Comment on Re N (Children)  UKSC 15
Date posted: 8 June 2016
The case https://www.supremecourt.uk/cases/docs/uksc-2016-0013-judgment.pdf ]concerned two Hungarian/Romanian children (E now aged 3 and J now aged 4 years old) subject to care and adoption proceedings in the UK. The mother was Hungarian and the father was Hungarian/Roma. Although J, the oldest child, was born in the UK, she was not a British citizen. With the parents’ agreement, both children were placed in a joint foster placement where they remained for 8 months before the Local Authority issued care proceedings. The foster placement was not culturally appropriate as the foster carer was English and the children were learning to speak English not Hungarian. The mother had to use an interpreter during contact to interact with her children.
Once care proceedings had commenced, a fact finding hearing took place before His Honour Judge Bellamy. At the hearing, the mother made an application for a request to be made that the case be transferred to Hungary (mainly because she was pregnant and wished to return to Hungary). The Judge decided to transfer the case, under Article 15 Council Regulation, to the Hungarian Court.
The Council Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a conflict of law between member states in family law. Article 15 Council Regulation (EC) No 2201/2003 relates to the transfer of proceedings relating to children between member states of the European Union.
When considering issues of potential Article 15 transfer, the Judge needs to answer three questions:-
- Does the Child have within the meaning of Article 15(3) ‘ a particular connection’ with the relevant member states?
- Will the court of the other member state ‘be better placed to hear the case or a specific part thereof?
- Would it be in the child’s ‘best interests’ to transfer the proceedings?
Judge Bellamy’s judgment, stated that he was not entitled to consider the impact on the children of moving from the foster placement in which they were settled. The judge limited his scope to evaluating whether the case itself was best suited to being transferred rather than looking at the case holistically focusing on the uprooting of the children. The judge also decided that, because the Hungarian courts would be better able to assess and implement contact with full and half siblings living in Hungary, the girls were better placed than the English court to hear the case.
The Children’s Guardian and Local Authority appealed against a decision that the Hungarian court was better placed to hear a case and that transferring the case to Hungary would be in the children’s best interest. The Guardian and Local Authority thought it would be better for the children to be adopted by their current foster carers as they had lived in England all their lives.
The Court of Appeal upheld Judge Bellamy’s decision to order a transfer and thus a further appeal was made to the Supreme Court.
The Supreme Court allowed the Guardian and Local Authority’s appeal.
The Supreme Court held that Judge Bellamy was wrong conclude that simply because the Hungarian Court was better placed to hear the case, it necessarily followed that it was in the childrens’ best interests to transfer.
The Supreme Court held Judge Bellamy should have addressed the short and long term consequences of the transfer. The short term consequences were that the children would be removed from where they had lived for most of their lives and where they were happy and settled, they would be transferred to a Hungarian foster placement which the Court knew nothing about other than they spoke English and the country, language and surrounding would be unfamiliar to them. In regards to the long term consequences, the Supreme Court noted that there were several other options in relation to the placement of the children.
The Supreme Court returned the case to Central Family Court to be heard by another judge as soon possible.
In future the Court must examine all of the best interest consequences of an Article 15 transfer decision with particular consideration to the impact upon a child’s welfare.