High Court family judge Sir James Munby spoke out in case of Slovak boy
He said attempts by social workers to gag media were ‘impermissible’
It comes after Italian mother was given forced caesarean in secret case
By STEVE DOUGHTY, SOCIAL AFFAIRS CORRESPONDENT
15 January 2014
Judges and social workers were yesterday warned that they must not seize control of the lives of foreign children.
No court can order a child from Europe to be taken from their parents or given up for adoption, said Britain’s most senior family law judge, Sir James Munby.
Overseas authorities should always have a say in cases involving their nationals, and the future of foreign children must be decided by courts in their own country, he said.
Judges and social workers must no longer keep their decisions secret or try to gag foreign media either, he added.
Sir James, the president of the Family Division of the High Court, laid down rules for judges dealing with such issues as he handled the case of a 12-year-old boy from Slovakia.
The judge said the Slovak boy – whose case has been heavily reported by newspapers in Bratislava – should live with an aunt. Slovak authorities were closely involved in the case.
It comes six weeks after the scandal over Alessandra Pacchieri, an Italian mother who was forced by a British judge in the secretive Court of Protection to undergo a compulsory caesarean.
Miss Pacchieri, 35, who suffers from bipolar disorder, was sectioned under the Mental Health Act after suffering a breakdown at Stansted Airport during a short visit to Britain.
In secret court hearings, a Court of Protection judge ordered that she undergo a compulsory caesarean, and a family court judge in Chelmsford overruled her pleas and ordered that her baby daughter should be adopted in this country.
Last month Sir James rejected an application by Essex social workers forbidding British and Italian newspapers from naming Miss Pacchieri.
He said that the attempt to deny her a right to speak out in public was ‘an affront to humanity’. Miss Pacchieri may now be named in public, while the name of her baby being brought up in Essex, and her adoptive parents, remain secret.
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The case of Miss Pacchieri and the future of her baby have yet to be finalised by the courts. But yesterday in the similar case of the Slovak boy Sir James laid down a series of rules for judges ‘in a wider context’ which he said courts must follow in future.
Sir James said: ‘To seek to shelter in this context behind our normal practice of sitting in private and limiting the permissible flow of information to outsiders is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging.
Controversial: Several decisions have been made by the Court of Protection, which sits mostly in secret and presides over cases involving mental health issues or people deemed unable to decide for themselves
‘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.’
He added: ‘It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of their care jurisdiction over children from other European countries.
‘The number of care cases involving children from other European countries has risen sharply in recent years and significant numbers of care cases now involve such children.
‘It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the UK is unusual in Europe in permitting the total severance of family ties without parental consent.
‘The outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents.
‘It is one of the frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of their care jurisdiction over children from other European countries.’
The judge said children must live in Britain for British courts to hold sway.
For a family judge to act, foreign authorities must be permitted in court and kept fully informed, he added.
He said English courts should allow European judges to decide on the lives of children who live mainly in their countries, and English judges should make declarations that they have no jurisdiction in such cases.
Sir James also condemned efforts by social workers and courts in England to silence foreign newspapers.
‘As a general principle, any attempt by the English court to control foreign media, whether directly or indirectly, is simply impermissible,’ 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 another state.
‘What would we think, what would the English media think, if a family judge in Ruritania were to order the Daily Beast to desist from complaining about the way in which the judicial and other state authorities in Ruritania were handling a case involving an English mother?’