London Borough of Hounslow v AM & Ors

Where children are habitually resident in England and Wales when care proceedings commence, the courts of England and Wales have primary jurisdiction under Article 8 of Council Regulation (EC) No 2201/2003. An application to transfer proceedings under Article 15 should be considered at an early stage. Where the proposed transfer concerns children who may themselves move to another member state, the court may need reliable information about suitable arrangements for their reception and care in that state before deciding the transfer application. A short adjournment may therefore be appropriate to obtain focused social-work and professional enquiries, particularly before fact-finding has begun.

The local authority commenced care proceedings concerning two Hungarian children, born in England to Hungarian parents of Roma ethnicity. The children were habitually resident in England and Wales and had lived together with the same foster family. The mother applied under Article 15 of Council Regulation (EC) No 2201/2003 to transfer the proceedings to Hungary, where extended family members lived and where she had recently given birth to another child.

The central issue was whether the transfer application could properly be determined before fuller information was obtained about the children’s possible care and physical relocation in Hungary.

1. Jurisdiction. The parties accepted that both children were habitually resident in England and Wales when the proceedings commenced. Accordingly, Article 8 of Council Regulation (EC) No 2201/2003 made the courts of England and Wales the courts of primary jurisdiction.
2. Transfer under Article 15. The application to transfer the proceedings to Hungary could not sensibly be determined on the information then available. Consideration of transfer required concurrent consideration of what arrangements could be made for the children’s physical transfer to, and proper care in, Hungary. That included possible care by parents or extended family, and the possibility of long-term fostering or adoption in either state.
3. Timing and judicial continuity. Transfer issues should be addressed as early as possible. The court was conscious that increasing judicial involvement could make judicial continuity a factor favouring retention of the case. Here, however, the proceedings remained at an early stage and no fact-finding or proof of the threshold facts had yet occurred.
4. Disposition. The application was adjourned, not part-heard before Mr Justice Holman, until 9 May 2014. The intervening period was intended to permit the local-authority social worker to investigate arrangements in Hungary, including by meeting family members and professional counterparts there, and to provide the court with an informed assessment.