Re Z (Recognition of Foreign Order)  EWHC 784 (Fam),  MHLO 11
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Health Executive of Ireland v Z and othersB
2016 March 23; April 8
High Court — Jurisdiction — Recognition and enforcement of foreign orders — Orders relating to compulsory therapeutic placement of child — Child neither British national nor British resident — Whether power under inherent jurisdiction to make interim emergency order for recognition and enforcement — Whether necessary for child to be represented — Council Regulation (EC) No 2201/2003, arts 1, 21, 23, 28, 56
The applicant sought and obtained an order in the Irish High Court authorising the treatment in a specialist unit in an English hospital of an Irish child aged 15 who had developed a very serious eating disorder and who required treatment which could not be provided in her home country. Her doctors, supported by her parents but against her wishes, made arrangements for her to be admitted and treated in a specialist unit in an English hospital which was able to provide the treatment required. The applicant applied to the English High Court for an order, under the inherent jurisdiction of the court, for recognition and enforcement of the Irish High Court order. At an initial hearing the court made an interim emergency order under inherent jurisdiction permitting the child’s emergency admission for treatment in the hospital in England. At a further hearing on notice a number of issues arose for determination, including whether article 1 of Council Regulation (EC) No 2201/2003 (“the Regulation”) applied to the case, whether the court had power under its inherent jurisdiction to make an interim emergency order for the recognition and enforcement of the Irish High Court order pending an application under FPR Pt 31, whether recognition should be refused on any of the grounds set out in article 23 of the Regulation, and whether the child should be represented in the proceedings.
On the application—
Held, interim emergency order granted under the court’s inherent jurisdiction, authorising the recognition and enforcement of the Irish High Court order, extended until such time as an application could be lodged under FPR Pt 31 and considered by the relevant court. (1) An order authorising the applicant to transfer the child to a hospital unit, and further authorising that unit to treat her and, where necessary and appropriate, to use proportionate and reasonable force and restraint in the course of the treatment, was different from an order placing a child in the care of a local authority. Nonetheless, such an order was plainly for the protection of the child, and dealt with “the designation and functions of … a body having charge of the child’s person … assisting the child”, within the meaning of article 1(2)(c) of the Regulation. Even if such an order did not fall within that category, it plainly amounted to a measure for the protection of the child and came within the scope of article 1 of the Regulation (paras 11, 12).
(2) The powers for interim enforcement of a foreign order under FPR Pt 31 arose only after the order had been registered. However, it was well established that the High Court might in appropriate circumstances use its inherent jurisdiction to supplement a statutory scheme and thus it was open to the court, provided that none of the grounds for non-recognition in article 23 arose, to invoke the inherent jurisdiction in urgent cases to make orders that provided for the immediate recognition and enforceability of orders of a court of a member state of the European Union pending an application under FPR Pt 31. In taking such a course the court was complying with its obligations under article 21 of the Regulation (paras 14–18).
(3) Although making an order that protected a child who was not a British national and who had never resided in this country might represent an extension of the use of the inherent jurisdiction, if the modern function of the inherent jurisdiction was to supplement the statutory code where necessary its use would inevitably evolve over time and, given the globalisation of family law, that evolution would in appropriate circumstances extend to embrace international cases. In the present case, making an order in urgent circumstances under the court’s inherent jurisdiction to secure the recognition and enforceability of an order to protect the safety and welfare of the child so that she could come to this country to receive life-sustaining treatment was an entirely appropriate interpretation of domestic law, allowing it to work in harmony with the laws of the Irish Republic to achieve the common objective of protecting the best interests of the child (paras 19, 20).
(4) None of the prescribed grounds in article 23 of the Regulation for refusing recognition were made out. In particular, while article 56(1) of the Regulation, which imposed an obligation on the court to consult the authorities of the member state in which the order was to be implemented, clearly applied to placements involving foster families and to care orders facilitating placements in a secure institution providing therapeutic and educational care, it did not extend to a case where a child was transferred to a hospital for treatment in another member state with the parents’ consent. In the present case the obligation did not arise, since the parents had not delegated their parental responsibility to any other institution or person, and they retained control of the decision that had been made to place the child in hospital in this country. Further, the effect of the Irish order was not to “place” the child in the care of the hospital, but to authorise her treatment there by way of implementation of the parental decision (paras 22, 23, 32).
(5) Since the child had been represented in the Irish proceedings it was unnecessary for her to be represented in the present proceedings before making an emergency order under the inherent jurisdiction for the recognition and enforceability of the Irish order (paras 25, 27, 28). In re F (Mental Patient: Sterilisation)B, CA and HL(E), In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) B, CA and In re B (A Child) (Reunite International Child Abduction Centre intervening) B, SC(E) applied.
Henry Setright QC, Victoria Butler-Cole and Michael Gration (instructed by Bindmans LLP) for the applicant.
David Williams QC (instructed by Penningtons Manches) for the mother and father.
Melanie Carew (of CAFCASS Legal) as advocate to the court.
Reported by: Jeanette Burn, Barrister