London Borough of Camden v Caratt & Ors

Council Regulation (EC) No 2201/2003 does not govern jurisdictional disputes between the territorial units of the United Kingdom. Its article 15 therefore cannot transfer care proceedings from England and Wales to Scotland. An English court may nevertheless stay care proceedings, in an appropriate case, under its general case-management powers where the issues can and should be litigated elsewhere in the United Kingdom. The power must be exercised consistently with the children’s best interests. Relevant considerations include the existence of proceedings or active involvement by authorities in the other jurisdiction, the connection between the dispute and that jurisdiction, and the effect of delay on the children. Where there are no proceedings or relevant authority involvement elsewhere, and delay would harm the children, the court should proceed expeditiously.

The local authority brought care proceedings concerning three children after their mother travelled from Scotland to London, sought emergency accommodation, and left the children in a refuge. Interim care orders were made, and the children were placed in foster care. The mother later sought transfer of the proceedings to Scotland under article 15 of Council Regulation (EC) No 2201/2003 (Brussels II Revised). It was accepted that the courts of England and Wales had jurisdiction. The central issues were whether article 15 applied to jurisdictional disputes within the United Kingdom and, if not, whether the proceedings should be stayed or transferred under domestic case-management powers.

1. The mother’s application to transfer or stay the care proceedings was refused. Article 15 of Council Regulation (EC) No 2201/2003 could not be used to transfer proceedings from England and Wales to Scotland.

2. The court adopted the orthodox view, recently approved in Re W-B (Family Jurisdiction: Appropriate Jurisdiction within the UK) [2012] EWCA Civ 592, that Brussels II Revised does not determine jurisdiction between the different jurisdictions of the United Kingdom. Articles 2 and 66 did not alter that conclusion. Although article 66 left room for an alternative construction treating a territorial unit as the relevant court, the wider consequences of that construction would require fuller analysis and argument.

3. The court rejected the submission that this interpretation left no remedy. An English court has general case-management powers enabling it, in an appropriate case, to stay care proceedings where the issue can and should be litigated in another part of the United Kingdom.

4. No stay or transfer was justified on the facts. The local authority and children’s guardian opposed it. There were no care proceedings in Scotland, no indication that a Scottish authority intended to commence proceedings, and the family had been largely unknown to Scottish social services. The substance of the dispute arose in England.

5. A stay would also cause harmful delay. The children were settled in foster care and at local schools, and an issues resolution hearing was imminent. Their interests required the English court promptly to determine whether the threshold under section 31 of the Children Act 1989 was met and what orders should follow, including possible family or alternative placements in England or Scotland.