The Supreme Court has unanimously allowed an appeal brought by a Children’s Guardian in a case concerning whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls.
In the case of In the matter of N (Children)  UKSC 15 the girls were Hungarian nationals but were born and have been resident in England all their lives.
Under article 8(1) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as ‘Brussels II Revised’) the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident.
The issue before the Supreme Court was whether the exception to this rule, found in article 15, permitting the transfer of certain proceedings to a court in another member state if it was ‘better placed’ to hear the case and this would be in the best interests of the child, should apply in the case.
The parents of the girls were Hungarian nationals, who moved to England in 2011.
The older girl (‘Janetta’) was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl (‘Ella’) in May 2013. Due to the conditions of extreme squalor in which Janetta was found to be living, and the absence of medical attention for Ella’s birth, both girls were removed from their parents that day and have been living with foster carers ever since.
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 (‘HCA’) 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 HCA) to request the transfer of the proceedings under article 15. The Court of Appeal subsequently dismissed the appeal brought by the Children’s Guardian and the local authority.
The Children’s Guardian appealed to the Supreme Court. The issues before the judges – Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Wilson and Lord Carnwath – were the proper approach to the assessment of the child’s best interests for the purposes of article 15 and the correctness of the decision to transfer in this case.
The Supreme Court unanimously allowed the appeal, setting aside the request for a transfer of the proceedings to Hungary and returning the case to the High Court.
Giving the only judgment, Lady Hale said the context in which the question of jurisdiction arose was important.
“Free movement of workers and their families within the European Union has led to many children living, permanently or temporarily, in countries of which they are not nationals. Inevitably some of them will come to the attention of the child protection authorities, because of ill-treatment or neglect or the risk of it,” she said, adding that in every case with a European dimension it was necessary for the courts to consider whether they have jurisdiction. Even if they did, they would need to consider whether the case should be transferred to another member state.
Lady Hale cited research from the Council of Europe that showed that other member states did permit adoption without parental consent. However, England and Wales was unusual in permitting parental consent to be dispensed with where the welfare of the children required this, rather than on more precise grounds of parental absence or misconduct. “This country is also unusual in the speed and frequency with which it resorts to adoption as the way to provide a permanent home for children who for one reason or another cannot live with their families.”
Although the question of the applicability of article 15 to public law care proceedings is the subject of a pending reference to the Court of Justice of the European Union in a case from Ireland, the Supreme Court proceeded on the assumption that article 15 was capable of applying and reviewed the decisions of the courts below on their merits, rather than making a further reference.
The best interests of the girls required a decision on their future without yet further delay, Lady Hale concluded. “One way or another, their best interests demand that their future should be decided as soon as possible”.
Lady Hale said she shared the view of the President of the Family Division that the language of article 15 was “simple and clear”. “The court has three questions to answer: does the child have a particular connection (as defined in article 15.3) with another member state; would a court in that member state be better placed to hear the case, or a specified part of it; and would this be in the best interests of the child?”
The Supreme Court judge said the principal issue was the nature of the ‘best interests’ assessment in article 15 and whether it was limited to questions relevant to the choice of forum, as the judge had found. Lady Hale said the addition of the best interests test was intended to be an additional safeguard for the child, consistent with the rights of children found in article 24 of the Charter of Fundamental Rights of the European Union.
“It is the case, as argued on behalf of the mother, that the 'better placed' and 'best interests' questions are inter-related. Some of the same factors may be relevant to both,” Lady Hale noted, but she added that it was clear that they were separate questions and must be addressed separately. “The second one does not inexorably follow from the first.”
Lady Hale said the question remained as to what was encompassed in the 'best interests' requirement. “The distinction drawn in In re I remains valid,” she suggested. “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.”
Lady Hale said the judge at first instance was wrong to accept 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 ought to have addressed his mind to the short and long term consequences for them of doing so and also of not doing so.”
In the present case, the short term effect of the transfer would be to remove the girls from the home where Ella had lived for virtually her whole life and Janetta for most of hers, where they were happy and settled, to an unfamiliar foster placement in Hungary; and the long term effect would be to rule out one possible option for their future care and upbringing, which was to remain in their present home either through adoption, or a special guardianship order or ordinary residence order.
This was not necessarily the outcome which the court should eventually decide, Lady Hale said. “There is a very live issue as to whether in the long run these little girls of Hungarian nationality and descent, with mixed Hungarian and Roma ethnicity, and many family members in Hungary, including their parents, grandparents, a sibling and half siblings, would be better living in Hungary. The judge took into account the importance of their siblings and their background when addressing the question of which court was ‘better placed’. But in addressing that question, he did not take into account what the real issues in the case were.”
Lady Hale said the real issues were that the parents wanted the girls to come to Hungary, preferably to live with them or with members of the extended family. “The advantages and disadvantages of this had been explored by the girls’ social worker,” the Deputy President of the Supreme Court said. “The underlying problem was that the mother’s family would have nothing to do with the father, whom they saw as abusive, while the father’s family supported him, and the mother wished to stay with him. The HCA, therefore, apparently relying largely on the assessments carried out by or for the local authority, did not see family placement as viable, and so proposed foster care, but preserving the possibility of some sort of relationship with the parents and siblings. The local authority, with the support of the Children’s Guardian, now proposed placement for adoption, preferably with the existing foster carers.”
The Supreme Court judge highlighted how the first instance judge had heard and read all the evidence that anyone involved wished to put before him. “He was in a position to decide the outcome. Although a transfer request can be made and determined at any time, it would be rare indeed that, the case having reached such a point, another court would be better placed to hear it.”
Lady Hale found that 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.
The Deputy President also concluded that the judge had been wrong to apply article 15 to the placement order proceedings but that did not in itself vitiate his decision to transfer the care proceedings. He had the power to stay the placement order proceedings under the wide case management powers of the court and, if it had been right to uphold the transfer, then it would clearly have been right to stay the placement order proceedings.
The Supreme Court allowed the appeal and returned the case to the Family Division of the High Court to determine the future arrangements for the girls, with updated evidence. “As has already been made clear, the range of possible outcomes for these two children is not limited to the primary case presented to the judge: closed adoption here as against foster placement in Hungary. There are several other options in between,” she said, adding that the extended guidance given by the Family President in the Court of Appeal was also relevant.
This article is based principally on the press summary issued by the Supreme Court.