Re S (A Child: Article 9 transfer to Norway)

On an application under Article 9(3) of the 1996 Hague Convention, acceptance of a request to transfer jurisdiction requires the court to decide whether proceedings in the requesting state or the state of habitual residence are in the child’s best interests. The assessment includes whether the requesting state is better placed to assess those interests. Comity requires the courts and child-protection authorities of both states to be treated as competent and effective; the court must not assume that one system offers superior care or resources. The court should weigh all relevant circumstances, including delay, the child’s identity and relationships, the location of evidence, the effect on contact, and the practical consequences of transfer. The exercise is evaluative rather than a mechanical tally of factors.

The Norwegian Directorate for Children, Youth and Family Affairs requested that jurisdiction over care proceedings concerning an 11-month-old child be transferred from England and Wales to Norway under Article 9 of the 1996 Hague Convention. The child’s mother supported the request. The Local Authority and the child’s Guardian opposed it; the father ultimately supported it.

The child was habitually resident in England and Wales and had been living with foster carers since shortly after birth. The mother, a Norwegian citizen, was expected to return to Norway, where she would have accommodation, benefits and support. The central issues were whether that return was reliable, the significance of delay, national and cultural identity, the comparative ability of each court to assess the evidence, and the practical consequences of transfer.

1. Application granted. The court accepted Norway’s request under Article 9(3) of the 1996 Hague Convention and directed that jurisdiction be transferred to Norway.
2. Section 3C of the Civil Jurisdiction and Judgments Act 1982 gave the Convention force of law. England and Wales was the child’s state of habitual residence under Article 5. Norway satisfied the relevant conditions under Article 8(2), and the issue was whether this country should accept the request under Article 9(3).
3. The court accepted the agreed approach that the decision required an assessment of whether proceedings in Norway or England and Wales were in the child’s best interests, including whether Norway would permit a better assessment of those interests. The principle of comity and mutual trust, stated in Re N (children) (adoption: jurisdiction) [2016] UKSC 15, meant that the court must not question the competence, diligence, resources or efficacy of the other state’s child-protection services or courts. Both systems had to be treated as equal.
4. The court weighed the relevant factors. The mother’s likely return to Norway made an environmental assessment there particularly important and would otherwise make any plan to return the child to her care effectively unworkable. This carried substantial weight. Delay was harmful, particularly given the child’s age, and favoured retaining jurisdiction. Cultural and national identity favoured transfer, while the courts in England and Wales were better placed to assess much of the existing evidence. The practical risk of an unnecessary move between temporary and long-term foster carers was neutral.
5. The factors were not to be added mechanically. The importance of assessing the mother in Norway, together with the likely long-term impact on contact and the practical consequences of keeping mother and child in different countries, outweighed the delay and evidential advantages of retaining the proceedings. The Local Authority’s proposal to defer transfer pending an environmental assessment would risk further delay and did not resolve the wider issues.