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 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. He repeated the guidance he had given in In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372 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, although it could be considered at any stage of the proceedings; repeated applications were to be deprecated and would usually fail unless there had been a change of circumstances, although they might sometimes be appropriate; that a transfer could be considered after a fact-finding hearing, but only in exceptional circumstances; and the process should be summary, measured in hours not days and not dependent on a profound investigation of the evidence.
Leaving to 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.
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
Munby P summarised principles applying to choice of jurisdiction in adoption cases:
(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.
(ii) If the English court does have such jurisdiction, how should that be exercised? The President gave guidance.
(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.
Sir James Munby P FD, Black LJ, Sir Richard Aikens
[2015] EWCA Civ 1112, [2015] WLR(D) 436, [2016] 1 FCR 217, [2016] 1 All ER 1086, [2016] 1 FLR 621, [2016] 2 WLR 713, [2015] Fam Law 1444
Bailii, WLRD
Council Regulation (EC) No 2201/2003, Vienna Convention on Consular Relations
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 . .
Emphasised – Re M (A Child) CA 21-Feb-2014
The court dealt with points of principle relating to how the courts in England and Wales determine family cases that involve nationals of other countries, in particular Member States of the European Union and for that reason, permission to appeal . .
Cited by:
At CA – In Re N (Children) SC 13-Apr-2016
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 . .
Cited – Williams and Another v London Borough of Hackney SC 18-Jul-2018
On arrest for shoplifting a 12 year old said he had been doing so to get food, and that he had been hit with a belt by his father. Investigation revealed the home to be dangerous, and all eight children were removed to the care of the LA. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.554267
