“We thank you for your email and hereby confirm reception of the documents you sent us. We understand that the English authorities are considering to place a child with its maternal aunt in Switzerland according to Article 33 of the Hague Child Protection Convention. In order for us to process the request, we would like to draw your attention to the following: Our role as the central authority under the Hague Child Protection Convention is the coordination and support of the central authorities of each canton. The competent cantonal authority will then, in collaboration with the local child and adult protection authority, assess the possibility of placing the child with its maternal aunt and will decide on the matter accordingly. We therefore require the full address of Aunt in order to forward your request to the competent cantonal central authority. Due to the fact that your request will be assessed by the local child and adult protection authority and several authorities will have to be involved (such as the immigration authorities), Article 33 requests take a considerable amount of time. The processing time of such a request depends on multiple factors and cannot be predicted by our authority. Regarding the invitation to the Advocate’s meeting as well as the hearing on 27 February, 2024, our central authority does generally not participate at hearings since we are not a party in those procedures and we have to observe the separation of powers as well as the principle of territoriality. Finally, we would like to draw your attention to the fact, that most documents will have to be translated in the official language of the place the aunt is living.”
“I refer to the email from the Federal Office of Justice FOJ, Private Law Division dated22 March 2024 , which in its role as the central authority under the Hague Child Protection Convention has informed you that it will not be attending the hearing. The necessary clarifications are currently still underway. Since the central authority is responsible for the matter noted in the margin, the Embassy does generally not participate at hearings since we are not a party in those procedures.”
“Due to the fact that the maternal aunt resides in Switzerland, we would like to draw your attention to the fact that the maternal Aunt cannot be assessed by the CFAB or another agency. The assessment can only be requested through a formal request under article 33 and 34 of the Hague Child Protection Convention. The competent cantonal central authority will then get in contact with the local Swiss authorities who will then proceed to assess the situation accordingly. The assessment of the aunt by the CFAB or another foreign agency is considered an unlawful activity on behalf of a foreign state and is punishable by Swiss law (article 271 of the Swiss Criminal Code). We understand that the assessment of the maternal aunt is an urgent matter and can assure you that the competent local authorities are assessing the situation to the best of their ability.”
“We can confirm that we have forwarded the request to competent cantonal central authority who are currently processing the request. Unfortunately, we cannot confirm the timescales as we are not able to predict on behalf of the local authorities how long the assessment will take. Regarding the invitation to the advocate’s meeting and hearing, our central authority does not participate at hearings since we are not a party in those procedures and we have to observe the separation of powers as well as the principle of territoriality.”
“We have had assessments completed, by our partner agency, on behalf of CFAB and Local Authorities in the past. I do apologise about this and the delay that this has caused; I will be feeding back this email to CFAB’s Service Manager so that we are aware of this. Because of this update, we will remove this case from our list of cases pending allocation.”
“I have discussed this update with CFAB’s Service Manager – I do just want to take the time to clarify that CFAB does not complete the assessment ourselves but that we refer it to our partner agency to arrange/complete.”
“5. Care orders are made in accordance withsection 31 of the Children Act 1989 . Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act. 6. The court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent’s consent should be dispensed with: section 21(3). The court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” the consent to be dispensed with: section 52(1). In deciding whether or not to make a placement order the paramount consideration of the court must be the child’s welfare “throughout his life”: section 1(2). The court must have regard to the ‘welfare checklist’ in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or an adoption order is made: section 21(4). … 29. It is the obligation of the local authority to make the order which the court has determined is proportionate work. The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking. … Adoption – essentials 33. Two things are essential – we use that word deliberately and advisedly – both when the court is being asked to approve a care plan for adoption and when it is being asked to make a non-consensual placement order or adoption order. (Proper evidence and an adequately reasoned judgement.) … 44. We emphasise the words “global, holistic evaluation”
“What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.” 45. McFarlane LJ added this important observation (para 53) which we respectfully endorse: “a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is ‘the most draconian option’, yet does not engage with the very detail of that option which renders it ‘draconian’ cannot be a full or effective process of evaluation. Since the phrase was first coined some years ago, judges now routinely make reference to the ‘draconian’ nature of permanent separation of parent and child and they frequently do so in the context of reference to ‘proportionality’. Such descriptions are, of course, appropriate and correct, but there is a danger that these phrases may inadvertently become little more than formulaic judicial window-dressing if they are not backed up with a substantive consideration of what lies behind them and the impact of that on the individual child’s welfare in the particular case before the court. If there was any doubt about the importance of avoiding that danger, such doubt has been firmly swept away by the very clear emphasis in Re B on the duty of the court actively to evaluate proportionality in every case.”
“8. I should observe that, to my mind, even the prescient architects of theChildren Act 1989 could not have envisaged the considerable cultural changes that were to take place in the United Kingdom in the 23 years that followed the implementation of that Act. British society is now multicultural. Assessing parents and family members may, quite frequently does, involve considering individuals based anywhere in the world. I do not believe that the obligation to explore the family option for a child is weakened in any way by geography, although it can provide real challenges to already overstretched resources. The viability of these options must, from the outset, be evaluated rigorously and reviewed regularly. The need for such assessments must be addressed at the very beginning of proceedings. Late identification of potential family carers abroad may bring two fundamental principles of the Children Act into conflict, namely the desirability, if possible, of a child being brought up in its extended family (where parents are for some reason unable to care for the child themselves) and the need to avoid delay in planning for a child's future. Neither principle should be regarded as having greater weight. The recent reforms to the family justice system have sought to emphasise why it was that the avoidance of delay was given statutory force by the Children Act and the real and lasting harm delay causes to children, particularly in public law care proceedings. There will, in my judgement, be occasions when the obstacles to assessment of family members abroad create such delays that to pursue the option will be inconsistent with the child's own timescales. These are taxing and exacting decisions but they require to be confronted with integrity and without sentimentality.”