B v N (No 2) (Art 7 and Transfer of Jurisdiction)

Article 7 of the 1996 Convention does not create a separate jurisdiction. It retains the jurisdiction based on habitual residence under Article 5 after wrongful removal or retention. Accordingly, a court retaining jurisdiction under Article 7 may transfer jurisdiction under Article 8(1).

Article 8(1) is an exceptional and discretionary mechanism. The court must consider whether the other Contracting State is better placed to assess the child’s best interests and whether transfer is itself in the child’s best interests. The policy against rewarding abduction remains relevant, but it does not create an absolute bar to transfer.

The proceedings concerned a child who had lived in Germany with his father after being removed from England. The father’s application for summary return under the 1980 Convention had been remitted for rehearing following the decision of the Court of Appeal in X (Child Abduction: Habitual Residence) [2022] EWCA Civ 1423. Both parties agreed that the return application should be dismissed.

The father accepted that the English court retained jurisdiction under Article 7 of the 1996 Convention, but sought transfer to Germany under Article 8(1). The mother argued that Article 8(1) was unavailable while Article 7 jurisdiction continued. The central issues were whether Article 8(1) applied and, if so, which jurisdiction was better placed to assess the child’s best interests.

1. The return application. The father’s application under the 1980 Convention was dismissed by agreement because it no longer served a useful or proportionate purpose.
2. Jurisdiction under Articles 7 and 8. The English court retained jurisdiction under Article 7(1). Article 7 is not an independent basis of jurisdiction. It preserves the existing jurisdiction under Article 5(1) following wrongful removal or retention. The English court therefore remained a Contracting State having jurisdiction under Article 5 for the purposes of Article 8(1) (paras [51]–[60]).
3. The court declined to follow the contrary conclusion in A (A Child) (Abduction: Jurisdiction: 1996 Hague Convention). That decision’s interpretation would produce the anomalous result that jurisdiction could be transferred only after Article 7 jurisdiction had ended, when there would be no retained jurisdiction to transfer (paras [53]–[58]).
4. Article 8(1) test. Transfer is exceptional and discretionary. The relevant question was whether Germany was better placed in the particular case to assess the child’s best interests and whether transfer was in those best interests. The child had a substantial connection with Germany, had lived there for about 15 months, and had his current family, social, educational and healthcare environment there. German authorities therefore had better access to the current welfare evidence and could more effectively facilitate the child’s participation (paras [62]–[72]).
5. The mother’s greater difficulty in participating in German proceedings was relevant but not decisive. The court could not compare the merits of the two legal systems. Article 13 did not prevent transfer because transfer under Article 8(1) brought the lis pendens conflict to an end (paras [67]–[70]).
6. The father’s wrongful removal and the policy of discouraging abduction remained relevant. They did not outweigh the conclusion that Germany was better placed and that transfer was in the child’s best interests. Transfer was not an endorsement or vindication of the abduction (paras [71]–[75]).
7. Subject to the father undertaking to commence proceedings in Germany, the court requested the German court to assume jurisdiction. The Children Act proceedings and the return order were stayed pending that decision and were to stand dismissed or discharged if Germany accepted jurisdiction.

• Court of Appeal: The mother’s appeal against the summary return order was allowed and the matter was remitted to the Family Division: X (Child Abduction: Habitual Residence) [2022] EWCA Civ 1423.
• High Court (Family Division): The father’s return application was dismissed, and jurisdiction was requested to be assumed by the German court under Article 8(1) of the 1996 Convention.