Re P and Brussels II revised
The case of Re P in which a child born to an Italian woman when visiting England was made subject of care proceedings raises important issues of international law.
The woman became mentally ill and gave birth by caesarean section following an application by the Health Authority for declaration in the Court of Protection that she could not consent to treatment. Essex County Council issued care proceedings and at a final hearing at Chelmsford County Court on 1 February 2013 HHJ Newton made care and placement orders. The matter is now the subject of media attention in the UK and abroad.
On Tuesday 3rd December the Guardian online reported that,
‘Essex council said on Monday it “liaised extensively” with the extended family over the baby’s future care, that Italian courts ruled in May the child should stay in England and that it obtained permission from the county court to place her in adoption in October. The mother had two other children which she was unable to care for due to orders by the Italian authorities.’
The nature of the proceedings in Italy is not clear from the brief report above. They do not appear to arise from Council Regulation (EC) no.2201/2003 (Brussels IIA) which is considered below since such a point would have to be considered in this jurisdiction where the child was present.
In a hearing before Charles J on 4 December 2013 Essex County Council sought an order to prevent the publication of the name of the child. Charles J granted an injunction preventing the publication of the name and whereabouts of the child who had been placed for adoption and the prospective adoptive carers but refused an injunction preventing the publication of the names of the mother and father of the child.
The case was taken up by John Hemming MP who tabled a motion in the Commons. One of the criticisms he made of Social Services was that the child remained in the UK when the mother returned to Italy following the birth and that Essex County Council had failed to follow international law. He cited Brussels II revised Articles 15, 55 and 56. He argued that the Italian authorities should have been contacted about both the mother’s ‘imprisonment’ and the care of the baby but they were not. He raised the issue in the wider context of the number of children of foreign parents who had been the subject of intervention by social services stating that,
“In 2010-11 they had 21 children who were foreign nationals who had become “looked after”. This was as part of 138 who had become “looked after” in the previous 5 years. It is clear, therefore, that they were not following international law then and have not followed international law in this case.”
Article 15 of Brussels IIA provides for the transfer of jurisdiction to the courts of another member state with which a child has a particular connection where this would be in the best interests of the child. The application to transfer may be made on application by a party, of the courts own motion or on application from another member state. A child is to be considered to have a particular connection with a member state when it is the habitual residence of a parent.
Article 15 was applied in Re LM (a child)  EWHC 646 in which a mother travelled to Eire to give birth to avoid care proceedings in England. Upon her birth, LM was immediately the subject of care proceedings in the Republic of Ireland and she was placed in foster care. These proceedings were instituted by the Health Service Executive of Ireland (“HSE”) who had been made aware of previous care proceedings by X County Council in which final orders had been made in regard to 3 older children. The Irish Court, made a request that the High Court of England and Wales accept jurisdiction in relation to the proceedings concerning the placement of the child into public care. The matter was heard by Cobb J on 27 March 2013 who accepted the request and gave directions under FPR 2010 rr. 12.61-12.66.
The judgment of HHJ Newton in the care proceedings in Re P has now been published. The judgment shows that HHJ Newton was critical of the doctors allowing the mother to go back to Italy when in his view she should have been assisted to participate in proceedings in England but there is no indication in the judgment that transfer of the proceedings to Italy was considered. HHJ Newton found the mother to be compliant with her medication, she had accommodation, a secure job and the support of her family. He found her to be clear, well reasoned, forceful and articulate. Nevertheless the judge made care and placement orders.
The case is now to be heard by the President. At the hearing on Wednesday 4 December 2013 before Charles J (the President being unavailable) the judgment states that the child has been placed with adoptive parents. It is not clear how the matter has come back before the court although it is also stated in the judgment of Charles J that the Italian Government or State has instructed solicitors. Perhaps a belated application pursuant to Article 15 has now been made. Had an application been made at the instigation of care proceedings the present position might have been very different.