A B v J L B

Under Article 15 of Brussels II bis, the court with substantive jurisdiction must decide whether transfer is appropriate. A court in another Member State may request reconsideration, but it must not itself determine which court is better placed or what serves the child’s best interests.

Where the court with jurisdiction has already refused an Article 15 application, reconsideration should be sought only for very good cause. A changed circumstance must substantially alter the case and make it highly probable that the foreign court would reach a different decision. Mere disagreement, relocation of one parent, or a related dispute about schooling is insufficient. An application falling clearly short of that stringent test may be summarily dismissed.

The parents, both English, had lived in England, Scotland and the Netherlands. Their son was habitually resident in the Netherlands, where the father and child continued to live. The mother commenced English divorce and child proceedings, while the father commenced proceedings in the Hague court.

The Hague court had jurisdiction under Article 8 of Brussels II bis and refused the mother’s application under Article 15 to transfer the child proceedings to England. The mother later applied to the English court under Article 15(2)(c), relying on her return to England, the English divorce and financial proceedings, and potential changes to the child’s schooling. The issue was whether that application should proceed to further investigation or be summarily dismissed.

1. The mother’s application under Article 15(2)(c) was summarily dismissed. Her substantive applications for residence or contact were also dismissed or stayed, since the Hague court remained seised of those matters.

2. Under Article 15(1) of Brussels II bis, only the court having jurisdiction as to the substance of the matter can make the substantive transfer decision. The role of the other court is limited to requesting the court with jurisdiction to consider transfer. The English court could not itself evaluate which court was better placed or what was in the child’s best interests.

3. The court with jurisdiction must consider three matters: whether the child has a particular connection with the other Member State; whether the other court would be better placed to hear the case; and whether transfer would be in the child’s best interests. The first is essentially factual. The latter two require evaluation in the circumstances of the case and the child.

4. Although Article 15 does not prevent a second request after an earlier refusal, the circumstances for doing so will be very rare. Very good cause is required. A party must show that the circumstances have so entirely changed the aspect of the case that it is highly probable that the court previously seised would now reach a different decision. The change must be likely to be decisive.

5. The mother’s alleged changes did not meet that test. The Hague court had considered her proposed return to England and the relevance of divorce proceedings outside the Netherlands. Any dispute about schooling was properly for the Hague court, which remained seised of the child proceedings. The English court’s possible disagreement with the Hague decision could not justify re-opening the issue, particularly in light of Article 17.

6. Summary dismissal was appropriate. The parties had had adequate opportunity to present their arguments, and no further evidence was identified that could produce a materially stronger case. Allowing the application to continue would undermine the jurisdictional scheme of Brussels II bis and cause unnecessary delay and expense.

Not stated in the judgment.