LA v ML & Ors

Jurisdiction in care proceedings under Brussels II Revised is determined primarily by the child’s habitual residence when the court is seised. Habitual residence is a question of fact, assessed by reference to the child’s integration in the social and family environment and all objectively provable circumstances.

Where habitual residence is established, an Article 15 transfer requires the applicant to show that the other Member State is better placed to hear the case and that transfer is in the child’s best interests. A discrete fact-finding hearing may properly take place in the state with primary jurisdiction before the transfer question is reconsidered, particularly where the relevant evidence and alleged harm are located there and delay can be avoided.

The local authority commenced care proceedings after a young child was removed into foster care following alleged injuries sustained in England. The child had been born and previously lived in Slovakia, but had moved to England with his mother, lived there with his stepfather, attended school, and received medical and dental care.

The mother subsequently returned to Slovakia and sought transfer of the proceedings under Article 15 of Council Regulation (EC) No 2201/2003. The issues were whether the child was habitually resident in England when the proceedings began, whether jurisdiction arose under Articles 12 or 13, and whether the proceedings should be transferred to Slovakia.

1. Habitual residence. The local authority established, on the balance of probabilities, that the child was habitually resident in England when the court was seised. The move had been intended to be long term. The family had established a home in England, the child attended school and was registered with medical and dental services, and there was no evidence that the move was intended to be temporary.
2. The biological father had not objected to the move or sought the child’s return before the proceedings. The court was entitled to infer that he had unequivocally accepted and acquiesced in the child’s removal to England. Article 8 therefore conferred jurisdiction.
3. It was unnecessary to determine Article 13(1), although the case would have fallen within that provision. Article 12(3) did not apply because there was no unequivocal acceptance of Slovak jurisdiction and the Slovak proceedings concerning maintenance and name change were outside the scope of Brussels II Revised.
4. Article 15. The child had a particular connection with Slovakia, but the mother had not discharged the burden of showing that the Slovak courts were better placed to determine the cause of the injuries. The relevant events and most evidence were in England, and a fact-finding hearing could take place there with minimal delay. The child’s welfare required that hearing to proceed in England.
5. The Article 15 application was adjourned until the conclusion of the fact-finding hearing. The court made directions to facilitate an effective hearing and detailed enquiries concerning any later transfer. The court indicated that, if the proceedings continued to the welfare stage, the discretionary balance might then favour transfer to Slovakia.

This was a first-instance jurisdiction hearing in the High Court. The matter had previously been transferred to the High Court by HHJ Cox on 23 April 2013 because of its jurisdictional and international complexity.