K (A Child), Re

Article 15 of the Brussels II Bis Regulation requires an autonomous and uniform interpretation. A transfer of jurisdiction is permissible only where the child has a particular connection with the other Member State, that court is better placed to hear the case, and transfer serves the child’s best interests. Domestic forum conveniens principles cannot govern that assessment.

The best-interests inquiry concerns the choice of jurisdiction, rather than the substantive welfare outcome. It does not require a final welfare hearing or a profound investigation of the child’s circumstances. A court must also respect the competence of child-protection and judicial authorities in the other Member State.

The child, a Slovak national born in England, was the subject of care proceedings commenced by the local authority. The Slovak Central Authority intervened and requested a transfer of jurisdiction to Slovakia under Article 15 of the Brussels II Bis Regulation.

Mostyn J directed the transfer process, subject to acceptance by the Slovak court, and made interim arrangements for the child’s return. The child’s guardian appealed. He contended that the judge had applied the wrong legal approach and that a fuller welfare investigation, including oral evidence from the guardian, was required before transfer.

The central issue was the proper construction and application of Article 15.

Decision

The Court of Appeal dismissed the appeal. Lord Justice Thorpe gave the principal judgment, with which Lord Justice Tomlinson and Lord Justice Briggs agreed.

1. Article 15(1) of the Brussels II Bis Regulation contains three cumulative questions: whether the child has a particular connection with the other Member State; whether that court would be better placed to hear the case or part of it; and whether transfer is in the child’s best interests. The provision must receive an autonomous and uniform Community-law meaning.

2. Mostyn J erred by importing the domestic forum conveniens principles stated in M v M, including the requirement that the other forum be clearly more appropriate and the formulation that welfare is important but not paramount. Those principles arose in a materially different domestic context and could not control Article 15. The error was immaterial because the judge would inevitably have reached the same conclusion by applying the Article’s own requirements.

3. The best-interests condition concerns whether transfer to the other jurisdiction is in the child’s interests. It is distinct from the substantive welfare question of what final order should be made for the child. Accordingly, a transfer application is a preliminary issue which may be determined before the final care and placement proceedings. It did not require a full welfare investigation or oral evidence from the guardian.

4. The guardian’s reliance on English professional evidence as demonstrating grave risk improperly elevated domestic professional assessments over those of Slovakia. The court was entitled to proceed on the basis that Slovak child-protection and judicial authorities were no less competent than their English counterparts.

There was therefore no basis for remitting the matter. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the child’s appeal and upheld the determination that a transfer request to Slovakia under Article 15 should proceed: [2013] EWCA Civ 895.
• High Court: Mostyn J determined that Slovakia was the appropriate forum and made directions for transfer, conditional upon acceptance by the Slovak court, while the child remained subject to interim care arrangements.