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Supreme Court confirms test for transfer of children proceedings to connected jurisdictions

21 October 2016

 
Family lawThe Supreme Court recently considered whether the future of two girls, aged four and two, should be decided by the English courts or by the authorities in Hungary (the case of N (Children) [2016] UKSC 15). Whilst this is a public law case, the principles and test confirmed by the Supreme Court have implications for all private law children cases where there is another country to which the children in question have a connection.

Background

 
The children's parents were in their twenties when they came to England from Hungary. Whilst both children were born here, it was accepted by the Court that due to their parents' nationality and descent, they had a particular connection with Hungary.

The eldest child, "Janetta", was born in January 2012, and the second child, "Ella", in May 2013. Ahead of Ella's birth, the mother received no ante-natal care and the baby was born in the room in which the family were living without any medical assistance. An ambulance arrived shortly after the birth. The ambulance services called the police as they reported that the father was resisting the mother and baby receiving medical attention. The family were living in circumstances of extreme squalor, with no food, bedding or clothing for the children.

Janetta was taken into care that day and Ella was discharged from hospital into foster care when she was eight days old.

Care proceedings began in 2014, and the mother applied to have them transferred to Hungary. In considering this application, the Court had to decide whether or not a court in Hungary would be better placed to hear the case and whether transfer was in the best interests of the children.

The first instance judge considered that factors in favour of the transfer included the idea that the Hungarian court could promote contact between the children and their Hungarian family, the Hungarian authorities would have more access to the background information about the family, and the mother's only language was Hungarian (she used an interpreter throughout the English proceedings). Factors against the transfer were that as the English court had already heard all the evidence, a final determination could be made without further delay, the allocated social worker had a relationship with the children and a thorough knowledge of the case, and the children had lived in England all their lives.

Despite the arguments against transfer, the judge found that the Hungarian court was better placed to hear the case and that it was in the children's best interests for it to be transferred. The local authority and children's guardian appealed to the Court of Appeal in November 2015, but the appeal was dismissed.

Supreme Court decision

 
The children's guardian, with the support of the local authority, appealed to the Supreme Court (the highest court in England) in April of this year. It was held that the judge in the first instance was wrong in his decision that the Hungarian court was better placed to hear the case. Lady Hale said that the judge ought to have considered the short-term consequences of the transfer. The girls would be removed from the home in which they had lived virtually all of their lives, they were happy and settled, and they would be taken to Hungary where the language and surroundings would be completely unfamiliar to them.

The long-term consequence of the transfer would be to rule out the future adoption of the children in England, as had been recommended by the local authority, as this could not be ordered by the Hungarian court. The English court could, however, make an order that would promote the children's contact with their family in Hungary.

On the question of what would be in the best interests of the children, Lady Hale said that the Court had to ask itself not what eventual outcome of the case would be in the children's best interests, but whether the transfer itself was in their best interests. In this case, it was held that it was not.

Practical point

 
Whilst this is a public law case, the application of the law is relevant to any case concerning children where the child in question has a particular connection with another Brussels II revised Regulation member state (i.e. all EU member states except Denmark). Fundamentally, this case confirms that in all children cases, the court will always seek to establish what is in the child's best interests including their connection with another country.

The primary rule is that jurisdiction lies with the courts of the member state in which the child is habitually resident. Under Article 15 of the Regulation, however, it is possible that an English court may consider transferring the case to the court of another member state if the transfer is considered to be in the best interests of the child and the other court is better placed to hear the case.


Rebecca Worsley, Stewarts LawRebecca Worsley is a Trainee Solicitor in our Divorce and Family department. She assists on a number of high value and complex cases. She is a member of The Law Society and Junior Lawyers Division and an accredited ADR Group Qualified Civil & Commercial Mediator.

 


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