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No child transfer to the EU under Article 15 BIIR without a best interests analysis of its effects on the child.

Roger McCarthy QC and Mark Twomey, barrister, of Coram Chambers address the central point of the Supreme Court's judgment in Re N (Children) [2016] UKSC 15

Roger McCarthy QC, Coram ChambersMark Twomey, barrister, Coram Chambers

Roger McCarthy QC
and Mark Twomey, barrister, Coram Chambers

This is a short and speedy article which does not deal with the facts of the case or all of the issues. It is intended to point those with an interest in Brussels II Revised (Regulation (EC) 2201 of 2003) in the right direction. It deals with the central point of the Supreme Court decision in Re N (Children) [2016] UKSC 15 (13th April 2016).

Should lawyers distrust simplicity? Thankfully the Supreme Court's answer in this case is no. As Sir James Munby P had already pointed out in Re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152 the language of Article 15 was clear and simple.

Arguments about whether children should be transferred between EU states in parental responsibility cases depend on the meaning and application of the words "a particular connection", "better placed to hear the case" and "in the best interests of the child" (Article 15.1 BIIR). Each of these three phrases is readily understood. A "particular connection" is defined in Article 15. "Better placed to hear the case" is a matter of practical evaluation. "In the best interests of the child" should be self-explanatory so long as it is understood to mean that the transfer must be in the best interests of the child.

But the courts have not followed a clear and simple approach and for the last 3 years and have narrowed the effect of the words "in the best interests of the child" so that they have referred only to forum issues.

This erroneous approach has grown up around the view that the words of Lady Hale in Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10; [2010] 1 AC 319 [para. 31] that the best interests task for the judge "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" apply to Article 15.1 decisions just as much as they do to Article 12.3 decisions.

This case law (including judges at all levels) has to date diluted the meaning of best interests in Article 15 so that it has become little more than a repetition of "better placed to hear the case".

The diluted approach has frequently been labelled as the "attenuated welfare test" since Mostyn J used this expression In re T (A child: Article 15, Brussels II Revised) [2013] EWHC 521 (Fam); [2013] 2 FLR 909, para 21). The very fact that the attenuated label has been in common usage has provided a hint to the defect of the approach; "attenuated" is shown in various Oxford dictionaries to mean "weakened".

As befits a judgment of the Supreme Court on the meaning of simple words, the explanation of why "in the best interests of the child" actually means "in the best interests of the child" is straightforward and to the point. The only contextual limitation of Article 15.1 "best interests" is that it refers to the best interests consequences of a transfer to another EU member state. The only factual limitation is that the relevant facts must relate to transfer consequences. There is no specific limitation of how much factual detail is relevant (although it must not be as searching as a final hearing best interests evaluation).

The key paragraph in the Supreme Court's judgment is 44:-

"The question remains, what is encompassed in the "best interests" requirement? The distinction drawn in In re I remains valid. 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. The focus of the inquiry is different, but it is wrong to call it "attenuated". The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child's welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests. It is deciding whether it is in the child's best interests for the court currently seised of the case to retain it or whether it is in the child's best interests for the case to be transferred to the requested court."

There is nothing in the Supreme Court judgment that supports the President's view in the Court of Appeal that best interests can be dealt with as a summary point on the basis of which side has "the best of the argument". There is nothing in the Supreme Court judgment that supports the view that the court must take the Article 15.1 point themselves even if none of the parties wishes to (but the judgment does not make an adverse comment on the judicial emphasis on the need to be proactive).

There has been repeated judicial emphasis in the English courts on the need to avoid a "chauvinistic" approach to EU member state systems. "Chauvinism" has been applied as though it prevented the English court  from taking account of different EU treatments of an interim issue. But it does not. The dictionary definition of chauvinism is "exaggerated or aggressive patriotism" or "excessive or prejudiced support or loyalty for one's own cause, group..".

But the Supreme Court does not support a view that the English court should ignore information showing that an EU member state will disregard a key best interests factor. Paragraph 4 of the Supreme Court judgment includes the following:

 "As the Practice Guide for the application of the Brussels IIa 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."

There was a stark contrast in the present case between chauvinism and disregard of relevant EU member state information; the evidence in the case showed that the other EU state would not pay regard to the need to preserve the children in their current placement pending a final decision.