UK courts must consider jurisdiction in cases involving foreign children

Children|Divorce|Family Law|News|January 16th 2014

UK courts must consider their jurisdiction in cases involving foreign children, Britain’s most senior family law judge has declared.

Giving judgement in the High Court, Sir James Munby, President of the Family Division, said the governments of the children’s own countries must be involved in any legal cases.

In the Matter of E (A Child) concerned a boy, now aged 12, born in the UK to a British father and Slovakian mother. He held both British and Slovakian citizenship but in March last year was taken into care. The boy’s case was then transferred to the High Court due to “significant complexities”. Shortly before a scheduled High Court hearing, however, the boy was taken into hospital and detained under the Mental Health Act 1983, “without the prior sanction of either the court, the mother or the local authority (which at that time shared parental responsibility with the mother).”

As a result the boy was made a ward of court. During a subsequent series of court hearings the Slovakian authorities contacted the English courts seeking information on the case, saying it had become the focus of a social media campaign in their country and had attracted public attention. A Slovakian representative was allowed to attend the subsequent hearings.

Subsequently the Slovakian authorities formally declared that: “…we do not intend to dispute jurisdiction of the court in England and Wales and fully accept the competence of the English Court.”

The statement also said: “…the minor child being also a citizen of the Slovak Republic, we would like to assure the Court that should the need arise, the Slovak Republic is fully prepared to provide the Court with cooperation and assistance.”

Finally in December, Sir James approved a care plan for the boy which would see him living with his aunt, with his status as a ward of court lifted.

In a newly published “public” judgement, “separate from the judgment I shall give explaining the reasons for my decision in the particular case”, the President said:

“It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries….In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children.”

He added:

“It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent:”

The judge continued:

“In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and …limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging.”

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  1. Tulsa Divorce Lawyer Matt Ingham says:

    The senior family law judge ruled correctly on this one. When jurisdiction is improper, the court has no legal authority to try the case.

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