RE N (CHILDREN) (2016)

The court considered the proper approach to determining applications to transfer care proceedings to foreign courts under Regulation 2201/2003 art.15. The issues of whether a court was “better placed” to hear proceedings and whether transfer was in the “best interests” of the child were separate questions which had to be addressed separately. If a foreign court was better placed to hear a case, it did not follow that it would be in the best interests of a child to transfer it. It was necessary to consider the impact of transfer on the choices available to the court deciding upon the eventual outcome.
A children’s guardian appealed against a decision ([2015] EWCA Civ 1112, [2016] 2 W.L.R. 713) upholding the transfer of care proceedings to Hungary.

The children were aged two and four. They were born in England where they had lived all their lives. The parents were Hungarian nationals. The children had been placed with English foster carers and the local authority had issued care proceedings, seeking adoption and placement orders, possibly with the existing foster carers. The mother had returned to Hungary and given birth to a third child. The High Court granted the mother’s application for transfer of the proceedings to Hungary under Regulation 2201/2003 art.15. The Court of Appeal upheld that decision, finding that the consequences for the children of being removed from their long-term foster carers and taken to new foster carers in Hungary were irrelevant to whether transfer of the proceedings would be in their “best interests” for the purposes of art.15. It determined that the Hungarian court was “better placed” to hear the case and that transfer was therefore in the children’s best interests.

The issues were (1) the proper approach to the assessment of the children’s best interests for the purposes of art.15, particularly whether that evaluation was limited to questions relevant to the choice of forum; (2) the correctness of the decision to transfer the proceedings in the instant case.

HELD: (1) The requirement to evaluate whether a transfer was in the best interests of a child was intended as an additional safeguard for the child. Children were entitled to have their best interests regarded as a primary consideration in all actions relating to them, in accordance with the Charter of Fundamental Rights of the European Union art.24 and recital 33. Under art.15 of the Regulation, the questions of whether a court was “better placed” to hear proceedings and whether transfer was in the “best interests” of the child were inter-related. Some of the same factors might be relevant to both questions. However, they were separate questions which had to be addressed separately. The second did not inexorably flow from the first. In considering the best interests requirement, the court was deciding whether to request a transfer of the case. The question of whether a transfer was in the child’s best interests was a different question from what eventual outcome of the case would be in the child’s best interests. The relevant factors would vary according to the circumstances. However, there was no reason to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself. It was relevant to consider the immediate consequences of a transfer and its impact upon the choices available to the court deciding upon the eventual outcome. The question was whether it was in the child’s best interests for the court currently seised of the case to retain it or for the case to be transferred to the requested court, I (A Child) (Contact Application: Jurisdiction), Re [2009] UKSC 10, [2010] 1 A.C. 319 applied (see paras 41-44 of judgment).

(2) In the instant case, the judge had wrongly accepted that it followed from his decision that the Hungarian court was better placed to hear the case that it would be in the best interests of the children to transfer it. He failed to consider the short and long-term consequences for them of doing so and of not doing so. The short-term consequence would be that the children would be removed from the home where they had lived for most of their lives and where they were happy and settled, to a foster placement in a country with an unfamiliar language and surroundings. The long-term consequence would be to rule out one possible option for their future care and upbringing, namely remaining in their present home on a long-term, legally sanctioned basis. It would not be in their best interests to transfer a dispute about their future to a court which would be unable to consider one of the possible outcomes. There was a very live issue as to whether the children would be better living in the country of their nationality, where they had many family members. However, the judge had failed to consider whether the English court could achieve certain outcomes without transferring the case. The English court had heard all the evidence and was in a position to decide the outcome. The judge had not only taken the wrong approach to the best interests question, but had left out of account some crucial factors in deciding the better placed question. The transfer request would be set aside (paras 45-51).

(3) The judge had been wrong to think that art.15 applied to placement order proceedings. However, that did not invalidate his decision to transfer the care proceedings. The object of the transfer was that the children’s future should be decided in Hungary, not England. The court had wide case management powers to stay the whole or part of any proceedings. If it had been right to uphold the transfer, it would clearly have been right to stay the placement order proceedings (paras 52-53).

(4) The case would be returned to the High Court for the children’s future to be decided. The range of possible outcomes should be considered. The extended guidance given by the Court of Appeal in the instant case in relation to adoption orders was also relevant (paras 60-61).

Appeal allowed
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