B-C & Ors (Children)

A request under Council Regulation (EC) No 2201/2003, Article 15, to transfer jurisdiction in child-protection proceedings is exceptional and discretionary. It requires a particular connection with another member state, that the courts there would be better placed to hear the case, and that transfer would serve the child’s best interests. The assessment may take account of the children’s nationality, former habitual residence, the location and language of the parents, and the likely country in which their futures will be determined. Until the requested court accepts jurisdiction, the requesting court retains jurisdiction and its existing orders remain effective.

These were care proceedings concerning four children who were in the interim care of Oldham Council. The children, their mother and the two identified fathers had Portuguese connections. The mother and older children had lived in Portugal, both fathers lived and worked there, and the mother wished to return. The local authority and fathers supported a request for the Portuguese courts to assume jurisdiction, subject to appropriate safeguards. The guardian supported the request but was concerned that the proceedings should retain momentum and that the children should not move without safe arrangements.

The issue was whether the court should request an appropriate Portuguese court to accept jurisdiction under Article 15 of Council Regulation (EC) No 2201/2003.

1. Article 15 is exceptional and discretionary. The use of the word “may” confers a discretion. A request can be made only where the statutory preconditions are satisfied.
2. The essential requirements under Article 15.1 were:
   • the child had a particular connection with another member state;
   • the courts of that state would be better placed to hear the case; and
   • transfer was in the child’s best interests.
3. The three older children had a clear particular connection with Portugal because it was their former habitual residence and nationality, and the habitual residence of holders of parental responsibility. The baby had been born in England and had not lived elsewhere. However, the court was prepared to proceed on the basis that Portugal was likely to be his place of nationality because his mother was Portuguese.
4. The Portuguese courts were better placed to determine the children’s long-term care. The fathers lived and worked in Portugal, spoke only Portuguese, and would face difficulty participating in English proceedings. The mother also wished to return and had only limited English. The children’s language, upbringing, education and likely future residence all pointed to Portugal.
5. For the same reasons, transfer was in the best interests of each child. The court therefore exercised its Article 15 discretion, exceptionally, and requested an appropriate Portuguese court to accept jurisdiction in relation to all four children.
6. Under Article 15.5, this court would decline jurisdiction only if the Portuguese court accepted jurisdiction. Until then, the High Court retained jurisdiction and all continuing orders and directions remained in force.