EUPillar VB v Doncaster, Child AB (by her Children’s Guardian) [2012] EWCA Civ 978

Summary

The proceedings were concerned with a child who was born on 23rd April 2008. It was sought to determine whether the mother was able to care for her child. As from 2010, the mother and the child were lawfully residing in England. On 3rd May 2011, the local authority in England obtained an emergency protection order. The Lithuanian authority responsible for child welfare got involved. The case was transferred to the High Court. Mr Justice Hedley made an error with regard to the effect of Article 56 of Brussels IIa. An appeal was made. The error was rectified by the Court of Appeal, editing the directions made. In this context, Sir Stephen Sedley held: “5 Our present concern is with paragraphs (1) and (2) only. These give no member state an entitlement to call for the placement of a child within its jurisdiction. Nor therefore do they eliminate or constrict the domestic court's ordinary obligation to make its own judgment of where the child's best interests lie. The sole purpose and effect of art 56(1) and (2) are to require a court which is considering placing a child in institutional or foster care in another member state to consult any authority responsible for child placements in that member state and not to decide on any such placement without that authority's consent. In short, it is to ensure that children at risk are not sent into a transnational void. 6 The provision is not helped by the vocabulary in which it is cast. The English version speaks of an “authority having jurisdiction” and of a “judgment on placement”, where the French more appropriately speaks of “une … autorité compétente” and of “La décision sur le placement”. But both versions tend to mislead by the use in paragraph (2) of the terms “requesting” and “requested” state, when no request is involved. What is meant are, respectively, the consulting state and the state consulted. 7 The meaning of art. 56 is fully and authoritatively explored and explained by the ECJ in Health Service Executive v SC and AC (C-92 / 12PPU, 26 April 2012) , at para 62ff. It is not necessary to do more here than cite paragraph 80: “80. The aim of Article 56 (2) of the Regulation is, first, to enable the competent authorities of the requested State to give or refuse their consent to the possible admission of the child concerned and, secondly, to allow the courts of the requesting State to be satisfied, before taking the decision to place a child in institutional care, that measures will be taken in the requested State to permit placement in that State.” 8 The error made in this regard by Hedley J, whose order Judge Shipley has rightly treated as binding on her, was capable of having substantial practical and legal consequences. In March this year the Lithuanian authority reported that no familial placement could be found for the child, who is quite badly disturbed, so that she would be reliant, if returned, on foster care and whatever treatment is available. The local authority now considers that she cannot safely be returned to her own mother, and since her father has played no role in her life, return to Lithuania is under consideration. In this connection art 56 will have a role, but it is the consultative role described above, not a role which ties the hands of the English court or excludes or reduces its obligation to arrive at its own judgment as to the child's best interests.” [5-8]