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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The Child and Family Agency (Ireland) v M & Ors (Article 15(5) BIIA Transfer Request : CJEU Preliminary Reference: Care Jurisdiction)  EWHC 1581 (Fam) (22 June 2018)
Cite as:  1 FLR 441,  3 FCR 658,  EWHC 1581 (Fam),  2 WLR 871,  WLR(D) 635,  Fam 199
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Strand, London, WC2A 2LL
B e f o r e :
| The Child and Family Agency (Ireland)
|- and -
- and -
- and -
Denbighshire County Council
- and -
Flintshire County Council
- and -
(by his Child's guardian)
James Holmes (instructed by Legal Services) for Denbighshire County Council
Aidan Vine QC and Annie Sayers (instructed by Legal Services) for Flintshire County Council
Melanie Carew (instructed by Cafcass Legal) for the child by his guardian
Hearing dates: 23rd of May and 5th June 2018
Crown Copyright ©
Mr Justice Williams :
(a) Preliminary issue 1 – raised by the CFA. Should there be a reference to the Court of Justice of the European Union in respect of a number of issues relating to the interpretation of Article 15i. Is the six-week time limit imposed by Article 15(5) BIIa to be applied strictly,ii. Can a stay the imposed by the court of a member state in respect of any time limit prescribed by BIIaiii. Can the courts of a member state vary or extend any time limit prescribed by BIIa and if so can such variation or extension be applied retroactivelyiv. Whether the exceptional jurisdiction arising under Article 15(5) should be applied so as to permit the automatic commencement of child protective measures in the receiving member state thus overriding any ordinary domestic procedural requirements which would otherwise apply which might otherwise undermine the operation of Article 15v. Does the phrase best interests in Article 15(5) permit the court to consider procedural or other matters which relate to whether it is better placed or is the court restricted to consideration of matters of substantive welfare alone.
(b) Preliminary issue 2 – raised by Flintshire County Councili. Is the application now out of time given the six-week time limit to accept jurisdiction under Article 15(5) has now passed?
(c) Is it in J's best interests for this court to accept the request? Within this a host of sub- issues arise:i. What is this court entitled to take into account in determining J's best interests? Can the court take into account matters relating to the court process in England which might more readily relate to the issue of better placed?ii. If Ireland is itself the proximate jurisdiction is it not now in the child's best interests for this court to accept a transfer?iii. In this case the acceptance of the request would amount to an acceptance of jurisdiction and not a transfer of the Irish care proceedings and Flintshire would not make any application for a care order because there would be no basis for it to do so as the child remains in Ireland and in the absence of Flintshire or Denbighshire issuing care proceedings the child would be in a vacuum there being no proceedings in place?iv. If this court accepted jurisdiction the court would have no power to make an interim care order in respect of the child unless there was an application for a care order before it or there were family proceedings within the meaning of section 8(3) of the Children Act 1989.v. It would not be possible for a local authority to place the child in his current Irish foster placement under an interim care order until the various regulatory requirements were met and therefore it would not be possible for J to remain with his Irish foster carers and this would be contrary to his best interests.vi. In relation to iii., iv, and v, above, does BIIa, which has direct effect, require domestic legislation to be interpreted so as to give effect to a transfer or can domestic legislative requirements operate so as to prevent a transfer which would otherwise be mandated by the operation of Article 15?vii. Even if some means were found by which proceedings could be constituted in Wales and an interim care order could be made the uncertainty that would arise would be likely to jeopardise J's placement with his Irish foster carers which would be contrary to his best interests.
(d) Should Flintshire or Denbighshire be the appropriately designated local authority?
The factual background
The Issues and My Conclusions
Possible Need for Urgent Preliminary Reference to the Court of Justice of the European Union
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
"In the light of all those considerations, the answer to the question submitted by the Corte Suprema di Cassazione must be that the third paragraph of Article 177 of the EEC Treaty is to be interpreted as meaning that a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community."
'this Regulation recognises the fundamental rights and observes the principles of the Charter of fundamental rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of fundamental rights of the European Union.'
'In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.'
Is the six-week time limit in Article 15(5) extendable?
'(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.
(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.
(33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union.''
'Article 15 Transfer to a court better placed to hear the case
1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.'
'the court which has received the request for a transfer must decide, within six weeks of being seized, whether or not to accept the transfer. The relevant question should be whether, in the specific case, a transfer would be in the best interests of the child. The central authorities can play an important role by providing information to the judges on the situation in the other member state. The assessment should be based on the principle of mutual trust and on the assumption that the courts of all member states are in principle competent to deal with a case. If the second court declines jurisdiction or, within six weeks of being seized, does not accept jurisdiction, the court of origin retains jurisdiction and must exercise it.'
12.66 Procedure where the court receives a request from the authorities of another Member State or Contracting State to assume jurisdiction in a matter concerning a child
(1) Where any court other than the High Court receives a request to assume jurisdiction in a matter concerning a child from a court or other authority which has jurisdiction in another Member State or Contracting State, that court must immediately refer the request to a Judge of the High Court for a decision regarding acceptance of jurisdiction to be made.
(2) Upon the High Court agreeing to the request under paragraph (1), the court officer will notify the parties to the proceedings before the other Member State or Contracting State of that decision, and the case must be allocated as if the application had been made in England and Wales.
(3) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.
(4) The court officer will serve notice of the directions hearing on all parties to the proceedings in the other Member State or Contracting State no later than 5 days before the date of that hearing.
'accordingly, considerations of policy tell strongly against the appellant's argument for a general power in the case of category a or B parties to extend the time limit set out in Article 43(5) of the Regulation in accordance with national procedural laws.'
(a) In determining whether the six weeks is an absolute cut-off the court is entitled to, indeed obliged to, consider the underlying policy and purpose of the Regulation.
(b) A child's best interests underpin the provision and Art 24 EUCFR applies. Those fundamental rights and the policy of the Regulation which seeks to ensure in promoting the best interests of the child that the court in the best position to reach a substantive decision should exercise jurisdiction over the child support an interpretation which allows the court to give effect to the best interests of the child notwithstanding that time limit
(c) It would be contrary to the best interests of a child if a court were to conclude it was in the child's best interests to transfer but was precluded from accepting the transfer due to procedural delay.
(d) The Regulation does not preclude the requesting court from making a second request in the event that the request was refused only because of the passage of time. To require such a process to be undertaken would simply introduce delay which is likely to be contrary to the best interests of the child.
(e) The approach to be taken is therefore likely to be different to that taken in civil and commercial matters.
The Best Interests Decision.
'third and last, the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another member state is not liable to be detrimental to the situation of the child concerned.
To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child material situation.'
That says Mr Setright QC, taken together with the preceding paragraphs which examine the general approach to the evaluation of the three criteria in Article 15(1) demonstrates that the three criteria are viewed by the CJEU as being quite separate and distinct and must be compartmentalised. The contrary argument put by Mr Vine QC is that it is artificial to limit the approach to best interests and to exclude matters which might result in the court being obliged to pursue a course which was in fact contrary to its own view of the best interests of the child. Ironically the arguments put by Mr Setright QC and Mr Vine QC on this point are diametrically opposed to the arguments that they deploy in support of their positions in respect of the Article 15(5) time limit.
 The court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and specific added value with respect to the decision to be taken in relation to the child as compared with the possibility of the case remaining before that court. In that context the court having jurisdiction may take into account among other factors the rules of procedure in the other member state such as those applicable to the taking of evidence required for dealing with the case. However, the court having jurisdiction should not take into consideration within such an assessment the substantive law of the other member state which might be applicable by the court of that other member state, if the case were transferred to it. If the court were to take that into consideration, doing so would be in breach of the principles of mutual trust between member states and mutual recognition of judgments that are the basis of [the] Regulation…
 the third and last requirement that the transfer must be in the best interest of the child implies that the court having jurisdiction must be satisfied having regard to the specific circumstances of the case that the envisaged transfer of the case to a court of another member state is not liable to be detrimental to the situation of the child concerned.
 To that end the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child material situation.
I note also that in its consideration of the second and fifth questions referred to it (para 62-67) the court referred in paragraph 67 to the fact that a court considering a transfer could not take into account the impact of right to freedom of movement issues unless 'there may be adverse repercussions on the situation of that child'. The question which was referred to the CJEU was this 'If the best interests of the child in Article 15 one of Regulation to 2201/2003 refers only to the decision as to forum, what factors may a court consider under this heading, which have not already been considered in determining whether another court is better placed'. At paragraph 39 the CJEU refer to better placed and the best interests of the child and identify that they are being asked to interpret them and to consider how they are linked. The analysis of the court from paragraphs 42 to 58 suggests that the court viewed each of the three criteria as separate but obviously linked.
'It was submitted by the CFA and the GALT that it is in the best interests of a subject child and specifically in F's best interests that the courts better placed hear the case. I agree with this submission. I hold that it is in F's best interests that the court better place should hear the case. Although I regard it as axiomatic that a child's best interests are served by the child's case being heard by the court better placed, I do not regard this as determinative, as all aspects of a child's best interests must be considered before deciding the issue. '
' the genuine and specific added value to the case being heard in the United Kingdom is access to D, who is not compellable here, and on the basis of my analysis of what has been said, it would appear that D is a desirable witness. All the records of the police, the phone records, the hospital records, the medical records, are all in the UK. They are clearly admissible in the UK and have been established to be so because they are referred to in the decision of Judge J. It is at least questionable as to the extent to which they would be admissible or admitted here.