D, E, F and G (Children : Art 15 - transfer of the proceedings) (Rev 2)

Article 15 of Council Regulation (EC) 2201/2003 is an exceptional jurisdictional mechanism. Transfer requires affirmative answers to three separate questions: 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 court must identify genuine and specific added value in transfer and must assess its likely effects on the child’s familial, social and emotional attachments and material situation. Respect for the competence of another Member State does not remove the need to consider disruption caused by transfer. A transfer may be refused where the parents can fairly engage in proceedings in the state exercising jurisdiction and transfer would risk significant disruption to the children.

The local authority issued care proceedings concerning four children who had been placed in foster care under interim care orders. The children and their parents were Romanian nationals of Roma heritage. The older children had lived in Romania, while the younger children were born in England and had never lived in Romania.

The mother applied under Article 15 of Council Regulation (EC) 2201/2003 for transfer of the care proceedings to Romania. The father supported the application. The local authority and Children’s Guardian opposed it. The central questions were whether Romania was better placed to determine the children’s welfare and whether transfer would be in their best interests.

1. Transfer refused. The court declined to request transfer of the care proceedings to Romania, while recognising that the issue was finely balanced and should remain under review.
2. The children had a particular connection with Romania through their nationality, the former habitual residence of the older children, and the mother’s apparent habitual residence there. The first Article 15 question was therefore satisfied. The strength of that connection differed between the children and did not necessarily exceed their connection with England.
3. The three questions identified in AB v JLB [2009] 1 FLR 517 had to be answered separately. The assessment of whether Romania was better placed was closely connected with, but did not determine, the best-interests assessment.
4. Article 15 is an exception to the ordinary jurisdictional rule and must be applied strictly. The court had to be satisfied that transfer would provide genuine and specific added value. Although much welfare evidence and many witnesses were in Romania, practical difficulties could be managed. The parents and extended family could be assessed jointly with the Romanian authorities, and their meaningful participation in the English proceedings had not been shown to be impossible or to infringe Article 6 rights.
5. The court rejected reliance on the broad observation in Re D (Transfer of Proceedings) [2013] EWHC 4078 (Fam) that the court of the children’s nationality should ordinarily decide a child public protection case. That observation had been treated on appeal as an impermissible gloss on Article 15. The later authorities required consideration of proximity, genuine and specific added value, and the children’s best interests.
6. Transfer was not in the children’s best interests. It would remove the realistic possibility of their remaining together in foster care in England, disrupt settled placements and schooling, and expose them to a country unfamiliar to the younger children. Those adverse effects outweighed the benefits of greater contact with parents and family in Romania. Refusal of transfer did not prevent later consideration of repatriation after the care proceedings.
7. The issue could be revisited if the parents could not be properly assessed in England or circumstances materially changed. Meaningful communication between the children and their parents, including Skype contact, was to be pursued urgently.