A v D & Ors

The power under Article 15 of Brussels II Revised is exceptional and may be exercised only where three questions are answered affirmatively: the child has a particular connection with another Member State, that state’s court is better placed to hear the case, and transfer is in the child’s best interests.

The assessment is evaluative and pragmatic. The court must consider the nature of the proceedings, the evidence, the parties’ ability to participate and the child’s circumstances. The child’s best interests under Article 15 concern the appropriate forum, rather than a full welfare determination. Unlawful removal or retention is relevant, but does not necessarily prevent transfer where the child will not return and the foreign court is manifestly better placed to determine parental responsibility.

The proceedings concerned an English father’s applications for parental responsibility, child arrangements and committal of the mother after the mother retained the child in Poland following an undertaking to return her to England. The father’s Hague Convention return application had been refused by the Polish courts.

Having previously held that the English court had jurisdiction, Baker J considered whether the proceedings should be transferred to Poland under Article 15 of Brussels II Revised. The mother did not participate. The central issues were whether Poland was a state with which the child had a particular connection, whether the Polish courts were better placed to hear the applications, and whether transfer was in the child’s best interests.

1. Article 15 test. The court held that the three questions identified in AB v JLB [2009] 1 FLR 517 governed the application: whether the child had a particular connection with the other Member State; whether that state’s court would be better placed to hear the case or a specific part; and whether transfer was in the child’s best interests. All three questions had to be answered affirmatively.
2. Particular connection. The child was a Polish national, had a Polish mother and had lived in Poland for two and a half years. Poland therefore plainly satisfied Article 15(3).
3. Better placed court. The applications would require a fact-finding hearing concerning cross-allegations of domestic violence, followed by welfare analysis. Both parents’ participation was important. The mother’s continuing non-participation made it highly unlikely that the English court could resolve the applications. The Polish court could require the mother to participate, and the main welfare evidence concerned the child’s life in Poland. The assessment had to be pragmatic, applying the principles of comity and co-operation and treating the courts and child-protection services of other Member States as no less competent.
4. Best interests. The child’s best interests under Article 15 involved a forum evaluation, not the paramount-welfare test applicable to a substantive welfare decision. The wrongful retention and breach of the mother’s undertaking were relevant, but the child would not in reality be returned. Her interests required the father’s applications to be determined, and transfer offered the realistic means of doing so.
5. Order and co-operation. The court requested the Polish court, assumed to be the district court in Ruda Slaska, to accept jurisdiction under Article 15(5). The request was to be made through the Central Authorities. Article 15(6) required co-operation, including assistance with case management, translation and interpretation.