APPLICATION UNDER SECTION 93(2)(a) AND 94(2)(a) OF THE CHILDREN'S HEARINGS (SCOTLAND) ACT 2011 IN RELATION TO A and B
2014SCHAD59
SHERIFFDOM OF LOTHIAN AND BORDERS AT HADDINGTON
NOTE
by
SHERIFF JANYS M SCOTT QC
in the
APPLICATION TO THE SHERIFF UNDER SECTION 93(2)(a) AND 94(2)(a)
OF THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011
in relation to
A and B
Rankin for Reporter
Bell, Advocate for mother
Perry, safeguarder
1 September 2014
Introduction
[1] On 6 August I adjourned an application to determine whether grounds for referral to the children’s hearing were established in respect of two children. The children originated from Germany and had been subject to proceedings in a court in Germany when they were brought to Scotland by their mother. On 4 April 2014 the police removed the children to a place of safety. They have since then been accommodated with foster carers, where they currently remain pursuant to an interim compulsory supervision order.
Brussels II bis
[2] The current referral to the children’s hearing falls within the scope of Council Regulation (EC) 2201/2003 (Brussels II bis). Article 1.1(b) of Brussels II bis states that this Regulation applies to “the attribution, exercise, delegation, restriction or termination of parental responsibility”. Article 1.2 states that that the matters referred to in paragraph 1(b) may in particular deal with … “(d) the placement of the child in a foster family…” When Brussels II bis refers to a “court” this covers all authorities with jurisdiction in the matters falling within scope of the Regulation (see article 2.1).
[3] Brussels II bis is an EU Regulation and therefore supersedes domestic law. In cases with a European dimension Brussels II bis has the effect of limiting the jurisdiction of the children’s hearing. As a result of Article 8 the children’s hearing will generally have jurisdiction if children are habitually resident in Scotland at the time the case is referred. Habitual residence for this purpose is an autonomous European concept, denoting physical presence in a member state that is not temporary or intermittent, and reflecting some degree of integration in a social and family environment (see Proceedings brought by A (Case C-523/07) [2010] Fam 42). In a case like this, with a European dimension, if children are not habitually resident in Scotland, the children’s hearing, like any other ‘court’ is bound by article 17 to “declare of its own motion that it has no jurisdiction.”
[4] If a child has been wrongfully removed from the place of his or her habitual residence, or wrongfully retained in Scotland, then article 10 of Brussels II bis means the child will generally retain his or her previous habitual residence, and the Scottish courts, including the children’s hearing will have no jurisdiction. Article 10 and article 11 are designed to allow coherence between Brussels II bis and the Hague Convention on the Civil Aspects of International Child Abduction. A child is wrongfully removed or retained if this is in breach of rights of custody. When a child is subject to pending application in the courts of his or her habitual residence then the court itself is considered to have “rights of custody” for the purposes of the Hague Convention. Removal while an action is pending will be treated as wrongful (In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291). Not only may article 10 prevent acquisition of habitual residence, a party to the application in the court of habitual residence may make an application for the child’s return. Were such an application to be made, that would immediately curtail the right of the children’s hearing and or the court, to make orders relating to the children, by virtue of article 16 of the Hague Convention and the Child Abduction and Custody Act 1985, section 9 (read with section 27 and schedule 3).
[5] Even had the children in this case been shown to be habitually resident in Scotland, there were prior proceedings in Germany. Article 19 provides that:
“2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.”
The proceedings in Germany appeared to relate to matters of a similar nature to those that brought the children before the children’s hearing. Even if the children’s hearing had jurisdiction, it appeared that this should be declined under article 19.
[6] This does not, of course, mean that children are to be exposed to harm, or left unprotected. Article 20 of Brussels II bis provides:
“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.”
[7] The Court of Justice of the European Communities considered article 20 in Proceedings brought by A (Case C-523/07) (supra). The steps taken under article 20 must be urgent and provisional. They will cease to apply when the court of the member state having jurisdiction as to the substance of the matter has taken the measures it considers appropriate. Where a court takes provisional or protective measures it must inform the courts of the member state that has jurisdiction, either directly, or through the central authority designated under article 53.
Application of Brussels II bis in this case
[8] In these circumstances what should have happened here was that once the children were in a place of safety, the children’s hearing should have informed the court in Germany of the steps taken. This would have allowed the court there to decide whether it was going to make orders that would have resulted in the children’s return. Such orders would have been recognised in Scotland under article 21 of Brussels II bis and would have been enforceable under articles 28 to 36. Alternatively there could have been an application for the children’s return under the Hague Convention on the Civil Aspects of International Child Abduction. The final alternative was a transfer of the case to Scotland under article 15 of Brussels II bis. None of these things had happened, but on 6 August 2014 when the case called before me, it was clear that the application to the court in relation to the grounds of referral could not simply proceed until the basic issue of jurisdiction had been determined. In these circumstances it was agreed that the case should be adjourned, and the position explained to the court in Germany, to the curator appointed by that court, and to the children’s father who remained in Germany. I issued a note designed to advise the German court what had happened and inviting that court either to take over the case or to make a request for transfer to the sheriff court, together with the children’s hearing.
The article 15 transfer request
[9] When the case called again on 1 September 2014 the curator and the father in Germany had both intimated that neither proposed to make an application for the children’s return under the Hague Convention. The court in Germany had issued a request dated 11 August 2014, addressed to the sheriff court, for transfer of jurisdiction under article 15 of Brussels II bis. Article 15 provides:
“1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: …. (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5….
5. The Courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seizure in accordance with paragraph … 1(b). In this case the court first seised shall decline jurisdiction. Otherwise the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.”
[10] The German court set out carefully reasoned grounds in their request for the Scottish court to assume jurisdiction. These explained the history of the case in Germany and stated that the German court considered that the Scottish court was better placed to judge the case due to the presence of the children in Scotland. The father had not seen the children for several years and the mother had severed her connections with Germany. The German court considered that the Scottish court was in a position to work with the child welfare authorities, and to make decisions quickly in the interests of the children.
[11] The first difficulty with the request was that it was in terms addressed to the relevant sheriff court and not to the children’s hearing. Despite my best endeavours in the Note issued on 6 August 2014 to explain that substantive decisions would be taken by the children’s hearing the German court had not appreciated that the hearing had primary responsibility and would therefore require to consider the article 15 request. It was however clear from the terms of the request that the German court intended that matters relating to protection of the children should be dealt with in Scotland. Taking a purposive view it was possible to read the request as addressed to the Scottish ‘court’ within the meaning of article 2 of Brussels II bis. I nevertheless arranged for the sheriff clerk to contact the German court by email after the hearing on 1 September to confirm that this was the case.
[12] The second difficulty was the lack of any recognised procedure for the children’s hearing to consider such a request. The Reporter’s initial response was that the request would be considered by the hearing if and when the grounds for referral were established. This was however likely to be more than six weeks from the date of the article 15 request, by which time the German court would have been required under the article to resume the exercise of jurisdiction. The request for transfer would simply fall because it had not been timeously considered. The Reporter recognised that despite the lack of any domestic procedural rules, article 15 required the children’s hearing to co-operate for the purposes of the article and that it was necessary to facilitate the presentation of the request to the hearing. It was ultimately agreed that a children’s hearing would be arranged on 4 September 2014 to consider the request for transfer of the case to Scotland.
[13] On this basis I proceeded to consider whether, from the perspective of the court it was in the best interests of the children to accept jurisdiction. Parties were united in the submission that this was the case. The Reporter adopted the reasoning of the German court. She pointed out that the children had been in Scotland since the end of December 2013 and at school in Scotland since January 2014. They had not seen their father since 2008 and had no contact with any extended family in Germany. The German court were not seeking the return of the children and if jurisdiction were not accepted in Scotland there was a risk that the children would be left unprotected. It was accepted that the provisional arrangements that were acceptable under article 20 of Brussels II bis could not continue indefinitely. Counsel for the mother adopted the Reporter’s submissions. There was no proposal to insist on the children’s return to Germany. It appeared that they would stay in Scotland and it was therefore appropriate that the Scottish authorities regulated their care. While there would be German witnesses whose evidence would be taken by video link, they would speak to historical matters. The evidence of current circumstances was in Scotland. The safeguarder agreed with the Reporter and counsel for the mother. He emphasised that the children’s hearing would in due course, were grounds established, be in a position to look at the children’s current circumstances and draw appropriate conclusions in relation to what steps should be taken to safeguard their welfare.
[14] I was concerned that these children had lived in Germany all their lives. They had arrived in Scotland speaking only German. In addition both suffered from some form of learning difficulties. In an ideal world their future should have been decided in the place where they had been habitually resident all their lives, until the end of December 2013. However it was quite clear that the German court considered that Scotland was better equipped to make a decision. The court in Germany had no wish to resume jurisdiction. The children had in effect been cut loose by the German authorities and I accepted that if jurisdiction were not accepted by the court in Scotland there was likely to be a hiatus in determining what should be done that would be detrimental to the welfare of these children. In these circumstances I was prepared to accept that it was in the best interests of the children that jurisdiction be accepted. My decision does not however bind the children’s hearing, who must consider for themselves whether to accept a transfer of jurisdiction under article 15.
[15] Subject to the hearing deciding to accept a transfer of jurisdiction, I gave directions for a proof on the grounds of referral and in the meantime extended interim compulsory supervision orders for the children, pursuant to which they remained in foster care for a further period.
Deficits in procedure in Scotland
[16] I am grateful to the Reporter, the mother’s representatives and the safeguarder for their assistance in addressing the difficulties in this case. It did however become clear that the children’s hearing is currently at a disadvantage in cases where children have come to Scotland from another European jurisdiction. While the President of the Family Division in England and Wales has gone out of his way to address how the courts there should deal with such cases (In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670) there is no equivalent direction in Scotland.
[17] Here it is the children’s hearing that are initially faced with these cases. A lay tribunal is not necessarily best equipped to recognise and deal with the application of international instruments such as Brussels II bis, and the Hague Convention on the Civil Aspects of International Child Abduction. The involvement in the system of both the children’s hearing and the sheriff court can, and in this case did, give rise to understandable confusion on the part of a court elsewhere. The lack of any rules of procedure in relation to declining jurisdiction or considering a request for a transfer of a case under article 15, or even making a request for transfer, leaves the children’s hearing at a disadvantage. Ultimately it is children who suffer if the appropriate procedure is unclear. In this case there will have been a delay of almost three months in hearing a proof on the grounds of referral.