Leicester City Council v S & Ors

When jurisdiction under Article 15 of Council Regulation 2201/2003 may be material in care proceedings, the issue should be addressed at the earliest opportunity. Delay may strengthen the child’s connection with the forum in which the child has been living, but does not determine the issue automatically.

The court must ask whether the child has the required connection with another Member State, whether that State’s courts are better placed to hear the case, and whether transfer is in the child’s best interests. The assessment concerns the appropriate forum, not the substantive welfare outcome. The court should not compare the competence, diligence, resources or efficacy of the respective child-protection systems or courts.

The local authority sought care and placement orders concerning a very young child born in England to Hungarian parents. The child had been accommodated in England after his mother left him, while the parents and wider family lived in Hungary. The mother supported a request under Article 15 of Council Regulation 2201/2003 for the Hungarian courts to assume jurisdiction. The local authority and guardian opposed it, principally relying on delay, disruption and the child’s life in England.

The central issues were whether Hungary had the necessary connection with the child, whether the Hungarian courts were better placed to hear the case, and whether transfer was in the child’s best interests.

1. Timing and procedure. Where jurisdiction, including Article 15 jurisdiction, is likely to be a substantive issue in care proceedings, the local authority should ordinarily issue proceedings expeditiously. Delay may make the child’s circumstances more established in England and give that factor increasing weight. The issue should be considered at the earliest opportunity.
2. Cross-border cooperation. Central Authorities have the primary role in cooperation under Chapter 4 of BIIR. Embassies and consular officials have no designated role under BIIR or the 1996 Hague Child Protection Convention and should not be treated as proxies for Central Authorities. Article 55 concerns information, whereas evidence is governed by the Evidence Regulation. Requests under BIIR should be focused on a specific provision and should not be treated as general evidence-gathering enquiries.
3. Article 15 test. The child had a particular connection with Hungary because of his Hungarian nationality and the mother’s habitual residence there. The court then considered whether Hungary was better placed and whether transfer was in the child’s best interests. Those questions were broad and interconnected, with best interests directed principally to the choice of forum.
4. Application. The relevant evidence, including historic medical, police and social-care material, was principally in Hungary. The parents and extended family lived there, spoke Hungarian and did not speak English. Further assessment and evidence about support available to the mother would have to be obtained in Hungary. These factors outweighed the child’s birth and residence in England. The court rejected comparisons of the competence or effectiveness of the Hungarian courts or child-protection services.
5. Disposition. The court directed that an immediate request be sent to the Hungarian Central Authority for the Hungarian courts to assume jurisdiction. The request and papers were to be sent through the English Central Authority. The Hungarian authorities subsequently agreed to accept jurisdiction and arranged foster care for the child.

First-instance decision. No earlier appellate decision concerning this dispute is stated in the judgment.