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Home > Judgments

Dorset Council v E (Article 15 BIIR) (Rev 1) [2019] EWFC 35

A request by the Slovakian Central Authority (SCA) to transfer proceedings to the Slovakian courts pursuant to Article 15 of Brussels II Revised Regulation (BIIR) was refused by His Honour Judge Dancey sitting as a section 9 judge, primarily on the basis of the children being settled in their foster placement in England, the need for a fact-finding and police investigation here, and the ability through Member State cooperation to undertake assessments of the wider family in Slovakia.

Background
The case concerns a family in which all adults and children were born in Slovakia, except the eldest daughter who is approximately age 8, who was born in England. The eldest boy, approximately 9 years old, currently lives in Slovakia with his maternal grandfather. The other children are 7 and 2 years old. All three children who are living in England speak English very well. The mother speaks Slovak and some Roma. She identifies with the Slovak Roma community.

In 2016, the family went through care proceedings in Kent. The reasons for Kent bringing care proceedings centred around neglect, physical and sexual abuse of the mother by the children's father, and non-accidental injury to the then 5-year-old younger son. These were set out thoroughly in Theis J's judgment, which made findings, and are repeated in this judgment. In those proceedings, Theis J concluded that the children concerned were not habitually resident in England and Wales. The children returned to Slovakia and were placed in institutional care pending assessments and proceedings there. The Slovak court gave judgment in October 2017, returning the children to their mother's care and not mentioning the judgment or findings of Theis J.

The family moved again to England in March 2018 with a settled intention to remain here. A video came to light showing the mother assaulting her eldest daughter, who was approximately 8 years old at the time. The children were removed on 15 March 2019 under police protection and the LA initiated investigations.

At a hearing on 26 March 2019, HHJ Dancey sitting as a section 9 judge made a declaration by agreement that the court has jurisdiction based on the children's habitual residence being here. At a hearing in mid-May 2019, the court heard submissions from the parties, all of whom agreed that he children were habitually resident in England. The court also read full written submissions by the Head of the Centre for the International Protection of Children and Youth of SCA, who had requested to transfer proceedings to the Slovakian courts pursuant to Article 15 of BIIIR. HHJ Dancey reserved judgment until late May 2019.

The Law
The general rule under Article 8(1) Council Regulation (EC) No 2201/2203 (BIIR) is that jurisdiction lies with the courts of the Member State in which the child is habitually resident. An exception may arise under article 15 if at least one party accepts that another Member State (where the child has a particular connection) would be better placed to hear the case, or a specific part thereof, and if this is in the interests of the children. The interests of the children in this context is "a different question from what eventual outcome to the case will be in the child's best interests" as stated by Baroness Hale in Re N (Children) (Adoption: Jurisdiction) (AIRE Centre Intervening) [2016] UKSC 15 (para 44). Because Article 15 envisages transfer of all or part of the proceedings, it is open to the court to deal with fact-finding and then transfer for assessment and evaluation, as Theis J did in Re MP (Fact-finding hearing: Care Proceedings: Art 15) [2013] EWHC 2063 (Fam).

Conclusion
All parties agreed that the children had a particular connection to Slovakia. The SCA argued that the Slovakian courts were better placed to hear the case and it would be in the interests of the children. The mother accepted the SCA arguments. The LA and guardian opposed transfer. The court refused the request, primarily on the basis of the children being settled in their foster placement in England, the need for a fact-finding and police investigation here, and the ability through Member State cooperation to undertake assessments of the wider family in Slovakia.


Summary by Lauren Suding, barrister, Field Court Chambers.

Full judgment on BAILII Dorset Council v E (Article 15 BIIR) (Rev 1) [2019] EWFC 35