E v D (Child: Transfer of Proceedings Art. 9 of Hague Convention 1996)

On an application under Article 9 of the 1996 Hague Convention, the court must assess whether the proposed receiving State is better placed to determine protective measures for the child. The question is whether the transfer would provide genuine added value on the specific facts. It is not a welfare determination and does not require the court to question the competence, diligence, resources or efficacy of the authorities in the State of habitual residence. Existing proceedings in that State do not automatically prevent an Article 9 request. Delay may be relevant, but an asserted prospect of earlier determination in England and Wales, unsupported by sufficient evidence, may be speculative and inadequate to establish that England and Wales is better placed.

V, aged eight, had lived in England, Canada and Malta and held Canadian and British nationality. Following earlier proceedings concerning his return to Malta, welfare proceedings continued in the Maltese courts. The father applied under Article 9 of the 1996 Hague Convention for jurisdiction to be transferred to England and Wales. He relied on delay in Malta, V’s wishes, language and integration difficulties, and the prospect of an earlier determination in England and Wales. The mother opposed the application, relying on the existing Maltese proceedings, the parties’ connection with Malta, litigation funding and the uncertainty of the proposed timetable. The central issue was whether England and Wales was better placed to assess V’s best interests.

1. The father’s application was dismissed. The court was not satisfied that England and Wales was better placed to hear the welfare applications.

2. Article 9 must be understood within the Convention’s principle of co-operation between Contracting States. Protective measures include custody, residence and access. The State with jurisdiction under Articles 5 and 6 may request another Contracting State to exercise jurisdiction in appropriate circumstances, and the proposed receiving State may request a transfer where the habitual-residence State accepts it.

3. The governing question was whether transfer would provide genuine added value on the particular facts, applying the Article 15 approach identified in Child and Family Agency v D (R intervening) (ECJ) [2017] 2 WLR 949. The court was not conducting its own welfare analysis. It was assessing whether this jurisdiction could add real value or was better placed to hear the applications.

4. The court proceeded on the basis of comity, mutual respect and acceptance that the courts and child-protection authorities of each jurisdiction were competent to determine the case. An Article 9 application did not require an assessment of the competence, diligence, resources or efficacy of the Maltese authorities, consistently with N (Children) [2016] UKSC 15.

5. The existence of proceedings in the State with primary jurisdiction did not itself exclude an Article 9 request. However, the asserted possibility of an earlier decision in England and Wales was speculative. There was no evidence that the forthcoming Maltese hearing was at risk, or that the parties had attempted to secure a more expeditious determination there. Delay and the concerns identified in the psychological and school reports therefore did not establish that England and Wales was better placed.

6. The approach was consistent with Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request) [2021] EWHC 1970 (Fam). The parties were encouraged to reflect on the psychological report and take necessary steps to resolve the proceedings promptly.