Summary
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.
Factual background
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.
Held
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.
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.
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.
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.
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.
The court’s approach to earlier authorities
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Appeal route
- This judgment [2013] EWHC 521 (Fam) High Court (Family Division)
- Appealed to[2013] EWCA Civ 895Outcomeappeal dismissed
Key cases cited
12 authorities cited.
- I (A Child) [2009] UKSC 10
- In re J (a child) (FC) [2005] UKHL 40
- Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460
- ZA & Anor v NA [2012] EWCA Civ 1396
- A B v J L B [2008] EWHC 2965 (Fam)
- Re S (Care: Jurisdiction) [2008] EWHC 3013 (Fam)
- M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam)
- I v Health Service Executive Case C-255/13
- Mercredi v Chaffe [2011] 1 FLR 1293
- Area of Freedom, Security and Justice C-532/01
- Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741
- Re S (residence order: forum conveniens) [1995] 1 FLR 314
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Cases citing this case
10 later cases · 4 positive · 3 neutral · 1 caution · 2 negative
Most senior citing decisions:
- In the matter of N (Children) [2016] UKSC 15 disapproved
- In the matter of A (Children) (AP) [2013] UKSC 60 considered
- N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 approved
- M (A Child), Re [2014] EWCA Civ 152
- M & L (Children), Re [2016] EWHC 2535 (Fam)
- E (A Child), Re [2014] EWHC 6 (Fam)
- D (A Child) [2013] EWHC 4078 (Fam)
- London Borough of Camden v Caratt & Ors [2013] EWHC 2336 (Fam)
- LA v ML & Ors [2013] EWHC 2063 (Fam)
- LA v ML & Ors [2013] EWHC 2062 (Fam)
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