FE v MR & Ors

Article 15 of Council Regulation (EC) 2201/2003 is an exceptional mechanism for transferring proceedings concerning parental responsibility to another Member State. The court must address three separate questions: whether the child has a particular connection with that State, whether its court would be better placed to hear the case, and whether transfer would be in the child’s best interests.

The particular-connection grounds in Article 15(3) are exhaustive. The “better placed” inquiry concerns genuine and specific added value, including procedural advantages, but not comparative substantive law. The best-interests inquiry concerns the consequences of transfer itself, rather than the likely result of the substantive proceedings. The court having jurisdiction must independently satisfy itself that all three requirements are met before requesting a transfer.

The parents, who are Spanish nationals, separated after living in England, Spain and Tenerife. The children had lived with the mother in England since 2013. The Spanish court later awarded custody to the father, and the mother appealed and brought the children back to England.

Proceedings concerning recognition and enforcement of the Spanish orders were stayed in England. During court-ordered contact in April 2017, the father took the children from Spain to Thailand and Indonesia before they were returned to England. The children’s guardian applied for a request under Article 15 of Council Regulation (EC) 2201/2003 to transfer the Spanish proceedings to England.

The central issues were whether the children had a particular connection with England, whether the English court was better placed to determine their future care, and whether transfer was in their best interests.

1. Jurisdiction. The Spanish court was first seised because the divorce proceedings had continued there. Under Articles 19(2) and 19(3) of Council Regulation (EC) 2201/2003, the English court was second seised and had to decline substantive jurisdiction, subject to the Article 15 mechanism. Article 20 nevertheless permitted provisional and protective measures.
2. Recognition and enforcement. The stay on recognition and enforcement of the Spanish orders was continued. The pending Spanish appeal and the children’s strong opposition to returning to Spain made it inappropriate to lift the stay at that stage.
3. Article 15 framework. The children had a particular connection with England under Article 15(3), because England had become their habitual residence and was the mother’s habitual residence. Habitual residence required an essentially factual assessment of integration in a social and family environment.
4. The English court was better placed to assess the children’s recent experiences, emotional welfare, and wishes and feelings. A transfer would provide genuine and specific added value because the children could be interviewed face to face without travelling to Spain and could participate through a guardian and separate legal representation. The court did not compare the substantive law of the two Member States.
5. Transfer itself was in the children’s best interests. The inquiry concerned the immediate and longer-term effects of transferring the proceedings, including the anxiety and possible emotional and psychological harm caused by requiring the children to travel to Spain, and the effect on their family, social and emotional attachments.
6. Although transfer was sought unusually late, after the Spanish first-instance hearing and during the appeal, the requirements of Article 15 were satisfied. The request was supported by the mother as required by Article 15(2). The ultimate decision whether to accept jurisdiction remained with the Spanish court, and the two courts were required to cooperate under Article 15(6).
7. Pending the Spanish court’s decision, protective orders were renewed under Article 20 preventing the father from removing the children from the jurisdiction or the mother’s care without her agreement. The mother was directed to facilitate weekly Skype or FaceTime contact and supervised contact in England if the father returned.