CFA (Ireland) v F

In an Article 15 transfer request, the requested court’s function is summary and limited. It should not determine the substantive welfare merits or permit satellite litigation about jurisdiction. The court must consider whether, in the specific circumstances, accepting jurisdiction is in the child’s best interests. That expression has the same meaning in Article 15(5) as in Article 15(1). The relevant assessment is whether transfer is liable to be detrimental to the child, including by reference to familial, social and emotional attachments and the child’s material situation. A transfer may nevertheless be positively beneficial. Proper respect should be given to the requesting court’s reasoned assessment, although the requested court is not bound to accept the request.

The Child and Family Agency of Ireland sought acceptance in England of an Article 15 request concerning an infant, F. The Irish district court made the request, and it was upheld on appeal. The Irish courts considered that England was better placed to determine the child’s welfare because of her UK nationality and connection, and because relevant medical, psychiatric and social-work material was located in England.

The parents opposed transfer. They relied on their settlement in Ireland, proposed assessments there, possible disruption to contact, and the effect of moving F from satisfactory Irish foster care. The issue was whether the English court should accept the request under Article 15(5).

1. Request accepted. The court accepted the Article 15 request and held that it was in F’s best interests for the case to be transferred to England.
2. The process under Article 15(5) is summary. The requested court’s function is limited and it should avoid investigating the substantive merits of the welfare dispute or permitting unnecessary satellite litigation about jurisdiction. The substantive welfare decision would be made later by the appropriate court.
3. The words “best interests of the child” in Article 15(5) bear the same meaning as in Article 15(1). Applying D C-428/15, the court had to be satisfied that transfer was not liable to be detrimental to F. Relevant considerations included any negative effects on her familial, social and emotional attachments and her material situation.
4. The Irish courts had already undertaken that assessment and had concluded that transfer would be beneficial. The English court gave that reasoned decision very considerable respect under principles of comity, while recognising that it was not bound to accept the request.
5. The parents’ proposed assessments in Ireland were not determinative. Assessments could be undertaken in either jurisdiction. Contact could continue, including if F remained with her Irish foster carers, and travel to England would not itself be contrary to her best interests.
6. A change to satisfactory interim care should ordinarily be avoided. However, accepting the transfer would not necessarily require such a change. Re HJ (A Child) [2013] EWHC 1867 (Fam) supported the summary approach, and Children Act 1989, Schedule 2 permitted the existing Irish foster placement to continue if appropriate.