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Court of Appeal, Thorpe, Black LJJ, Sir Stephen Sedley
Brussels II Revised - Care proceedings - Art 56, Brussels II Revised - Lithuanian mother brought child to live in UK - When court determined mother could no longer care for child Lithuanian authorities made an Art 56 request to return the child - Whether Art 56 placed an obligation on English court to comply with request
17 July 2012
The Lithuanian mother brought her 4-year-old daughter to England to live. The child had previously been in local authority care in Lithuania and the authorities there notified the English authorities of their concerns. As a result the local authority obtained an emergency protection order and the child had remained in foster care. Proceedings were transferred to the High Court due to the possibility of the Lithuanian authorities seeking a return of the child pursuant to Art 56 of BIIR. The Lithuanian court had already determined that no familial placement could be found for the child and, therefore, if she were to return she would be reliant on foster care. The local authority in England drew the same conclusion and when the case was remitted back to the county court for determination the judge included an order directing that the court should determine whether the child should be returned to the care of her mother and if not practical arrangements should be made for compliance with the Art 56 request. The mother appeal and the court was asked to adjudicate on the responsibilities under Art 56 of BIIR.
Held - allowing the appeal; amending the order -
(1) The sole purpose and effect of Art 56(1) and (2) of BIIR were to require a court which was considering placing a child in institutional or foster care in another Member State to consult any authority responsible for child placements in that Member State and not to decide on any such placement without that authority's consent. There was no entitlement of a Member State to call for the placement of a child within its jurisdiction (see para ).
(2) Article 56 placed a consultative obligation on the English court but it did not tie the hands of the court or exclude or reduce its obligation to arrive at its own judgment as to the child's best interests (see para ).
(3) The judge's order was in error to the extent that the second paragraph treated Art 56 as if the English court was obligated to return the child and comply with a possible request from the Lithuanian authorities for a return of the child (see paras , ).
The Red Book is the acknowledged authority on practice and procedure