LM (A Child), Re

On an application under Article 15 of Council Regulation (EC) 2201/2003, the court of the requested Member State determines whether transfer is in the child’s best interests. It does not ordinarily rehear whether the requesting court was better placed or whether the child had a particular connection.

Once jurisdiction is accepted, the proceedings are treated under rule 12.66 of the Family Procedure Rules 2010 as if the application had been made in England and Wales. The designation rules in section 31(8) of the Children Act 1989 apply. A child born abroad who has never been physically present in England and Wales cannot ordinarily be resident there. The authority within whose area the circumstances giving rise to the proceedings occurred is therefore designated where the child is not ordinarily resident in another authority’s area.

LM was born in Ireland after her mother and father had left England and Wales to avoid anticipated care proceedings. The Irish Health Service Executive obtained care orders and LM remained in foster care in Ireland. The parents later returned to the United Kingdom and sought transfer of the Irish public law proceedings to England and Wales.

The Irish High Court requested transfer under Article 15(1)(b) of Council Regulation (EC) 2201/2003, finding that England and Wales was better placed, that LM had a particular connection with it, and that transfer was in her best interests. The High Court had to decide whether to accept the request, which English local authority should assume responsibility, and how LM and the proceedings should be transferred.

1. Transfer accepted. The Irish courts had jurisdiction over the substance of the proceedings. The English court’s function under Articles 15(1) and 15(5) of Council Regulation (EC) 2201/2003 was confined to deciding whether acceptance of the transfer was in LM’s best interests. The requesting court was ordinarily responsible for considering particular connection and which court was better placed. The court accepted the transfer because LM was British, her family connections were in the United Kingdom, her mother had returned here, contact and assessment would be facilitated, and the relevant background evidence originated in England and Wales.
2. Placement and co-operation. Any physical move had to comply with Article 56. Consent from the competent authority in the requested State was required before the Irish court made a placement judgment. The Irish court should retain responsibility for transitional arrangements until LM’s arrival, after which its jurisdiction would cease.
3. Domestic procedure. Rule 12.66 of the Family Procedure Rules 2010 required notification to the Irish parties and allocation of the case as if the application had been made in England and Wales. Part IV of the Children Act 1989 would govern the future proceedings. The unusual absence of LM from England and Wales did not prevent preparatory orders being made in anticipation of her arrival.
4. Local authority designation. Section 31(8) of the Children Act 1989 applied to an Article 15 transfer. LM was not ordinarily resident in England and Wales because she had been born abroad and had never been physically present here. The circumstances giving rise to the proposed proceedings arose in the area of X County Council. X County Council was therefore nominated as applicant and treated as the competent authority for Article 56 purposes.
5. The court invited disclosure of the Irish evidence, urgent directions after LM’s arrival, appointment of a guardian, and applications for interim orders. No determination was made on the substantive care application.

First-instance decision. The judgment concerned an Article 15 request from the Irish High Court and the pending care proceedings in the Cavan District Court.