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Whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls who are Hungarian nationals

Whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls who are Hungarian nationals

In the matter of N (Children)

Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Carnwath

April 30, 2016

Reported by Linda Awuor & Kevin Kakai

Download the Decision

Brief Facts:

The parents of the girls were Hungarian nationals, who moved to England in 2011. The older girl (J) was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl (E) in May 2013. Due to the conditions of extreme squalor in which J was found to be living, and the absence of medical attention during E’s birth, both girls were removed from their parents that day and had been living with foster carers ever since. Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members who were in Hungary to care for the girls. It was in touch with the Hungarian Central Authority (HCA) which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors.

The mother returned to Hungary in 2014 and had since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of 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). The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents who were in England, without parental consent.

The High Court granted the mother’s application (supported by the HCA) to request the transfer of the proceedings under article 15 of Brussels II Revised. The Court of Appeal dismissed the appeal brought by the Children’s Guardian and local authority. The Children’s Guardian thereafter appealed to the Supreme Court.

Issues:

  1. Whether the trial judge was correct to find the Hungarian Court as better placed to hear the case.
  2. What was the proper approach in assessing the children’s best interest under article 15 of 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 Regulation)
  3. Which Courts between the English and Hungarian courts had jurisdiction to determine proceedings concerning the future welfare of the two young girls?
  4. Whether transferring the case would be in the best interests of the children.

International law – Jurisdiction – jurisdiction to make adoption order in relation to a child who is a foreign national – where jurisdiction lies with the courts of the member state where the child is habitually resident – whether courts can transfer the case to a court in another member state with which the child has a particular connection, if that court would be better placed to hear the case and the transfer is in the best interests of the child – Whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls who are Hungarian nationals – proper approach to deciding which court would be better placed to hear the case – whether transferring the case would be in the best interests of the children – Articles 8.1 & 15 of Council Regulation (EC) No 2201/2003, (Brussels II revised Regulation)

Relevant Provisions of the Law:

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 Regulation)

Article 8.1 – General Jurisdiction

  1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized.

Article 15 – Transfer to a court better placed to hear the case

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.

Adoption and Children Act 2002

Section 52 –Placement and Adoption: General Parental consent

(1) The Court cannot dispense with any consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that-

(c)The welfare of the child requires the consent to be dispensed with.

Children Act 1989

Section 1 -Welfare of the child.

1. When a court determines any question with respect to—

(a)The upbringing of a child; or

(b)The administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.

Section 31(2) – Care and Supervision

(2) A court may only make a care order or supervision order if it is satisfied—

(a)That the child concerned is suffering, or is likely to suffer, significant harm; and

(b)That the harm, or likelihood of harm, is attributable to—

(i) The care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) The child’s being beyond parental control.

Section 100 – Restrictions on use of wardship jurisdiction

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)So as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)So as to require a child to be accommodated by or on behalf of a local authority;

(c)So as to make a child who is the subject of a care order a ward of court; or

(d)For the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

Family Procedure Rules 2010

Rule 4.1 – The court’s general powers of management

3. Except where these rules provide otherwise, the court may –

(g) Stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

Held:

  1. The trial judge was wrong in deciding that the Hungarian court was better placed to hear the case and that it would be in the best interests of the children to transfer it there. He ought to have addressed his mind to the short and long term consequences for them of doing so and also of not doing so. The short term consequence was that these little girls would have been removed from the home where E had lived for virtually all her life and J had lived for most of hers, where they were happy and settled, and doing well. The long term consequence would have been to rule out one possible option for their future care and upbringing, that is, remaining in their present home on a long term legally sanctioned basis, whether through adoption, or through a special guardianship order, or through an ordinary residence order.
  2. It would not be in the best interests of the children to transfer a dispute about their future to a court which would be unable to consider one of the possible outcomes, indeed the outcome which the professionals with the closest knowledge of the case and the children would have considered best for them.
  3. The trial judge considered the Hungarian authorities better placed to decide whether the girls should have lived with their parents, their parents’ extended family in Hungary. He did not consider how far it would have been open to him to achieve the same outcomes without transferring the case. Yet there clearly would have been ways of securing that the children were placed under the aegis of the relevant Guardianship Office in Hungary. Nor did the judge consider which court would have been better placed to achieve the third outcome. The Court could make contact orders which would be recognizable and enforceable in Hungary. Alternatively, it could have transfered the contact part of the proceedings to Hungary under article 15. All of these things should have been taken into account in deciding which court was “better placed”.
  4. The trial judge took the wrong approach to the “best interests” question, and left out of account some crucial factors in deciding upon the “better placed” question.
  5. The Court of Appeal was correct to recognize that as the placement order proceedings were not within the scope of the Regulation, there was no power to stay them with a view to transfer under article 15, but was wrong to stay them as consequential on the care proceedings. Section 21(2) of the Adoption and Children Act 2002 made it clear that the threshold may be determined either in care proceedings or in separate placement order proceedings.
  6. Article 15 did not apply to placement order proceedings. The trial judge was wrong to think that it did. Under the Family Procedure Rules 2010, the court had wide case management powers, including, under rule 4.1(3)(g), the power to stay the whole or part of any proceedings either generally or until a specified later date. The Court of Appeal had the same powers as the trial judge. It clearly had the power to do that. If it had been right to uphold the transfer, it would clearly have been right to stay the placement order proceedings.
  7. There was a live question before the Court of Justice for the European Union (CJEU) as to whether article 15 was capable of applying to public law proceedings such as these. The Supreme Court of Ireland had referred questions which were essentially the same as the principal issue in this case. However, it had done so in a very different context. It was therefore not necessary for the Court to make a reference to the CJEU or to await the outcome of the reference made by the Supreme Court of Ireland.
  8. The language of article 15.1 was simple and clear. The court had three questions to answer: did the child have a particular connection (as defined in article 15.3) with another member state; would a court in that member state be better placed to hear the case, or a specified part of it; and would that be in the best interests of the child? The “better placed” and “best interests” questions are separate questions and the “best interests” question was intended to be an additional safeguard for the child. The question was not what eventual outcome to the case would be in the best interests of the child but whether the transfer would be in her best interests. Subject to that, the scope of the inquiry would depend upon all the circumstances of the case. Article 15.1 was acte clair, albeit not yet éclairé, the court was merely applying it to the facts of the case, which was the task of the national courts.

Appeal allowed and transfer request set aside.

Relevance to Kenyan Situation

The Kenyan Courts have not yet been faced with a similar issue however, the Kenyan position on the question of jurisdiction of a court hearing and determining a question which is pending before another court is well settled as this has been well ventilated by courts and hold the view that it is an abuse of court process to allow two courts to proceed to determine the same question.

In K M N v Children’s Court, Tononoka & another Constitutional Petition No. 71 of 2014, it was held that it would be an abuse of the court process for the Children’s Court to entertain a matter that had been appealed from the Kadhi’s Court and was awaiting determination by the High Court.

In K W S v D A O Children’s Cause No 1563 of 2013, the High Court ruled that it was an abuse of court process to have two suits touching on the same subject matter being handled by two courts of competent and concurrent jurisdiction, and proceeded to direct the consolidation of both cases for the determination of the matter.

The present case held that the matter should proceed and be determined at the earliest opportunity since the future of the children involved is at stake. This case will thus be a relevant modern precedent in the Kenyan situation.

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