Laura Hibberd writes on: Supreme Court grants Guardian’s appeal, ruling public law proceedings should not be transferred to Hungary



This is a decision of the Supreme Court chiefly regarding the interpretation and application of Article 15 of the Brussels II revised Regulation (“the Regulation”). Under Article 8(1) of Council Regulation (EC) No 2201/2003, which deals with jurisdiction and the recognition and enforcement of judgments in matrimonial matters and parental responsibility (known as ‘Brussels II Revised’), the primary rule is that jurisdiction lies with the courts of the Member State where the child is habitually resident. The exception to this rule can be found in Article 15, which permits the transfer of certain proceedings to a court in another Member State if it is ‘better placed’ to hear the case and this would be in the best interests of the child – the issue to which the Supreme Court concerned itself.

This case involved two young girls, both born in England to Hungarian parents, who became the subject of Public Care Proceedings in January 2014. The Local Authority made enquiries regarding the availability and suitability of family members in Hungary. It had contacted the Hungarian Central Authority (“HCA”), who proposed the Hungarian authorities bring the children back to Hungary as they were Hungarian citizens and, if adopted, only the Hungarian authorities have the right to adopt Hungarian citizen minors. The HCA did not waver from the latter position [6-9].

At the High Court the mother (supported by the HCA) successfully applied for the transfer of the proceedings under Article 15. The Children’s Guardian and Local Authority appealed this decision, which was dismissed by the Court of Appeal. The Children’s Guardian then appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal, setting aside the request for a transfer of the proceedings to Hungary and returning the case to the High Court, with Lady Hale giving the only judgment. The Supreme Court also held it was not necessary for it to make a reference to the Court of Justice of the European Union, particularly as the Supreme Court of Ireland has already referred a case which considers essentially the same question and the delay of waiting for the outcome of the Irish or potential UK referral was not in the interests of the children.

The argument before the Supreme Court focussed on the nature of the ‘best interests’ evaluation under article 15.1, particularly whether it is limited to questions relevant to the choice of forum [36]. In the judgment, reference was briefly made to the approach of Member States to the assessment of ‘best interest. Said assessment “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” (Practice Guide for the application of the Brussels IIa Regulation, p 35, para 3.3.3)”. Lady Hale commented that “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” [4].

Turning to the interpretation of Article 15, Lady Hale shared the view of Sir James Munby P that the language of Article 15 was clear and simple (Re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152). Although a variety of factors will be relevant both to the question of whether a court is ‘better placed’ to hear the proceedings and of whether transfer is in the ‘best interests’ of the child, the Supreme Court confirmed that these are separate questions and must be addressed separately [43].

The question of what is encompassed in the ‘best interests’ requirement was interpreted as whether the transfer is in the child’s best interests – a different question from what the eventual outcome to the case will be in the child’s best interests [44]. Therefore, the judge was seen as wrong to accept that that Hungarian court was better placed to her the case that it would be in the bests interests of the children to transfer it. He ought to have addressed the short and long term consequences of both doing so and not doing so [45-49]. Furthermore, the judge had heard and read all the evidence and was in a position to decide the outcome. The case having reached such a point, it would be “rare indeed” that another court would be better placed to hear it [50].

The case has been returned to the High Court to determine the future arrangements for the girls, with updated evidence. The full range of outcomes will be open to the court and the judge will apply the extended guidance given by the Court of Appeal in this case [61].

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