William Tyler considers recent guidance from the President of the Family Division and issues surrounding reporting restriction orders, European children, BIIR and the Vienna Convention.
The President gave important advice in relation to seemingly disparate matters in the recent judgment in Re E (A Child)  EWHC 6 (Fam). The case concerned public law proceedings in relation to a 12-year old Slovakian boy, however the precise facts are not relevant to this judgment (nor reported in it). The following should be taken from the case:
1. Brussels II Revised
There is no place for a chauvinistic view that the social services, courts or child protection professionals of UK are more competent than those of other EU states.
- As a general principle, the courts of the country in which the subject child is a ‘habitual resident’ will have jurisdiction in relation to that child (Art. 8(1)). If habitual residence ‘cannot be established’ then ‘the courts of the Member State where the child is present’ shall have jurisdiction (Art. 13(1)). If a court is seised of a case over which it has no jurisdiction under BIIR (Brussels II Revised), it must declare this to be so of its own motion (Art. 17) retaining only the jurisdiction to take ‘provisional, including protective, measures’ or ‘short- term holding arrangements’ in an ‘urgent case’ (Art.20).
- Even where a court has jurisdiction, it should consider whether to request the courts of another Member State to accept jurisdiction where (a) the child has a particular connection with that country, (b) the other court would be better placed to hear the case, and (c) this is in the best interests of the child (Art. 15).
- Art. 55 requires Member States to cooperate with each other in such cases. Such cooperation, assistance and communication is desirable in every case.
- Henceforth, in every care / supervision order case with a European dimension, the court should set out explicitly, in its judgment and its order (a) the basis upon which, applying BIIR, it accepts or rejects jurisdiction, and (b) the basis upon which it has or has not decided to exercise its Art. 15 powers. The English courts must also comply assiduously and speedily with any Art. 55 requests made of them.
2. The Vienna Convention
The Vienna Convention on Consular Relations, although not well known to the family lawyer, is interpreted by the President as creating the following obligations:
- Whenever a party who is a foreign national (whether adult or child) is represented by a guardian, a guardian ad litem or litigation friend, or is detained (which includes ss.2 and 3 MHA84 or s.25 CA89 detention), the court should ensure that that fact is brought to the attention of the relevant consular authorities.
- There must be transparency and openness as between the English family courts and the consular and other authorities of relevant foreign states. Shelter cannot be sought behind our normal practice of sitting in private, nor behind the restrictive effect of s. 12 of the Administration of Justice Act 1960.
- The court should not in general impose or permit any obstacle to free communication between a party who is a foreign national and the relevant consular authorities.
- When sitting in private, the court should usually accede to any request for permission for an accredited consular official to be present at any hearing or to obtain a transcript of the hearing or a copy of the order or other relevant documents.
3. Reporting Restriction Orders
The President built on the principles he had set out in Re J (A Child)  EWHC 2694 (Fam) and Re P (A Child)  EWHC 4048.
The competing interests are:
- There is an obvious and compelling need for public debate to be free and unrestricted.
- There is an equally obvious and compelling claim for parties to care proceedings, in this case the mother, to be allowed to tell their story to the world.
- In most cases the child’s welfare will demand imperatively that neither he nor his carers are identified.
The principles become even more complicated in cases involving foreign nationals, as "in relation to the foreign media the English court must proceed with very great caution. As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible".
What, though, of the internet, which as a medium of communication transcends any state boundary? In this case, the President made a reporting restriction order as follows:
a. various identifying details were embargoed from publication in the English and Welsh print, sound and television broadcast media;
b. these details were embargoed from publication on any English language internet, social networking or satellite platform;
c. there was no restriction in relation to the foreign press or non-English language ‘electronic’ platforms.
A sample RRO is appended to the President’s judgment and may be of use in many cases. As technology increasingly renders national boundaries obsolete in the matter of information dissemination, the conflict between the rights of public debate and free speech on the one hand and of protection from unwanted publicity for children on the other will render this process even more complicated.