Medway Council v JB & Ors

Article 15 of BIIa is an exception to the ordinary jurisdiction founded on habitual residence and must be construed narrowly. The court must ask whether the child has a particular connection with the other Member State, whether that state’s court would be better placed to hear the case, and whether transfer would be in the child’s best interests.

The child’s wishes and feelings must be considered according to age and maturity. They are relevant where they bear on connection, the comparative suitability of the courts, or the forum-based best-interests assessment. Strong and consistent objections by older children may carry significant weight, particularly where transfer would undermine their engagement, cause emotional harm or create substantial delay.

Medway Council brought care proceedings under Part IV of the Children Act 1989 concerning seven Slovakian children habitually resident in England and Wales. The Slovak Central Authority and the mother invited the court to transfer jurisdiction to Slovakia under Article 15 of Council Regulation (EC) No 2201/2003.

All parties supported transfer for the five younger children. The local authority, Children’s Guardian and parents opposed transfer for the two older boys, whose care plans and long-term foster placement in England were settled and who strongly objected to returning to Slovakia. The central issue was whether their wishes and feelings were relevant to, and sufficiently weighty within, the Article 15(1) assessment.

1. Disposition. The court requested that the Slovakian courts assume jurisdiction concerning the five younger children, ZB, AB, KAB, ALB and RB. It declined to transfer jurisdiction concerning KB and NB, dismissed the mother’s application insofar as it concerned them, and declined the Slovak Central Authority’s invitation to transfer jurisdiction of its own motion.
2. Applicable test. Article 15 is an exception to the ordinary Article 8 jurisdiction based on habitual residence and must be construed narrowly. The court must determine whether the child has 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 of it, and whether transfer is in the child’s best interests. The latter two questions require an evaluation of all the circumstances and are closely connected.
3. Children’s views. Article 15 must be read with Article 24(1) of the Charter of Fundamental Rights of the European Union. The court must take account of views relevant to transfer, having regard to age and maturity. A child’s views need not be expressed in technical jurisdictional language. Objections to return, concerns about parental care, attachment to carers, or anticipated difficulty engaging with assessments may bear on whether the other court is better placed and on the forum-based best-interests question.
4. Application to the younger children. Slovakia was the former habitual residence and place of nationality of all seven children. For the younger children, the realistic long-term welfare options, including assessment of the parents jointly and possible family or culturally appropriate placements, were located in Slovakia. Their recent wishes not to return did not outweigh the forensic advantages of transfer, given their ages, previous contrary wishes and the absence of cogent evidence of more than short-term disruption or emotional harm.
5. Application to the older children. The older boys’ assessments, care planning and long-term foster placement in England were complete. Their parents did not seek to care for them or further assessment in Slovakia. Their strong and consistent objections, coupled with the risk of behavioural regression, emotional damage, impaired engagement with assessments and considerable delay, meant that Slovakia was not better placed and transfer was not in their best interests.
6. The English court retained responsibility for overseeing the transfer arrangements for the younger children. A request under Article 15(1)(b) was to be made, with further directions after the Slovakian courts accepted jurisdiction. Proceedings concerning the older boys were transferred back to the Family Court for final determination.

First-instance decision. No appellate history was stated in the judgment.