Cases where the court has to decide whether to transfer care proceedings to another EU member state are becoming more common in England, and Scots lawyers should be ready too

Councils across the UK have a duty to protect the welfare of the children living within their local authority area. Decisions about the care arrangements for children ultimately lie with the court – but when children have strong links with another EU country, which court should decide?

In terms of article 8.1 of Council Regulation (EC) No 2201/2003, the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. Article 15 of the regulation provides an exception, allowing transfer of proceedings relating to children to a court in another member state. There has been a huge increase in "article 15 transfer" cases in care proceedings in the English courts, often brought by parents (usually foreign nationals) along with the central authority of the other state.

Adoption in the absence of parental consent (frequently referred to as “forced adoption”) is the most invasive step a state can take against the rights of a parent, and it is not surprising that these cases have arisen, particularly as this type of adoption is either not common or not allowed in many other EU states. Although there have as yet been barely any cases raising the issue of article 15 in Scotland, we suspect that this may change. Scottish practitioners involved in permanence proceedings (the equivalent of English care proceedings) would do well to examine the English case law now.

The true question

This takes us to the recent Supreme Court appeal, In the matter of N (Children) [2016] UKSC 15, which involved two young girls of Hungarian nationality who were born (and had lived all of their short lives) in England. The children were placed with foster carers in England and the parents returned to Hungary following the mother's third pregnancy. The issue before the Supreme Court was the proper approach to deciding whether to transfer the case to the Hungarian court.

In terms of article 15, there are three “questions” for the court to address: does the child have a particular connection with another member state; is that court better placed to hear the case, or part of it; and is the transfer in the best interests of the child? In this case, the first instance judge looked at various factors on the question of whether the Hungarian court was better placed to hear the case, and attached particular importance to potential contact with siblings in Hungary. He then tied the “better placed” and “best interests” questions together, concluding that if the Hungarian court was indeed better placed to hear the case, it followed that it would be in the children's best interests to transfer it.

In the Supreme Court appeal, Lady Hale observed that the “better placed” and “best interests” questions require to be addressed separately, although there may be factors relevant to both. The question is whether the transfer is in the children's best interests – a different question from what eventual outcome to the case will be in their best interests.

Factors relevant to transfer

The Supreme Court held that the first instance court's approach to both the “best interests” question and the “better placed” question was wrong. The Hungarian central authority did not see a family placement as viable (in light of assessments carried out), and proposed a foster placement with the possibility of some sort of relationship with the parents and siblings. The English local authority and Children's Guardian proposed adoption. The judge failed to consider how relationships with Hungarian family members might be maintained without transferring the whole case, including the possibility of transferring only the contact part of the proceedings to Hungary under article 15.

In contrast, the consequences for the children of transferring the case to Hungary had not been fully considered. The short term consequences would mean removing the children from a home where they were happy and settled, and the long term consequence would be to rule out one possible option for their care and upbringing, i.e remaining in their current home whether through adoption, a special guardianship order or a residence order. That was the outcome which the professionals with the closest knowledge of the case and of the children considered would be best for them. The Supreme Court therefore held that transferring the case to a court which could not consider that outcome would not be in their best interests. The appeal was allowed, and the request for transfer set aside.

Further issue

This is not, however, the last word on the interpretation of article 15. We await with interest a judgment of the CJEU in relation to a case from the Supreme Court of Ireland in which the question of whether article 15 applies to care proceedings such as these will be considered (Child and Family Agency v JD (C-428/15)). The question posed (along with various others) is: “Does article 15 of Regulation 2201/2003 apply to public law care applications by a local authority in a member state, when if the court of another member state assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?”

This was one of the grounds on which the Children's Guardian in the N case sought to permission to appeal. The Supreme Court considered it more convenient to refuse permission to appeal on that ground and proceed on the basis that article 15 can apply to public law proceedings. Lady Hale observed that it is arguable that article 15 is not applicable to care proceedings because the case cannot be transferred in the same way that a case between parents or other private parties can be transferred. Whilst the regulation clearly does apply to public law proceedings, the question of whether article 15 does not apply in care proceedings must await determination of the CJEU.


The Author
Louise Laing, associate, Family Law Team, Morton Fraser LLP
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