T (A Child: Article 15 of B2R), Re

Article 15 of Council Regulation (EC) No 2201/2003 applies to public law as well as private law proceedings. The court must first identify a particular connection with the other Member State. It must then be satisfied that the other court is clearly the more appropriate forum, having regard to the real and substantial connection of each forum, including convenience, expense and witness availability. The child’s best interests are important but not paramount. The inquiry is attenuated and concerns the appropriateness of the forum, rather than the substantive outcome of the proceedings. Where the requirements are met, the court should request a transfer and stay its proceedings unless more potent factors require a different course.

The local authority issued care proceedings and later sought a placement order concerning a ten-month-old child born in England to Slovakian parents. The Slovakian Central Authority sought transfer of the proceedings to Slovakia under Article 15 of Council Regulation (EC) No 2201/2003. The proposed arrangements in Slovakia involved the mother and child living in a specialist children’s home while assessment and possible reunification were attempted.

The central issues were whether Article 15 applied to public law proceedings, the correct interpretation of the requirements that the other court be better placed and that transfer be in the child’s best interests, and whether the child had habitual residence in Slovakia or elsewhere.

1. Article 15 applied to public law proceedings as well as private law proceedings. The court had jurisdiction to consider the transfer request and was satisfied that Slovakia was a Member State with which the child had a particular connection.

2. The principles stated in M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam) governed the forum evaluation. The applicant had to show that Slovakia was clearly the more appropriate forum. The court had to identify the forum with the more real and substantial connection, considering convenience, expense and the availability of witnesses. If that test was met, a transfer should ordinarily be requested and the proceedings stayed unless other more potent factors pointed against it.

3. The best-interests inquiry was attenuated. Following the reasoning in Re I (A Child) [2009] UKSC 10, it concerned whether the case should be determined in Slovakia rather than England, not the substantive question of what outcome would best serve the child. Best interests were important but not paramount.

4. The proposed Slovakian arrangements better preserved the child’s Slovakian and Roma heritage and provided relevant linguistic, social and professional advantages. The local authority’s opposition descended into the profound substantive welfare inquiry which Article 15 did not require. The court therefore issued the transfer request and stayed the proceedings. The child remained subject to interim care arrangements pending the Slovakian court’s decision; if Slovakia declined the request, the matter was to return to the High Court.

5. Applying Z A & Anor v NA [2012] EWCA Civ 1396, the child had not acquired habitual residence in Slovakia because he had never been physically present there. The court was not satisfied that he had acquired habitual residence in England. The court therefore had jurisdiction under Article 13, notwithstanding that the child had no habitual residence.