KN (A Child) (Art 15 Transfer)

A transfer of care proceedings under Article 15 of Council Regulation (EC) 2201/2003 requires separate findings that the other court is better placed and that transfer is in the child’s best interests. The better-placed inquiry requires genuine and specific added value. The best-interests inquiry concerns the consequences of transfer itself, including delay, further assessments and the options available to the receiving court.

Article 55 is not a general mechanism for foreign authorities to identify placements. Article 56 requires consultation and consent before a cross-border institutional or foster placement, but does not make the foreign authorities responsible for finding a placement. A court acting of its own motion must also give the parties the notice required by FPR 12.64.

The appellant mother challenged an order made in care proceedings concerning her thirteen-year-old son. The child was born and raised in France but moved to England in 2018 to live with his father. After serious mental-health and behavioural difficulties emerged, the English local authority issued care proceedings and the child was placed in specialist residential care.

Although the parties had explored a possible placement in France through Articles 55 and 56 of Council Regulation (EC) 2201/2003, the arrangements remained uncertain. On 28 May 2020, the Central Family Court, acting of its own motion, authorised a request under Article 15 for a French court to assume jurisdiction. The central issues on appeal were whether the French court was better placed, whether transfer was in the child’s best interests, whether further information or judicial liaison should first have been pursued, and whether the mother had received proper notice.

Appeal allowed. Baker LJ gave the leading judgment, with Phillips LJ agreeing and Moylan LJ agreeing in the result and adding separate practical guidance. The order authorising the Article 15 request was set aside.

1. Article 15 test. The court must ask whether the child has a particular connection with the other Member State, whether that state’s court would be better placed to hear the case or a specific part, and whether transfer would be in the child’s best interests. The latter two questions are separate. The better-placed inquiry requires genuine and specific added value, applying Child and Family Agency v D [2016] EUECJ C-428/15; [2017] 1 FLR 223. The best-interests inquiry concerns the transfer itself, including its short- and long-term consequences and its effect on the options available to the court deciding the outcome, following Re N (Children) (Adoption: Jurisdiction) [2016] UKSC 16.
2. Application. The French court was not better placed. The English proceedings had continued for nearly two years and substantial professional and judicial knowledge had been accumulated. Transfer would create significant delay, probably require new assessments, and risk depriving the child of his current placement. The English court could evaluate French placement options once reliable expert information had been obtained. The proposed transfer was therefore also contrary to the child’s best interests.
3. Articles 55 and 56. The parties had wrongly assumed that Article 55 enabled the French authorities to find a placement. Article 56 imposes consultation and consent requirements but does not oblige the requested state to identify a placement. The suggested route was for the local authority to obtain advice from a French child psychiatrist or specialist social worker, identify a specific option, and then consult the French authorities under Article 56. Re AB (BIIR: Care Proceedings) [2013] 1 FLR 168 and Health Service Executive v SC and AC Case C-92/12; [2012] 2 FLR 1040 were considered in explaining the scope of Article 56.
4. Notice. The court also acted wrongly by raising an own-motion Article 15 transfer without sufficiently clear notice under FPR 12.64, which requires not less than five days’ notice.
5. Further guidance. Moylan LJ stressed that central-authority requests must fall within Article 55, be focused and made promptly. Central authorities are not general enquiry agents or evidence gatherers, and duplicating the same request through different routes is rarely appropriate.

1. Court of Appeal (Civil Division) On appeal, the court allowed the appeal and set aside the order authorising an Article 15 request: [2020] EWCA Civ 1002.
2. Central Family Court On 28 May 2020, the court acting of its own motion authorised a request for the French court to assume jurisdiction under Article 15.