Supreme Court

In re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening)

[2016] UKSC 15; [2016] WLR (D) 190

2016 March 17; April 13

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Wilson and Lord Carnwath JJSC

Conflict of laws — Jurisdiction under European Union Regulation — Orders with respect to children — Care and placement proceedings involving Hungarian nationals — Judge ordering proceedings to be transferred to Hungary — Local authority appealing against transfer — Whether care proceedings rightly transferred — Whether placement order “measure preparatory” to adoption so that no jurisdiction to transfer application for such order to Hungary — Whether stay of placement proceedings appropriate where care proceedings transferred — Principles applicable to applications to transfer proceedings to foreign jurisdiction — Children Act 1989 (c 41), s 31 — Adoption and Children Act 2002 (c 38), s 21 — Council Regulation (EC) No 2201/2003, arts 1, 15

Facts

Two children, who like their parents were Hungarian nationals, were born in England and habitually resident in the United Kingdom, having lived with the same English foster carers for most of their lives, initially with the consent of their parents. The local authority sought a care order under section 31 of the Children Act 1989 and, subsequently, an order for placement of the children with the foster carers with a view to their adoption pursuant to section 21 of the Adoption and Children Act 2002. The mother, who had returned to Hungary and had a third child with the father, opposed the orders and applied under article 15 of Council Regulation (EC) No 2201/2003 for the proceedings to be transferred to Hungary. The Hungarian authorities supported her application, maintaining that only the Hungarian authorities could order the adoption of a Hungarian national minor. They proposed that upon return to Hungary the children would be placed with English speaking foster parents but maintain contact with their parents. The judge directed that both the care and placement order proceedings be transferred in accordance with article 15 on the ground that the Hungarian courts would be better placed to determine the welfare issues. The Court of Appeal decided, inter alia, that the placement order proceedings were outside the scope of article 15 by virtue of article 1(3)(b) of the Regulation and could not, therefore, be transferred to Hungary, but that, since the judge had not erred in ordering the transfer of the care proceedings, the placement order proceedings would be stayed even though they could not be transferred.

On the children’s guardian’s appeal—

Held

Held, appeal allowed. The questions under article 15 of Council Regulation (EC) No 2201/2003 of whether a foreign court would be “better placed” to hear a case and whether a transfer would be in the “best interests” of the child were distinct and had to be addressed separately. The best interests question was intended to be an additional safeguard for the child. When considering the best interests requirement the question was whether the transfer itself would be in the child’s best interest, not what eventual outcome to the case would be in the child’s best interests. Consequently, it did not follow that because a foreign court was better placed to hear a case that it would necessarily be in the best interests of the child to transfer it. In the instant case the short term consequence of a transfer would be that the children would be uprooted from the home they had lived in for most of their lives and moved to a country with which they were totally unfamiliar, and the long-term consequence would be that one option for their future, remaining in that home on a legally sanctioned basis, would be ruled out. It would not be in the “best interests” of the children to transfer the dispute about their future to a court which would be unable to consider all the possible outcomes and, in particular, the one which the professionals with the closest knowledge of the case and the children considered would be the best for them. Furthermore, because the Hungarian court would not be able to consider all the options which might be in the best interests of the children while the English court could, the Hungarian court could not be considered to be “better placed” to hear the case. Above all the judge had heard and read all the evidence which anyone wished to put before him and was in a position to decide the outcome; it would be rare indeed that, a case having reached such a point. another court would be better placed to hear it (paras 43–45, 50–51, 57–58, 60).

The range of possible outcomes for the children was not limited to the stark choice between closed adoption and foster placement in Hungary which had been presented to the judge. Although the local authority proposed a closed adoption there were other ways of achieving permanence and stability with the foster parents in England without cutting off all links with the children’s family and background. While the court could not dictate the content of a local authority’s care plan when it made a final care order, the local authority might be willing to change its care plan in the light of clear findings as to the children’s best interests. In any event, placement abroad could be achieved without making a care order. Whether the children remained in foster care under a care order or under some order in favour of the foster carers, the court was in charge of contact and could make contact orders which would be recognised and enforceable in Hungary. One important factor in considering a child’s welfare was whether an adoption order would be recognised in the country where the child was domiciled, a national or had been habitually resident. A court would have to be aware of the disadvantages of an adoption order which might make it difficult for the children ever to visit Hungary. It was in the best interests of the children for their future to be decided as soon as possible and, accordingly, the transfer order would be set aside and the case returned to the Family Division to be heard at the earliest opportunity. The guidance given by Sir James Munby P in the Court of Appeal, at paras 104–111 would however be approved (paras 48–49, 60–61).

Cases Considered

In re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10; [2010] 1 AC 319, SC(E) considered.

Per curiam

Article 15 did not apply to placement order proceedings and the judge had been wrong to think that it did. However, had it been right to transfer the care proceedings, it would have made no sense to leave the placement order proceedings to continue as it nothing had happened. The Court of Appeal would have been right in the exercise of its case management powers under FPR r 4.1(3(g) to stay the placement order proceedings had its decision to transfer the care proceedings been corext (para 53).

Appellate History

Decision of the Court of Appeal [2015] EWCA Civ 1112; [2016] 2 WLR 713 reversed.

Appearances

Henry Setright QC, Martha Cover and Michael Gration (instructed by Hanne & Co, Battersea) for the children, by their guardian.

Roger McCarthy QC and Mark Twomey (instructed by HB Public Law, Harrow) for the local authority.

William Tyler QC and Malcolm MacDonald (instructed by Lawrence & Co, Maida Hill) for the mother.

Frank Feehan QC and Dorian Day (instructed by Hecht Montgomery Solicitors, Isleworth) for the father.

Deirdre Fottrell QC, Lucy Sprinz and Michael Edawards (instructed by Herbert Smith Freehills LLP) for the AIRE Centre, intervening by written submissions only.

John Vater QC, Edward Devereux, Mehvish Chaudhry and Robert George (instructed by Goodman Ray Solicitors) for Family Rights Group, intervening by written submissions only.

David Williams QC and Jacqueline Renton (instructed by Kingsley Knapley) for the International Centre for Family Law, Policy and Practice.

Reported by: Ms B L Scully, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.