HA (A Child), Re (No.2)

A transfer under Article 15 of Brussels II Revised transfers jurisdiction over the specific case, or specific part of a case, identified in the request. It does not transfer the general subject-matter jurisdiction over parental responsibility. Where the transferred proceedings have ended and the child remains habitually resident in England and Wales, the English court may retain jurisdiction under Article 8. Any further Article 15 request requires consideration of three questions: particular connection, whether the other court is better placed, and the child’s best interests. Comity and co-operation are the starting point, but they do not remove the need for reliable evidence about the other jurisdiction’s procedures and the practical consequences of transfer.

These were the second care proceedings concerning H, an eight-year-old child from Lithuania who had lived in England since 2013. Earlier proceedings had been transferred to Lithuania under Article 15 of Brussels II Revised after the court found that H was habitually resident in England and Wales. The Lithuanian court accepted the request but subsequently closed the case without determining H’s long-term care. No effective Lithuanian proceedings were continuing when the local authority issued a second application for a care order under section 31 of the Children Act 1989.

The issue was whether the English court retained jurisdiction to determine the second application and, if so, whether it should make a further Article 15 request transferring those proceedings to Lithuania.

1. Jurisdiction retained. The court declared that it had jurisdiction to hear the local authority’s application for a care order issued on 5 November 2014.
2. Scope of Article 15. Article 8 establishes the general jurisdiction based on the child’s habitual residence. Article 15 is an exception and permits transfer only of the specific case, or specific part of the case, before the court. The court has no power under Article 15 to transfer a wider subject-matter jurisdiction concerning all parental responsibility.
3. The court accepted the reasoning of Cobb J in Re S (Jurisdiction: Prorogation) [2013] EWHC 647, and relied on the CJEU’s decision in E v B (2014) Case C-436/13. The earlier Lithuanian proceedings had ended. Since H remained habitually resident in England and Wales, jurisdiction under Article 8 remained available for matters not determined in those proceedings.
4. No further transfer. Applying the three questions identified in AB v JLB (Brussels II Revised Article 15) [2009] 1 FLR 517, H had a particular connection with Lithuania, but the evidence did not establish that the Lithuanian courts were better placed to hear the English care case or that transfer was in H’s best interests.
5. The issues, parties, legal frameworks and proposed care arrangements were materially different in the two jurisdictions. The English court had greater judicial continuity and needed to determine disputed questions concerning H’s care, paternity and potential risk. A transfer appeared likely to result in H being placed immediately with Mr A, and there were reasonable grounds for considering that this might not be in H’s interests.
6. Comity and co-operation between European Union states remained the starting point. They did not justify transfer without adequate information about the other jurisdiction and the practical arrangements for litigating the case. The court therefore gave directions leading to a final hearing in England. It noted that circumstances might later justify transfer of the case or part of it.