S (Care proceedings: Article 15 second transfer)

A second transfer of jurisdiction under Article 15 of Council Regulation (EC) No. 2201/2003 is permissible where the proposed transfer is back to the court first seised. The court must still be satisfied that the child has a particular connection with the other Member State, that its courts are better placed to hear the case, and that transfer is in the child’s best interests. Relevant considerations include existing evidence and findings, procedural progress, delay, the child’s timescale for permanence, parental participation, and the range of orders available in each jurisdiction. A transfer should be refused where it would materially delay resolution or restrict realistic welfare outcomes.

These care proceedings concerned S, a 13-month-old child living in foster care in the Republic of Ireland. Jurisdiction had previously been transferred from Ireland to England and Wales under Article 15, and the English court had accepted jurisdiction. S’s mother applied for a second transfer back to Ireland, supported by the father but opposed by the local authority, children’s guardian and Irish Child and Family Agency.

The central questions were whether Article 15 permitted a return transfer to the court first seised and, if so, whether the statutory conditions for transfer were satisfied.

1. Second transfer. The reference in recital 13 to “a third court” means a court of a third Member State. It does not prohibit a transfer back to the court first seised. No other provision prevented such a return transfer. The court therefore had jurisdiction to consider the application.
2. Article 15 conditions. The tripartite conditions were that S had a particular connection with Ireland, that the Irish courts were better placed to hear the case, and that transfer was in S’s best interests. The particular-connection requirement was satisfied because Ireland was the habitual residence of a holder of parental responsibility, namely the mother.
3. Better placed. Ireland offered advantages, including the parents’ residence there, the involvement of Irish agencies, and the possibility of considering S alongside her expected sibling X. Those advantages were outweighed by the English court’s existing evidence and findings, the assessments already commissioned and nearing completion, the readiness for a final hearing, and the ability to facilitate the parents’ participation by video link if necessary.
4. Best interests. Transfer would probably delay determination beyond January 2019 and outside S’s timescale for permanence. It would also risk depriving her of placement with her older sibling and adoptive parents, because only the English court could make the necessary placement or special guardianship orders and dispense with parental consent for a placement order. It remained possible for the English court to arrange a placement in Ireland if that proved best for S.
5. The advantages of transfer were therefore outweighed by the evidential disadvantage, delay and restriction of available welfare outcomes. The application was refused and the court declined to request transfer of jurisdiction to Ireland.

The judgment described earlier proceedings in Ireland in which jurisdiction had been transferred to England and Wales. The English High Court subsequently accepted jurisdiction. This was a first-instance determination of the mother’s application for a second transfer back to Ireland.