Z, Re (Recognition of Foreign Order) (rev 1)

The inherent jurisdiction may supplement the statutory and regulatory scheme governing recognition and enforcement of a foreign child-welfare order where urgent action is required, provided that the court does not undermine that scheme and observes the applicable safeguards. An order authorising a child’s transfer to, and medical treatment in, a hospital in another EU member state concerns parental responsibility and falls within the scope of Brussels IIA. Article 56 does not apply to temporary hospital treatment which is not a placement in institutional care. Pending registration under Part 31 of the Family Procedure Rules, the court may make an interim mirror order under its inherent jurisdiction and Article 21. A child who was represented and heard in the foreign proceedings will generally not need to be joined in the recognition proceedings.

The Health Service Executive of Ireland sought recognition and enforcement in England of orders made by the High Court of Ireland authorising the transfer of Z, a seriously ill adolescent, to an English hospital for treatment of a severe eating disorder. The Irish orders authorised detention, medical treatment, reasonable force and restraint, and measures to prevent absconding.

The court had made interim orders under the inherent jurisdiction because treatment was urgent. At the substantive hearing, the parties agreed that the order should continue but differed on the legal basis. The issues included whether Brussels IIA applied, whether Article 56 was engaged, whether the inherent jurisdiction could supplement the regulation pending registration, and whether Z needed separate representation in England.

1. Brussels IIA applied. An order authorising transfer to a hospital, treatment, and proportionate force or restraint was a measure for the protection of the child. It concerned the designation and functions of a body having charge of or assisting the child and therefore fell within Article 1(2)(c). In any event, the list in Article 1(2) was not exhaustive, and the order fell within the general scope of measures concerning parental responsibility.
2. The inherent jurisdiction could supplement the regulatory scheme in an urgent case. The court had to examine the statutory and regulatory code first and could not use the inherent jurisdiction to undermine Parliament’s scheme. Here, the order was made under Article 21 to mirror the Irish order pending the Part 31 registration process. It was not an Article 20 emergency protection order because the Irish court with jurisdiction had already made the relevant protective order.
3. The safeguards in Article 23 remained applicable. Recognition could not be granted where a specified ground for non-recognition arose, including manifest conflict with public policy, procedural unfairness, irreconcilability with a later judgment, or non-compliance with Article 56 where applicable.
4. Article 56 did not apply. Temporary admission to hospital for treatment did not amount to placement in institutional care. The parents retained parental responsibility and the hospital was implementing the treatment decision rather than assuming responsibility for the child’s welfare as a whole.
5. Separate representation for Z was unnecessary at this stage. She had been represented in Ireland, her wishes had been placed before that court, an independent guardian had been appointed there, and the Irish order provided for regular review. The recognition court should work with the foreign order and avoid procedural hurdles that could delay treatment.
6. The court declined to determine whether mirror orders could provide indefinite or long-term recognition of foreign medical-treatment orders outside Brussels IIA. It continued the interim recognition order until registration, imposed directions for any replacement Irish order, and made no order for costs.

Not stated in the judgment. The decision was a first-instance determination by the High Court (Family Division) on an application for interim recognition and enforcement of an Irish order.