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Transfers of Proceedings under Article 15 Brussels II Revised in a Public Law Context

Oliver Jones, barrister of 4 Paper Buildings, and Maria Wright, solicitor of Freemans, analyse a series of recent judgments in which the English courts have considered whether public law children proceedings should be in this jurisdiction or abroad.

Oliver Jones, barrister, 4 Paper BuildingsMaria Wright, solicitor, Freemans

Oliver Jones, barrister, 4 Paper Buildings, and Maria Wright, solicitor, Freemans


For years, the oft-trodden path in care proceedings was to consider the international dimension only when a placement in a foreign jurisdiction was being pursued.   Rarely was proper consideration given to whether it would be best if the proceedings were heard in another jurisdiction – those sorts of arguments having been generally the preserve of private law cases.  At the prompting of the High Court and the Court of Appeal, there has been something of an awakening among practitioners and the lower tiers of the Family Court as to the need to have a proper consideration at an early stage of whether proceedings should be in this jurisdiction or abroad.

On 14 January 2014 in the case of Re E (A Child) [2014] EWHC 6 (Fam) the President of the Family Division, Sir James Munby, gave a judgment which serves to remind us that in public law proceedings we are often working in an international context. It is, Sir James said, a frequently voiced complaint that "the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries". That judgment has been followed by a series of decisions where Article 15 of Council Regulation (EC) 2201/2003 (Brussels II Revised) has been used to transfer public law proceedings concerning children to other jurisdictions within the European Union.

As was noted in Re E, and also by Mr. Justice Mostyn in the case of Re D (A Child) [2014] EWHC 3388 (Fam), we are, in the UK, almost (but not quite) alone in the sense that we have a legal system which enables children to be adopted in the absence of the consent of their parents.

The increase in awareness of jurisdictional issues in public law proceedings has coincided with a series of judgments from the Court of Appeal and the Supreme Court that have served to emphasise the draconian nature of adoption and the care that needs to be taken to consider all options before this remedy of last resort can be countenanced. It is no coincidence that these two complementary developments in public law proceedings have arisen at more or less the same time.  It is the logical extension of Re B-S [2013] EWCA Civ 1146 that part of a proper assessment of  every realistic option may in an appropriate case include an assessment of whether e authorities and courts within England and Wales are, in fact, best placed to conduct that assessment at all.

There is a difference in the approach to child protection and state intervention in family life between our law and the legal systems that exist in other European countries and beyond.  This only increases the need to ensure that decisions concerning children are taken in cognisance of the jurisdictional rules under Brussels II Revised and the 1996 Hague Convention.

In Re J (A Child: Brussels II Revised: Article 15: Practice and Procedure) [2014] EWFC 41 Mrs Justice Pauffley confirmed that which was made clear in Re E, that in every care case with a European dimension a judge must consider whether to exercise her powers under Article 15 of Brussels II Revised to request that the court of another Member State assume jurisdiction in relation to a child, in circumstances where the Article 15 criteria are met. The judgment also reiterates the previously established principle that this issue must be grappled with at the earliest possible opportunity.

This article is designed to summarise the recent cases on the operation of Article 15, in conjunction with Article 56 of the Regulation to which regard must be had when placing a child in foster care abroad.

Article 15 – practice and procedure

Under the revised Public Law Outline, the court is obliged to consider jurisdiction in a case with an international element within one day of the issue of public law proceedings.  The proforma Case Management Order now prompts courts and practitioners actively to consider jurisdiction and reflect the position in the preamble of the order.

The issue of the child's habitual residence has to be established in order to ascertain whether our Family Court has a substantive welfare jurisdiction in relation to the child in question. Where the courts of England and Wales have a substantive jurisdiction in relation to the child, but the child in question has a connection with another European Member State, the next stage is to give consideration to whether an Article 15 transfer of jurisdiction is appropriate. An application for a transfer of proceedings can be made by application of one of the parties, or of the court's own motion (provided that at least one of the parties consents to the transfer).

An application may also be made by a Member State in relation to which the child has a particular connection within the meaning of Article 15 (3). Again, at least one of the parties must consent to the transfer when the application is made in this way.

A party seeking for another Member State to assume jurisdiction, should, at the earliest opportunity, make a focussed request to the International Child Abduction and Contact Unit (ICACU) pursuant to Article 55 Brussels II Revised, requesting information about the potential for proceedings to be transferred to that Member State.  That enquiry is needed to assist the judge in arriving at a decision in answer to the three questions below (see Leicester City Council and S and Others [2014] EWHC 1575 (Fam)). Regard should be had to President's Guidance of 10 November 2014: The International Child Abduction and Contact Unit (ICACU) which suggests that the task of making the Article 55 request should usually fall to the local authority.

The judge, in considering the issue of a potential Article 15 transfer, will need to answer three questions (AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009]1 FLR 517):

1) Does the child have, within the meaning of Article 15 (3), 'a particular connection' with the relevant other Member State? This is a question of fact, and Article 15 (3) (a) – (e) contains a list of circumstances where the 'particular connection' will be established.

2) Will the court of the other Member State 'be better placed to hear the case or a specific part thereof' (Article 15 (1))? Answering this question is "an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case" (AB v JLB para 28). In conducting this evaluation, the starting point for the inquiry is the principle of comity (Re M [2014] EWCA Civ 152 per Ryder LJ para 19). The judicial and social care arrangements in other Member States are to be treated by the courts in England and Wales as being equally competent (Re T (Brussels II Revised, Art 15) [2013] EWCA Civ 895, [2014] 1 FLR 749 para 24 per Thorpe LJ).

3) Would it be in the child's best interests to transfer the proceedings? (Article 15 (1)). The best interests' inquiry is limited to the issue of forum. The relevant question is whether it in the child's best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction. This is a question which is "quite different from the substantive question in the proceedings …"  (Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 AC 319 para 36, confirmed to be the correct approach in Re M (A Child) ibid and Re T (A Child) (ibid).

If the three questions above have been answered in the positive, the court may request that the other Member State assume jurisdiction (Article 15 (1) (b)). There is a discretion over whether or not to make the request of the other Member State notwithstanding a positive answer to the three questions above; however, as Mrs. Justice Pauffley noted in Re J (ibid), confirming the comments of Munby J in AB v JLB (Brussels II Revised: Article 15) (ibid) "…since the discretion is exercisable only if the court has satisfied itself both that the other court is 'better placed' to deal with the case … and that it is in the best interests of the child to transfer the case, it is not easy to envisage circumstances where, those two conditions having been met, it would nonetheless be appropriate not to transfer the case."

Having decided that it is appropriate to request that the other Member State assume jurisdiction, the court can employ either of two alternative mechanisms for this transfer to take place. The first, and most commonly used, is that the court will transmit its request to the relevant court or authority in the other Member State. Alternatively, the court can invite the parties to introduce a request before the other Member State Article 15 (1) (b)), setting a time limit by which this request should be introduced (Article 15 (4)).

If the other Member State does not assume jurisdiction within six weeks of its seisure, or declines jurisdiction, or if the parties do not introduce the request within the time limit specified, the court first seised will continue to exercise jurisdiction as before (Article 15 (5)).

Article 56

A transfer of proceedings to another Member State may be combined with the placement of a child in that Member State. Where it is contemplated that a child may be placed in 'institutional care or with a foster family' in another Member State, Article 56 of Brussels II Revised provides that first, the Competent Authority in the other Member State must be consulted, and its consent obtained to the placement. The sole purpose of Article 56 is to require a consultation to take place before making a decision on placement of a child in another Member State (Re AB (BIIR: Care Proceedings) [2012] EWCA Civ 978, [2013] 1 FLR 168, Kent County Council v IS and Others [2014] 1 FLR 788) and for consent to that placement to be obtained. It is not a provision that reduces the obligation of the court to "arrive at its own judgment as to the child's best interests" (Re AB per Sir Stephen Sedley para 8 ibid).

The rationale behind Article 56 is that it ensures that a child's placement can be properly planned. The consultation requirement avoids a situation where a child simply arrives in a Member State on an expectation that he or she will be accommodated in foster care or institutional care, and those resources are not available or in place. Often, the placement of a child will involve government expenditure and the need for a pre-placement consultation between Member States is understandable when looked at from this perspective. 

Inevitably there is a wide variation in the way that different Member States respond to an Article 56 consultation.  If the response is terse and lacking detail, this can generate considerable practical difficulties for the social workers to make plans and prepare for moving a child to another jurisdiction and can make the court's evaluation of whether to transfer the case abroad much harder.  These practical questions need to be dealt with as early as possible because a drip-drip supply of information from abroad can translate to wasted hearings and unnecessary delays.

Practitioners need to be mindful that there are dire consequences if the necessary consent to the placement has not been obtained.  Article 23 (g) of Brussels II Revised provides that a judgment relating to parental responsibility shall not be recognised if the procedure in Article 56 has not been complied with. 

Practical Considerations

Delay in issuing proceedings

In J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45, HHJ Bellamy (sitting as a Deputy High Court Judge) was faced with a situation where the Hungarian speaking children concerned had been accommodated in an English speaking foster placement for eight months (pursuant to s.20 CA 89) before the local authority issued proceedings. This approach was not compatible with the guidance given by Mr. Justice Moylan in Leicester City Council v S & Ors where he said "where it appears that jurisdiction (including under Article 15) is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in the child's life".

Despite the general encouragement to carry out assessments and work with families before issuing care proceedings, local authorities need to realise that if there is the potential for the case to be transferred to another jurisdiction they should issue as soon as possible to allow this to happen sooner rather than later. J and E is currently under appeal, and further guidance on the point at which proceedings can be transferred under Article 15 may be forthcoming in the near future.

The legal framework for a child who is physically moving to another Member State
When a child is moving to a different Member State, there is a substantial practical issue as to how the child's placement can be secured in that Member State.  The sort of move that is planned is likely to be either:

(i) moving to a foster placement or institutional care (the Article 56 procedure having been undertaken); or

(ii) moving to a kinship placement (which does not engage Article 56 but in relation to which the order placing the child will be capable of recognition and enforcement).

Careful consideration needs to be given to the legal framework that will secure the child's placement in the period of transition upon the child's arrival in the Member State.  The fear for practitioners and courts is that the parents would be able simply to remove the child from the placement in question if there were not an enforceable order preventing this from happening in the country to which the child had moved.

In Re D [2014] EWHC 3388 (Fam) Mostyn J ordered that the children be placed in foster care in the Czech Republic (if the child's current foster carers did not seek to care for the child under a Special Guardianship Order).  Mostyn J was alive to the need to ensure that the final order made by the English court in relation to the child, placing the child abroad, was made within the correct legal framework and summarised, succinctly, the way forward. He said, at para 38:

"If the foster parents do not signify that they will seek a special guardianship order I then will turn to consider the choice of a placement with Czech foster parents. If I were to do this it could not be under a care order. It is trite law confirmed by a decision of the House of Lords that once a care order is made all subsequent decisions concerning placement of the child are delegated to the Local Authority without interference from the court. The only role the court has thereafter is in relation to contact. Therefore if I were to go down this route it would have to be outside the care proceedings; those proceedings would have to come to an end and wardship proceedings would have to be commenced. The order placing ED with Czech foster parents would be a judgment made in wardship proceedings and such a judgment would be enforceable under Articles 21 and 23 of Brussels II Revised and under Article 23 of the 1996 Hague Convention. However, the judgment could only be enforced in the Czech Republic provided that Article 56 had been complied with (see Article 23(g) of Brussels II Revised)."

If the placement of the child in the other Member State is accompanied by a transfer of jurisdiction under Article 15, and a request to transfer jurisdiction is accepted by the relevant Member State within the required period, it may be that the Member State is able immediately to assume jurisdiction in relation to the child and make an interim order which ensures that the child's placement in that Member State is secure, before the child physically moves to that Member State.

However, in practice there may be a lacuna between the child's physical move to the other Member State and the court of the other Member State, having assumed jurisdiction under Article 15, making an order to secure the child's placement there at least on an interim basis. How can this lacuna be filled?

Firstly, it is important to remember that the order made in England and Wales in relation to the child will be capable of recognition and enforcement in the Member State in question, as set out by Mostyn J in Re D (above), but that it can only be enforced once it has been declared to be enforceable there (see Article 28 (1) Brussels II Revised).  This is known as the exequatur procedure.  Article 33 (5) of Brussels II Revised provides that a party may appeal against a declaration of enforceability within one month of notification of the fact that it has been declared to be enforceable (two months where parties are resident in other Member States) and at first sight this suggests that there could be a delay in securing the practical enforcement of an order effecting the child's placement.

However, the CJEU's judgment in Health Services Executive v SC and AC (Case C-92/12) confirmed that an application for a declaration of enforceability "must be taken with particular expedition, and appeals brought against such a decision of the court of the requested Member State must not have a suspensive effect" (para 129). The result of this decision in England and Wales has been an amendment to the Family Procedure Rules which provides that orders can be enforced on an interim basis once they have been declared to be enforceable here (registered for enforcement) where this is necessary to secure a child's welfare (FPR 31.7 (1A).  It may be that the Member State in question has a mechanism for interim enforcement of the order securing the child's placement.

If the child is moving before the proceedings have actually been transferred, Article 20 of Brussels II Revised could be used by the other Member State to bridge the gap pending the assumption of substantive jurisdiction under Article 15 or the order made in England being declared enforceable or enforced on an interim basis.  This route was used by Baker J in HSE Ireland v SF (a minor) [2012] EWHC 1640 (Fam).

An alternative would be for the proceedings to be transferred only once the child has physically moved, or for only part of the proceedings to be transferred, the court of the child's (former) habitual residence retaining a limited jurisdiction to supervise the child's physical move. This ensures that the court that has dealt with the case can exercise a supervisory jurisdiction over the move, and then the remainder of the proceedings can be transferred once the child is safe and in placement.

It will not be permissible to circumscribe how the Member State to which the child is moving exercises jurisdiction in relation to the child. In practice, judicial liaison is likely to form an important part of finalising the arrangements for the child's physical move, and the transfer of proceedings (see, for example, Re L-M (Transfer of Proceedings) [2013] EWHC 646 (Fam) Cobb J).  However the difficulty created by the exequatur procedure in a child protection context has been noted by the European Commission.  In the Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on Brussels II Revised the Commission recognised as a practical difficulty with the application of the Regulation that the exequatur procedure applies where a child is being placed in another Member State pursuant to Article 56. The Commission said:

"The CJEU has confirmed that a placement judgment must be, before it can be enforced in the host Member State, declared enforceable in that Member State. One of the grounds that can be opposed against a declaration of enforceability of a decision placing a child in another Member State is the failure to respect the procedure laid down in Article 56 of the Regulation so as to avoid the imposition of the placement measure on the host State. In order not to deprive the Regulation of its effectiveness, the CJEU added that the decision on the application for a declaration of enforceability must be made with particular expedition and that appeals brought against that decision will not have a suspensive effect. Notwithstanding these observations, the application of the exequatur procedure to placement decisions has been reported by experts to be very cumbersome in view of the child's needs. The application of a common, uniform procedure that enables a swifter and more efficient application of the provisions on the placement of a child in another Member State could thus be explored as a means to overcome the reported problems."

The problem is that until a common uniform procedure is established, the security of the legal framework for the child who is physically moving to another jurisdiction, and the timing of transfer of proceedings, will be a matter that requires detailed consideration.