Its all been kicking off at the court of appeal it seems, a recent published judgment by the highly respected Mostyn J has tore the Court of Appeal a new one, without the airs and graces he has simply said they are wrong and he is right, indeed it seems to be the case on the face of it, despite the boxing gloves being put on Mostyn J has mentioned the term Forced Adoption which is very rare for Judges to use the term, in essence of this case the L.A sought adoption, parents wanted their child to move to the Czech Republic, Mostyn J agreed in the early stages to the parents wishes, and ordered such, well Mostyn J was appealed and criticised for his decision, however despite the appeal being won the case was sent back before him to Look Again at the original decision, this is where it all kicks off. 13.The reason I am conducting this hearing today in September 2014 is because I have been ordered to do so by the Court of Appeal. My decision of 18 December 2013 was that a Czech court would be better placed to hear this case and in consequence of that decision I issued a formal request under Article 15 of Brussels II Revised Council Regulation No 2201/2003. That formal request sought the agreement of the Czech court to hear this case to its conclusion. My decision of 18 December 2013 was overturned by the Court of Appeal on 21 February 2014 and that is to be found in section A, page 167. 14.It is necessary for me to make reference to aspects of the judgments of the Court of Appeal, if only to clarify matters. The Court of Appeal decided that my decision was flawed as I had allowed the consideration of EDs Czech nationality to dominate my thinking to the exclusion of any proper consideration of the second and third questions formulated in AB v JLB [2009] 1 FLR 517 (see paragraph 45 of Lord Justice Ryders judgment). It was said by him at paragraph 31 of his judgment that the practical considerations which I had identified at paragraph 40 of my judgment of 18 December 2013 were equally matched by the merit of judicial continuity. Notwithstanding that equal balance which I had ultimately decided in favour of a transfer request, Lord Justice Ryder held at paragraph 46 that the issue should have been decided in favour of a continuance of the case here. In his judgment Lord Justice Lewison suggested that in making my decision I had given expression to some kind of secret agenda or inherent hostility to the making of a care order with an adoption plan. In my defence I would say this: (1) If in fact I gave too much weight to the matter of nationality as a connecting factor under the first question it cannot be disputed that it certainly had to be given some weight. However, the Court of Appeal decision affords this factor no weight at all. Instead it merely balances the factor of judicial continuity with the practical considerations and, notwithstanding that they were found to be evenly balanced, my decision to seek a transfer was overturned. This is very hard to follow. (2) I certainly, in my paragraph 29, was not operating any kind of secret agenda but was merely emphasising the draconian and momentous nature of care and placement orders and faithfully recording and following the views of the senior judiciary in Re B [2004] 2 FLR 142 at paragraph 101, per Mr Justice Munby (as he then was); Re B [2013] 1 WLR 1911, a decision of the Supreme Court; and Re B-S (Children) [2013] EWCA Civ 1146, a decision of the Court of Appeal. (3) The conduct of this trial has shown how the Court of Appeals perception of an equal balance of judicial continuity and practical considerations was, with the profoundest of respect to them, wrong. No material from the fact finding hearing has featured in this case other than my judgment. My judgment has been treated as the alpha to omega of the past proceedings. Unquestionably another judge could have conducted this hearing in exactly the same way that I did. I did not reach for any unwritten nuances or impressions as referred to by Lord Justice Ryder at paragraph 27. In my previous judgment I stated that the advantage of me conducting the hearing would be marginal. With the benefit of actual experience I would say that I have had no such advantage. By contrast, even though Lord Justice Ryder thought in his final sentence of paragraph 31 that, In a world where the use of information technology is a commonplace the physical location of a professional witness is rarely likely to be decisive the experience of this case showed that this too was a misplaced view. Matters of FORCED ADOPTION< how right is Mostyn J in this acute paragraph. 38. The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it. The relevance of this aspect of the case is surely obvious. This case, as I have demonstrated, could very easily have been tried in the Czech Republic. It was a fortuity that it was not. Had it been so tried there the orders sought by the Local Authority could not have been made. I accept, of course, that I must apply the law of England exclusively but in so doing the unique irrevocably of the orders sought has to play a prominent part in my judgment. Mostyn J sticks two fingers up at the COA and continues with his pursuant to what is best for the Parents and Child, one does hope that the parents realise just what extraordinary steps Mostyn J is taking here to support the family, his head is now on the block and no doubts will find himself in Early Retirement Mostyn J has his critics and well he has made some boo boos in the past, I am 100% behind him on this one, all the bells and whistles now for an extraordinary battle if the L.A decide to appeal him bailii.org/ew/cases/EWHC/Fam/2014/3388.html
Posted on: Tue, 21 Oct 2014 15:17:14 +0000
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