Re N (Children) (Jurisdiction: Care Proceedings)
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Neuberger,Lord Kerr,Lord Wilson,Lord Carnwath |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] UKSC 15 |
| Court | Supreme Court |
| Date | 13 April 2016 |
[2016] UKSC 15
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Appellants
(JN and EN) Henry Setright QC Martha Cover Michael Gration
(Instructed by Hanne & Co)
Respondent
(London Borough of Hounslow) Roger McCarthy QC Mark Twomey
(Instructed by London Borough of Hounslow)
Respondent
(AM — Mother) William Tyler QC Malcolm MacDonald
(Instructed by Lawrence & Co Solicitors)
Respondent
(ZN — Father) Frank Feehan QC Dorian Day
(Instructed by Hecht Montgomery)
Interveners (Written Submissions Only)
1st Intervener (AIRE Centre) Deirdre Fottrell QC Lucy Sprinz Michael Edwards
(Instructed by Herbert Smith Freehills LLP)
2nd Intervener (Family Rights Group) John Vater QC Edward Devereux Mehvish Chaudhry Dr Rob George
(Instructed by Goodman Ray LLP)
3rd Intervener (The International Centre for Family Law, Policy and Practice) David Williams QC Jacqueline Renton
(Instructed by Kingsley Napley)
(with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agree)
The issue in this case is whether the future of two little girls, one now aged four years and two months and the other now aged two years and 11 months, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and have lived all their lives here. But their parents are Hungarian and the children are nationals of Hungary, not the United Kingdom. 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 the Brussels II revised Regulation ("the Regulation"), the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. That would be England in this case. However, an exception is made by article 15, under which those courts can transfer the case to a court in another member state with which the child has a particular connection, if that court would be "better placed" to hear the case, or part of it, and the transfer is in the best interests of the child. These children have a particular connection with Hungary, as it is the place of their nationality. The issue, therefore, is the proper approach to deciding whether a Hungarian court would be better placed to hear the case and to whether transferring it would be in the best interests of the children.
The context in which these questions arise is 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. In the past, the courts in this country might assume that they had jurisdiction simply because of the child's presence here. It is now clear, however, that public law proceedings fall within the scope of the Regulation (see In re C ( Case C-435/06) [2008] Fam 27), so that in every case with a European dimension (more properly, a Regulation dimension) the courts of this country have to ask themselves whether they have jurisdiction. Even if they do have jurisdiction, Sir James Munby P has said that in every case they will need to consider whether the case should be transferred to another member state: see In re E (A Child) (Care Proceedings: European Dimension): Practice Note [2014] EWHC 6 (Fam); [2014] 1 WLR 2670, para 31; also Merton London Borough Council v B (Central Authority of the Republic of Latvia intervening) [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84(ii). As the Family Rights Group observe in their helpful intervention, this has led to a "remarkable proliferation" of case law over the last three years. Hitherto, courts would manage cases with a foreign element by evaluating foreign placement options and deciding upon the best outcome for the child themselves. Now, they may be more inclined to transfer the decision-making abroad.
One reason for this change in approach may be "the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as 'forced adoption'" (referred to by the President in his judgment in this case: [2015] EWCA Civ 1112; [2016] 2 WLR 713, para 8). Research compiled by the Council of Europe (O Borzova, Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member states, Report to the Parliamentary Assembly, 2015, Doc 13730) and commissioned by the European Union (C Fenton-Glynn, Adoption without Consent, Directorate General for Internal Policies of the EU Parliament, Policy Department C: Citizens' Rights and Constitutional Affairs, 2015) shows that other member states do permit adoption without parental consent. However, England and Wales is unusual in permitting parental consent to be dispensed with where the welfare of the child requires this (Adoption and Children Act 2002, section 52(l)(b)) 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. The European Court of Human Rights has, however, held our law to be compatible with the right to respect for private and family life, protected by article 8 of the European Convention on Human Rights: YC v United Kingdom (2012) 55 EHRR 967.
It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between the member states. It is not for the courts of this or any other country to question the "competence, diligence, resources or efficacy of either the child protection services or the courts" of another state (see In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372, para 54(v), per Munby P). As the Practice Guide for the application of the Brussels Ila Regulation puts it, the assessment of whether a transfer would be in the best interests of the child "should be based on the principle of mutual trust and on the assumption that the courts of all member states are in principle competent to deal with a case" (p 35, para 3.3.3). This principle goes both ways. Just as we must respect and trust the competence of other member states, so must they respect and trust ours.
So far as relevant, article 15 of the Regulation reads as follows:
"1. By way of exception, the courts of a member state having jurisdiction as to the substance of the matter may, if they consider that a court of another member state, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member state in accordance with paragraph 4; or
(b) request a court of another member state to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another member state with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another member state must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a member state as mentioned in paragraph 1, if that member state: …
(c) is the place of the child's nationality; …
4. The court of the member state having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other member state shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with articles 8 to 14.
5. The courts of that other member state may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with articles 8 to 14.
6. The courts shall cooperate for the purposes of this article, either directly or through the central authorities designated pursuant to article 53."
The parents are in their 20s. The father is of Hungarian Roma descent, the mother of mixed Hungarian and Roma descent. The father has two older children, a girl now aged seven and a boy now aged five, half-siblings of the children with whom we are concerned. These parents met and began their relationship in 2010. In July 2011, when the mother was pregnant with the older of the two children in this case, whom I shall call Janetta, they travelled to this country. Janetta was born here in January 2012. The family had some contact with the local authority in April and May 2012, because of their accommodation problems, and both the local authority and the Hungarian embassy offered to support their return to Hungary, but in fact they stayed here.
Their second child, whom I shall call Ella, was born here in May 2013. The mother had had no ante-natal care. The baby was born in the room in which the family were living without any medical assistance. The London Ambulance Service arrived after the baby...
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