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Re N – Supreme Court Considers Art 15 Discretion

Which State should have jurisdiction to determine care proceedings?

Re N – Supreme Court Considers Art 15 Discretion

By Katherine Couper

On 13 April 2016, the Supreme Court published its judgment in the case of Re N [2016] UKSC 15. The case considers the provisions of Article 15(1) of Council Regulation (EC) No 2201/2003 and the question of whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls.

As practitioners will be aware, Article 15(1) contains a discretionary power for the Member State with jurisdiction to request a court of another Member State to assume jurisdiction if the following three-limbs are satisfied:

  1. The child has a particular connection with the other Member State;
  2. The other Member State would be better placed to hear the case, or a specific part thereof; and
  3. This is in the best interests of the child.

The relevant background facts to the appeal of Re N are as follows:

  • The subject children are Hungarian nationals but were born and have been resident in England all their lives.
  • The parents of the girls are Hungarian nationals, who moved to England in 2011.
  • The older girl was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl in May 2013. Both girls were removed from their parents that day and placed in foster care, where they have remained.
  • Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority, which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors.
  • The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised.
  • The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent.
  • The High Court granted the mother’s application (supported by the Hungarian Central Authority) to request the transfer of the proceedings under article 15.
  • The Court of Appeal dismissed the appeal brought by the Children’s Guardian and local authority. The Children’s Guardian appealed to the Supreme Court.

As per Lady Hale at para 31, the principle issue before the Supreme Court was ‘the proper approach to the assessment of the child’s best interests in the context of an application for transfer under article 15’ (i.e. the correct approach to the third limb of the test set out above). In particular, the Court sought to address the following questions:

  1. 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?
  2. Is the court entitled to take into account the consequences for the child of transferring the proceedings, where the transfer will also result in the child’s removal from her current placement to a placement in another country?

 

 

 

Note that the Supreme Court did not consider the question of whether Article 15 is capable of applying to care proceedings, (although Lady Hale notes at para 34 that this is ‘obviously not acte claire’). The Supreme Court of Ireland has made an extent referral to the CJEU in the matter of Child and Family Agency (CAFA) v JD (Case C-428/15), which includes this question. Pending the outcome of this referral, the Supreme Court ruled to proceed on the assumption that article 15 is capable of applying to public law proceedings.

The guidance arising from Re N can be summarised as follows:

  • The ‘better placed’ and ‘best interests’ considerations (paras 5b and 5c, above) are separate questions and must be addressed separately. Some of the same factors may be relevant to both, but the second question does not inexorably follow from the first. (para 43);
  • The ‘best interests’ question is restricted to whether transfer of the case is in the child’s best interests. It is a different question from whether the eventual outcome of the case will be in the child’s best interests (para 44)
  • The factors relevant to deciding the ‘best interests’ question will vary depending on the circumstances of the case and cannot be explicitly defined. However ‘there is no reason to exclude the impact, in the short or the longer term, of the transfer itself. What will be the immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome?’ (para 44)

In applying the above guidance to the facts of Re N, the Supreme Court ruled that the lower courts had erred in concluding that it would be in the best interests of the children to transfer the matter to Hungary. The following points were highlighted as factors which should have been considered within the ‘best interest’ question:

  • The short term consequences of a transfer to Hungary would be that the girls would be removed from the home where the youngest had lived for virtually all her life and the oldest had lived for most of hers, where they were happy and settled, and doing well (the older child’s behaviour having been seriously disturbed when they first arrived);
  • The children would be transferred to a foster placement about which the court knew nothing, other than that the foster carer spoke English;
  • The country, the language and the surroundings would be completely unfamiliar to the children;
  • A long term consequence of transfer would be to rule out one possible option for their future care and upbringing, that is, remaining in their present home on a long term legally sanctioned basis, whether through adoption, or through a special guardianship order, or through an ordinary residence order … ‘indeed the outcome which those professionals with the closest knowledge of the case and the children now consider would be best for them’.