In the matter of N (Children)

Under article 15 of the Brussels II revised Regulation, the court must determine separately whether another member state is better placed to hear the case and whether transfer is in the child’s best interests. The latter is an additional safeguard and does not follow automatically from the former.

The welfare inquiry concerns the transfer, not the ultimate outcome. It includes the transfer’s immediate and longer-term effects on the child and its impact on the outcomes available to the receiving court. Where the seised court has heard all the evidence and can determine the case, another court will only rarely be better placed.

Two Hungarian children had been born and continuously resident in England. Following findings of neglect and other harm, the local authority sought care and placement orders with a view to adoption. The Hungarian authorities instead proposed foster care in Hungary.

A Deputy High Court Judge requested Hungary to assume jurisdiction over the care proceedings under article 15 of the Brussels II revised Regulation. The Court of Appeal dismissed an appeal in [2015] EWCA Civ 1112, although it held that placement order proceedings fell outside the Regulation.

The children’s guardian appealed. The principal questions concerned the proper separation and content of the “better placed” and “best interests” inquiries, the consequences of transfer for the children, the stay of the placement proceedings and whether a reference to the Court of Justice was required.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agreed, held that the transfer request had to be set aside. The proceedings were remitted to the Family Division for an urgent determination on updated evidence.

2. Article 15.1 poses three questions: whether the child has a particular connection with another member state; whether a court there would be better placed to hear the case or a specified part; and whether transfer would be in the child’s best interests. The last two questions are separate. Although relevant considerations may overlap, a finding that the foreign court is better placed does not establish that transfer is in the child’s best interests.

3. The best-interests inquiry concerns whether transferring the case is beneficial to the child, rather than which substantive outcome would best promote welfare. It is not an “attenuated” welfare test. The court may consider the transfer’s immediate and longer-term effects on the child and whether transfer would remove an outcome from the receiving court’s available options.

4. The judge had therefore erred by excluding the consequences of removing the settled children to an unfamiliar foster placement in Hungary and by failing to consider that transfer would preclude their remaining with their existing carers under an English order. Retention of jurisdiction preserved all material outcomes, including placement in Hungary.

5. The “better placed” assessment was also flawed. The judge had not considered the real issues, the English court’s ability to arrange a foreign placement, or which court could achieve each available outcome. Having heard all the evidence and being able to give final judgment, the English court was plainly better placed. A transfer at such a late stage would be rare indeed.

6. Article 15 did not apply to placement order proceedings. Nevertheless, if transfer of the care proceedings had been proper, the placement proceedings could properly have been stayed under rule 4.1(3)(g) of the Family Procedure Rules 2010.

7. No reference to the Court of Justice was necessary. The court proceeded on the assumption that article 15 could apply to public law proceedings and treated the meaning of article 15.1 as clear. Delay made an urgent domestic determination essential.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, set aside the article 15 transfer request and remitted the proceedings for urgent determination in the Family Division: [2016] UKSC 15.
2. Court of Appeal: Dismissed the appeal from the transfer decision. It upheld transfer of the care proceedings, held that placement proceedings were outside the Regulation, and stayed those proceedings as consequential: [2015] EWCA Civ 1112; [2016] 2 WLR 713.
3. High Court: A Deputy High Court Judge granted the renewed article 15 application and requested Hungary to assume jurisdiction over the care proceedings. The judgment is a stage of the same litigation and is therefore not included in the cited-case graph.