[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom Supreme Court |
||
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> N (Children), Re [2016] UKSC 15 (13 April 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/15.html Cite as: [2016] 2 WLR 1103, [2017] AC 167, [2016] WLR(D) 190, [2016] 3 FCR 394, [2016] Fam Law 681, [2016] 1 FLR 1082, [2016] UKSC 15 |
[New search] [Context] [View without highlighting] [Printable PDF version] [View ICLR summary: [2016] WLR(D) 190] [Buy ICLR report: [2017] AC 167] [Buy ICLR report: [2016] 2 WLR 1103] [Help]
On appeal from: [2015] EWCA Civ 1112
JUDGMENT
In the matter of N (Children)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
JUDGMENT GIVEN ON
13 April 2016
Heard on 17 March 2016
Appellants (JN and EN) Henry Setright QC Martha Cover Michael Gration (Instructed by Hanne & Co) |
|
Respondent (London Borough of Hounslow) Roger McCarthy QC Mark Twomey (Instructed by London Borough of Hounslow) |
|
|
|
|
|
Respondent (AM - Mother) William Tyler QC Malcolm MacDonald (Instructed by Lawrence & Co Solicitors) |
|
|
|
|
|
Respondent (ZN - Father) Frank Feehan QC Dorian Day (Instructed by Hecht Montgomery) |
Interveners (Written Submissions Only)
|
|
1st Intervener (AIRE Centre) Deirdre Fottrell QC Lucy Sprinz Michael Edwards (Instructed by Herbert Smith Freehills LLP) |
|
|
|
|
|
2nd Intervener (Family Rights Group) John Vater QC Edward Devereux Mehvish Chaudhry Dr Rob George (Instructed by Goodman Ray LLP) |
|
|
|
|
|
3rd Intervener (The International Centre for Family Law, Policy and Practice) David Williams QC Jacqueline Renton (Instructed by Kingsley Napley) |
LADY HALE: (with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agree)
1. The issue in this case is whether the future of two little girls, one now aged four years and two months and the other now aged two years and 11 months, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and have lived all their lives here. But their parents are Hungarian and the children are nationals of Hungary, not the United Kingdom. Under article 8.1 of Council Regulation (EC) No 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, known as the Brussels II revised Regulation (“the Regulation”), the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. That would be England in this case. However, an exception is made by article 15, under which those courts can transfer the case to a court in another member state with which the child has a particular connection, if that court would be “better placed” to hear the case, or part of it, and the transfer is in the best interests of the child. These children have a particular connection with Hungary, as it is the place of their nationality. The issue, therefore, is the proper approach to deciding whether a Hungarian court would be better placed to hear the case and to whether transferring it would be in the best interests of the children.
2. The context in which these questions arise is important. Free movement of workers and their families within the European Union has led to many children living, permanently or temporarily, in countries of which they are not nationals. Inevitably, some of them will come to the attention of the child protection authorities, because of ill-treatment or neglect or the risk of it. In the past, the courts in this country might assume that they had jurisdiction simply because of the child’s presence here. It is now clear, however, that public law proceedings fall within the scope of the Regulation (see In re C (Case C-435/06) [2008] Fam 27), so that in every case with a European dimension (more properly, a Regulation dimension) the courts of this country have to ask themselves whether they have jurisdiction. Even if they do have jurisdiction, Sir James Munby P has said that in every case they will need to consider whether the case should be transferred to another member state: see In re E (A Child) (Care Proceedings: European Dimension): Practice Note [2014] EWHC 6 (Fam); [2014] 1 WLR 2670, para 31; also Merton London Borough Council v B (Central Authority of the Republic of Latvia intervening) [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84(ii). As the Family Rights Group observe in their helpful intervention, this has led to a “remarkable proliferation” of case law over the last three years. Hitherto, courts would manage cases with a foreign element by evaluating foreign placement options and deciding upon the best outcome for the child themselves. Now, they may be more inclined to transfer the decision-making abroad.
3. One reason for this change in approach may be “the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption’” (referred to by the President in his judgment in this case: [2015] EWCA Civ 1112; [2016] 2 WLR 713, para 8). Research compiled by the Council of Europe (O Borzova, Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member states, Report to the Parliamentary Assembly, 2015, Doc 13730) and commissioned by the European Union (C Fenton-Glynn, Adoption without Consent, Directorate General for Internal Policies of the EU Parliament, Policy Department C: Citizens’ Rights and Constitutional Affairs, 2015) shows that other member states do permit adoption without parental consent. However, England and Wales is unusual in permitting parental consent to be dispensed with where the welfare of the child requires this (Adoption and Children Act 2002, section 52(1)(b)) rather than on more precise grounds of parental absence or misconduct. This country is also unusual in the speed and frequency with which it resorts to adoption as the way to provide a permanent home for children who for one reason or another cannot live with their families. The European Court of Human Rights has, however, held our law to be compatible with the right to respect for private and family life, protected by article 8 of the European Convention on Human Rights: YC v United Kingdom (2012) 55 EHRR 33.
4. It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between the member states. It is not for the courts of this or any other country to question the “competence, diligence, resources or efficacy of either the child protection services or the courts” of another state (see In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, para 54(v), per Munby P). As the Practice Guide for the application of the Brussels IIa Regulation puts it, the assessment of whether a transfer would be in the best interests of the child “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” (p 35, para 3.3.3). This principle goes both ways. Just as we must respect and trust the competence of other member states, so must they respect and trust ours.
Article 15
5. So far as relevant, article 15 of the Regulation reads as follows:
“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: …
(c) is the place of the child’s nationality; …
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.”
This case
10. At the first hearing in the High Court, the mother, then pregnant with the couple’s third child, indicated her intention to return to Hungary to have the baby and also to apply for the transfer of the proceedings under article 15. This she duly did and gave birth to a baby boy in March 2014 (she later accepted that her return was in order to avoid care proceedings here in respect of him). At a hearing on 18 March 2014, Holman J declared that the girls were habitually resident here and that is not now in dispute. He adjourned the article 15 application so that there could be “some clearer understanding of what arrangements might exist for the transfer of the children themselves to live, whether long term or even during the course of the proceedings, under suitable arrangements in Hungary” ([2014] EWHC 999 (Fam), para 12).
12. The mother’s application under article 15 came before Sir Peter Singer, sitting as a Deputy Judge of the High Court, on 9 May 2014. At that stage, both the local authority and the children’s guardian were supporting a transfer to Hungary, but only once the requisite assessments had been completed there and a clear recommendation made about the appropriate placement for the girls. By a judgment delivered on 12 May 2014, Sir Peter Singer refused the transfer application, but provided that a further application could be considered after the “fact finding” hearing listed for 25 June 2014.
“A court may only make a care order … if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.”
Only if that threshold is crossed can the court go on to consider whether making the order that the local authority seek will best promote the welfare of the child, which is the court’s paramount consideration (1989 Act, section 1(1)).
15. The hearing to decide what orders to make was planned for September 2014. In August, the social worker discovered that the mother, father and the new baby were all living with the paternal grandmother. The social worker’s assessment of the paternal grandmother (over the telephone) was negative. There being no viable family placement in Hungary, the local authority’s final care plan, supported by the Children’s Guardian, was that the girls should be adopted. Their current foster parents were being given active consideration as their adopters (and have since been approved as such). Accordingly the local authority issued a further application for a placement order under section 21 of the Adoption and Children Act 2002. This authorises the authority to place a child for adoption without parental consent (it is a separate question whether parental consent to the actual adoption order should be dispensed with). Under section 21(2), a court may not make a placement order unless:
“(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.”
Thus, unless the child has no parent or guardian, the “threshold conditions” for state intervention must be met, but they can be met either by the prior making of a care order, or by making the requisite findings in the placement order proceedings, which may (but need not) be contemporaneous with the care proceedings.
The High Court decision
17. The case was tried over five days, from 3 to 7 November 2014, by His Honour Judge Bellamy, sitting as a Deputy High Court Judge. The mother renewed her application for an article 15 transfer on the first day, but the judge postponed deciding this until the end of the hearing, because the father’s counsel was unprepared for it and further submissions were expected from the HCA. He proceeded to hear evidence and submissions on all aspects of the case. On 11 November 2014 he delivered judgment only on the article 15 application, which he granted: In re J (Children: Brussels II Revised: Article 15) [2014] EWFC 45.
18. The judge directed himself (at para 70) in accordance with the guidance given by Sir James Munby P, in In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, at para 54: “The language of article 15 is clear and simple. It requires no gloss.” The court had to ask itself the three questions set out in article 15.1. Unless they were answered in the affirmative there was no power to seek a transfer. If they were, there was still a discretion, but “it is not easy to envisage circumstances in where, those … conditions having been met, it would nonetheless be appropriate not to transfer the case”. In answering those questions, “it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other state”. The judge cited two further important passages from Sir James’ judgment:
“I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court - for example, the ability to order a non-consensual adoption - is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in In re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10; [2010] 1 AC 319 and of this court in In re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWCA Civ 895, [2014] Fam 130, the question asked by article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, ‘what outcome to these proceedings will be in the best interests of the child?’.”
Article 15 contemplated a relatively simple and straightforward process:
“As Lady Hale observed in Re I, para 36, … the task for the judge under article 15, ‘will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum’.”
23. He concluded (para 93) that the Hungarian court was better placed to hear the case. He attached particular weight to the point made at para 20(ii) above (the potential for contact with siblings), a factor which had tipped the balance for Pauffley J in In re J (A Child: Brussels II revised: Article 15: Practice and Procedure) [2014] EWFC 41.
24. The judge then turned to consider whether transfer of the proceedings to Hungary would be in the children’s best interests. The local authority argued that “the stark choice now facing the court on the article 15 application is for the children to keep their long term carers and preserve the status quo or be removed to foster care in Hungary”. The judge however did
“not accept that this is a point which the court may take into account in determining ‘best interests’ in this context. It is relevant to the determination of the question ‘what outcome to these proceedings will be in the best interests of these children?’; it is not relevant to the determination of the question ‘is transfer of these proceedings to the Hungarian court in these children’s best interests?’.” (para 94)
Having found that the Hungarian court was better placed to hear the case, it followed that it would be in their best interests to transfer it (para 95).
25. Finally, he considered the exercise of his discretion under article 15. Having answered all three of the questions in article 15.1 in the affirmative, there were no features which would properly entitle him to exercise his discretion against requesting the Hungarian court to assume jurisdiction (para 98).
26. Accordingly, his order asked the courts of Hungary to accept the request for a transfer of the case; the request would be transmitted by the local authority to the HCA for onward transmission to the Hungarian court; in the event that the Hungarian courts accepted the request within the six week time limit laid down in article 15, the case would be urgently re-listed before him for consequential orders, including the transfer of the children to Hungary; in the event that the request was not accepted within that time, it would be relisted for further directions. It would appear that by “the case” he had in mind, not only the care proceedings, but also the placement order proceedings.
The Court of Appeal decision
27. The local authority and the Children’s Guardian appealed to the Court of Appeal with the permission of Black LJ. The hearing took place in March 2015, before Sir James Munby P, Black LJ and Sir Richard Aikens, but judgment was not delivered until November (this time adopting the initial of the children’s surname): In re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713. A great deal of the President’s leading judgment is devoted to some very important questions relating to jurisdiction in adoption generally, which are not before this court on this appeal. In summary, these are (para 63):
(i) Does an English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national, and (b) to dispense with the consent of a parent who is a foreign national? This was a difficult question, given that the Brussels II revised Regulation does not cover adoption or measures preparatory to adoption, nor is there any other international instrument covering the matter. The Court of Appeal answered both (a) and (b) in the affirmative and this issue is not before this court.
(ii) If the English court does have such jurisdiction, how should that be exercised? The President gave guidance on this issue (paras 104 to 111). Once again, this guidance is not before this Court on this appeal, but it does have some relevance to the issue which is before us, as we shall see.
(iii) What is the scope of the Brussels II revised Regulation? It is well-established that the Regulation applies to care proceedings, as well as to proceedings between private parties: see In re C (Case C-435/06) [2008] Fam 27. However, by excluding “decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption” from the scope of the Regulation, does article 1.3.b also exclude (a) care proceedings where the care plan is adoption, or (b) placement order proceedings? The court concluded that (a) was within the scope of the Regulation, but (b) was not. This is not under appeal to this court.
28. That leaves the remaining three issues, which related to article 15 (para 63):
(iv) What, upon the true construction of article 15 of the Regulation, are the requirements before the English court can make a request for a transfer to another member state? The President observed that “there is much English learning on the meaning and application” of article 15.1 (para 113). He repeated the guidance he had given in In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, para 54 (see para 18 above), on which the judge had also relied. He went on to emphasise how important it is that article 15 is considered at the earliest possible opportunity (para 114), although it could be considered at any stage of the proceedings (para 117); that repeat applications were to be deprecated and would usually fail unless there had been a change of circumstances, although they might sometimes be appropriate (para 118); that a transfer could be considered after a fact-finding hearing, but only in exceptional circumstances (para 120); and that the process should be summary, measured in hours not days and not dependent on a profound investigation of the evidence (para 122).
(v) Leaving on one side any question arising in relation to article 1.3.b, was the judge justified in deciding as he did? Could it be said that he was wrong to do so? The court concluded that he was justified in deciding to exercise jurisdiction to request transfer under article 15; he undertook a careful examination of all the relevant factors; he did not consider any irrelevant factors; he did not err in the weight he attached to the relevant factors, or misdirect himself in law (para 64(v)).
(vi) Was the judge’s decision vitiated by his failure to address article 1.3.b? What were the consequences of his omission to do so? The court held that the fact that he did not appreciate the effect of article 1.3.b did not vitiate his decision. His decision in relation to the care proceedings could and should stand and they should be stayed. His decision in relation to the placement order proceedings could not stand, but as they were of their nature consequential on the care proceedings, they too were stayed (para 64(vi)).
The issues in this appeal
30. The Children’s Guardian, on behalf of the children, and with the support of the local authority, now appeals to this court. The mother and the father resist that appeal. Although not formally represented before this Court, the HCA also supports the decision. Their letter of 3 February 2016 informs the court that the HCA accepted jurisdiction under article 15.5 on 15 January 2015 following the High Court’s request; they were notified of the Court of Appeal decision on 2 December 2015; while waiting for the children’s social worker to contact them about the details of bringing the children to Hungary, their competent local authority Guardianship Office had ascertained that the parents’ living circumstances were not convenient to take care of the children; however they wished to keep the connection with them; and the girls had “two half-sister/brother who are living in the mother’s care” (sic?). An English speaking foster parent had been identified for the girls, as had a child protection guardian. The HCA reiterated their consistent view that only the Hungarian authorities have the right to adopt Hungarian citizens and that the children have the possibility of keeping connection with their parents and family members if they live in Hungary. In addition, this court has received valuable written submissions from three interveners: the AIRE Centre, the Family Rights Group and the International Centre for Family Law, Policy and Practice.
31. The principal issue before this Court is the proper approach to the assessment of the child’s best interests in the context of an application for transfer under article 15. In particular, is it limited to questions of forum, and if so, how does it differ from the question of whether the foreign court is better placed to hear the case? Is the court entitled to take into account the consequences for the child of transferring the proceedings where, as here, the transfer will also result in the child’s removal from her current placement to a placement in another country? A further issue is whether the judge was correct to find that the Hungarian court was “better placed” when he had heard all the evidence and was in a position to give a final judgment upon it.
33. As this is the United Kingdom’s court of final instance, the further issue arises as to whether we are obliged to make a reference to the Court of Justice of the European Union on the ground that the interpretation of article 15 is not acte clair. Between the hearing in the Court of Appeal and the handing down of judgment, the CJEU accepted a reference from the Supreme Court of Ireland in the case of Child and Family Agency (CAFA) v JD (Case C-428/15). Four of the six questions referred are relevant to this case:
“(1) Does article 15 of Regulation 2201/2003 apply to public law care applications by a local authority in a member state, when if the court of another member state assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?
…
(3) If the ‘best interests of the child’ in article 15.1 of Regulation 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’?
(4) May a court for the purposes of article 15 of Regulation 2201/2003 have regard to the substantive law, procedural provisions, or practice of the courts of the relevant member state?
…
(6) Precisely what matters are to be considered by a national court in determining which court is best placed to determine the matter?”
34. At the time of writing, the CJEU has not given judgment. The Guardian sought permission to appeal to this court on question (1) above. It is certainly arguable, for the reasons sketched in the question from the Irish court, that article 15 is not applicable to care proceedings. The “case” cannot be transferred in the same way that a case between parents or other private parties can be transferred. The proceedings in the other member state will inevitably be different proceedings, with different parties, different procedures, and possibly different substantive law. Indeed, there may not be proceedings in a court at all, but only within administrative authorities, as in this case. As Black LJ elegantly put it, what is being transferred is not “the case” but “the problem” (para 189(i)). However, given that the Regulation clearly does apply to public law proceedings, the question whether article 15 does not apply in public law proceedings is obviously not acte clair. It must await the determination of the Irish reference.
35. For that reason, it seemed to this court more convenient to refuse permission to appeal on that ground and proceed on the basis that article 15 can apply to public law proceedings. Whether it is necessary to await the decision of the CJEU on questions (3), (4) and (6) before deciding this case is another matter, to which I shall return.
The proper approach to article 15.1
36. The argument before us has principally focussed on the nature of the “best interests” evaluation required by article 15.1 and in particular whether it is limited to questions relevant to the choice of forum. This has been described as the “attenuated” welfare test (see In re T (A child: Article 15, Brussels II Revised) [2013] EWHC 521 (Fam); [2013] 2 FLR 909, para 21). Its source appears to be my own observation in In re I, quoted in In re M (see above at para 18). Contrary to the impression given there, In re I was not a case about article 15, but a case about article 12 of the Regulation, which relates to Prorogation of Jurisdiction. Article 12.1 allows a court dealing with divorce, separation or nullity proceedings also to deal with connected parental responsibility matters if the spouses and holders of parental responsibility agree. Article 12.3 gives the courts of a member state jurisdiction in relation to parental responsibility, even though the child is not habitually resident there, where:
“a. the child has a substantial connection with that member state, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that member state or that the child is a national of that member state; and
b. the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.”
It was in that context that I observed (at para 36):
“The final requirement in article 12(3) is that the jurisdiction of the English courts should be in the best interests of the child. Nothing turns, in my view, on the difference between ‘the best interests of the child’ in article 12(3), ‘the superior interests of the child’ in article 12(1) and ‘the child’s interest’ in article 12(4). They must mean the same thing, which is that it is in the child’s interests for the case to be determined in the courts of this country rather than elsewhere. This question is quite different from the substantive question in the proceedings, which is ‘what outcome to these proceedings will be in the best interests of the child?’ It will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum. The fact that the parties have submitted to the jurisdiction and are both habitually resident within it is clearly relevant though by no means the only factor.”
37. It appears to have been the Court of Appeal’s endorsement of this approach to the best interests test in article 15.1 which led the judge to hold (see para 24 above) that the consequences for these children of being removed from their long term carers and taken to new foster carers in Hungary was completely irrelevant to whether transferring the case would be in their best interests.
38. The first point made by the appellants is that the requirement in article 12.3 is quite different from the requirement in article 15.1. In article 12.3 (as also in article 12.1) it is the court which is deciding whether to accept jurisdiction, which it would not otherwise have, that has to decide whether to do so is in the best interests of the child. This is roughly equivalent to the requirement in article 15.5 that the court which is requested to take the case (here the Hungarian court) must consider that it is the best interests of the child to accept jurisdiction. Article 15.1 is directed towards the court which already has jurisdiction in an existing case. It imposes an additional requirement that the transferring court considers this to be in the best interests of the child. Obviously, the considerations applicable when deciding whether to relinquish jurisdiction may be somewhat different from the considerations applicable when deciding whether to accept it.
39. Secondly, article 12.3 contains no requirement that the court accepting jurisdiction be “better placed” to hear the case than the court which would otherwise have it. Interestingly, the draft of article 15.1 proposed by the EU Commission did not contain this requirement, although the Explanatory Memorandum referred to “situations (albeit exceptional) where the courts of another member state would be better placed to hear the case”. The requirement does, however, appear in article 8 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which the Commission described as a “similar mechanism” in their Explanatory Memorandum. That may be why it found its way into the eventual Regulation. The European legislator must have considered that the “better placed” requirement was something different from the “best interests” requirement, otherwise they would not both be there.
40. Thirdly, as originally drafted, article 15.1 limited transfer to “exceptional circumstances”. As finally adopted, it no longer does so, merely introducing the power with the words “by way of exception”. An exception does not necessarily require that the circumstances be exceptional. Nevertheless, it is an exception to the general rule, that the future of children should be decided in the courts of the member state where they are habitually resident. In general, it is expected that exceptions will be narrowly construed and applied (see, for example, Somafer SA v Saar-Ferngas AG (Case C-33/78) [1978] EUECJ R-33/78; [1979] 1 CMLR 490, para 7), although the text which was eventually adopted is more “open-ended” than that originally proposed.
“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.”
Recital 33 is also relevant:
“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.”
42. Article 24 of the Charter of Fundamental Rights is headed “The rights of the child”:
“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
As the AIRE Centre point out in their helpful intervention, article 24.2 is clearly modelled on article 3.1 of the United National Convention on the Rights of the Child. They further point out that secondary EU legislation, such as the Regulation, must be interpreted consistently with the Treaties, including the Charter of Fundamental Rights: Criminal proceedings against Lindqvist (Case C-101/01) [2003] ECR I-12971, Ordre des barreaux francophones et germanophone v Conseil des ministres (Case C-305/05) [2007] ECR I-5305. The provisions of the Charter only apply when member states are implementing EU law, but we are clearly doing so in this case. If there were any doubt about the need to interpret and apply the Regulation consistently with article 24 of the Charter, recital 33 puts that beyond doubt. This is a case about children’s rights, and in particular, the right to have their best interests regarded as a primary consideration in all actions relating to them. As the AIRE Centre also point out, the line of case law leading to the “attenuated” welfare test does not appear to have had any explicit regard to the best interests obligation. The test might have looked very different if it had done.
Application in this case
49. Nor did the judge consider which court would be better placed to achieve the third outcome. There could only be one answer to this. But there would be a variety of ways of achieving that outcome. The local authority did propose a closed adoption, but there are other ways of achieving permanence and stability in this country without cutting off all links with the children’s family and background. There are orders in favour of foster parents which fall short of adoption. Whether the children remain in foster care under a care order or under some order in favour of the foster carers, the court is in charge of contact. It could make contact orders which would be recognisable and enforceable in Hungary. Alternatively, it could transfer the contact part of the proceedings to Hungary under article 15. All of these things should have been taken into account in deciding which court was “better placed”.
The placement order proceedings
52. The local authority argue that, as the placement order proceedings are not within the scope of the Regulation, there was no power to stay them with a view to transfer under article 15. The Court of Appeal was correct to recognise that, but wrong to stay them as consequential on the care proceedings. Section 21(2) of the Adoption and Children Act 2002 (para 15 above) makes it clear that the threshold may be determined either in care proceedings or in separate placement order proceedings. Thus they argue that the placement order proceedings should have been left to take their course.
53. It is, of course, correct that article 15 does not apply to placement order proceedings. The judge was wrong to think that it did. But that, in itself, did not invalidate his decision to transfer the care proceedings. If it was right to transfer the care proceedings, then it made no sense to leave the placement order proceedings to continue as if nothing had happened. The object of the transfer was that the children’s future should be decided in Hungary and not in England. As the mother points out, under the Family Procedure Rules 2010, the court has wide case management powers, including, under rule 4.1(3)(g), the power to stay the whole or part of any proceedings either generally or until a specified later date. The Court of Appeal has the same powers as the trial judge. It clearly had the power to do this. If it had been right to uphold the transfer, it would clearly have been right to stay the placement order proceedings.
Reference to the CJEU?
54. As already noted, there is a live question before the CJEU as to whether article 15 is capable of applying to public law proceedings such as these. This cannot be regarded as acte clair. This court has to decide whether to make its own reference of essentially the same question that the Supreme Court of Ireland has already referred; whether to delay its decision until the outcome of that reference is known; or whether to proceed on the assumption that article 15 is capable of applying to public law proceedings and review the decisions of the courts below on their merits.
56. But does that leave this court free to decide upon the correct approach to an article 15 application? The Supreme Court of Ireland has referred questions which are essentially the same as the principal issue in this case. However, it has done so in a very different context - a pregnant woman who had deliberately left England and moved to have her baby in Ireland in order to avoid care proceedings here. The transfer question therefore also raised issues about the free movement of workers within the European Union which do not arise in this case.
57. I share the President’s view that the language of article 15.1 is simple and clear. It requires no gloss or explanation. The court has three questions to answer: does the child have a particular connection (as defined in article 15.3) with another member state; would a court in that member state be better placed to hear the case, or a specified part of it; and would this be in the best interests of the child? The “better placed” and “best interests” questions are separate questions and the “best interests” question is intended to be an additional safeguard for the child. The question is not what eventual outcome to the case will be in the best interests of the child but whether the transfer will be in her best interests. Subject to that, the scope of the inquiry will depend upon all the circumstances of the case. I would therefore proceed on the basis that the meaning of article 15.1 is acte clair, albeit not yet éclairé, and we are merely applying it to the facts of the case, which is the task of the national courts.
Conclusion
61. As has already been made clear, the range of possible outcomes for these two children is not limited to the primary case presented to the judge: closed adoption here as against foster placement in Hungary. There are several other options in between. The guidance given by the President in this case (paras 104 to 111) is relevant. He emphasised the importance in the checklist of factors to be considered when deciding whether to make an adoption order in section 1(4) of the 2002 Act, “(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person” and “(d) the child’s … background” (para 104). The court and the professionals “must give the most careful consideration … to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background”. The court is directed to consider the likely effect, throughout her life, of having ceased to be a member of her original family (para 105). As he had said in Merton London Borough Council v B [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84, “We must be understanding of the concerns about our processes voiced by European colleagues;” and “the court … must rigorously apply the principle that [non-consensual] adoption is ‘the last resort’ and only permissible ‘if nothing else will do’” (para 106). On the other hand, as he had said in In re J (Care Proceeding: Appeal) [2014] EWFC 4; [2015] 1 FLR 850, para 36, at the end of the day matters had to be judged “according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative” (para 108). One important factor, in considering the child’s welfare, is whether an adoption order would be recognised in the country where the child is domiciled, or a national, or has been habitually resident. If it would not be, the court will have to consider the disadvantages of a “limping” adoption order (see In re B(S) (An Infant) [1968] Ch 204), which might make it difficult for them ever to visit Hungary. This might tell in favour of finding other ways of giving the children the security and stability they need.