LADY HALE: (with whom Lord
Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agree)
1.
The issue in this case is whether the future of two little girls, one
now aged four years and two months and the other now aged two years and 11
months, should be decided by the courts of this country or by the authorities
in Hungary. Both children were born in England and have lived all their lives
here. But their parents are Hungarian and the children are nationals of
Hungary, not the United Kingdom. Under article 8.1 of Council Regulation (EC)
No 2201/2003, concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and the matters of parental responsibility,
known as the Brussels II revised Regulation (“the Regulation”), the primary
rule is that jurisdiction lies with the courts of the member state where the
child is habitually resident. That would be England in this case. However, an
exception is made by article 15, under which those courts can transfer the case
to a court in another member state with which the child has a particular
connection, if that court would be “better placed” to hear the case, or part of
it, and the transfer is in the best interests of the child. These children have
a particular connection with Hungary, as it is the place of their nationality.
The issue, therefore, is the proper approach to deciding whether a Hungarian
court would be better placed to hear the case and to whether transferring it
would be in the best interests of the children.
2.
The context in which these questions arise is important. Free movement
of workers and their families within the European Union has led to many
children living, permanently or temporarily, in countries of which they are not
nationals. Inevitably, some of them will come to the attention of the child
protection authorities, because of ill-treatment or neglect or the risk of it.
In the past, the courts in this country might assume that they had jurisdiction
simply because of the child’s presence here. It is now clear, however, that
public law proceedings fall within the scope of the Regulation (see In re C (Case
C-435/06) [2008] Fam 27), so that in every case with a European
dimension (more properly, a Regulation dimension) the courts of this country
have to ask themselves whether they have jurisdiction. Even if they do have
jurisdiction, Sir James Munby P has said that in every case they will need to
consider whether the case should be transferred to another member state: see In
re E (A Child) (Care Proceedings: European Dimension): Practice Note [2014] EWHC 6 (Fam); [2014] 1 WLR 2670, para 31; also Merton London Borough Council
v B (Central Authority of the Republic of Latvia intervening) [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84(ii). As the Family Rights Group observe in
their helpful intervention, this has led to a “remarkable proliferation” of
case law over the last three years. Hitherto, courts would manage cases with a
foreign element by evaluating foreign placement options and deciding upon the
best outcome for the child themselves. Now, they may be more inclined to
transfer the decision-making abroad.
3.
One reason for this change in approach may be “the concerns voiced in
many parts of Europe about the law and practice in England and Wales in
relation to what is sometimes referred to as ‘forced adoption’” (referred to by
the President in his judgment in this case: [2015] EWCA Civ 1112; [2016] 2 WLR 713, para 8). Research compiled by the Council of Europe (O Borzova, Social
services in Europe: legislation and practice of the removal of children from
their families in Council of Europe member states, Report to the Parliamentary
Assembly, 2015, Doc 13730) and commissioned by the European Union (C
Fenton-Glynn, Adoption without Consent, Directorate General for Internal
Policies of the EU Parliament, Policy Department C: Citizens’ Rights and
Constitutional Affairs, 2015) shows that other member states do permit adoption
without parental consent. However, England and Wales is unusual in permitting
parental consent to be dispensed with where the welfare of the child requires
this (Adoption and Children Act 2002, section 52(1)(b)) rather than on more
precise grounds of parental absence or misconduct. This country is also unusual
in the speed and frequency with which it resorts to adoption as the way to
provide a permanent home for children who for one reason or another cannot live
with their families. The European Court of Human Rights has, however, held our
law to be compatible with the right to respect for private and family life,
protected by article 8 of the European Convention on Human Rights: YC v
United Kingdom (2012) 55 EHRR 33.
4.
It goes without saying that the provisions of the Regulation are based
upon mutual respect and trust between the member states. It is not for the
courts of this or any other country to question the “competence, diligence,
resources or efficacy of either the child protection services or the courts” of
another state (see In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, para 54(v), per Munby P). As the Practice Guide
for the application of the Brussels IIa Regulation puts it, the assessment
of whether a transfer would be in the best interests of the child “should be
based on the principle of mutual trust and on the assumption that the courts of
all member states are in principle competent to deal with a case” (p 35, para
3.3.3). This principle goes both ways. Just as we must respect and trust the
competence of other member states, so must they respect and trust ours.
Article 15
5.
So far as relevant, article 15 of the Regulation reads as follows:
“1. By way of exception, the
courts of a member state having jurisdiction as to the substance of the matter
may, if they consider that a court of another member state, with which the
child has a particular connection, would be better placed to hear the case, or
a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part
thereof in question and invite the parties to introduce a request before the
court of that other member state in accordance with paragraph 4; or
(b) request a court of
another member state to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall
apply:
(a) upon application from a
party; or
(b) of the court’s own motion;
or
(c) upon application from a
court of another member state with which the child has a particular connection,
in accordance with paragraph 3.
A transfer made of the court’s own
motion or by application of a court of another member state must be accepted by
at least one of the parties.
3. The child shall be
considered to have a particular connection to a member state as mentioned in
paragraph 1, if that member state: …
(c) is the place of the
child’s nationality; …
4. The court of the member
state having jurisdiction as to the substance of the matter shall set a time
limit by which the courts of that other member state shall be seised in
accordance with paragraph 1.
If the courts are not seised by
that time, the court which has been seised shall continue to exercise
jurisdiction in accordance with articles 8 to 14.
5. The courts of that other
member state may, where due to the specific circumstances of the case, this is
in the best interests of the child, accept jurisdiction within six weeks of
their seisure in accordance with paragraph 1(a) or 1(b). In this case, the
court first seised shall decline jurisdiction. Otherwise, the court first
seised shall continue to exercise jurisdiction in accordance with articles 8 to
14.
6. The courts shall
cooperate for the purposes of this article, either directly or through the
central authorities designated pursuant to article 53.”
This case
6.
The parents are in their 20s. The father is of Hungarian Roma descent,
the mother of mixed Hungarian and Roma descent. The father has two older
children, a girl now aged seven and a boy now aged five, half-siblings of the
children with whom we are concerned. These parents met and began their
relationship in 2010. In July 2011, when the mother was pregnant with the older
of the two children in this case, whom I shall call Janetta, they travelled to
this country. Janetta was born here in January 2012. The family had some
contact with the local authority in April and May 2012, because of their
accommodation problems, and both the local authority and the Hungarian embassy
offered to support their return to Hungary, but in fact they stayed here.
7.
Their second child, whom I shall call Ella, was born here in May 2013.
The mother had had no ante-natal care. The baby was born in the room in which
the family were living without any medical assistance. The London Ambulance Service
arrived after the baby was born but before the placenta was delivered. They
called the police, as the father was reported to be resisting the mother and
baby receiving medical attention or being taken to hospital. The family were
living in circumstances of extreme squalor, with no food, clothing or bedding
seen for either child.
8.
Janetta was removed from her parents that same day. Ella was discharged
from hospital into foster care when she was eight days old. They were initially
placed separately but since 28 May 2013 they have both been living with the
same foster carers. The local authority originally applied for an emergency
protection order, but this was not pursued because the parents agreed to the
children being accommodated by the local authority under section 20 of the
Children Act 1989 while an assessment was carried out. The local authority
originally arranged for the children to have contact with their parents three
times a week; this was reduced to twice a week because the parents often failed
to attend or left early; and in February 2014, it was reduced to once a week.
9.
Care proceedings were not issued until January 2014 and the first
interim care order was made in February. Before beginning the proceedings, the
local authority had commissioned assessments of the children’s maternal
grandmother and great-grandmother in Hungary from Children and Families Across
Borders (CFAB). The maternal grandmother was unable to offer a home but the
great-grandmother had suitable accommodation and was willing to offer the
mother and children a home, provided that the father played no part in their
lives. At that stage the father did not want his own mother to be assessed as a
possible carer. The local authority had also been in touch with the Hungarian
Central Authority (“HCA”), which had, in January 2014, suggested that the
solution was for the Hungarian authorities to bring the children back to
Hungary, as they were Hungarian citizens and their relatives could keep in
contact with them there. Also, if they were to be adopted, “only the Hungarian
authorities have the right to adopt Hungarian citizen minors”. That has been
the consistent position of the HCA throughout.
10.
At the first hearing in the High Court, the mother, then pregnant with
the couple’s third child, indicated her intention to return to Hungary to have
the baby and also to apply for the transfer of the proceedings under article
15. This she duly did and gave birth to a baby boy in March 2014 (she later
accepted that her return was in order to avoid care proceedings here in respect
of him). At a hearing on 18 March 2014, Holman J declared that the girls were
habitually resident here and that is not now in dispute. He adjourned the
article 15 application so that there could be “some clearer understanding of
what arrangements might exist for the transfer of the children themselves to
live, whether long term or even during the course of the proceedings, under suitable
arrangements in Hungary” ([2014] EWHC 999 (Fam), para 12).
11.
Accordingly, the allocated social worker visited Hungary in April 2014.
She met the mother and the new baby, who were then living with the maternal
great-grandmother. The great-grandmother was adamant that the father would not
be allowed near her home, whereas the mother intended to reunite with the
father as soon as they could find accommodation in Hungary. The social worker
also met with representatives of the HCA and with social care professionals.
12.
The mother’s application under article 15 came before Sir Peter Singer,
sitting as a Deputy Judge of the High Court, on 9 May 2014. At that stage, both
the local authority and the children’s guardian were supporting a transfer to
Hungary, but only once the requisite assessments had been completed there and a
clear recommendation made about the appropriate placement for the girls. By a
judgment delivered on 12 May 2014, Sir Peter Singer refused the transfer
application, but provided that a further application could be considered after
the “fact finding” hearing listed for 25 June 2014.
13.
The purpose of that hearing was to establish whether the facts were such
as to meet the threshold for compulsory state intervention in family life, set
out in section 31(2) of the Children Act 1989:
“A court may only make a care
order … if it is satisfied -
(a) that the child concerned
is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood
of harm, is attributable to -
(i) the care given to the
child, or likely to be given to him if the order were not made, not being what
it would be reasonable to expect a parent to give to him; or
(ii) the child’s being
beyond parental control.”
Only if that
threshold is crossed can the court go on to consider whether making the order
that the local authority seek will best promote the welfare of the child, which
is the court’s paramount consideration (1989 Act, section 1(1)).
14.
Neither parent attended the hearing on 25 June 2014, although both were
legally represented. The father’s whereabouts were unknown but the mother had
been in touch with her solicitor by telephone. At that stage she accepted 11 of
the findings sought by the local authority. Five of these related to the
circumstances in which the family were living and the lack of medical attention
when Ella was born. Two related to the risk of harm stemming from domestic
abuse in the parents’ relationship and the father’s aggressive and volatile
personality. Two related to the parents’ inconsistent and unsatisfactory
contact with, and effective abandonment of, the girls: by the time of the
hearing, the mother had not seen them since February and the father had not
seen them since March 2014. The last finding was the parents’ lack of insight
into the local authority’s concerns and failure to co-operate with attempts to
assess them. Hogg J made findings accordingly, which all agreed were sufficient
to satisfy the threshold in section 31(2).
15.
The hearing to decide what orders to make was planned for September
2014. In August, the social worker discovered that the mother, father and the
new baby were all living with the paternal grandmother. The social worker’s assessment
of the paternal grandmother (over the telephone) was negative. There being no
viable family placement in Hungary, the local authority’s final care plan,
supported by the Children’s Guardian, was that the girls should be adopted.
Their current foster parents were being given active consideration as their
adopters (and have since been approved as such). Accordingly the local
authority issued a further application for a placement order under section 21
of the Adoption and Children Act 2002. This authorises the authority to place a
child for adoption without parental consent (it is a separate question whether
parental consent to the actual adoption order should be dispensed with). Under
section 21(2), a court may not make a placement order unless:
“(a) the child is subject to a
care order,
(b) the court is satisfied that
the conditions in section 31(2) of the 1989 Act (conditions for making a care
order) are met, or
(c) the child has no parent
or guardian.”
Thus, unless the
child has no parent or guardian, the “threshold conditions” for state
intervention must be met, but they can be met either by the prior making
of a care order, or by making the requisite findings in the placement order
proceedings, which may (but need not) be contemporaneous with the care
proceedings.
16.
The hearing listed for September could not proceed because interpreters
failed to attend. It was relisted for November 2014. The mother’s position was
that she wanted to look after the children in Hungary; failing that, she wanted
them to live with the paternal grandmother in Hungary; failing that, she wanted
them to live with the maternal great-grandmother in Hungary; and failing that,
for them to be placed in a children’s home in Hungary. The father wanted to
look after them with the mother in the paternal grandmother’s home; if the
parents’ cohabitation was not acceptable, the children should live with the
mother in the maternal great-grandmother’s home and he would stay in England;
in his oral evidence he said that he would stay and work in England, but spend
holidays living with the mother and children at the maternal
great-grandmother’s home. The HCA now took the view, apparently based on the
CFAB and English social worker’s assessments, that there was no suitable family
member in Hungary; so the children should be placed with a foster parent there,
so that they could keep the connection with their parents. The local competent
authority would make a decree appointing a guardian and foster parent for them.
Two professional colleagues would come to England to escort the children to
their foster placement in Hungary. Only the Hungarian authorities had the right
to adopt them.
The High Court decision
17.
The case was tried over five days, from 3 to 7 November 2014, by His
Honour Judge Bellamy, sitting as a Deputy High Court Judge. The mother renewed
her application for an article 15 transfer on the first day, but the judge
postponed deciding this until the end of the hearing, because the father’s
counsel was unprepared for it and further submissions were expected from the HCA.
He proceeded to hear evidence and submissions on all aspects of the case. On 11
November 2014 he delivered judgment only on the article 15 application, which
he granted: In re J (Children: Brussels II Revised: Article 15) [2014] EWFC 45.
18.
The judge directed himself (at para 70) in accordance with the guidance
given by Sir James Munby P, in In re M (Brussels II Revised: Article
15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, at para 54: “The
language of article 15 is clear and simple. It requires no gloss.” The court
had to ask itself the three questions set out in article 15.1. Unless they were
answered in the affirmative there was no power to seek a transfer. If they
were, there was still a discretion, but “it is not easy to envisage
circumstances in where, those … conditions having been met, it would
nonetheless be appropriate not to transfer the case”. In answering those questions,
“it is not permissible for the court to enter into a comparison of such matters
as the competence, diligence, resources or efficacy of either the child
protection services or the courts of the other state”. The judge cited two
further important passages from Sir James’ judgment:
“I wish to emphasise that the
question of whether the other court will have available to it the full list of
options available to the English court - for example, the ability to order a
non-consensual adoption - is simply not relevant to either the second or the third
question. As Ryder LJ has explained, by reference to the decisions of the
Supreme Court in In re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10; [2010] 1 AC 319 and of this court in In re T (A Child) (Care
Proceedings: Request to Assume Jurisdiction) [2013] EWCA Civ 895, [2014] Fam 130, the question asked by article 15 is whether it is in the child’s best
interests for the case to be determined in another jurisdiction, and that is
quite different from the substantive question in the proceedings, ‘what outcome
to these proceedings will be in the best interests of the child?’.”
Article 15 contemplated a relatively
simple and straightforward process:
“As Lady Hale observed in Re I,
para 36, … the task for the judge under article 15, ‘will not depend upon a
profound investigation of the child’s situation and upbringing but upon the
sort of considerations which come into play when deciding upon the most
appropriate forum’.”
19.
So the judge proceeded to ask himself the three questions. It was common
ground that, because of their nationality, the children had a particular connection
with Hungary (para 80).
20.
In considering whether a Hungarian court was better placed to hear the
case, he set out the following factors in favour (para 82): (i) the mother’s
only language is Hungarian; the father speaks only a little English; in England
they require the support of an interpreter; (ii) one full sibling and two
half-siblings are habitually resident in Hungary; the Hungarian court could
promote contact between them in ways not open to an English court and is likely
to be better placed to assess whether the girls should establish a relationship
with their baby brother; (iii) any further assessment required (given that he
had already expressed concern about the brevity of the CFAB assessment of the
maternal great-grandmother and the social worker’s telephone assessment of the
paternal grandmother) would be better undertaken in Hungary than in England;
(iv) the Hungarian authorities would have access to background information
about the family (the mother’s step-father’s conviction for physically abusing
her; the father’s time in foster care; the removal of the two half-siblings
from their mother and placement in foster care); (v) the limits to what the
English court could do to ensure that the children’s cultural and linguistic
needs are met (the final care plan being silent about what the authority
intended to do to promote this); (vi) a change of placement might be necessary,
should the current foster carers not be approved as adopters for them and not
be willing to become their special guardians; and (vii) there was good reason
to believe that force of circumstances might compel both parents to return to
Hungary.
21.
He then turned to the factors pointing the other way (para 83): (i) the
English court had heard all the evidence and it was possible that a final
determination could be made immediately; further delay would be avoided; (ii)
social work assessments had been completed of the parents, the maternal grandmother
and great-grandmother, and the paternal grandmother, and of the children’s best
interests by a very experienced Children’s Guardian; no detailed assessments
had been undertaken by the Hungarian authorities although they had had time to
do so; (iii) the parents had had full legal representation and interpretation
before the English court; (iv) the allocated social worker had a relationship
with the children and a thorough knowledge of the case and had travelled to
Hungary to make her own inquiries; (v) retaining the proceedings in England
would retain judicial continuity in the sense of having access to all the case
papers and a picture of the development of the case over time (including the
frequent changes in the parents’ positions); and (vi) the children had lived
here all their short lives; their ethnic, cultural and linguistic needs must be
weighed against the importance of growing up in a safe, stable, secure and
risk-free environment.
22.
He discussed the issue of delay (paras 84 to 92). He concluded that,
although it was inevitable that there would be some further delay in settling
the children’s future if the case were transferred, and he did not know what the
extent of that would be, it had to been seen in the context of the significant
delay so far, much of which was attributable to the local authority. He was not
therefore persuaded that significant weight should be attached to it.
23.
He concluded (para 93) that the Hungarian court was better placed to
hear the case. He attached particular weight to the point made at para 20(ii)
above (the potential for contact with siblings), a factor which had tipped the
balance for Pauffley J in In re J (A Child: Brussels II revised: Article 15:
Practice and Procedure) [2014] EWFC 41.
24.
The judge then turned to consider whether transfer of the proceedings to
Hungary would be in the children’s best interests. The local authority argued
that “the stark choice now facing the court on the article 15 application is
for the children to keep their long term carers and preserve the status quo or
be removed to foster care in Hungary”. The judge however did
“not accept that this is a point
which the court may take into account in determining ‘best interests’ in this
context. It is relevant to the determination of the question ‘what outcome to
these proceedings will be in the best interests of these children?’; it is not
relevant to the determination of the question ‘is transfer of these proceedings
to the Hungarian court in these children’s best interests?’.” (para 94)
Having found that
the Hungarian court was better placed to hear the case, it followed that it
would be in their best interests to transfer it (para 95).
25.
Finally, he considered the exercise of his discretion under article 15.
Having answered all three of the questions in article 15.1 in the affirmative,
there were no features which would properly entitle him to exercise his
discretion against requesting the Hungarian court to assume jurisdiction (para
98).
26.
Accordingly, his order asked the courts of Hungary to accept the request
for a transfer of the case; the request would be transmitted by the local
authority to the HCA for onward transmission to the Hungarian court; in the
event that the Hungarian courts accepted the request within the six week time
limit laid down in article 15, the case would be urgently re-listed before him
for consequential orders, including the transfer of the children to Hungary; in
the event that the request was not accepted within that time, it would be
relisted for further directions. It would appear that by “the case” he had in
mind, not only the care proceedings, but also the placement order proceedings.
The Court of Appeal decision
27.
The local authority and the Children’s Guardian appealed to the Court of
Appeal with the permission of Black LJ. The hearing took place in March 2015,
before Sir James Munby P, Black LJ and Sir Richard Aikens, but judgment was not
delivered until November (this time adopting the initial of the children’s
surname): In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713. A great deal of the President’s leading judgment is
devoted to some very important questions relating to jurisdiction in adoption
generally, which are not before this court on this appeal. In summary, these
are (para 63):
(i)
Does an English court have jurisdiction (a) to make an adoption order in
relation to a child who is a foreign national, and (b) to dispense with the
consent of a parent who is a foreign national? This was a difficult question,
given that the Brussels II revised Regulation does not cover adoption or
measures preparatory to adoption, nor is there any other international
instrument covering the matter. The Court of Appeal answered both (a) and (b)
in the affirmative and this issue is not before this court.
(ii)
If the English court does have such jurisdiction, how should that be
exercised? The President gave guidance on this issue (paras 104 to 111). Once
again, this guidance is not before this Court on this appeal, but it does have
some relevance to the issue which is before us, as we shall see.
(iii)
What is the scope of the Brussels II revised Regulation? It is
well-established that the Regulation applies to care proceedings, as well as to
proceedings between private parties: see In re C (Case C-435/06) [2008] Fam 27. However, by excluding “decisions on adoption, measures preparatory to
adoption, or the annulment or revocation of adoption” from the scope of the Regulation,
does article 1.3.b also exclude (a) care proceedings where the care plan is
adoption, or (b) placement order proceedings? The court concluded that (a) was
within the scope of the Regulation, but (b) was not. This is not under appeal
to this court.
28.
That leaves the remaining three issues, which related to article 15
(para 63):
(iv)
What, upon the true construction of article 15 of the Regulation, are
the requirements before the English court can make a request for a transfer to
another member state? The President observed that “there is much English
learning on the meaning and application” of article 15.1 (para 113). He
repeated the guidance he had given in In re M (Brussels II Revised: Article
15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, para 54 (see para 18 above), on
which the judge had also relied. He went on to emphasise how important it is
that article 15 is considered at the earliest possible opportunity (para 114),
although it could be considered at any stage of the proceedings (para 117);
that repeat applications were to be deprecated and would usually fail unless
there had been a change of circumstances, although they might sometimes be
appropriate (para 118); that a transfer could be considered after a
fact-finding hearing, but only in exceptional circumstances (para 120); and
that the process should be summary, measured in hours not days and not dependent
on a profound investigation of the evidence (para 122).
(v)
Leaving on one side any question arising in relation to article 1.3.b,
was the judge justified in deciding as he did? Could it be said that he was
wrong to do so? The court concluded that he was justified in deciding to
exercise jurisdiction to request transfer under article 15; he undertook a
careful examination of all the relevant factors; he did not consider any
irrelevant factors; he did not err in the weight he attached to the relevant
factors, or misdirect himself in law (para 64(v)).
(vi)
Was the judge’s decision vitiated by his failure to address article
1.3.b? What were the consequences of his omission to do so? The court held that
the fact that he did not appreciate the effect of article 1.3.b did not vitiate
his decision. His decision in relation to the care proceedings could and should
stand and they should be stayed. His decision in relation to the placement
order proceedings could not stand, but as they were of their nature
consequential on the care proceedings, they too were stayed (para 64(vi)).
29.
Black LJ and Sir Richard Aikens delivered short concurring judgments.
The appeal was therefore dismissed.
The issues in this appeal
30.
The Children’s Guardian, on behalf of the children, and with the support
of the local authority, now appeals to this court. The mother and the father
resist that appeal. Although not formally represented before this Court, the
HCA also supports the decision. Their letter of 3 February 2016 informs the court
that the HCA accepted jurisdiction under article 15.5 on 15 January 2015
following the High Court’s request; they were notified of the Court of Appeal
decision on 2 December 2015; while waiting for the children’s social worker to
contact them about the details of bringing the children to Hungary, their
competent local authority Guardianship Office had ascertained that the parents’
living circumstances were not convenient to take care of the children; however
they wished to keep the connection with them; and the girls had “two
half-sister/brother who are living in the mother’s care” (sic?). An English
speaking foster parent had been identified for the girls, as had a child
protection guardian. The HCA reiterated their consistent view that only the
Hungarian authorities have the right to adopt Hungarian citizens and that the
children have the possibility of keeping connection with their parents and
family members if they live in Hungary. In addition, this court has received
valuable written submissions from three interveners: the AIRE Centre, the
Family Rights Group and the International Centre for Family Law, Policy and
Practice.
31.
The principal issue before this Court is the proper approach to the
assessment of the child’s best interests in the context of an application for
transfer under article 15. In particular, is it limited to questions of forum,
and if so, how does it differ from the question of whether the foreign court is
better placed to hear the case? Is the court entitled to take into account the
consequences for the child of transferring the proceedings where, as here, the
transfer will also result in the child’s removal from her current placement to
a placement in another country? A further issue is whether the judge was
correct to find that the Hungarian court was “better placed” when he had heard
all the evidence and was in a position to give a final judgment upon it.
32.
The local authority has raised additional issues relating to the
placement order proceedings. As the Regulation does not apply to these, was the
Court of Appeal correct to impose a stay upon them in consequence of staying
the care proceedings?
33.
As this is the United Kingdom’s court of final instance, the further
issue arises as to whether we are obliged to make a reference to the Court of
Justice of the European Union on the ground that the interpretation of article
15 is not acte clair. Between the hearing in the Court of Appeal and the
handing down of judgment, the CJEU accepted a reference from the Supreme Court
of Ireland in the case of Child and Family Agency (CAFA) v JD (Case
C-428/15). Four of the six questions referred are relevant to this case:
“(1) 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?
…
(3) If the ‘best interests
of the child’ in article 15.1 of Regulation 2201/2003 refers only to the
decision as to forum, what factors may a court consider under this heading,
which have not already been considered in determining whether another court is
‘better placed’?
(4) May a court for the
purposes of article 15 of Regulation 2201/2003 have regard to the substantive
law, procedural provisions, or practice of the courts of the relevant member
state?
…
(6) Precisely what matters
are to be considered by a national court in determining which court is best
placed to determine the matter?”
34.
At the time of writing, the CJEU has not given judgment. The Guardian
sought permission to appeal to this court on question (1) above. It is
certainly arguable, for the reasons sketched in the question from the Irish court,
that article 15 is not applicable to care proceedings. The “case” cannot be
transferred in the same way that a case between parents or other private
parties can be transferred. The proceedings in the other member state will inevitably
be different proceedings, with different parties, different procedures, and
possibly different substantive law. Indeed, there may not be proceedings in a
court at all, but only within administrative authorities, as in this case. As
Black LJ elegantly put it, what is being transferred is not “the case” but “the
problem” (para 189(i)). However, given that the Regulation clearly does apply
to public law proceedings, the question whether article 15 does not apply in
public law proceedings is obviously not acte clair. It must await the
determination of the Irish reference.
35.
For that reason, it seemed to this court more convenient to refuse
permission to appeal on that ground and proceed on the basis that article 15
can apply to public law proceedings. Whether it is necessary to await the decision
of the CJEU on questions (3), (4) and (6) before deciding this case is another
matter, to which I shall return.
The proper approach to article 15.1
36.
The argument before us has principally focussed on the nature of the
“best interests” evaluation required by article 15.1 and in particular whether
it is limited to questions relevant to the choice of forum. This has been
described as the “attenuated” welfare test (see In re T (A child: Article
15, Brussels II Revised) [2013] EWHC 521 (Fam); [2013] 2 FLR 909, para 21).
Its source appears to be my own observation in In re I, quoted in In
re M (see above at para 18). Contrary to the impression given there, In
re I was not a case about article 15, but a case about article 12 of the
Regulation, which relates to Prorogation of Jurisdiction. Article 12.1 allows a
court dealing with divorce, separation or nullity proceedings also to deal with
connected parental responsibility matters if the spouses and holders of
parental responsibility agree. Article 12.3 gives the courts of a member state
jurisdiction in relation to parental responsibility, even though the child is
not habitually resident there, where:
“a. the child has a substantial
connection with that member state, in particular by virtue of the fact that one
of the holders of parental responsibility is habitually resident in that member
state or that the child is a national of that member state; and
b. the jurisdiction of the
courts has been accepted expressly or otherwise in an unequivocal manner by all
the parties to the proceedings at the time the court is seised and is in the
best interests of the child.”
It was in that
context that I observed (at para 36):
“The final requirement in article
12(3) is that the jurisdiction of the English courts should be in the best
interests of the child. Nothing turns, in my view, on the difference between
‘the best interests of the child’ in article 12(3), ‘the superior interests of
the child’ in article 12(1) and ‘the child’s interest’ in article 12(4). They
must mean the same thing, which is that it is in the child’s interests for the
case to be determined in the courts of this country rather than elsewhere. This
question is quite different from the substantive question in the proceedings,
which is ‘what outcome to these proceedings will be in the best interests of
the child?’ It will not depend upon a profound investigation of the child’s
situation and upbringing but upon the sort of considerations which come into
play when deciding upon the most appropriate forum. The fact that the parties
have submitted to the jurisdiction and are both habitually resident within it
is clearly relevant though by no means the only factor.”
37.
It appears to have been the Court of Appeal’s endorsement of this approach
to the best interests test in article 15.1 which led the judge to hold (see
para 24 above) that the consequences for these children of being removed from
their long term carers and taken to new foster carers in Hungary was completely
irrelevant to whether transferring the case would be in their best interests.
38.
The first point made by the appellants is that the requirement in
article 12.3 is quite different from the requirement in article 15.1. In
article 12.3 (as also in article 12.1) it is the court which is deciding whether
to accept jurisdiction, which it would not otherwise have, that has to
decide whether to do so is in the best interests of the child. This is roughly
equivalent to the requirement in article 15.5 that the court which is requested
to take the case (here the Hungarian court) must consider that it is the best
interests of the child to accept jurisdiction. Article 15.1 is directed towards
the court which already has jurisdiction in an existing case. It imposes an
additional requirement that the transferring court considers this to be
in the best interests of the child. Obviously, the considerations applicable
when deciding whether to relinquish jurisdiction may be somewhat different from
the considerations applicable when deciding whether to accept it.
39.
Secondly, article 12.3 contains no requirement that the court accepting
jurisdiction be “better placed” to hear the case than the court which would
otherwise have it. Interestingly, the draft of article 15.1 proposed by the EU
Commission did not contain this requirement, although the Explanatory
Memorandum referred to “situations (albeit exceptional) where the courts of
another member state would be better placed to hear the case”. The requirement
does, however, appear in article 8 of the 1996 Hague Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
respect of Parental Responsibility and Measures for the Protection of Children,
which the Commission described as a “similar mechanism” in their Explanatory
Memorandum. That may be why it found its way into the eventual Regulation. The
European legislator must have considered that the “better placed” requirement
was something different from the “best interests” requirement, otherwise they
would not both be there.
40.
Thirdly, as originally drafted, article 15.1 limited transfer to
“exceptional circumstances”. As finally adopted, it no longer does so, merely
introducing the power with the words “by way of exception”. An exception does
not necessarily require that the circumstances be exceptional. Nevertheless, it
is an exception to the general rule, that the future of children should be
decided in the courts of the member state where they are habitually resident.
In general, it is expected that exceptions will be narrowly construed and
applied (see, for example, Somafer SA v Saar-Ferngas AG (Case C-33/78)
[1978] EUECJ R-33/78; [1979] 1 CMLR 490, para 7), although the text which was
eventually adopted is more “open-ended” than that originally proposed.
41.
Fourthly, however, it is clear that the Commission regarded the
requirement that the court proposing the transfer, as well as the court
accepting it, should evaluate whether the transfer would be in the best
interests of the child as “an additional safeguard”. By this they must have
meant an additional safeguard for the child. In this connection, recital 12 to
the Regulation is relevant:
“The grounds of jurisdiction in
matters of parental responsibility established in the present Regulation are
shaped in the light of the best interests of the child, in particular on the
criterion of proximity. This means that jurisdiction should lie in the first
place with the member state of the child’s habitual residence, except for
certain cases of a change in the child’s residence or pursuant to an agreement
between the holders of parental responsibility.”
Recital 33 is also
relevant:
“This Regulation recognises the
fundamental rights and observes the principles of the Charter of Fundamental
Rights of the European Union. In particular, it seeks to ensure respect for the
fundamental rights of the child as set out in article 24 of the Charter of
Fundamental Rights of the European Union.”
42.
Article 24 of the Charter of Fundamental Rights is headed “The rights of
the child”:
“1. Children shall have the
right to such protection and care as is necessary for their well-being. They
may express their views freely. Such views shall be taken into consideration on
matters which concern them in accordance with their age and maturity.
2. In all actions relating
to children, whether taken by public authorities or private institutions, the
child’s best interests must be a primary consideration.
3. Every child shall have
the right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her
interests.”
As the AIRE Centre
point out in their helpful intervention, article 24.2 is clearly modelled on
article 3.1 of the United National Convention on the Rights of the Child. They
further point out that secondary EU legislation, such as the Regulation, must
be interpreted consistently with the Treaties, including the Charter of
Fundamental Rights: Criminal proceedings against Lindqvist (Case
C-101/01) [2003] ECR I-12971, Ordre des barreaux francophones et
germanophone v Conseil des ministres (Case C-305/05) [2007] ECR I-5305. The
provisions of the Charter only apply when member states are implementing EU
law, but we are clearly doing so in this case. If there were any doubt about
the need to interpret and apply the Regulation consistently with article 24 of
the Charter, recital 33 puts that beyond doubt. This is a case about children’s
rights, and in particular, the right to have their best interests regarded as a
primary consideration in all actions relating to them. As the AIRE Centre also
point out, the line of case law leading to the “attenuated” welfare test does
not appear to have had any explicit regard to the best interests obligation.
The test might have looked very different if it had done.
43.
It is the case, as argued on behalf of the mother, that the “better
placed” and “best interests” questions are inter-related. Some of the same
factors may be relevant to both. But it is clear that they are separate
questions and must be addressed separately. The second one does not inexorably
follow from the first.
44.
The question remains, what is encompassed in the “best interests” requirement?
The distinction drawn in In re I remains valid. The court is deciding
whether to request a transfer of the case. The question is whether the transfer
is in the child’s best interests. This is a different question from what
eventual outcome to the case will be in the child’s best interests. The
focus of the inquiry is different, but it is wrong to call it “attenuated”. The
factors relevant to deciding the question will vary according to the
circumstances. It is impossible to be definitive. But there is no reason at all
to exclude the impact upon the child’s welfare, in the short or the longer
term, of the transfer itself. What will be its immediate consequences? What
impact will it have on the choices available to the court deciding upon the
eventual outcome? This is not the same as deciding what outcome will be in the
child’s best interests. It is deciding whether it is in the child’s best
interests for the court currently seised of the case to retain it or whether it
is in the child’s best interests for the case to be transferred to the
requested court.
Application in this case
45.
It follows that the judge was wrong to accept that it followed from his
decision that the Hungarian court was better placed to hear the case that it
would be in the best interests of the children to transfer it. He ought to have
addressed his mind to the short and long term consequences for them of doing so
and also of not doing so. The short term consequence was that these little
girls would be removed from the home where Ella had lived for virtually all her
life and Janetta had lived for most of hers, where they were happy and settled,
and doing well (Janetta’s behaviour having been seriously disturbed when they
first arrived). They would be transferred to a foster placement about which the
court knew nothing other than that the foster carer spoke English. The country,
the language and the surroundings would be completely unfamiliar to them. The
long term consequence would be to rule out one possible option for their future
care and upbringing, that is, remaining in their present home on a long term
legally sanctioned basis, whether through adoption, or through a special
guardianship order, or through an ordinary residence order. It would not be in
the best interests of these children to transfer a dispute about their future
to a court which would be unable to consider one of the possible outcomes,
indeed the outcome which those professionals with the closest knowledge of the
case and the children now consider would be best for them.
46.
That is not, of course, to say that that is the outcome which the court
should eventually decide. There is a very live issue as to whether in the long
run these little girls of Hungarian nationality and descent, with mixed
Hungarian and Roma ethnicity, and many family members in Hungary, including
their parents, grandparents, a sibling and half siblings, would be better
living in Hungary. The judge took into account the importance of their siblings
and their background when addressing the question of which court was “better
placed”. But in addressing that question, he did not take into account what the
real issues in the case were.
47.
The real issues were that the parents wanted the girls to come to
Hungary, preferably to live with them or with members of the extended family.
The advantages and disadvantages of this had been explored by the girls’ social
worker. The underlying problem was that the mother’s family would have nothing
to do with the father, whom they saw as abusive, while the father’s family
supported him, and the mother wished to stay with him. The HCA, therefore,
apparently relying largely on the assessments carried out by or for the local
authority, did not see family placement as viable, and so proposed foster care,
but preserving the possibility of some sort of relationship with the parents
and siblings. The local authority, with the support of the Children’s Guardian,
now proposed placement for adoption, preferably with the existing foster
carers.
48.
The judge considered the Hungarian authorities better placed to achieve the
first two of these outcomes. He did not consider how far it would be open to him
to achieve the same outcomes without transferring the case. Yet there clearly
would have been ways of securing that the children were placed under the aegis
of the relevant Guardianship Office in Hungary. As the Family Rights Group
observe, the courts have been arranging foreign placements for years. The
mother is right to say that the court cannot dictate the content of a local
authority’s care plan when it makes a final care order in care proceedings. On
the other hand, the local authority may be willing to change its care plan in
the light of clear findings as to the children’s best interests. In any event,
a placement abroad can be achieved without making a care order. If the child is
not subject to a care order, the inherent jurisdiction of the High Court may be
used in a flexible way to secure the desired outcome. The prohibitions on its
use in section 100(2) of the Children Act 1989 would not preclude the court
from making orders in favour of the relevant Hungarian authority. A similar
result might be achieved through orders under section 8 of the Children Act
1989, which again would not be precluded by section 9(5) (sections 100(2) and
9(5) preclude the use of such orders in effect to place children in the care of
a local authority).
49.
Nor did the judge consider which court would be better placed to achieve
the third outcome. There could only be one answer to this. But there would be a
variety of ways of achieving that outcome. The local authority did propose a
closed adoption, but there are other ways of achieving permanence and stability
in this country without cutting off all links with the children’s family and
background. There are orders in favour of foster parents which fall short of
adoption. Whether the children remain in foster care under a care order or
under some order in favour of the foster carers, the court is in charge of
contact. It could make contact orders which would be recognisable and
enforceable in Hungary. Alternatively, it could transfer the contact part of
the proceedings to Hungary under article 15. All of these things should have
been taken into account in deciding which court was “better placed”.
50.
Above all, in this particular case, the judge had heard and read all the
evidence that anyone involved wished to put before him. He was in a position to
decide the outcome. Although a transfer request can be made and determined at
any time, it would be rare indeed that, the case having reached such a point,
another court would be better placed to hear it.
51.
Thus, in my view, not only did the judge take the wrong approach to the
“best interests” question, he also left out of account some crucial factors in
deciding upon the “better placed” question. I shall return to the consequences
of that after considering the other issues in the case.
The placement order proceedings
52.
The local authority argue that, as the placement order proceedings are
not within the scope of the Regulation, there was no power to stay them with a
view to transfer under article 15. The Court of Appeal was correct to recognise
that, but wrong to stay them as consequential on the care proceedings. Section
21(2) of the Adoption and Children Act 2002 (para 15 above) makes it clear that
the threshold may be determined either in care proceedings or in separate placement
order proceedings. Thus they argue that the placement order proceedings should
have been left to take their course.
53.
It is, of course, correct that article 15 does not apply to placement
order proceedings. The judge was wrong to think that it did. But that, in itself,
did not invalidate his decision to transfer the care proceedings. If it was
right to transfer the care proceedings, then it made no sense to leave the
placement order proceedings to continue as if nothing had happened. The object
of the transfer was that the children’s future should be decided in Hungary and
not in England. As the mother points out, under the Family Procedure Rules
2010, the court has wide case management powers, including, under rule
4.1(3)(g), the power to stay the whole or part of any proceedings either
generally or until a specified later date. The Court of Appeal has the same
powers as the trial judge. It clearly had the power to do this. If it had been
right to uphold the transfer, it would clearly have been right to stay the placement
order proceedings.
Reference to the CJEU?
54.
As already noted, there is a live question before the CJEU as to whether
article 15 is capable of applying to public law proceedings such as these. This
cannot be regarded as acte clair. This court has to decide whether to
make its own reference of essentially the same question that the Supreme Court
of Ireland has already referred; whether to delay its decision until the
outcome of that reference is known; or whether to proceed on the assumption
that article 15 is capable of applying to public law proceedings and review the
decisions of the courts below on their merits.
55.
In my view, the third course is infinitely preferable to the other two.
These proceedings have already taken far too long. Some of the delay is
attributable to the local authority, which should have brought proceedings long
before they did, rather than relying upon the parents’ agreement for the
children to be accommodated; some of the delay is attributable to the
vacillations of the parents and their failure to co-operate with the authority
over assessments and contact with their children; some of it is attributable to
the courts. There may be good, or at least understandable, reasons for much of
this. But the children are the last people who should be made to suffer for the
actions or inaction of others. Janetta is now aged four years and two months.
Ella is now aged two years and 11 months. For almost all of Ella’s life the
girls have lived with their present foster parents. One way or another, their
best interests demand that their future should be decided as soon as possible.
56.
But does that leave this court free to decide upon the correct approach
to an article 15 application? The Supreme Court of Ireland has referred
questions which are essentially the same as the principal issue in this case.
However, it has done so in a very different context - a pregnant woman who had
deliberately left England and moved to have her baby in Ireland in order to
avoid care proceedings here. The transfer question therefore also raised issues
about the free movement of workers within the European Union which do not arise
in this case.
57.
I share the President’s view that the language of article 15.1 is simple
and clear. It requires no gloss or explanation. The court has three questions
to answer: does the child have a particular connection (as defined in article
15.3) with another member state; would a court in that member state be better
placed to hear the case, or a specified part of it; and would this be in the best
interests of the child? The “better placed” and “best interests” questions are
separate questions and the “best interests” question is intended to be an
additional safeguard for the child. The question is not what eventual outcome
to the case will be in the best interests of the child but whether the transfer
will be in her best interests. Subject to that, the scope of the inquiry will
depend upon all the circumstances of the case. I would therefore proceed on the
basis that the meaning of article 15.1 is acte clair, albeit not yet éclairé,
and we are merely applying it to the facts of the case, which is the task of
the national courts.
58.
Furthermore, for the reasons already explained, the judge was, in my
view, plainly wrong to conclude that the Hungarian authorities were, on the
particular facts of this case, “better placed” to hear the case. He left out of
account the vital factor that to transfer the case would preclude one possible
outcome which might be in the best interests of the children concerned, whereas
retaining jurisdiction would allow all the possible outcomes to be considered.
Transfer would also precipitate their removal from their long-standing home
without any evaluation of the impact of this upon their psychological
well-being.
59.
In my view, therefore, it is not necessary for this court to make a
reference to the CJEU or to await the outcome of the reference made by the
Supreme Court of Ireland. We should proceed to decide the case.
Conclusion
60.
It follows that the appeal must be allowed and the transfer request set
aside. After this period of time, there can be no question of re-opening the
transfer application. It is in the best interests of these children for their
future to be decided as soon as possible. Unfortunately, it will be necessary
for the evidence to be updated. The case should therefore be returned to the
Family Division of the High Court, to be heard by a judge of that division, as
soon as possible.
61.
As has already been made clear, the range of possible outcomes for these
two children is not limited to the primary case presented to the judge: closed
adoption here as against foster placement in Hungary. There are several other
options in between. The guidance given by the President in this case (paras 104
to 111) is relevant. He emphasised the importance in the checklist of factors to
be considered when deciding whether to make an adoption order in section 1(4)
of the 2002 Act, “(c) the likely effect on the child (throughout his life) of
having ceased to be a member of the original family and become an adopted person”
and “(d) the child’s … background” (para 104). The court and the professionals
“must give the most careful consideration … to those parts of the checklist
which focus attention, explicitly or implicitly, on the child’s national,
cultural, linguistic, ethnic and religious background”. The court is directed
to consider the likely effect, throughout her life, of having ceased to be a
member of her original family (para 105). As he had said in Merton London
Borough Council v B [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84, “We
must be understanding of the concerns about our processes voiced by European
colleagues;” and “the court … must rigorously apply the principle that
[non-consensual] adoption is ‘the last resort’ and only permissible ‘if nothing
else will do’” (para 106). On the other hand, as he had said in In re J (Care
Proceeding: Appeal) [2014] EWFC 4; [2015] 1 FLR 850, para 36, at the end of
the day matters had to be judged “according to the law of England and by
reference to the standards of reasonable men and women in contemporary English
society. The parents’ views, whether religious, cultural, secular or social,
are entitled to respect but cannot be determinative” (para 108). One important
factor, in considering the child’s welfare, is whether an adoption order would
be recognised in the country where the child is domiciled, or a national, or
has been habitually resident. If it would not be, the court will have to
consider the disadvantages of a “limping” adoption order (see In re B(S) (An
Infant) [1968] Ch 204), which might make it difficult for them ever to
visit Hungary. This might tell in favour of finding other ways of giving the
children the security and stability they need.
62.
Much will, of course, depend upon the evidence before the judge at the
rehearing. It will be for him or her to decide upon the outcome which will be
in the best interests of these little girls.
