Hannah Markham deals with the vexed issues of jurisdiction and transferring care cases between countries.
We often see trends in care cases. Arguably the current one is the question as to whether there should be an article 15 transfer of the case. In an age of freedom of movement across Europe, and with more people leaving their home countries to seek work elsewhere in the Union, it is now commonplace to find parents from different non-English countries finding themselves caught up in care cases.
The President, Sir James Munby, made it plain in Re E (A Child)  EWHC 6 (Fam) that the question of jurisdiction is one which needs to be addressed at the earliest opportunity in each cases where it is likely to be an issue.
What is Article 15?
Art 15(1) is found in the Council Regulation (EC) No 2201/2003 ‘concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility’ [Brussels II Revised or B2R]. It governs the transfer of a case from one member state to another. It provides:
“1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
Do note that a transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility...
This means that the courts need to consider whether the question of the child’s long term care and questions as to whether their parents can care for them is better answered in another jurisdiction.
The Convention goes on to say that the court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
The courts of that other Member State may, where this is in the best interests of the child due to the specific circumstances of the case, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to article 53.
This means that if England is the court first seised it shall consider whether it should ask another court within a member state (within Brussels II) to consider accepting jurisdiction. If the other court does accept jurisdiction there is a tight time limit on its consideration and acceptance of the case. If it satisfies that then jurisdiction transfers to it.
The lead cases from which the recent principles have been identified are:
Re E (A Child) (2014)  EWHC 6 Fam Div (Sir James Munby (President Fam)) 14/01/2014 ; and
Nottingham City Council v (1) LM (2) SD (3) M (A Child) (By His Children's Guardian) (2014)  EWCA Civ 152 CA (Civ Div) (Sir James Munby (President Fam), Lewison LJ, Ryder LJ) 21/02/20141.
In each of those cases the English courts identified the following three core questions as being central to the approach courts must take when analysing the information and considering whether a transfer is right in all the circumstances of any given case. These are:
- Does the child have a particular connection with X Member state, as defined by Article 15(3)?
- Are the courts of X member state better placed to hear the case?
- Is a transfer to the courts of X member state in the best interests of the child?
It is these questions which lead the analysis of the facts in the case. Argument for and against transfer should be set within the confines of these questions.
Communication between the member states is of vital importance and mistakes in this can cause delay. In Leicester City Council v S  EWHC 1575 (Fam), a case in which I recently represented the mother seeking a transfer to Hungary, Moylan J set out guidance to assist local authorities in notifying other members states and looking at communicating the Article 15 issue. The courts should communicate through the Central Authorities designated by virtue of Article 53, not directly to embassies or Consulates (although notice of proceedings can be provided via the latter route). He emphasized (at paragraph 15 of the judgment) that:
(i) the agency given primary responsibility for cooperation under Chapter 4 of BIIR is the Central Authority;
(ii) Embassies and consular officials are given no role in BIIR (or the 1996 Convention) and should not be used as proxies for central authorities; and
(iii) Article 55 relates to the provision of information.
It is of note too that if the court does decide to invite a court of another member state to take jurisdiction, the courts in England and Wales do not have jurisdiction to make any other decisions concerning the child from the date that the other member state accepts jurisdiction. The timescales are as follows:
Articles 15(4) and 15(5) of BIIR provide as follows:
“4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept juridiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.”
The only jurisdiction is the residual and protective jurisdiction under Article 20 of BIIR to secure the transfer of the child to the new member state, with the ICO continuing for that purpose. Upon the child leaving this jurisdiction the ICO and any protective jurisdiction would fall away.
In short, this means that if England asks another country -- for these purposes let us say Hungary -- to consider accepting jurisdiction of a child in foster care, and Hungary, within the time scales set by the English court, accepts jurisdiction, nothing more about the child or assessments of the parents or family members can occur in England. All the court can do is to manage the move of the child from a foster placement in England to a foster placement in Hungary. If an urgent medical situation arises, England can use its residual powers under Article 20, if that becomes necessary. Whilst it is open for any party to raise the question of a transfer at an early stage, the local authority ought properly to consider the question, and at any stage any party can ask the court to consider the issue. Note however, that delay could bring about a different answer to the question of transfer within the application of facts to the three questions set out above. Usually the issue could be dealt with by a High Court judge, but under the new 2014 Act a district judge can consider this issue instead.