Mental Capacity Case

Re E (A Child)

Sir James Munby P

Summary: We make note of this case arising under Council Regulation 2201/2003 ('Brussels IIR') because of the suggestions made by the President at the end of his judgment about practice points that arise in relation to cross-border cases involving incapacitated adults.

In passing, however, we note that at least some of his comments in relation to the wider context within which the English family justice system operates ring true in relation to the nascent framework for the international protection of adults enshrined in the 2000 Hague Convention (which, although not ratified in relation to England and Wales, nonetheless finds statutory force in England and Wales through Schedule 3 to the MCA 2005). At paragraphs 17, the President held as follows:

"17. The English family justice system is now part of a much wider system of international family justice exemplified by such instruments as the various Hague Conventions [in this context, the 1980 Child Abduction Convention and the 1996 Convention on the Protection of Children] and, in the purely European context, by BIIR. Looking no further afield, we are part of the European family of nations. We share common values. In particular in this context we share the values enshrined in BIIR.

18. In In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] Fam 253, para 37, Mostyn J expressed his complete disagreement with an approach which he characterised as 'a chauvinistic argument which says that the authorities of the Republic of Slovakia have got it all wrong and that we know better how to deal with the best interests of this Slovakian citizen.; He added that the court 'should not descend to some kind of divisive value judgement about the laws and procedures of our European neighbours.' I profoundly and emphatically agree. That was a case which, as it happened, also involved Slovakia. But the point applies with equal force in relation to every country which is a member of the European Union.

19. On appeal in the same case, Re K (A Child) [2013] EWCA Civ 895, para 24, Thorpe LJ said that:

'there is a fundamental flaw in [counsel's] submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State. That is, in my view, impermissible. We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction.'

Again I emphatically agree.

20. Perhaps I may be permitted in this context to repeat what I said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

'Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child's welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.'

At paragraphs 38ff, the President had cause to consider the application of the Vienna Convention on Consular Relations. As he noted, they are probably not very familiar to most family lawyers; nor, we would add, to most who have cause to appear before the Court of Protection. We therefore set out the relevant Articles:

  1. Article 36 is headed: "Communication and contact with nationals of the sending State." It reads as follows:
"1 With a view to facilitating the exercise of consular functions relating to nationals of the sending States:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2 The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

  1. Article 37 is headed "Information in cases of deaths, guardianship or trusteeship, wrecks and air accidents." The only part that is relevant for present purposes is Article 37(b):
"If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty:

(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments; …"

Sir James Munby P expressly disavowed any intention to set out what the obligations of public authorities (as competent authorities) would be under the provisions of the Convention. Rather, he suggested how "as a matter of good practice family judges, when hearing care and other public law cases, should from now on approach these provisions."

At paragraphs 45 ff, the President held as follows:

"45. In considering the possible implications of Articles 36 and 37 of the Convention, family judges should assume that, in appropriate circumstances, the court may itself be a 'competent authority'. They should also assume that there is a 'detention' within the meaning of Article 36 whenever someone, whether the child or a parent, is being deprived of their liberty within the meaning of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, for example, in accordance with sections 2 or 3 of the Mental Health Act 1984 or, in the case of a child, in accordance with section 25 of the Children Act 1989.

46. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.

47. Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case:

i) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state. In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

ii) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for

(a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or

(b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

iii) Whenever a party, whether an adult or the child, who is a foreign national

(a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

(b) is detained,

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay.

45. If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision."

Comment: As noted above, the principles set out above would seem on their face to relate equally to proceedings in which the Court of Protection (a) appoints a litigation friend to act for P or any other party to the proceedings; (b) authorises the deprivation of liberty of a foreign national under the provisions of s.16 MCA 2005; or (c) appoints a deputy for a foreign national. They would also appear to relate to proceedings in which the Court of Protection becomes aware of the fact of a detention (whether under the provisions of Schedule A1 to the MCA 2005 or the MHA 1983).

We should emphasise, however, that this is a matter upon which it is necessary that Sir James Munby P expresses an opinion in his capacity as the President of the Court of Protection. Sir James disavowed any intention to spell out the obligations imposed by the Convention on public authorities – and he was undoubtedly choosing his words here with care. Neither Articles 36 nor 37 of the Vienna Convention have the force of law in England and Wales (not being included in the material provisions of the Consular Relations Act 1968, as amended: see also the commentary in paragraphs 413 and 499 of the 2010 edition of Halsbury's Laws (International Relations Law). There also remains something of a debate in international law circles about the extent to which the Convention itself gives rise to an individual right upon the part of the detained individual to consular access as opposed to imposing rights and obligations as between the two States in question.

Bringing matters back to home, however, as matters stands public authorities are under no obligations imposed by English law to take steps to give effect to either Article 36 or 37 of the Convention. [fn] A hospital trust receiving an application to detain a foreign national patient under the provisions of the MHA 1983 or a hospital or care home detaining a foreign national patient under the provisions of Schedule A1 to the MCA 2005 is (if the patient requests) not required by any obligation deriving from the Convention to notify the consul of the country of that national (assuming that country is a party to the Convention). That having been said, a refusal by a hospital or care home to accede to a request to notify a consul might well be unlawful – not as a breach of any right or duty that might arise under the Convention, but as a breach of Article 8 ECHR.

If the good practice guidance set out in paragraphs 45-8 of Re E is applied in the Court of Protection, it would undoubtedly assist in securing the greater flow of information between jurisdictions. We would hope, though, that CoP judges would be astute to ensure that the views of incapacitated adult who are subject to detention as to notification of their consular officials would be taken into account for two reasons:

  1. Article 36 expressly provides that notification is at the behest of the detained individual (the requirement that the individual be notified of their right to contact the consular staff if mandatory): this reflected a careful compromise in the drafting of the Convention (see, for a summary, the entry upon the Convention in the Max Planck Encyclopaedia of International Law). As noted in the footnote, there are bilateral conventions in which the notification obligation arises even absent a request being made, but any guidance drawing inspiration from the Convention should, we suggest, be careful to respect the terms of the Convention.
  2. Requiring notification to consular officials absent a request by a detained individual or (more starkly, in the face of objections by that individual) may also give rise to troubling consequences for that individual. To take one instance (and ignoring for a moment the status of diplomatic relations between the United Kingdom and Iran), it is not immediately obvious that Dr A would have wished the fact of his hunger strike and the consequent deprivation of his liberty for purposes of force-feeding to be brought to the attention of the authorities of the very state to which he was seeking not to be deported.
We would, perhaps, conclude with a note that this is an issue upon which clarification will be likely to be required in due course as we are aware of a case before the CoP at the moment where a foreign national is detained, the subject of a deputyship, and also had the Official Solicitor appointed to act as litigation friend (he would also, incidentally, very much wish to leave the care home in which he is placed to return to his home country).

[fn] The Police are under obligations in relation to consular notification by virtue of Codes C and H to the Police and Criminal Evidence Act 1984, but these are not limited to nationals of States parties to the Convention. There are also a number of bilateral conventions which require consular notification even if the detainee does not request it, details of which can be found here.