D (A Child)

An application under Article 15 of Brussels II revised requires three questions: whether the child has a particular connection with the other Member State; whether its court would be better placed to hear the case; and whether transfer is in the child’s best interests. The latter inquiry is limited and concerns the appropriateness of the forum, not the substantive welfare decision. The applicant bears the burden on whether the other court is better placed. Courts should not evaluate or criticise the competence of child-protection or judicial services in a fellow EU Member State. In public child-protection proceedings, the nationality and continuing connections of the child may strongly support determination of the child’s future by the courts of that State, but the facts must be scrutinised in every case.

The local authority sought final care and placement orders concerning D, a Czech national born and living in England. D’s mother applied for a request under Article 15 of Council Regulation (EC) No 2201/2003 to transfer the public-law proceedings to the Czech Republic. The Czech authorities had not themselves made an application, although the mother had done so.

The parties disputed whether the Czech court was better placed to hear the case and whether transfer was in D’s best interests. The issues included the location of the historical evidence, the parents’ and siblings’ connections with the Czech Republic, D’s Czech and Romani heritage, the prospect of reunification, and the effect of delay.

1. Application granted. The court requested the public child-protection court in Novy Jiĉin, Czech Republic, to accept a transfer of the case and decide D’s future. If the Czech court did not respond affirmatively within six weeks, the case would proceed in England. D was to remain in care under interim care orders pending further arrangements.
2. Article 15 required the court to address the three cardinal questions identified in AB v JLB: whether D had a particular connection with the other Member State; whether that court would be better placed to hear the case; and whether transfer was in D’s best interests. The first question was factual. The second and third were evaluative. The best-interests inquiry was a limited forum inquiry and did not involve the paramountcy test applicable to the substantive determination of welfare, as explained in Re I (A Child).
3. The burden on whether the other court was better placed lay on the applicant. The court was not permitted to evaluate the competence of the child-protection or judicial services of a fellow EU Member State. The statement in Re K (A Child) that those services were no less competent was treated as a prohibition on entering that territory.
4. The fact-finding advantage enjoyed by the judge who had determined the historical issues was marginal. The important remaining questions concerned current circumstances, possible parental rehabilitation, reunification, and D’s relationship with his sibling L. Those matters could be investigated more effectively in the Czech Republic, where the parents and L lived and where proceedings would take place in their first language.
5. Article 15 was neutrally worded but indicated that, all other things being equal, the courts of a child’s homeland should determine the future of their national unless the connection had become tenuous. Here D’s Czech and Romani heritage was an exceptionally important factor. It had to be balanced against the need for a safe, stable and secure upbringing, but the court could not assume that Czech courts were unable to secure that outcome.
6. The proposed placement order would almost inevitably lead to adoption and substantial severance of D’s connection with his homeland, ethnicity and family. The authorities in Re B (Children), Re B (A Child) (Care Proceedings: Threshold Criteria) and Re B-S (Children) confirmed that non-consensual adoption was an extreme measure and a last resort. That consideration reinforced the decision to request transfer.

The judgment was a first-instance determination of the mother’s Article 15 transfer application. Permission to appeal was granted to the local authority and the Guardian under CPR 52.6(b), because the case raised compelling and difficult issues requiring appellate guidance.