European briefing: the ECJ has acted swiftly without sacrificing legal certainty

Case C-92/12 PPU Health Service Executive v SC (26 April 2012) shows the rapid response that the ECJ can provide under the 'urgent procedure' for answering references from national courts.

The case concerned a very sensitive issue: cooperation between member states placing children in secure care. SC was Irish and resident in Ireland. Her mother lived in London. SC was vulnerable and had exceptional protection needs. Various placements in care in Ireland had been unsuccessful; there had been episodes of risk-taking, violence, aggression and self-harm. In September 2011, an application was made to the Irish High Court to place SC in secure care in England. It was hoped that results might be better if SC was closer to her mother. The chosen facility and the English local authority were willing to accept SC.

An interim order was made in Ireland. But the Irish court had various doubts about how the proposed course could fit within regulation (EC) 2201/2003 concerning jurisdiction in matrimonial matters and matters of parental responsibility. Questions were referred in February 2012.

The first question was whether the regulation applied to a decision which would deprive the child of her liberty. None of the parties or governments making submissions to the ECJ thought it did not, and the ECJ agreed. Although not specifically mentioned in the regulation, orders for compulsory placement in secure care are covered.

Competent authority

The second question concerned the expression of 'consent' by a competent authority of the receiving member state. Article 56 requires a court that is contemplating placing a child in institutional or foster care in another member state to consult 'the central authority or other authority having jurisdiction', and to obtain consent of 'the competent authority'. The Irish Court had consulted the UK's International Child Abduction and Contact Unit, which is the designated 'central authority' in England. It had provided letters from the proposed institution and its local authority, stating that the institution accepted the placement. But the Irish court was concerned about these, because it doubted whether the proposed institution could itself be? a competent authority.

The ECJ said that it was essential that the authority be subject to public law: the consent of a private institution would be insufficient. As it turned out, the English institution was in fact a local-authority run institution which probably qualified as an 'authority', but the ECJ was at least implicitly critical of the uncertainty that English law's ambivalence in drawing a distinction between public law and private law institutions caused. It insisted on a need for sufficiently clear institutional arrangements to guarantee that consent came from a body with public law duties and subject to public law supervision. English law needs to be clearer about the identity of the 'competent authority' in these cases.

No automatic effect

The ECJ then addressed the most interesting question. The Irish Court's order would, subject to the limited grounds for non-recognition allowed by the regulation, be enforceable in England. But could it be implemented before a formal declaration of enforceability by the English courts? Some parties to the ECJ's proceedings thought that it should be: the order itself, which was prima facie entitled to recognition, should be sufficient warrant. But the commission and the UK maintained that an order of a court of one member state which contemplated the compulsory deprivation of liberty in another could not be 'self-executing'. They thought it essential that a decision be taken in the member state in which the order was to be executed before it could be relied on there.

The ECJ agreed with this more restrictive view. Given the serious consequences of the order, in terms of the deprivation of rights which the child enjoyed under English law, an English court order for enforcement was essential. The ECJ pointed out that there were a few specific cases where the regulation contemplates that an order may have automatic effect in another member state, but that this was not one of them. Moreover, the court pointed out, enforcement must apply to each decision of the original court: Every authorisation of detention requires a declaration of enforceability

However, the ECJ recognised, this could cause practical difficulties if enforcement could be delayed for a long period, either ?before the initial order for enforcement or during any appeal. On this point, the court was prepared to find that the regulation's ?objective implicitly imposed various obligations on the courts of the receiving member state. First, those courts must ensure that ?enforcement decisions were taken without delay and as a matter of urgency. Second, they must prevent any appeal having a suspensive effect. In that way it ought to be possible to ensure that rapid action could be taken to implement the original order, and, if it turned out that the order should not be enforced, the legality of the action taken in the interim would not be called into question.

This is an ingenious and intelligent solution to a practical problem, which strikes a fair balance between the requirements for legal certainty and judicial review, and the urgency of these matters. Indeed, looked at as a whole, the ECJ's judgment demonstrates a worthy desire to ensure adequate protection of the child's rights and interests (by insisting on consent from a properly identified and constituted public authority in the receiving member state, and a judicial declaration of enforceability), with a recognition of the need to avoid time being lost or wasted in unnecessary procedural complexity.