Health Act, 1983, that they do immediately procure a
report
from such
responsible
Clinician at the hospital and take urgent steps to alert the plaintiff so that the matter can be brought back before this Honourable Court for immediate
review;
v) That the HSE, its servants or agents do make application forthwith to the Courts of England and Wales seeking an order for the recognition
and enforcement of this Order.
AND UPON the court having made interim orders in respect
of the 1st
Respondent's
transfer to [the English hospital] on 4 March 2016 and the 1st
Respondent
being admitted to [the English hospital] on 7 March 2016
AND UPON the court being satisfied that the 2nd and 3rd Respondents
are the joint holders of parental
responsibility
in
respect
of
Z
and that no other person or body holds PR in
respect
of
Z.
AND UPON the Court being satisfied in the light of the evidence it has considered that:
a) This is an urgent case, in light of the evidence as to Z's
medical condition and need for specialist treatment;
b) The urgency of the case warrants the invoking of the court's inherent jurisdiction to supplement the provisions of Brussels IIA;
c) Recognition
of the Order of the Irish High Court of 2 March 2016 would not be manifestly contrary to public policy, taking into account the best interests of the child;
d) The Order of the Irish High Court of 2 March 2016 was made in urgent circumstances; and in any event, Z
was a party to the proceedings, acting through her parents as litigation friends, and has now been appointed a guardian in Ireland, and her wishes and feelings about the proposed order were put before the Irish High Court;
e) The Irish Order was not given in default of appearance in circumstances where there was a failure to give notice;
f) There is no person claiming that the Order of the Irish Court infringes their parental responsibility;
g) The Irish Order is not irreconcilable with a later judgment in any other State;
h) The child's circumstances are to be the subject of regular
reviews
by the High Court in Ireland, the next
review
being on 11.04.16
AND UPON the court holding that Brussels IIA applies in this case because the orders set out above constitute the attribution, delegation, exercise or termination of matters of parental responsibility
within the meaning of Art 1.1(b) BIIA , but that the court's inherent jurisdiction can be
relied
on to supplement the
Regulations
in an urgent case
AND UPON the court holding that Article 56 of Brussels IIA does not apply in this case, as the arrangements for her treatment in hospital in England and the Irish Order were not made in contemplation of a placement in institutional care
AND UPON the HSE undertaking to apply to the Irish High Court forthwith for the issue of an Annex II Certificate and to then issue an application for registration,
recognition
and enforcement of the Irish Order of 2 March 2016 under Brussels IIA
AND UPON the court considering whether and if so how the 1st Respondent's
voice should be heard in these proceedings and being satisfied that
(a) her voice was heard by Kelly P prior to making the order;
(b) a Guardian has been appointed for her in the Irish proceedings; and
(c) Cafcass Legal has been present at this hearing
and therefore it is neither necessary or appropriate for her to be heard within these proceedings at this stage.
IT IS HEREBY IN THE INTERIM AND UNTIL REGISTRATION
OF THE IRISH ORDER OF 2 MARCH 2016 ORDERED PURSUANT TO THE COURT'S INHERENT JURISDICTION AND ARTICLE 21 OF COUNCIL
REGULATION
(EC) 2201/2003 THAT:-
1. The measures of the High Court of the Republic
of Ireland contained in the Order dated 2 March 2016 shall stand as orders of the High Court of England and Wales.
2. For the avoidance of doubt, paragraph 1 of this Order permits [the] NHS Trust to detain the child at [the English hospital] pending further Order of the High Court in the Republic
of Ireland, and to provide the child with such treatment as it considers appropriate for her mental disorder, in the absence of her consent.
3. The above orders are made as being in the best interests of the child and are exercisable whether or not she consents thereto.
IT IS FURTHER ORDERED THAT:
4. The relevant
court shall issue forthwith upon the same being presented by the Applicant the application herein for
registration
under the provisions of Council
Regulation
(EC) 2201/2003 of the Order of the Irish High Court dated 2 March 2016. Any future hearings in this matter are to be listed before, and
reserved
to, Mr Justice Baker if available.
5. If, for the avoidance of doubt, the Irish Court makes an order for continuation of the Order of 2 March 2016 on 11 April 2016 or any other date, there is no requirement
for any fresh application for
recognition
or enforcement, and the said Order will
remain
applicable and in force in England and Wales.
6. In the event that the Irish Court makes a replacement
or varied Order on 11 April 2016 or any other date but still to the effect that the child herein shall be detained and treated in England and Wales, this court shall, pending the determination of an application by the HSE for
recognition
and
registration
of the said new Order, and, in the exercise of the court's inherent jurisdiction and under Article 21, continue to authorise the detention and treatment of the child herein pursuant to the terms of this Order.
7. Paragraph 6 of this Order is subject to the following:
a. The HSE issuing an application within 14 days of the making of the order to seekregistration
and
recognition
of the new order;
b. The HSE forthwith and in any event within 7 days informing Mr Justice Baker (or another judge of the High Court if Mr Justice Baker is not available) of the terms of the new order;
c. Any party having permission to apply to the court by way of written submissions arguing that therelief in paragraph 6 of this order should not be granted;
d. On any such application, the court considering the application promptly and either determining the application without a hearing or directing that an oral hearing take place.