AB (A Child), Re

Transfer under Article 15 of the Brussels II Revised Regulation 2003 is exceptional. A court with jurisdiction must be satisfied both that the child has a particular connection with the proposed Member State and that the transfer is in the child’s best interests. The court must have sufficient evidence to make those assessments, including appropriate welfare evidence where necessary.

Where a child has been removed abroad and ordered to return for assessment, the court may order return pending that assessment. It may refuse to stay or transfer proceedings where the evidence is incomplete, delay is likely, and the existing court is better placed to manage the case because it has knowledge of the history and an imminent hearing.

The father applied for the return of his eight-year-old daughter to England and Wales and for directions concerning residence and contact. The child had lived in Italy after the mother was permitted to relocate there, but the mother later brought her to England, where the child was placed in school. The mother subsequently removed her to Italy without the father’s agreement.

On 3 December 2013 the court found that the child was habitually resident in England when the father issued proceedings and that the English court was first seised. The mother then applied to a court in Milan, asserting that the proceedings should be transferred to Italy under Article 15 of the Brussels II Revised Regulation 2003. The issues were whether the English court should stay or transfer the proceedings, adjourn the return application, or order the child’s return for a CAFCASS assessment.

1. The court declined to stay or transfer the proceedings to Italy of its own motion. Italy was the child’s former habitual residence and therefore had a particular connection with her. However, the court lacked sufficient evidence of the child’s best interests and was not able to conclude that the Italian court was better placed to hear the case. Transfer under Article 15 was an exceptional course.

2. An application for a stay or transfer by a party had to be made to the English court under Rule 12.62 of the Family Procedure Rules 2010. A request from a foreign court had to be made under Rule 12.63 of the FPR 2012. The mother’s Italian application did not constitute an Article 15 application to this court, and the Milan order did not show that the Italian court was considering transfer of jurisdiction.

3. The court considered that it was better placed, at that stage, to retain the proceedings. It had the relevant history, written evidence, orders and judgment, and a hearing was fixed within a month. Delay and further confusion were realistic risks, particularly where the presentation of the English proceedings to the Italian court might have been inaccurate.

4. Because the mother refused to comply with the order requiring the child’s return for CAFCASS assessment, the court ordered the child to be returned to England within seven days. The order was made to enable a proper welfare assessment away from the mother and pending the next hearing. The father was authorised to collect the child from Milan if necessary.

5. The court restrained the mother from publicising identifying information about the child or the proceedings and prohibited further psychiatric or psychological examination of the child for the purposes of the proceedings. Permission to appeal was refused, with liberty to apply to the Court of Appeal.

The judgment records that permission to appeal was refused by the High Court. The mother had not applied to the Court of Appeal for permission or a stay. No appellate decision is stated.