C (A Child)

After a wrongful retention of a child in England, the child’s state of habitual residence remains the primary forum for welfare issues following a Hague return order. The English court should not make ancillary welfare directions that imply a challenge to that jurisdiction or prepare for a speculative transfer under Article 15(i) of the Brussels II Revised Regulation. Article 15(i) is exceptional and cannot sensibly operate until the other Member State’s jurisdiction has been engaged by proceedings. A secondary court may stay municipal proceedings where future activation may be required, but dismissal is appropriate where no such basis exists. Strategic proceedings brought to gain advantage after wrongful removal or retention are deprecated.

The parents and their child had lived in Russia before the mother and child moved to Hungary by agreement. During a short holiday visit to England, the father retained the child and issued proceedings in the Wandsworth County Court for a residence order. The mother sought summary return under the Hague Convention. Charles J ordered the child’s return to Hungary, recognised Hungary as the primary welfare jurisdiction, stayed the English Children Act 1989 proceedings and directed preparation for a possible welfare hearing in England. The mother appealed against those ancillary directions and sought dismissal of the English proceedings. The central issue was whether the English court could preserve and develop welfare proceedings in anticipation of a possible transfer or to assist the Hungarian court.

Appeal allowed unanimously. Lord Justice Thorpe gave the leading judgment, with Lord Justices Dyson and Hallett agreeing.

1. Charles J had correctly ordered the child’s return to Hungary. The father had not disputed that the retention was wrongful. Hungary was therefore the child’s state of habitual residence and the primary jurisdiction for determining disputed welfare issues.
2. Article 15(i) of the Brussels II Revised Regulation is an exceptional transfer mechanism. It imports a forum conveniens concept and requires consideration of whether another Member State’s court, with which the child has a particular connection, is better placed to hear the case and whether transfer is in the child’s best interests. The possibility of a transfer could not sensibly arise until the Hungarian jurisdiction had been engaged by proceedings.
3. The English judge’s directions for evidence, a CAFCASS report, foreign visits and an expedited welfare hearing were based on a speculative possibility that Hungary might transfer the case. They were inconsistent with comity and risked implying that England could challenge or was better placed than the primary jurisdiction. The directions were exorbitant and were set aside. Work in progress was to cease.
4. The court rejected an inflexible rule that English welfare proceedings must always be dismissed after a Hague return. A stay may be appropriate where the secondary jurisdiction may need to be activated later. On these facts, however, there was no basis for preserving the English proceedings in a frozen state, so they were dismissed.
5. The court deprecated strategic applications intended to gain an advantage after wrongful removal or retention and stressed the need for expedition in international cases.

1. Principal Registry of the Family Division (Charles J): On 10 May 2006, ordered the child’s return to Hungary, treated Hungary as the primary welfare jurisdiction, stayed the English Children Act 1989 proceedings and directed preparation for a possible English welfare hearing.
2. Court of Appeal (Civil Division): Granted permission, allowed the appeal, set aside the ancillary directions, abandoned work in progress and dismissed the English proceedings.