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K (A Child) [2013] EWCA Civ 895

Care proceedings appeal in which Court of Appeal gives guidance on the proper construction of Article 15 of the Regulation Brussels II Bis.

The appeal concerned a child TK who was born in Rotherham in April 2012.  His parents were Slovakians of Romany origin. The parents had travelled to Rotherham principally to evade the authorities in Slovakia and also because one of their parents resided in Rotherham. There had been prior proceedings in Slovakia and a placement prior to April 2012.  Rotherham Metropolitan Borough Council issued care proceedings on 25 May 2012 and an interim care order was made on 28 May. During the currency of the care proceedings a letter was received by the English Central Authority from the Slovak Central Authority registering their interest in the case.

On 18 December 2012 the court invited the Central Authority representing the Republic of Slovakia to intervene in the proceedings. On 12 February 2013 the case was transferred to the high court and a further hearing listed on 5 March 2013. At this hearing the Slovakian Central Authority were joined as a party to the proceedings and a hearing on 12 March 2013 was listed to determine the appropriate forum to decide issues relating to the child.  It was provided that in the event that the decision was England the care case final hearing would proceed at once but in the event that the court determined that Slovakia was the appropriate forum, then directions would be given to that effect. 

At the hearing on 5 March 2013 information was requested from the Slovak Central Authority as to what arrangements would be made by social and judicial authorities in the event of TK's return.  That information was provided on 8 March and there was final confirmation that Slovakia accepted the jurisdiction of England and Wales, but nevertheless sought a transfer to the Slovakian jurisdiction pursuant to Article 15 of the Regulation Brussels II Bis. 

Mostyn J conducted the hearing on 12 March 2103 and determined in favour of the Slovakian intervener. He gave directions which provided essentially that the child should remain in interim care until arrangements were made for his departure to Slovakia on the assumption that Slovakia would accept the application for transfer of jurisdiction. The guardian appealed this decision.

Pending the appeal an application to the Slovak Court was lodged on 16 April 2013.  Black J gave permission to appeal on 26 April 2013. On 7 May 2013 the judge in the Slovakian Court made an order which effectively provided that on return mother and child should return to the prior placement at a specialist unit (this had been assumed by Mostyn J on the evidence before him). Therefore the effect of the order of 7 May was to confirm Mostyn J's assumptions, but also to make plain that the Slovakian jurisdiction had accepted the transfer.

The Court of Appeal dismissed the appeal. The first ground of appeal pursued on behalf of the guardian was that Mostyn J had misdirected himself in law in concluding that in construing Article 15 of the Convention, he should adopt the approach that had been articulated in the domestic case of M v M [2006] 1 FLR 138, decided by Wilson J. The leading judgement in the Court of Appeal was given by Thorpe LJ who accepted that the judge had misdirected himself and took the opportunity for the Court of Appeal's views on the proper construction of Article 15 to be recorded.

The Court of Appeal re-affirmed the approach adopted by Munby J in AB v JLB [2008] EWHC 2965 (Fam) which states that when the court is considering an application for transfer under Article 15(1), there are three questions to be considered. The Court of Appeal also highlighted the importance of uniformity of interpretation and implementation of terms used in community law throughout the community except when express of implied reference is made to national law and in this regard endorsed the decision of  Munby J in Marinos v Marinos [2007] EWHC 2047 (Fam).

Thorpe LJ then considered Mostyn J's adoption of the principles stated by Wilson J in M v M and in particular those found in paragraph 15 to 18 of that decision. Thorpe LJ firmly rejected the application of these principles within the determination of transfer pursuant to Article 15 and stated that Article 15 is expressly clear and the court cannot request a transfer unless to do so would be in the best interests of the child. Thorpe LJ also emphasised that the construction of Article 15 must be uniform throughout the courts of the Member States and cannot be dominated by a domestic law approach in cases brought under the domestic jurisdiction, whether it be statutory or inherent.  Thorpe LJ concluded on this point by highlighting that the context of the issue before Wilson J and the law that he was applying were radically different to the determination of Article 15, which was not yet in place when he was sitting in the domestic case.

Thorpe LJ then considered the second ground of appeal which was that Mostyn J should not have transferred jurisdiction to the Slovakian Court, and indeed could not properly do so without first conducting the final hearing of the local authority's application as it would only be then that the bests interests of the child as identified within Article 15(1) could be determined.  The Court of Appeal rejected this ground of appeal and reiterated that whenever an application for transfer is made pursuant to Article 15 then this creates a preliminary issue which must be first tried before there can be any determination of the substantive issues in the case. In this regard the judge is not required to hear oral evidence in connection with this determination not least because the judge is not considering the more general issue of the welfare of the child but only the best interests within the context of an application for transfer to a more convenient jurisdiction Thorpe LJ added that this principle applies irrespective of the nature of the application, whether commercial or family.

The third and final ground of appeal sought to argue that as the assessment of the professionals in England was the child could be harmed by being placed with his mother (which was the placement proposed by the Slovakian authorities) Mostyn J was wrong to have acceded to the transfer application as this would place the child at grave risk. Thorpe LJ rejected this ground of appeal and stated that the fundamental flaw in this submission is that it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State which is impermissible. 

Finally, Thorpe LJ endorsed the judgment of Baroness Hale in the case of Re I (A Child) [2009] UKSC 10 when considering the construction of Article 15 and the interplay between Article 15 and Article 12(3). Thorpe LJ whilst accepting that Mostyn J had misdirected himself as to the law was satisfied that this was a very minor aberration and the judge would have arrived at precisely the same conclusion if he had directed himself correctly. Hence the appeal was dismissed.

Summary by Alison Easton, barrister,  Coram Chambers



__________________________


Case no: B4/2013/0870
Neutral Citation Number: [2013] EWCA Civ 895

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY
(MR JUSTICE MOSTYN)

Royal Courts of Justice
Strand
London WC2A 2LL
Tuesday, 11 June 2013

B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE TOMLINSON


and

LORD JUSTICE BRIGGS


IN THE MATTER OF K (A CHILD)

(DAR Transcript of WordWave International Limited
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Mr Charles Prest (instructed by Howells Solicitors) appeared on behalf of the Appellant child by his Guardian. 
Mr Clive Newton QC and Ms Dawn Tighe (instructed by Parker Rhodes Hickmotts Solicitors) appeared on behalf of the First Respondent local authority.
The remaining Respondents did not appear and were not represented.

J U D G M E N T
(Approved)

Crown copyright©

LORD JUSTICE THORPE: 
1. This appeal concerns the future of TK, who was born in Rotherham in April 2012.  The parents of this little boy are Slovakians.  He is Slovakian and he was only born in this jurisdiction because his parents are young, they lead chaotic lives and they came to this jurisdiction more or less in flight from social authorities in Slovakia.  They chose Rotherham because the parents of one of them were resident here.  They are Slovakians of Romany origin.

2. The chaotic behaviour of the mother in particular led the local authority, the Rotherham Metropolitan Borough Council, to issue care proceedings on 25 May 2012, and HHJ Carr QC made an interim care order on 28 May, which has been regularly renewed ever since.

3. On 23 November 2012, Judge Carr was informed of a letter which had been received by the English Central Authority from the Slovak Central Authority registering their interest in the case, which was well founded considering that there had been prior proceedings in Slovakia and a prior placement in Slovakia before the mother ever arrived in this jurisdiction.

4. On 18 December, Judge Carr invited the Central Authority representing the Republic of Slovakia to intervene in the proceedings and directed that the case be adjourned to a hearing before Moylan J, since with the arrival of the international dimension it was clearly fit for the Family Division.

5. At the hearing before Moylan J, on 12 February he elevated the case to the High Court and adjourned to a hearing before Mostyn J on 5 March.  Mostyn J joined the Slovakian Central Authority as party to the proceedings and directed that the fixture of the local authority's care order final hearing be converted into a hearing for the determination of which was the appropriate forum to decide issues relating to the child.  In the event that the decision was England, then the care case final hearing would proceed at once, but in the event that the court determined that Slovakia was the appropriate forum, then directions would be given to that effect. 

6. Mostyn J requested information from the Slovak Central Authority as to what arrangements would be made by social and judicial authorities in the event of TK's return.  That information was provided on 8 March and there was final confirmation that Slovakia accepted the jurisdiction of England and Wales, but nevertheless sought a transfer to the Slovakian jurisdiction pursuant to Article 15 of the Regulation Brussels II Bis. 

7. Mostyn J duly heard the issue of forum on 12 March, and on the following morning delivered his written judgment.  He decided in favour of the Slovakian intervener, and made directions which are incorporated in his order of in date.  He provided essentially that the child should remain in interim care until arrangements were made for the child's departure to Slovakia, all of course on the assumption that Slovakia would accept the application for transfer of jurisdiction.

8. The judgment was challenged by TK's guardian ad litem, who filed an appellant's notice on 2 April.  In the other jurisdiction, application to the Slovak Court was lodged on 16 April.  Black J in this jurisdiction on 26 April granted permission on the first and second grounds of appeal, refusing permission on the third ground, and on 7 May, the judge in the Slovakian Court made an order which effectively provided that on return mother and child should return to the specialist unit, which had been assumed by Mostyn J on the evidence before him.  So that the effect of the order of 7 March was not only to confirm Mostyn J's assumptions, but also to make plain that the Slovakian jurisdiction had accepted the transfer.

9. The first ground of appeal which is pursued by Mr Charles Prest who represents the child TK in this court, as he did in the court below, is that the judge misdirected himself in law in concluding that in construing Article 15 of the Convention, he should adopt the approach that had been articulated in a domestic case of M v M [2006] 1 FLR 138, decided by Wilson J.
 
10. His second ground of appeal is that the judge fell into procedural error in refusing to conduct a fuller investigation into TK's welfare, and further in refusing to admit oral evidence from the Cafcass officer.

11. Mr Prest's appeal has been opposed by Mr Clive Newton QC, leading Ms Dawn Tighe.  They represent the mother.  Parties who are on the periphery of today's hearing are the local authority, who support the appellant, and the father, who supports the respondent mother.  The Slovak authority has not specifically made written submissions to this court, but it is generally agreed that it supports the respondent mother.

12. Mr Prest's assertion that the judge misdirected himself in law is hardly opposed by Mr Newton, who effectively says, yes, strictly the judge was wrong in law, but it is an immaterial misdirection since it has not affected the conclusion to which the judge came.

13. I think it is important that the argument be recorded, and our views on the argument equally recorded, since there is a dearth of authority on the proper construction of Article 15, which is a very important Article within the body of the Regulation.  It has not come for consideration by the Court of Justice of the European Community, and there is, I think, little authority in this court or in any other European appellate court that has been drawn to our attention.

14. The approach of Mostyn J is initially impeccable.  In paragraph 10 of his judgment, he cites a passage from the judgment of Munby J in the case of AB v JLB [2008] EWHC 2965 (Fam) in which he clearly states that where the court is considering an application for transfer under Article 15(1), there are three questions to be considered.  Before I cite the passage, it is important, I think, just to record in this judgment the precise terms of Article 15(1).  It is to this effect:

"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 ..."

15. Then powers are provided to stay and to transfer.  Of that, Munby J, with his customary lucidity, stated that there were three questions contained within Article 15(1) to be considered:

"i) First, it must determine whether the child has, within the meaning of Article 15(3), 'a particular connection' with the relevant other member State – here, the United Kingdom.  Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact.  For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child's nationality (see Article 15 (3)(c))?

ii) Secondly, it must consider whether the child of that other Member State 'would be better placed to hear the case, or a specific part thereof'.  This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child'.  This again involves an evaluation undertaken in the light of all the circumstances of the particular child."

16. Mostyn J then considered, in my view sensibly, to remind himself by a further quotation, this time from Munby J in Marinos v Marinos [2007] EWHC 2047 (Fam) where Munby J had cited the principle taken from a case in the Court of Justice, Hagen v Einfuhr-und Vorratsstella Gertreide (Case 49/71) [1973] 12 CMLR 23:

"Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law."

17. However, in my opinion, Mostyn J then erred when he introduced into his consideration the principles stated by Wilson J in M v M.  This is to be found in paragraph 15 and the development through to paragraph 18:

"15. On the other hand this is not exactly uncharted territory. As is well known article 15 was a culmination of a campaign by certain member states, including the United Kingdom, to include within the regulation the ability to stay a children's case in the country having substantive jurisdiction and to transfer it to a more convenient forum. It was a compromise between those states which operated a forum conveniens doctrine and those which did not. Plainly the framers of article 15 would have had in mind the principles of law used by those member states that operated the doctrine.

16. Those principles, as applied in children's cases, were succinctly summarised by Wilson J (as he then was) in M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam) [2006] 1 FLR 138 at para 6:

"But, whether the jurisdiction is statutory or inherent, the same principles apply. Counsel agree that, written in terms of the facts of this case, they are as follows:

(a) the burden is upon the father to establish that a stay of the Sunderland proceedings is appropriate;

(b) the father must show not only that England is not the natural or appropriate forum but also that South Africa is clearly the more appropriate forum;

(c) in assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses;

(d) if the court were to conclude that the South African forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and

(e) in the exercise to be conducted at (d), the welfare of the girls is an important, but not a paramount, consideration.

Authority for the first four principles derives from Spiliada Maritime Corp v Cansulex Ltd The Spiliada [1987] AC 460. Authority for the fifth derives from Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325B per Thorpe J (as he then was)."

17. These principles may be regarded as statements of the obvious and I consider it is inconceivable that the framers of the Regulation would not have had them in mind when drafting article 15. In particular it is significant that the concept of paramountcy did not find expression in the Regulation, and this of course is concordant with principle (e) above. Accordingly I do not derive any assistance in seeking to explicate article 15 from the decision of the House of Lords in Re J (A Child) [2006] 1 AC 80. This set out the principles to be applied on an application for a summary return of a child to a non-Hague country, in that case Saudi Arabia. The committee was unanimous that such an application has to be adjudicated by reference to the paramountcy principle expressed in section 1 of the Children Act 1989 although it recognised that on the particular facts of a given case the application of that principle could lead to "a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own" (see paragraph 41).

18. Accordingly it is my opinion that article 15 should be interpreted conformably with the principles in M v M set out above."

18. The adoption of M v M then figures in paragraph 24 when the judge summarises his conclusion.  What he says there is acceptable until we reach sub paragraphs (v) and (vi), where again he adopts the language of Wilson J, saying:

"v) If the court were to conclude that the other forum was clearly more appropriate, it should issue the transfer request and grant a stay unless other more potent factors were to drive the opposite result.

vi) In the exercise to be conducted at (iii) – (v), the best interests of the child is an important, but not the paramount, consideration."

19. I am in no doubt at all that this approach cannot be supported.  The construction of Article 15 must be uniform throughout the courts of the Member States.  It cannot be dominated by a domestic law approach in cases brought under the domestic jurisdiction, whether it be statutory or inherent.  The context of the issue before Wilson J and the law that he was applying are radically different to the determination of Article 15, which was hardly in being when he was sitting in the domestic case.  The Article is transparently clear.  The court cannot request a transfer unless so to do would be in the best interests of the child.  As Munby J had pointed out in AB v JLB, this is one of the three cardinal questions that has to be considered in the construction of Article 15(1).

20. That brings me at once to the second ground of appeal, which is identified by Mr Prest as procedural error rather than misdirection in law.  He asserts that Mostyn J should not have transferred jurisdiction to the Slovakian Court, and indeed could not properly do so without first conducting the final hearing of the local authority's application for a care order and placement order.  He submits that without conducting first the final hearing, the judge was precluded from addressing the third condition of Article 15(1), namely the determination of the best interests of the child.  That is to me a completely unconvincing submission.  In all cases in which an application is effectively advanced, or a stay on the basis of forum non conveniens, it is well established that that creates a preliminary issue which must be first tried before there can be any determination of the substantive issues in the case.  That holds good across the board, whether considering a commercial case or a family case involving ancillary relief or whether considering a family case involving children.

21. Mr Prest asserts that the judge was alternatively in error in refusing to hear oral evidence.  Mr Prest points to the fact that the judge was quite dismissive of the professional views advanced by the guardian as to attachment theory and child development, and if the judge was of that mind, he should at least have given the Cafcass officer, the guardian, the opportunity of going into the witness box in order to displace his preliminary impression.  That is to me an equally unconvincing submission. 

22. The judge was not considering the more general issue of the welfare of TK, but only the best interests within the context of an application for transfer to a more convenient jurisdiction.

23. Mr Prest's third submission was that the evidence of the guardian, supported entirely by the evidence of the social worker for the applicant local authority, established a picture of an extremely dangerous situation in which the child had an aversive relationship with his mother, and placement accordingly would be disastrous for the child, threatening his whole future development.  But that was precisely what the Slovakian authorities were proposing, and therefore not only were best interests not satisfied, the evidence demonstrated that there would be a grave risk of harm were the judge to accede to the transfer application.

24. Now, it seems to me that there is a fundamental flaw in that submission since it essentially seeks to elevate the professional view of experts in this jurisdiction over the professional view of experts in the jurisdiction of another Member State.  That is, in my view, impermissible.  We must take it that the child protection services and the judicial services in Slovakia are no less competent than the social and judicial services in this jurisdiction, and Mostyn J was, in my view, quite right to reject that proposal. 

25. He has essentially bounded himself on the proposition that in construing Article 15(1), the judge, in determining best interests, is determining best interests within the context of choice of jurisdiction.  He drew attention to the similarity between the language of Article 15 and the language of Article 12(3) of the Regulation, and the opinion of Baroness Hale in the case of Re I (A Child) [2009] UKSC 10.  In the course of her judgment, she said of the requirement of Article 12(3) that the jurisdiction should be in the best interests of the child:

"This question is quite different from the substantive question in the proceedings, which is 'what outcome to these proceedings will be in the best interests of the child?' It will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum. "

26. In my opinion, Mostyn J was entirely correct to direct himself to that passage in the judgment of Baroness Hale, when approaching his similar task in the construction of Article 15.

27. So, by way of conclusion, I accept that Mr Prest has demonstrated a misdirection in law, but I roundly reject his submission that there should be a remission for a fresh hearing before another court.  That is a completely unrealistic submission.  It would waste court time and public money and lead to no different conclusion. 

28. I accept Mr Newton's submission that, in effect, this was a very minor aberration from the straight and narrow, and the judge would have arrived at precisely the same conclusion had he directed himself only to the observations of Munby J and not imported into the search for the autonomous law of the Regulation, observations made by Wilson J in a domestic case some years earlier.

29. So for all of those reasons, I would dismiss this appeal.

LORD JUSTICE TOMLINSON: 
30. I agree.  I would only add that in holding that Article 15 should be given an autonomous meaning rather than one fashioned in accordance with the dictates of our own domestic law, we are approaching the construction of the Brussels II Regulation in a manner which is entirely consistent with that which is habitually adopted in relation to other similar regulations and community instruments concerned with the allocation of jurisdiction in civil and commercial disputes.

LORD JUSTICE BRIGGS: 
31. I agree with both judgments.

ORDER: Appeal dismissed