Walsall MBC v KK & Anor

Under Article 15 of Council Regulation (EC) No. 2201/2003, a transfer requires a particular connection with another Member State, that its courts would be better placed to hear the case or a specific part of it, and that transfer would be in the child’s best interests. Nationality may establish the required particular connection, but it does not establish that the foreign court is better placed. The court must assess the evidence, the location of the parents and children, and the practical circumstances of the proceedings. A transfer may be reconsidered at a later stage if the issue changes from parental care to identifying a long-term alternative home. The children’s nationality and possible future links with that State do not justify transfer where the decisive evidence and current care arrangements are in England.

Walsall Metropolitan Borough Council brought public law care proceedings concerning three children born in England to Slovakian parents. The children were Slovakian citizens but had never lived in or visited Slovakia. They had lived continuously in England, including with their parents and subsequently in a single foster placement.

The Centre for the International Legal Protection of Children and Youth in Bratislava applied under Article 15 of Council Regulation (EC) No. 2201/2003 for transfer of the proceedings and the children to Slovakia. The central issues were whether the Slovakian courts were better placed to hear the case and whether transfer would be in the children’s best interests.

1. The application was refused. The court held that the statutory conditions for transfer under Article 15 were not satisfied on the facts.
2. The children’s Slovakian nationality established a particular connection with Slovakia for the purposes of Article 15. That connection was only a threshold condition and did not determine whether transfer should occur.
3. The Slovakian courts were not better placed to hear the care proceedings. The fundamental question—whether either or both parents could resume care—had not been decided. The parents and children lived in England, and the relevant medical, professional and lay evidence, together with the prospective hearing, was located there.
4. Transfer was not in the children’s best interests. The application proceeded on a mistaken understanding that the foster family were not permanent carers. The evidence was that, if the children could not return to their birth family, the foster family wished to care for them throughout their childhood and might seek special guardianship.
5. The court left open the possibility that transfer might require active reconsideration at a later stage if parental care and continued placement with the foster family were both ruled out and the issue became the identification of a long-term home in Slovakia. That possible stage was, however, remote on the present facts.