English courts cannot prevent foreign media publishing reports about a Slovakian boy placed into care in this country, the most senior family judge has said.
Giving a public judgment of ‘very considerable general importance’ on issues faced in care cases involving a European dimension, the head of the Family Division Sir James Munby (pictured) said the child’s mother has a ‘compelling claim’ to be allowed to tell her story to the world.
But he said the identity of her son, known as E, who was ordered to live with his aunt in the UK, should be protected. He ruled that the mother can publish whatever she wants in the foreign print or broadcast media, so long as it is not in the English language, not on the internet, and so long as she does not identify E.
Munby said the court must proceed with ‘very great caution’. Any attempt to control foreign media, whether directly or indirectly, he said is ‘simply impermissible’.
‘In the first place, what justification can there be for the courts in one country seeking to control the media in another? If the media in a particular state are to be controlled that must be a matter for the relevant authorities in that state,’ he said.
‘For the courts of another state to assume such a role involves an exercise of jurisdiction which is plainly exorbitant, not least as involving interference in the internal affairs of the other state,’ he said.
To seek to shelter behind the family court’s normal practice of sitting in private amd limit the information available, he added would be ‘unprincipled’, ‘counter-productive and, potentially, extremely damaging’.
Elsewhere in the judgment Munby issued good practice guidance to courts dealing with the growing number of cross-border cases, to ‘ameliorate’ concerns over the way the English courts deal with them.
It is, he said, a ‘frequently voiced complaint’ that the courts of England and Wales are ‘exorbitant’ in their exercise of the care jurisdiction over children from other European countries and that the courts do not pay adequate heed to the law and conventions concerning them.
Munby noted that the UK is unusual in Europe in permitting the total severance of family ties without parental consent, with the consequence that a child in England and Wales who is a national of another country could be adopted by an English family despite protests from the child’s non-English parents.
He stressed the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in a case with a European dimension is where the child is habitually resident.
Assuming the court does have jurisdiction, the judge will need to consider whether to exercise the court’s powers to request the court of another member state to assume jurisdiction.
Munby said there must be transparency and openness between the English family courts and the consular and other authorities of the relevant state. Where a party, either an adult or child, is a foreign national the court should find out if the foreign member state has been notified of the proceedings and if not, should bring it to the attention of the relevant consular officials.
The full judgment is here.
Meanwhile, in LC (Children), the Supreme Court unanimously ruled that the assertions of an adolescent, T, about her state of mind during her residence in Spain are relevant to a determination whether her residence there was habitual.
The court set aside the conclusion that T was habitually resident in Spain and remitted the case to the High Court for fresh consideration.
Giving the lead judgment, Lord Wilson said: ‘Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However in highly unusual cases there must be room for a different conclusion, and the requirement for some degree of integration provides such room.’