M (A Child), Re

Jurisdiction in matters of parental responsibility ordinarily lies with the courts of the Member State where the child is habitually resident. Transfer under Article 15 of Council Regulation (EC) No 2201/2003 is an exception. It requires a particular connection with another Member State, a finding that its court is better placed, and a finding that transfer is in the child’s best interests.

Nationality is only one gateway to considering transfer and cannot determine the outcome. Best interests concern the appropriate forum, rather than the substantive welfare outcome. Courts must not compare Member States’ child-protection systems or treat differences concerning non-consensual adoption as relevant. Judicial continuity may be decisive where substantial fact-finding has occurred. International jurisdiction should therefore be addressed when proceedings are issued and at the case management hearing.

A child habitually resident in England was the subject of care and placement-for-adoption proceedings. His Czech parents had returned to the Czech Republic, where they lived with another child. After conducting a substantial fact-finding hearing, Mostyn J requested the Czech court to assume jurisdiction under Article 15(1) of Council Regulation (EC) No 2201/2003.

The local authority appealed with the support of the children’s guardian. They relied principally upon the English court’s existing knowledge of the evidence and judicial continuity. The guardian also submitted that an English court was more likely to consider non-consensual adoption and provide adequate protection.

The central questions were whether the Czech court was better placed, whether transfer was in the child’s best interests, and whether the judge had wrongly treated the child’s nationality as supporting a policy preference for determination in his homeland.

1. The appeal was allowed unanimously. The Article 15 request was set aside and the care and placement proceedings were remitted to Mostyn J. The English court retained jurisdiction.

2. Article 15 operates as an exception to jurisdiction based on habitual residence under Article 8. Three cumulative questions must be answered affirmatively: whether the child has a particular connection with another Member State; whether that State’s court is better placed to hear the case or a specified part; and whether transfer is in the child’s best interests. Even then, the court retains a discretion, although its practical scope will usually be narrow.

3. The first question is essentially factual. The other two require evaluation of all the circumstances. Nationality may establish a particular connection, but it is only a gateway. It cannot alone determine whether jurisdiction should be transferred. Mostyn J’s proposed policy that, other things being equal, the courts of a child’s nationality should determine the child’s future contradicted the habitual-residence principle and vitiated his evaluation.

4. The “better placed” inquiry may include the availability of witnesses and assessments, the location of the family, language, and the existing court’s knowledge of the case. Here, the Czech court had advantages in assessing the parents’ present circumstances. However, the English judge had conducted extensive fact-finding and had formed impressions of the witnesses. Judicial continuity was therefore decisive in a balance which was otherwise marginal.

5. The Article 15 best-interests question concerns forum, not the substantive welfare outcome. It does not require a profound investigation of the child’s upbringing. The Regulation’s autonomous language should be applied without a domestic paramountcy gloss.

6. Courts must proceed on the basis that the judicial and child-protection systems of other Member States are equally competent. They may not compare their competence, diligence, resources or efficacy. Differences in welfare practice, including the limited use of non-consensual adoption, are irrelevant to the second and third Article 15 questions. The court left open the position in an extreme case where another State could not protect the child.

7. Jurisdiction and any Article 15 transfer should be considered expressly at the earliest opportunity. The process should be summary and should avoid satellite litigation. The court should state in its judgment and order both the basis of jurisdiction and its decision concerning Article 15.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The Article 15 request was set aside and the remaining proceedings were remitted to Mostyn J.
2. High Court, Family Division: Mostyn J requested the District Court of Novy Jicin to assume jurisdiction under Article 15(1) of Council Regulation (EC) No 2201/2003, subject to the outcome of the appeal.