Re N (Children) [2016] UKSC 15

Two Hungarian children born and living in England became subject to care proceedings. The Supreme Court considered whether the case should be transferred to Hungary under Article 15 of Brussels IIa. It allowed the appeal, holding the transfer request should be set aside.

Facts

The case concerned two young girls, Janetta (aged four years and two months) and Ella (aged two years and 11 months), both born in England to Hungarian parents of Roma or mixed Hungarian-Roma descent. The children had lived their entire lives in England but were Hungarian nationals. Following Ella’s birth in May 2013 in circumstances of extreme squalor with no medical attention, both children were removed from their parents and placed with foster carers, where they had since remained and were thriving.

Care proceedings were issued in January 2014. The mother applied under Article 15 of Council Regulation (EC) No 2201/2003 (Brussels IIa) for the case to be transferred to Hungary. The Hungarian Central Authority (HCA) consistently maintained that only Hungarian authorities had the right to adopt Hungarian citizens and proposed foster placement in Hungary. The local authority’s final care plan, supported by the Children’s Guardian, was for adoption by the current foster parents.

His Honour Judge Bellamy, sitting as a Deputy High Court Judge, having heard all the evidence, granted the Article 15 transfer in November 2014. The Court of Appeal dismissed the appeal. The Children’s Guardian, supported by the local authority, appealed to the Supreme Court.

Issues

The principal issues were:

• The proper approach to the assessment of the child’s best interests in the context of an Article 15 transfer application, and whether this was limited to questions of forum or could include the consequences of transfer for the child;
• Whether the judge was correct to find that the Hungarian court was “better placed” when he had heard all the evidence and could give a final judgment;
• Whether the Court of Appeal was correct to stay the placement order proceedings (which fall outside the Regulation) as consequential on staying the care proceedings;
• Whether a reference to the CJEU was required given the pending Irish reference in Child and Family Agency v JD (Case C-428/15).

Arguments

The appellants (Children’s Guardian and local authority) argued that the judge wrongly adopted an “attenuated” welfare test, excluding consideration of the consequences for the children of removal from their long-term placement. They contended that the “best interests” requirement in Article 15.1 was a distinct and additional safeguard requiring proper evaluation of the impact of transfer on the children.

The parents resisted the appeal, supported (by letter) by the HCA, which reiterated that only Hungarian authorities had the right to adopt Hungarian citizens and that placement in Hungary would preserve family connections.

Judgment

Lady Hale (with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agreed) allowed the appeal and set aside the transfer request.

The proper approach to Article 15.1

The Court held that Article 15.1 poses three separate questions: (i) does the child have a particular connection with another member state; (ii) would a court in that state be better placed to hear the case; and (iii) would transfer be in the best interests of the child. The “better placed” and “best interests” questions are separate and must be addressed separately; the second does not inexorably follow from the first.

Lady Hale clarified her earlier observation in In re I, noting that case concerned Article 12 (prorogation of jurisdiction), not Article 15. The “best interests” question under Article 15.1 was intended by the European legislator as an “additional safeguard” for the child. Recital 33 and Article 24 of the Charter of Fundamental Rights required the Regulation to be interpreted consistently with the child’s best interests as a primary consideration.

While the distinction between deciding the transfer question and deciding the substantive outcome remained valid, it was wrong to describe the inquiry as “attenuated”. The court could and should consider the short and long-term consequences of transfer for the child, including its immediate consequences and impact on the choices available to the deciding court.

Application to the facts

The judge had erred in treating the best interests conclusion as inexorably following from the “better placed” finding. He had failed to consider that transfer would remove the children from the only home Ella had ever known and would rule out the option of long-term placement with their current carers. He had also erred on the “better placed” question by not considering that the English court could itself achieve placement in Hungary through various means (including the inherent jurisdiction or section 8 Children Act 1989 orders), and by failing to recognise that, having heard all the evidence and being in a position to decide the outcome, it would be rare for another court to be better placed.

Placement order proceedings

Although Article 15 does not apply to placement order proceedings, the Court of Appeal had power under the Family Procedure Rules 2010 (rule 4.1(3)(g)) to stay them as consequential on the care proceedings. Had the transfer been properly ordered, the stay would have been appropriate.

CJEU reference

The Court held that the meaning of Article 15.1 was acte clair, albeit not yet éclairé, and that no reference was required. The case had already taken too long and the children’s interests demanded prompt resolution.

Implications

The decision clarifies that the “best interests” test under Article 15.1 is a substantive and distinct safeguard, not an attenuated welfare evaluation that simply follows from the “better placed” finding. Courts must separately consider the immediate and longer-term consequences of transfer, including the impact on the child’s existing placement and the range of outcomes available to each court.

The judgment also signals that where an English court has heard all the evidence and is in a position to decide the case, it will rarely be appropriate to transfer the proceedings under Article 15. Lady Hale further indicated that the English court has flexible tools (including the inherent jurisdiction and section 8 orders) to achieve placements abroad without transferring jurisdiction.

The Court recognised the European concerns about “forced adoption” in England and Wales but reaffirmed that the Regulation operates on mutual respect and trust between member states. At the rehearing, the trial judge would need to consider the full range of outcomes – not merely closed adoption versus foster placement in Hungary – and pay close attention to the children’s national, cultural, linguistic and ethnic background, the principle that non-consensual adoption is a last resort, and the risk of a “limping” adoption order not recognised in Hungary.

The decision is significant for practitioners in public law children’s cases with a European dimension. It moderates the trend, identified by the Family Rights Group, towards transferring decision-making abroad, while preserving the obligation to consider Article 15 at the earliest opportunity. It matters to local authorities, children’s guardians, family practitioners, and to children whose futures may be affected by jurisdictional decisions in cross-border care cases.

Verdict: Appeal allowed; the Article 15 transfer request was set aside, and the case was remitted to the Family Division of the High Court to determine the children’s future as soon as possible.

Source: Re N (Children) [2016] UKSC 15