The Supreme Court set aside a transfer of care proceedings concerning two Hungarian girls who had lived all their lives in England. A court considering article 15 of the Brussels II revised Regulation must treat the questions whether another court is better placed and whether transfer is in the child’s best interests as separate, and may take account of the consequences of transfer itself. The children’s future was returned to the High Court for a prompt decision.
The sisters were Hungarian nationals. They had lived in England since birth, and both had spent much of their lives in the same foster home.
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How the children came into care
The sisters came into local authority care and were placed together with foster carers.
The Hungarian authorities sought the children’s return to Hungary. The English local authority began care proceedings and, with the Children’s Guardian, supported adoption.
The English court had jurisdiction because the children were habitually resident in England. An initial application to transfer the proceedings to Hungary was refused, with permission to raise the question again after fact-finding.
A fact-finding hearing followed. Placement with family in Hungary, foster care there, and permanent placement in England remained possible outcomes.
The transfer decision and the Court of Appeal
His Honour Judge Bellamy, sitting as a Deputy High Court Judge, heard the case in November 2014 and granted the mother’s renewed application to request a transfer under article 15. He followed guidance that the court must ask whether the child has a particular connection with another member state, whether a court there would be better placed to hear the case, and whether transfer would be in the child’s best interests. Nationality supplied the connection with Hungary. He treated the availability in England of non-consensual adoption as irrelevant, and regarded the best-interests question as a forum question rather than the substantive welfare question.
Factors he regarded as favouring Hungary included the parents’ language, siblings living there, the scope for further assessment and background information, cultural and linguistic needs, and the possibility that the parents would return. Factors pointing the other way included the fact that the English court had heard the evidence, completed assessments, continuity, and the children’s settled life in England. He did not attach significant weight to further delay. He concluded that Hungary was better placed, particularly because of contact with siblings, and that best interests followed from that conclusion. He considered that the prospect of removal from the current carers was relevant only to the eventual outcome, not to transfer. His request covered both the care proceedings and the placement-order proceedings.
The Court of Appeal dismissed the local authority’s and Guardian’s appeal. It held that the judge had been entitled to request transfer of the care proceedings. It also held that placement-order proceedings fall outside the Regulation, so his decision on those proceedings could not stand, but stayed them as consequential on the care proceedings. Wider questions about adoption jurisdiction were decided by the Court of Appeal but were not before the Supreme Court.
The proper approach to article 15
Lady Hale, with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agreed, identified the central question as the meaning of the child’s best interests when a court already seised of a case considers transfer. Article 15 requires both that the other court be better placed and that transfer be in the child’s best interests. Those are separate questions, and the second is an additional safeguard; it does not follow automatically from the first.
The Court distinguished this from the best-interests requirement applicable when a court is deciding whether to accept jurisdiction. The transferring court is not deciding the eventual outcome. It is deciding whether retaining or transferring the case is in the child’s best interests. That inquiry should not be described as an attenuated welfare test. Its scope depends on the circumstances, and there is no reason to exclude the short-term or longer-term impact of the transfer itself, including its immediate consequences and its effect on the options available to the court that will decide the outcome. Article 15 is an exception to the general rule that the courts of the child’s habitual residence decide the child’s future, and the Regulation must be applied consistently with article 24 of the Charter of Fundamental Rights, under which the child’s best interests are a primary consideration.
Why the transfer was wrong in this case
The judge should have considered the consequences of transfer and of retention. In the short term, transfer would remove the girls from the home in which Ella had lived for virtually all her life and Janetta for most of hers, where they were happy, settled and doing well, and place them with an English-speaking foster carer in an unfamiliar country, language and surroundings. In the longer term, it would rule out remaining in that home on a legally secure basis, whether by adoption, special guardianship or a residence order. Professionals with the closest knowledge of the children considered that option best. It was not in their best interests to send the dispute to a court unable to consider it. That did not mean adoption was the right outcome: there remained a live issue whether children of Hungarian nationality and mixed Hungarian and Roma descent, with family in Hungary, would be better living there.
The real choices were family placement in Hungary, foster care there while preserving family connections, or permanence in England, preferably with the existing carers. The judge did not adequately consider how an English court might secure a Hungarian placement without transferring the whole case, including through a revised care plan, the High Court’s inherent jurisdiction or orders under section 8 of the Children Act 1989. Nor did he consider that only the English court could achieve permanence here, including arrangements short of a closed adoption and enforceable contact, or transfer of only the contact element. Above all, he had already heard all the evidence anyone wished to present and was in a position to decide. Although a transfer request may be made at any stage, it would rarely be appropriate once a case had reached that point.
The Court therefore held that he had both applied the wrong approach to best interests and omitted crucial factors from the better-placed question. In particular, transfer would preclude one possible outcome and would precipitate removal without an evaluation of its psychological impact, whereas retention would leave all outcomes open.
Placement orders and a European reference
Article 15 does not apply to placement-order proceedings, so the judge was wrong to treat them as transferable. That error did not itself invalidate a transfer of the care proceedings. If such a transfer had been right, the Court of Appeal had power under its case-management powers to stay the placement proceedings so that the children’s future would be decided in Hungary. Because the transfer was wrong, that consequence did not arise.
The Court refused permission to argue that article 15 cannot apply to public law proceedings at all. It regarded that question as not acte clair and noted that it was already before the Court of Justice in an Irish reference. It nevertheless decided this appeal on the assumption that article 15 can apply. It held that the meaning of article 15.1 was itself acte clair: the three questions are separate, best interests is an additional safeguard directed to the transfer rather than the eventual outcome, and the inquiry depends on the circumstances. No reference, and no delay pending the Irish case, was necessary. The proceedings had already lasted too long, and the children should not suffer further delay.
Verdict: The Supreme Court unanimously set aside the transfer request. The Family Division was to decide the children’s future promptly on updated evidence. The transfer application itself could not be reopened.
