AB, (A Child), Re

Article 56(1) and (2) of Council Regulation (EC) 2201/2003 provides consultative safeguards for cross-border placement. It requires consultation with the relevant authority in the other member state and that authority’s consent before institutional or foster placement there. It gives that state no entitlement to demand placement within its territory. Nor does it reduce the domestic court’s independent duty to decide where the child’s best interests lie. An assertion that the other state can meet the child’s needs therefore cannot bind the domestic court or replace its own assessment.

VB, a Lithuanian national, appealed from an order made by Mr Justice Hedley in care proceedings concerning her four-year-old daughter, AB. The child had been in foster care following an emergency protection order. Because the Lithuanian authorities were expected to seek the child’s return for placement in Lithuania, Hedley J remitted the case to Sheffield County Court but directed it to consider the practical arrangements for compliance with a likely Article 56 request.

The central issue was whether Article 56 entitled the Lithuanian authorities to call for placement in Lithuania and limited the English court’s duty to assess the child’s best interests.

1. Disposition. The appeal was allowed to the extent that sub-paragraph (b) of paragraph 9 of Hedley J’s order was deleted. The three-member court was unanimous. Agreed directions for the further conduct of the case were annexed.
2. Construction of Article 56. The court held that its concern was with paragraphs (1) and (2) of Council Regulation (EC) 2201/2003. Those provisions confer no entitlement on one member state to call for the placement of a child within its jurisdiction. They do not eliminate or constrict the domestic court’s ordinary obligation to decide where the child’s best interests lie.
3. Article 56(1) requires a court considering institutional or foster placement in another member state to consult the authority responsible for child placements in that state. Article 56(2) prevents the placement decision being made without the competent authority’s consent. Their purpose is to ensure that a child at risk is not sent into a transnational void. The references to requesting and requested states are potentially misleading; the provision is concerned with the consulting state and the state consulted.
4. Application. The Court of Justice had authoritatively explained the meaning of Article 56 in Health Service Executive v SC and AC (C-92 / 12PPU, 26 April 2012), particularly paragraph 80. Hedley J had therefore erred in treating Article 56 as transferring responsibility to Lithuania, excluding further enquiries, or tying the hands of the English court. The provision has a consultative role only. The domestic court must still make its own judgment on the child’s best interests.

• Court of Appeal (Civil Division): in [2012] EWCA Civ 978, allowed the appeal to the extent of deleting sub-paragraph (b) of paragraph 9 of Hedley J’s order.
• High Court: Mr Justice Hedley remitted the care proceedings to Sheffield County Court and directed consideration of practical arrangements for a likely Article 56 placement request.