N (Children : Adoption: Jurisdiction)

The English court’s jurisdiction to make an adoption order is founded principally on the domicile or habitual residence of the prospective adopter. The child’s or natural parent’s foreign nationality, domicile or habitual residence does not of itself remove jurisdiction. The court applies English adoption law, but foreign connections may be important to the child’s welfare, including the risk of an adoption order being recognised in England but not elsewhere.

Under Brussels II Revised, care proceedings remain within scope even where adoption is planned. Placement proceedings are measures preparatory to adoption and fall outside scope. An Article 15 transfer requires a particular connection, a foreign court better placed to hear the case, and transfer being in the child’s best interests, followed by a residual discretion.

Two Hungarian children, born in England and habitually resident there, became subject to care proceedings. The local authority sought care and placement orders. The mother applied under Article 15 of Brussels II Revised for the proceedings to be transferred to Hungary.

Judge Bellamy transferred the proceedings, including the placement proceedings, to Hungary: [2014] EWFC 45. The local authority and children’s guardian appealed. The principal issues were the English court’s jurisdiction to make adoption and placement orders concerning foreign nationals, the scope of Brussels II Revised, the construction and application of Article 15, and the consequences of the judge’s failure to consider the exclusion of measures preparatory to adoption.

1. Jurisdiction and applicable law. The Adoption and Children Act 2002 bases jurisdiction principally on the domicile or habitual residence of the prospective adopter under section 49. It contains no nationality, domicile or habitual-residence restriction concerning the child or natural parents. The English court therefore has jurisdiction to make an adoption order concerning a foreign child and to dispense with the consent of a foreign parent. It applies English law. Foreign law is relevant as a welfare factor, including the risk of a “limping” adoption order.
2. Brussels II Revised. Care proceedings fall within Article 1(1)(b), even where the care plan is adoption. An application for a placement order is a measure preparatory to adoption within Article 1(3)(b), and is excluded. Article 15 could therefore be used for the care proceedings but not directly for the placement proceedings.
3. Article 15. The court must ask whether the child has a particular connection with another Member State, whether that state’s court is better placed to hear the case, and whether transfer is in the child’s best interests. The first question is factual; the others involve evaluation. The court must not compare the competence, resources or efficacy of the two systems, or conduct a full welfare hearing. Delay may be relevant, depending on the circumstances. Even where all three conditions are met, a residual discretion remains.
4. Judge Bellamy was entitled to find that Hungary was better placed, particularly because of the children’s nationality, family connections, language, culture and possible sibling relationships. His assessment was not legally flawed or perverse. The omission concerning Article 1(3)(b) did not invalidate the transfer of the care proceedings. The care proceedings were stayed following transfer, and the placement proceedings were stayed consequentially.
5. The appeals were dismissed. The court also strongly criticised prolonged use of section 20 accommodation and stressed the need for informed, recorded and unpressured parental consent, clear agreements, and judicial continuity.

• Court of Appeal (Civil Division): appeals dismissed. The transfer of the care proceedings was upheld; the placement proceedings were stayed consequentially. [2015] EWCA Civ 1112 .
• High Court of Justice, Family Division: Judge Bellamy directed transfer under Article 15, including the placement proceedings. [2014] EWFC 45.