London Borough of Barking and Dagenham v C & Ors

When considering a request under Article 15 of Brussels II Revised, the court must ask whether the requested court is better placed to hear the case and whether transfer is in the child’s best interests. The latter inquiry concerns the advantages and disadvantages of transfer, rather than the child’s global best interests or the ultimate merits of the care proceedings.

Where the child has a strong connection with another member state, assessment of proposed care, family support, available protective mechanisms and cultural context may be matters that the other state is better placed to evaluate. A transfer request should not ordinarily be delayed merely to complete domestic assessments if the assessment can proceed alongside the request and delay creates a risk of a later, disruptive move.

The local authority brought care proceedings concerning A, an infant born in England to Romanian parents. The proceedings had exceeded the statutory 26-week period. A’s mother supported transfer to Romania. His father, who had recently put himself forward as a carer, also supported transfer and relied on property and family support available in Romania.

The local authority had previously contemplated adoption in England, but agreed to assess the father. The Guardian initially favoured progressing adoption in England, although the father’s engagement changed the position. The issue before Mrs Justice Parker was whether, under Article 15 of Brussels II Revised, Romania was better placed to hear the case and whether transfer was in A’s best interests, including whether the request should be made before the father’s assessment was completed.

1. Transfer directed. The court concluded that a request should immediately be made to the Romanian authorities to accept the case. The father’s assessment was to proceed alongside the request.
2. Article 15 inquiry. The two contentious questions were whether Romania was better placed to hear the case and whether transfer was in A’s best interests. Best interests under Article 15 meant best interests as to transfer, not an assessment of the child’s global best interests or a determination of the ultimate care outcome.
3. Connection and cultural context. A was Romanian and had a particular connection with Romania. The father’s proposed care, the effectiveness of Romanian family support, and the availability of supervision or other protective intervention could be assessed more appropriately by Romanian authorities applying Romanian standards. The father was also likely to litigate more effectively in Romania.
4. Timing and delay. The court rejected postponement of the request. The assessment could be completed while the request was pending. Delay might lead to adoption being advanced in England and then to a later request by Romania for repatriation, producing a more disruptive move for the child.
5. Distinguishing the judicial-continuity concern. Nottingham City Council v LM & Ors [2014] EWCA Civ 152 was distinguishable. There, transfer had been refused because the judge who had conducted the fact-finding hearing was well placed to determine the imminent final hearing. Here, there had been no comparable judicial continuity and the father’s late involvement had materially changed the case.
6. The court also took account of the risk that delay would make it harder to move A from an established placement, while recognising that the Romanian authorities would decide interim placement arrangements. The request for transfer was therefore to be made immediately.

The matter began in care proceedings before Judge Sapnara at the East London Family Court. She identified the Article 15 issue and transferred the case to the High Court for determination. Mrs Justice Parker then decided the Article 15 application at first instance. The judgment does not record an appeal from that decision.