HJ (A Child)

On a request under Council Regulation (EC) No 2201/2003 Article 15, the requested court’s role is limited. It should not conduct a full merits hearing or permit protracted jurisdictional litigation. The process should be appropriately summary.

Where the request is clear-cut, the court may make an order nisi. A further inter partes hearing is appropriate only where objections raise a real and arguable point of substance. Objections lacking arguable merit may be determined fairly on paper.

The Health Service Executive of Ireland applied following a request from Birmingham J in the High Court of Ireland under Article 15(1)(b) of Council Regulation (EC) No 2201/2003. The proceedings concerned a child born in Ireland whose parents and wider family were connected with England and Wales, where earlier care proceedings concerning the child’s half-siblings had taken place.

Birmingham J concluded that the child had a particular connection with England and Wales, that the English court was better placed to hear the proceedings, and that transfer was in the child’s best interests. The issue before the High Court was whether to accept the request and what procedure should govern any objections and the transfer.

1. Request accepted. The court accepted the Irish request under Article 15 and ordered transfer of the public law care proceedings to England and Wales, subject to limited retention of Irish jurisdiction necessary to effect the child’s physical transfer. The order became final when neither parent gave notice of opposition within the specified period.
2. Limited function. The court agreed with and adopted the analysis in Re L-M (Transfer of Irish Proceedings) [2013] EWHC 646 (Fam). At the preliminary stage, the requested court should not investigate the full merits of the care case. That would undermine the purpose of BIIr and generate the jurisdictional delay and expense which Article 15 is intended to prevent.
3. Summary procedure. Where the request is clear-cut, the court can and ordinarily should make an order nisi, taking effect without another hearing unless a parent or local authority gives notice of an intention to make representations. A hearing on notice may be directed where there is a solid and arguable point of substance. Even then, objections may be determined on paper where they lack arguable merit or do not require oral argument.
4. Practical directions. The transferred proceedings were to be treated as commenced in England and Wales under the Children Act 1989, with West Sussex County Council designated as the local authority. Disclosure of recent earlier care decisions may be useful, but disclosure of very old proceedings should not automatically be required. In an order nisi case, responsibility should ordinarily transfer during or after the hearing if practical transfer issues remain unresolved.
5. Drafting point. References to the High Court’s inherent jurisdiction in the “In the Matter” heading were unnecessary and should cease.

Birmingham J in the High Court of Ireland made the request on 2 May 2013. This was a first-instance determination by the High Court (Family Division) of whether to accept that request.