A,L,K (BIIR Article 15 Request)

In an international care case, a court with jurisdiction may request transfer under Article 15 only where the child has a particular connection with another Member State, that state’s court would be better placed to hear the case, and transfer is in the child’s best interests. The assessment concerns the forum, not a comparison of the competence, resources or child-protection systems of the two states.

Non-consensual adoption requires a stringent necessity test. The court must evaluate all realistic options holistically, including the support available to the family, and adopt the least interventionist outcome consistent with the child’s welfare. Delay, cultural identity, family relationships and the practical availability of suitable placements may be material to the Article 15 and welfare evaluations.

Leeds City Council sought care orders for three children and a placement order for L. The children had Polish connections, but the parents and children were found to be habitually resident in England. The court therefore had jurisdiction under Brussels II Revised.

The central issues were whether proceedings concerning L should be transferred to Poland under Article 15, whether care orders were necessary for A and K, and whether L should remain in England subject to care proceedings and possible adoption. The proceedings had been delayed while the English authorities consulted the Polish authorities about possible placements.

1. Jurisdiction and habitual residence. Applying Re A (a Child) [2013] UKSC 60, the court treated habitual residence as a question of fact focused on integration into a social and family environment. The parents were settled and assimilated in England, and the children were therefore habitually resident there.
2. Article 15. The court applied the three-stage approach identified in AB v JLB (Brussels II Revised: Art. 15) [2009] 1 FLR 517: particular connection, whether the foreign court would be better placed, and the child’s best interests. A final discretionary question remained whether, having answered those questions affirmatively, transfer should be requested.
3. The court followed the guidance in Nottingham City Council v LM and Others [2014] EWCA Civ 152. It did not compare the relative competence, diligence, resources or efficacy of the English and Polish systems. The Article 15 best-interests inquiry was limited to whether determination in Poland would be in the child’s best interests.
4. Transfer was refused for A and K because their placements in Poland had been assessed and could be achieved promptly in England through care orders followed by registration. Further delay would be contrary to their welfare. Transfer was ordered for L because Poland could arrange a foster placement unavailable through the English court, had extensive information about him and his family, and could better preserve his Polish identity and family relationships.
5. Welfare and orders. The court applied the balance-of-probabilities standard stated in Re B (Care Proceedings; Standard of Proof) [2008] 2 FLR 141. The statutory threshold was crossed. Applying the least interventionist approach and a global welfare evaluation, final care orders were made for A and K, with placement with relatives in Poland. L remained subject to an interim care order and the proceedings were stayed pending the Polish authorities’ response.

First-instance decision. No earlier appellate decision is stated. The proceedings concerning L were stayed pending transfer to Poland; final care orders were made for A and K.