The Child and Family Agency (Ireland) v M & Ors (Article 15(5) BIIA Transfer Request : CJEU Preliminary Reference: Care Jurisdiction)

Under Article 15(5) of Council Regulation (EC) No 2201/2003, the receiving court’s essential task is to decide whether accepting jurisdiction is in the child’s best interests. The six-week period is not an absolute bar where a purposive interpretation, the child’s fundamental rights and the Regulation’s objectives require consideration of the request after that period. The court may consider all procedural and material welfare matters capable of bearing on best interests, while respecting the requesting court’s primary role and mutual trust. It must not review differences in substantive law. Where a transfer would otherwise create a procedural or statutory gap, the High Court’s inherent jurisdiction may provide the necessary mechanism.

The Child and Family Agency sought acceptance by the courts of England and Wales of an Irish request under Article 15 of Council Regulation (EC) No 2201/2003 concerning a child living in Ireland in foster care. The Irish court considered Wales better placed to determine issues arising from the serious injuries previously suffered by the child’s sibling, including because relevant evidence and a potential witness were in Wales.

The request was delayed by judicial review proceedings in Ireland and was therefore outside the six-week period in Article 15(5). The High Court had to decide whether the period was fatal, what matters could be considered in assessing best interests, whether Welsh domestic law could accommodate the transfer and preserve the placement, and which local authority should undertake the resulting functions.

1. Preliminary reference. A reference to the CJEU was unnecessary. Article 15 could be interpreted by reference to Article 24 of the EU Charter, the child’s best interests and the Regulation’s purposive objectives. Further delay would itself be contrary to the child’s best interests.
2. Time limit. The six-week period in Article 15(5) was not an absolute cut-off. Its effect had to be assessed in the light of the Regulation’s purpose and the fundamental requirement that the child’s best interests be a primary consideration. The court could therefore accept the request outside the six weeks.
3. Best interests. The receiving court’s function was limited to determining best interests, but that assessment was its own evaluation. It could consider procedural as well as material welfare matters where they bore on the child’s interests, including whether the receiving court could genuinely add value and whether the transfer would disrupt the child’s attachments or material situation. It could not reconsider the requesting court’s determination as if on appeal, or take account of differences in substantive law.
4. Domestic implementation. Acceptance would not necessarily create a jurisdictional vacuum. The High Court’s inherent jurisdiction could supplement statutory provisions. Proceedings could be allocated under FPR 12.66, a section 37 investigation could be directed and an interim care order made under sections 37 and 38 of the Children Act 1989.
5. Order. The Welsh courts were better placed to determine the evidential issues, and accepting jurisdiction would add value without being likely to disrupt the child’s Irish foster placement. The judge made an order nisi and adjourned final acceptance to obtain confirmation of practical arrangements securing the placement. The matter was allocated to a High Court judge, reserved to the judge, with a section 37 direction and interim care order to follow.