A Local Authority v MGM & Ors

Under Article 15 of EU Council Regulation 2201/2003, a court with jurisdiction may request transfer to a court in another member State only where three conditions are satisfied: the child has a particular connection with that State; its court is better placed to hear the case or a specific part of it; and transfer is in the child’s best interests. The first question is factual. The latter two require evaluation in all the circumstances. The best-interests assessment concerns the appropriate forum, rather than the substantive outcome for the child. If all three conditions are met, the court retains a discretion, although refusal of transfer will ordinarily be difficult to justify.

The local authority’s care proceedings concerned three Czech-born children. Two were subject to interim care orders and placed with foster carers; the eldest remained with his maternal grandmother. The parties agreed that a request should be made under Article 15 of EU Council Regulation 2201/2003 for the Czech courts to assume jurisdiction. The issue was whether the statutory conditions were satisfied and whether the court should exercise its discretion to make the request.

The court considered the children’s connections with the Czech Republic, the relative ability of the Czech and English courts to assess the care arrangements, the mother’s participation, the children’s wishes and the potential delay.

1. The court had jurisdiction under Article 8 of EU Council Regulation 2201/2003, because the children were habitually resident in England. Article 15 provided an exception permitting a request to a court of another member State with which the child had a particular connection.
2. Following the framework identified in AB v JLB [2009] 1 FLR 517 and Nottingham City Council v LM [2014] EWCA Civ 152, the court had to answer three questions: whether there was a particular connection; whether the other court was better placed to hear the case or a specific part of it; and whether transfer was in the child’s best interests.
3. The connection requirement was satisfied by the children’s Czech nationality, former habitual residence, Czech family connections and the grandmother’s intended return. The Czech court was better placed because the grandmother’s support, language, accommodation and access to services would be centred there, and the mother’s participation would be facilitated.
4. The transfer was in the children’s best interests. It would preserve important family links, enable a more effective assessment of the proposed care arrangements and remove the children from circumstances in which they had been exposed to significant risks. Their clear wishes, particularly those of the teenagers, supported that conclusion.
5. All three conditions were satisfied. The court therefore exercised its discretion to request, without delay, that the Czech court assume jurisdiction under Article 15(5). Directions under Article 56 were endorsed to obtain further information about arrangements for the children if the request were accepted. Delay in resolving jurisdiction was likely to harm the children, although the Czech authorities were entitled to take the period required to consider the request.