The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their parents were Hungarian and the children were nationals of Hungary, not the United Kingdom.
Held: The appeal succeeded, and the order for transfer set aside. Not only did the judge take the wrong approach to the ‘best interests’ question, he also left out of account some crucial factors in deciding upon the ‘better placed’ question: ‘what is encompassed in the ‘best interests’ requirement? The distinction drawn in In re I remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it ‘attenuated’. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.’
The court considered the differences between articles 12 and 15: ‘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.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath
[2016] UKSC 15, [2016] WLR(D) 190, [2016] Fam Law 681, [2017] AC 167, [2016] 1 FLR 1082, [2016] 3 FCR 394, [2016] 2 WLR 1103, UKSC 2016/0013
Bailii, WLRD, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At FC – J and E (Children: Brussels II Revised: Article 15) FC 11-Nov-2014
The local authority applied to the court for care orders and placement orders in respect of two young girls. The parents opposed the local authority’s applications. The mother was Hungarian. The father was Hungarian/Roma. The mother applied under . .
Cited – In re J (A Child: Brussels II revised: Article 15: Practice and Procedure) FC 29-Oct-2014
Application to transfer children proceedings to anoher member state (Hungary)
Held: The order should be made. A Hungarian court might better be able to facilitate contact with siblings living there. . .
At CA – Re N (Children : Adoption: Jurisdiction) CA 2-Nov-2015
Appeal against care and placement order proceedings in relation to two Hungarian children, The orders were for the transfer of the case to Hungary.
Held: The appeal was dismissed. As to Article 15, the Court considered: What are the . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – In Re T (A Child: Article 15 of B2R) ((Care Proceedings: Request to Assume Jurisdiction) FD 13-Mar-2013
A pregnant 17 year old Slovakian girl ran away from a children’s home in Slovakia and gave birth to the baby in the UK.
Held: Although the court decided to transfer the case to Slovakia under article 15, Mostyn J said: ‘It is not disputed that . .
Cited – Somafer Sa v Saar-Ferngas Ag ECJ 22-Nov-1978
ECJ 1. The Convention of 27 September 1968 must be interpreted having regard both to its principles and objectives and to its relationship with the treaty. The question whether the words and concepts used in the . .
Cited – Criminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
Cited – Re CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .
Cited – Ordre des barreaux francophones and Other v Conseil des Minsitres (Conseil des barreaux de l’Union eurpeenne and Ordre des avocats du barreau de Liege, interveners ECJ 26-Jun-2007
Bodies representing lawyers complained that the anti-money laundering Directive infringed their capacity to provide confidential advice to their clients, in turn infringing their right to a fair trial.
Held: The complaint failed. Insofar as . .
Cited by:
See Also – Child and Family Agency v D (RPD Intervening) ECJ 27-Oct-2016
ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – . .
Lists of cited by and citing cases may be incomplete.
Children, Jurisdiction, European
Leading Case
Updated: 31 October 2021; Ref: scu.562188
