E (A Child), Re

In public law children proceedings with a European dimension, jurisdiction ordinarily depends on the child’s habitual residence under Brussels II revised. Mere presence is insufficient unless habitual residence cannot be established or another specified jurisdictional basis applies. The court must address jurisdiction and any possible transfer under Article 15 expressly, even where the parties overlook them.

Proceedings involving foreign nationals should be transparent to the relevant consular authorities. Ordinarily, communication, attendance by an accredited consular observer and access to appropriate documents should be facilitated.

A reporting restriction may protect a child’s anonymity while preserving public debate and a parent’s ability to tell their story. An English court should not attempt to control purely foreign media. Internet and satellite publication may justify a limited extra-territorial restriction because of their worldwide accessibility.

The court heard care and wardship proceedings concerning a 12-year-old boy who was a British and Slovak citizen and had lived in England throughout his life. During the proceedings he had been detained in hospital, the mother had returned temporarily to Slovakia, and the Slovakian Central Authority and an accredited consular official had cooperated with the English court.

At the final hearing, the court approved a plan under which the child would remain in local-authority care while living with his maternal aunt. It also decided to discharge the wardship and make a reporting restriction order.

This separate public judgment addressed three issues of wider importance: jurisdiction and interstate cooperation under Council Regulation (EC) No 2201/2003, consular communication and access under articles 36 and 37 of the Vienna Convention on Consular Relations, and the proper scope of reporting restrictions where a case has attracted foreign media attention.

1. Jurisdiction and cooperation. The English court had jurisdiction under article 8(1) of Council Regulation (EC) No 2201/2003 because the child was habitually resident in England and Wales. His Slovak citizenship did not displace that conclusion. Although he had a particular connection with Slovakia, the requirements for an article 15 request were not satisfied. The article 55 arrangements had facilitated effective cooperation with the Slovakian authorities.

2. In a public law children case with a European dimension, the court must identify expressly in both its judgment and order the basis on which it accepts or rejects jurisdiction and the basis on which it exercises, or declines to exercise, its article 15 powers. The judge must raise those issues even if the parties overlook them. Where article 17 applies, the court must of its own motion declare that it lacks jurisdiction. Article 20 permits only urgent, provisional protective arrangements pending action by the Member State having jurisdiction.

3. Consular relations. Without deciding the domestic or international-law effect of articles 36 and 37 of the Vienna Convention, the court stated the good practice applicable in family proceedings. Courts should assume that they may be competent authorities and that detention includes a deprivation of liberty within article 5 of the European Convention on Human Rights. They should ordinarily facilitate communication with consular authorities, admit accredited consular observers to private hearings and permit access to transcripts, orders and relevant documents. Where a foreign national is represented by a guardian or litigation friend, or is detained, the court should ensure that the relevant consular officials are informed without delay. Any more restrictive approach requires prior submissions and explicit reasons in the judgment and order.

4. Reporting restrictions. A reporting restriction order was made until the child’s eighteenth birthday. It protected the identities of the child and his carers while leaving room for public debate and for the mother to tell her story. The child’s welfare imperatively required anonymity because identification risked jeopardising his recovery from serious illness.

5. An English court should not attempt to control purely foreign print or broadcast media. Such control would be an exorbitant interference in another state’s internal affairs and would probably be futile. Internet and satellite publication may be treated differently because it has extra-territorial effects. The order accordingly left foreign print and broadcast publication unrestricted and confined restrictions on internet and satellite publication to English-language material capable of identifying the child.

1. High Court (Family Division): The court approved a care plan for the child to live with his maternal aunt while in local-authority care, discharged the wardship and made a reporting restriction order. This separate judgment gave guidance on European jurisdiction, consular relations and publication.

2. Earlier High Court proceedings: Pauffley J made the child a ward of court. Sir Peter Singer continued the wardship, discharged the interim care order and gave directions concerning treatment and the conduct of the proceedings.

3. County Court: A District Judge made and extended interim care orders before transferring the proceedings to the High Court because of their complexity and the possible use of wardship.

4. Family Proceedings Court: The local authority commenced care proceedings, which were transferred to the County Court on the same day.