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Best Interests and Transfers of Proceedings under Article 15 Brussels II Revised in a Public Law Context – Where are we now?

Maria Wright, PhD Student at the University of Bristol, addresses how courts must now approach Article 15 transfers of public law proceedings in the light of CJEU and Supreme Court judgments.

Maria Wright, PhD Student at the University of Bristol and Solicitor (Non-practising)

In March 2015, I wrote an article with Oliver Jones that attempted to get to grips with the rapidly growing jurisprudence in relation to transfers of public law proceedings to other Member States of the European Union pursuant to Article 15 Brussels IIa.

Much of the case law referred to in that article has now been eclipsed by the judgment of the Supreme Court j in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening) [2016] UKSC 15, [2017] A.C. 167, and that of the CJEU in Child and Family Agency v D (R intervening) (Case C 428/15), [2017] 2 WLR 949.

By way of an update, I will therefore deal with the question of how courts must now approach the question of Article 15 transfers of public law proceedings in the light of the CJEU and Supreme Court judgments.

Article 15 of Brussels IIa – the previous position
Article 15 of Brussels IIa allows a court to request that the courts of another Member State assume jurisdiction in relation to the whole or part of a case, where that court would be 'better placed' to hear the case, and where this is in the 'best interests of the child'.

Starting with the judgment of Mr. Justice Mostyn in Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] EWHC 521 (Fam), [2013] 2 WLR 1263, a line of authority developed prior to the Supreme Court's judgment in Re N which suggested that the assessment of best interests pursuant to Article 15 involved an 'attenuated' welfare enquiry, limited to the issue of forum and without a 'profound investigation of the child's situation and upbringing' (Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) para 24 (vii)).^{1 2}  

The reality of an outgoing Article 15 transfer is that it will often entail the physical moving of the child in question to the requested Member State (Re CK (Children) [2015] EWHC 2666 (Fam)).

However, the 'attenuated' approach to welfare led to a resistance to considering, in any meaningful way, what the transfer of jurisdiction would mean for the subject child. Would they be moved from their current placement and how would that affect them? What circumstances would meet them in the requested Member State? What was going to happen to them in the short-term and the long-term, and would those arrangements be in their best interests or contrary to them? These kinds of considerations risked, so that approach suggested, trespassing into the 'quite different' substantive welfare question of the right outcome for the subject child (Nottingham City Council v LM and others [2014] EWCA Civ 152, [2014] WLR (D) 092, [54] (Munby P)).

When the case of Re N was considered at first instance, HHJ Bellamy decided to request pursuant to Article 15 that the Hungarian court assume jurisdiction in relation to the case. In the context of the 'attenuated' welfare inquiry he declined to take into account the fact that transfer would entail the removal of the children from their current, settled placement in England into the unfamiliar environment of foster care in Hungary (Re J and E (Children) (Brussels II Revised: Article 15) [2014] EWFC 45) [94]. The children's Guardian appealed, but the Court of Appeal upheld HHJ Bellamy's approach and endorsed the attenuated welfare test as the correct approach to Article 15 Brussels IIa. The Guardian appealed to the Supreme Court.

The Supreme Court's judgment in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening)
The Supreme Court allowed the appeal. Lady Hale, giving the judgment of the court, rejected the notion that the best interests inquiry in the context of an Article 15 transfer should be narrow or 'attenuated', but at the same time confirmed that the focus of the best interests inquiry is on the impact of transfer not the eventual outcome for the child.

When looking at the factors that the court should consider when deciding whether it is in a child's best interests to transfer jurisdiction to another Member State, Lady Hale said, at [44]

"…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 interest for the case to be transferred to the requested court."

The court decided that the first instance judge was wrong to decide that the Hungarian court was better placed to hear the case without considering:

• That the short-term consequence of the transfer was the removal of the children from their settled placement in England where they had lived for some time, to a foster placement that they did not know in an unfamiliar country with an unfamiliar language;
• That the long-term consequence would be to "rule out one possible option for their future…remaining in their present home on a long term legally sanctioned basis, whether through adoption, or through a special guardianship order, or through an ordinary residence order" [45].

So when deciding whether or not to request that the courts of another Member State assume jurisdiction on behalf of the child, the court should consider the impact of transfer – or non-transfer – on the child, in both the short and long term.

Child and Family Agency v D (R intervening) (Case C 428/15); [2017] 2 WLR 949
On a reference for a preliminary ruling from the Irish Supreme Court, the CJEU was asked, inter alia, how the concepts of 'better placed' and 'best interests' in Article 15 were to be interpreted and how they related to each other.

The CJEU said:

• Article 15 (1) is a "special rule of jurisdiction" which "must be interpreted strictly" [48]. It is a derogation from the general rule of jurisdiction under Article 8(1) of Brussels IIa, which provides that jurisdiction will lie in the first instance in the Member State of the child's habitual residence. The 'criterion of proximity' (Recital 12 Brussels IIa) is a way of ensuring that the best interests of the child are considered when determining issues of jurisdiction.
• If a court is going to seek an Article 15 transfer of jurisdiction, it has to be able to rebut the "strong presumption" in favour of jurisdiction remaining in the State of the child's habitual residence [49].
• Article 15 (3) contains an exhaustive list of factors which can indicate proximity with another Member State (or a 'particular connection' – Article 15(1).
• The existence of one or more of the Article 15(3) factors does not in itself indicate that the courts of another Member State would be 'better placed' to hear the case. The court with jurisdiction has to make an assessment of whether transferring the case would give a "genuine and specific added value, with respect to the decision to be taken in relation to the child' compared to the case remaining where it is" [57].
• In deciding whether the requested court is 'better placed' to hear the case, the court with jurisdiction should not take into consideration the substantive law of the requested state. Considering the law of the requested Member State would offend against the principles of mutual recognition of judgments and mutual trust between Member State which forms the basis of the Regulation.
• When considering whether transfer will be in the 'best interests' of the child, the court must be satisfied that transfer is "not liable to be detrimental to the situation of the child' [58]. The court must 'assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child's material situation" [59].

What can we take from the Supreme Court and CJEU judgments?
Taken together the two judgments can provide some guidance on how courts will now approach Article 15 transfers. The following might be drawn from the judgments:

• The question of whether a court is 'better placed' to determine the case is a separate question to whether it is in a child's 'best interests' for jurisdiction to be transferred to another Member State (Re N para [43]; Child and Family Agency v D (R intervening) [61]).
• Article 15 operates as an exception to the general rule of jurisdiction under Article 8 of the Regulation which places substantive jurisdiction in the Member State of the child's habitual residence. Jurisdiction is shaped by the best interests of the child, and in particular the criterion of proximity (Recital 12 Brussels IIa).
• The Supreme Court was somewhat equivocal about whether Article 15 was to be deployed only in 'exceptional circumstances' (Re N [40]). However, the CJEU have said that as it operates as an exception to the general rule of jurisdiction it "must be interpreted strictly" (Child and Family Agency v D (R intervening) [48].
• The existence of one of the Article 15(3) factors does not in itself suggest that another court would be 'better placed'; there has to be some "genuine and specific added value" for the child in the case being transferred (Child and Family Agency v D (R intervening) [57].
• When deciding the 'better placed' question the court can consider, inter alia, "the rules of procedure" applicable in that Member State e.g. for the taking of evidence, but must not consider the substantive law of that Member State (Child and Family Agency v D (R intervening) [57].
• When deciding whether it is in a child's 'best interests' for jurisdiction to be transferred, the court should evaluate the impact of transferring jurisdiction upon the child, as well as the impact of not transferring jurisdiction (Re N para [45]). The court should be satisfied that transfer is not detrimental to the 'situation of the child' (Child and Family Agency v D (R intervening) [61]. The court should consider the "short and long term" consequences for the child of transferring jurisdiction – and of not transferring jurisdiction (Re N [45]).

What is problematic in the Supreme Court's judgment in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening)?
In evaluating the 'long-term' consequences of the transfer of jurisdiction upon the child in the context of the Article 15 best interests evaluation, Lady Hale said that the first instance judge should have considered the "impact upon the choices available to the court in deciding the eventual outcome" [45] (emphasis added). She specifically noted that the long term consequence of transferring the proceedings in the case under appeal was to rule out an outcome which professionals agreed was the right one for them. 

At the same time, Lady Hale emphasised at [44] that the focus of the best interests enquiry was on the impact of transfer – not "what eventual outcome to the case will be in the child's best interests." [44].

Two questions arise from this aspect of the judgment.

Firstly, is there a risk of trespassing into an evaluation of the substantive law of the requested Member State? Is there an incompatibility with the CJEU's judgment in Child and Family Agency v D (R intervening) which specifically prohibited an evaluation of the substantive law of the requested state, albeit in the context of an evaluation of which court is 'better placed' to determine the case?

It is difficult to see how a court can evaluate the long-term consequences of transferring proceedings to another Member State from a child's perspective – and the 'choices available to the court' if jurisdiction is transferred – without looking at what those choices are. 

Inherent in such a comparison is a value judgment shaped by the legal culture surrounding child protection law in England and Wales. For example, will the child lose the opportunity, of the 'security and permanence'³ of an adoptive placement if jurisdiction is transferred to a Member State which will not consider adoption as an outcome for the child? Framing the question in this way offends against the principle of mutual trust which underpins Brussels IIa and risks trespassing into an ethnocentric evaluation of the legal system of the requested State.

Secondly, Lady Hale specifically said that it would not be in the children's best interests for proceedings to be transferred to a court which was unable to consider an outcome for the children "which those professionals with the closest knowledge of the case and the children now consider would be best for them" [45] – i.e. the making of an adoption order in favour of their foster carers. The line between this conclusion, and a conclusion about what is ultimately in the children's best interests in terms of 'eventual outcome' is very fine indeed.

However, for the subject children in Re N, Lady Hale emphasised that transferring jurisdiction to Hungary would entail the loss of their placement in England and Wales and would likely mean that they would not have the opportunity of remaining in that placement pursuant to an adoption order.

The focus on the placement rather than the legal outcome shifts the focus away from a value-laden comparison of the legal system of the requested Member State.  It is also consistent with the CJEU's focus on the disadvantages to the subject child of the transfer, with reference to the "familial, social and emotional attachments of the child concerned in the case or on that child's material situation" [59].

The CJEU was asked to give a preliminary ruling on the interpretation of 'better placed' and 'best interests' pursuant to Article 15 Brussels IIa using the procedure in Article 267 TFEU of the Treaty on the Functioning of the European Union and the CJEU's judgment is therefore authoritative on this point. I would suggest therefore that this requires the courts to treat Article 15 as an exceptional provision, and refrain from conducting a comparison of the substantive law between Member States in the context of an Article 15 transfer.

Conclusion
What these judgments show to us is a remarkable evolution in the use of Article 15 of Brussels IIa. It went from being a provision barely considered in public law cases prior to 2012, notwithstanding that Brussels IIa had been in force since March 2005. Following Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, it was to be considered in every public law case with a European dimension. The Family Rights Group, in their intervention to the Supreme Court in Re N, astutely commented on the 'remarkable proliferation' of case law on Article 15 Brussels IIa – and further – as reflected at para [2]:

"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."⁴

The CJEU's judgment has perhaps brought the jurisprudence full circle, back to a position where the courts of England and Wales will be more reluctant to transfer proceedings to another Member State pursuant to Article 15 Brussels IIa.

Are these judgments going to matter upon the UK leaving the European Union?

Irrespective of what happens to Brussels IIa following Brexit, the 1996 Hague Child Protection Convention applies between all Member States of the European Union. A question still remains about the interplay between Brussels IIa and the 1996 Hague Convention where a child is habitually resident in a Member State (see Article 61 Brussels IIa), but nonetheless the courts are likely to look to authorities on Article 15 transfers when applying the similar provision in Article 8 and 9 of the 1996 Hague Convention.
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Footnotes:
[1]  See also K (A Child) [2013] EWCA Civ 895, [2014] 2 WLR 1204; Nottingham City Council v LM and others [2014] EWCA Civ 152, [2014] WLR (D) 092; Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 2 WLR 713.
[2]  The concept of the 'attenuated' welfare inquiry was derived from Lady Hale's judgment in Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 AC 319, to be applied when considering whether to accept a prorogation of jurisdiction under Article 12 Brussels IIa.
[3]  Adoption is often described as a favourable outcome in these terms. See for example Caroline Thomas 'Adoption for looked after children: messages from research' (2013) British Association for Adoption & Fostering.
[4]  Norfolk County Council v VE and others [2015] EWFC 30 (Fam) is an example of a case where an unnecessary Article 15 transfer was considered when in fact the proceedings could have been concluded by way of a Child Arrangements Order capable of recognition and enforcement in Lithuania under Brussels IIa. 

9/8/17

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