IN THE MATTER OF ARTICLE 15, COUNCIL REGULATION (EC) NO. 2201/2003
B e f o r e :
sitting as a Deputy High Court Judge
| A Local Authority
|- and -
The Foster Carers of S, FC1 and FC2
S (A Minor)
Re S (No. 2) (Care Proceedings) (Article 15: Second Application for Second Transfer)
Mr. Stephen Abberley of counsel (instructed by Morrison Spowart Solicitors) for the father, F
Mr. Alex Taylor of counsel (instructed by the legal department) for the local authority
Ms Whitehead of JWP Solicitors for the foster carers
Ms Evelyn Norman of Jones Myers Solicitors for the child, S
Hearing date: 22nd January 2019
Crown Copyright ©
a. 8th January 2018: the District Court in the Republic of Ireland granted an application that the Irish court request the English courts to assume jurisdiction;
b. 6th February 2018: that decision was upheld on appeal in the Republic of Ireland by HHJ Donnabhain; the request was made of the English courts;
c. 27th February 2018: MacDonald J, sitting in the Family Division of the High Court of England and Wales, made an order nisi accepting the transfer of jurisdiction;
d. 12th April 2018: Francis J, having heard the parents' objections to the same, made a final order accepting jurisdiction reported as  EWHC 939 (Fam);
e. 29th October 2018: Mr Damian Garrido QC, sitting as a Deputy High Court Judge, gave a judgment arising out of a hearing on 10th and 11th October 2018, rejecting the parents' application that the English court request the Irish court to assume jurisdiction, in short, to take their case back again reported as Re S (Care Proceedings: Article 15 Second Transfer)  EWHC 3054 (Fam);
f. 3rd December 2018: Baker LJ refused M's application to appeal the judgment of Mr Garrido QC;
g. 15th January 2019: M issued a further application that this court ask the Irish court to assume jurisdiction.
Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of BIIR and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in BIIR and lead to the protracted and costly battles over jurisdiction which it is the very purpose of BIIR to avoid. Submissions should be measured in hours and not days.
 M (31) and F (44) were both born in England and until recently had lived their whole lives here. On 7 July 2013, M was delivered of their daughter who was subsequently removed from their care and finally made subject to care and placement orders on 23 September 2014. She was adopted in 2016.
 In May 2017 when pregnant with S, M relocated to RoI ostensibly to avoid the inevitable interest of children's services here. However, she attracted the attention of the relevant social work department there, so that when S was born on 11 September 2017 in RoI, the CFA commenced proceedings under the Child Care Act 1991 removing S into foster care. On 8 January 2018, the District Court granted an application for the transfer of jurisdiction from RoI to E&W, a decision that was upheld in the Circuit Court by HH Judge Donnabhain on appeal on 6 February.
 On 27 February, the transfer request came before Mr Justice MacDonald sitting in the Family Division of the High Court of Justice in E&W and an order nisi was made accepting the transfer of jurisdiction. Thereafter Mr Justice Francis, having heard the parents' representations, made a final order on 12 April accepting jurisdiction. Subsequently, LA issued an application pursuant to part IV Children Act 1989 that was transferred to the Family Court sitting in the area where the orders were made for S's sister, but not before Francis J made an interim care order approving the plan for S to remain in the care of her foster carers in RoI pending final determination. Furthermore, Francis J declared that "the transfer of jurisdiction to this court under Article 15 is emphatically conclusive and this court now exercises jurisdiction as if by Art 8 of Council Regulation (EC) No. 2201/2003".
 At a case management hearing in the Family Court before Mrs Justice Parker on 19 June, directions were given for a psychological assessment and social work assessment of the parents together with a declaration that the parents could not go behind the opinion of a psychiatrist whose evidence was accepted by the court in the sibling's proceedings in 2014. At the same time, a final hearing was fixed to commence on 14 January 2019 preceded by an issues resolution/early final hearing on 14 December 2018, both allocated to the same Circuit Judge. Although there has been some slippage in the timetable, the proceedings remain on course for resolution in January, if not before.
 Meantime, M disclosed that she is pregnant with her third child "X" and I am told that the expected date of delivery is 21 November. It is common ground that in respect of X, if proceedings are issued in RoI as seems likely, the CFA does not intend to request transfer of jurisdiction to E&W, although clearly that does not prevent the Irish court making a request of its own motion.
 Both parents are now settled in RoI and together wish to care there for S and X.
a. the parents have remained living in the RoI;
b. M has given birth to her third child, X;
c. X was made the subject of ongoing care proceedings in Ireland, brought by the CFA;
d. X was removed from the parents' care pursuant to an interim court order and has been placed by the CFA with the same foster carers who look after S;
e. the CFA has not sought to persuade the Irish court to request that the English court assume jurisdiction in X's case; nor has the Irish court introduced such a request of its own motion;
f. the LA within the English proceedings has finalised its care plan, which is that S should remain living in the RoI with her current foster carers, pursuant to an English special guardianship order; importantly, so far as the parents' case is concerned, the LA is no longer contemplating even the possibility of an adoptive placement of S together with her older sibling in England;
g. on 15th November 2018, S's foster carers ("FC1" and "FC2") were joined as parties to the English care proceedings: they seek a special guardianship order in relation to S in their favour.
'Our section 18 care proceedings are listed for case management on Wednesday 23rd January 2019 and I hope to be in a position to fix a hearing date for the section 18 care order application thereafter. I remain unclear at this time whether or not the parents intend to contest the s.18 application but it is safe to assume they will.'
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 seised.
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.
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.
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.
3. 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; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
a. that S has a 'particular connection' with the RoI, as defined;
b. that the courts of the RoI are 'better placed' to hear the case; and
c. that transfer to the courts of the RoI is in the 'best interests' of S.
In the present case, it is common ground that S has a 'particular connection' with the RoI; the controversy relates to the second and third limbs: 'better placed' and 'best interests'.
(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.
Does the prohibition on transfer 'to a third court' prevent transfer back to the first court, or simply transfer on to a new, third court? In his judgment, Mr Garrido QC answered the question in this way:
 In my judgment, the meaning of "a third court" in recital 13 can only sensibly be "a court of a third Member State" and does not therefore preclude transfer back to the court first seised. If Recital 13 is intended to prevent more than one transfers in all circumstances, it is expressed in a rather clumsy and ambiguous choice of words to give effect to that intention. Whereas, if it is intended only to prevent the onward transfer to a third Member State, then the turn of phrase makes much more sense to my mind.
 Once Recital 13 is set aside in this way, there is [ ] no other provision preventing transfer back to the court first seised. I have therefore come to the conclusion that it is open to me to request a transfer back to the RoI if the tripartite conditions in Art 15 (summarised at paragraph 9 above) are satisfied.
Accordingly, there is no automatic bar, whether arising by virtue of recital 13, BIIa or otherwise, to a return of jurisdiction back to the original requesting state.
 It is not, in my judgment, enough to demonstrate that the changed circumstances might persuade the foreign court to relinquish jurisdiction under Art 15. What has to be shown, as it seems to me, is that the circumstances now are such as so entirely to change the aspect of the case as to make it highly probable that the court seised of the case will, despite having already refused an application under Art 15, now come to a different decision and relinquish the case to the court which has made the request under Art 15(2)(c). In my judgment, it must be shown that the change in circumstances is likely to be decisive.
AB, of course, saw Munby J summarily dismissing the mother's application to the English court that it request that a court in The Netherlands transfer to England a case of which it was already seised and in relation to which the court in The Netherlands had already refused the mother's Article 15 application. In those circumstances, it is not surprising that a high bar would need to be overcome.
 The question remains, what is encompassed in the "best interests" requirement? The distinction drawn in In re I  1 AC 319 remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child's best interests. This is a different question from what eventual outcome to the case will be in the child's best interests. The focus of the inquiry is different, but it is wrong to call it "attenuated". The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child's welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests. It is deciding whether it is in the child's best interests for the court currently seised of the case to retain it or whether it is in the child's best interests for the case to be transferred to the requested court.
The Parties' Submissions
a. all of the 'assessed work' has been conducted in Ireland; conversely, there is no ongoing nexus between the family and Leeds;
b. the majority of the witnesses (including the parents) are in Ireland;
c. M cannot easily travel from England for reasons of health and as she is breast-feeding X;
d. F is employed in Ireland;
e. the parents both live in Ireland and have engaged with Irish social services;
f. the child lives (and has always lived) in Ireland; she has a sibling born in and living in Ireland;
g. the current local authority proposal making English orders as a means of securing S's ongoing placement with carers in Ireland, followed by efforts to achieve recognition and/or mirror orders in Ireland is 'fraught with legal difficulty and complexity'.
a. there has been no judicial continuity in England: the case has passed through the hands of six different judges to date;
b. the court in England has heard no evidence to date;
c. the final hearing (at the point of the argument before me and my initial decision) was still some two months away;
d. transfer would be unlikely to inject further delay:
- in forensic terms, as 'the concurrent sibling proceedings in RoI are so advanced'; or
- in welfare terms: the child remains placed with the carers whom the LA contend should look after her in the long term.
a. the assessment work has been completed by an English LA, in English proceedings, and in accordance with English rules;
b. a final hearing is listed and imminent;
c. the English court has at its disposal an arsenal of possible orders which can achieve any of the realistic outcomes of the final hearing.
a. one of the factors which bore on the decision of Mr Garrido QC was the availability to the English court of a placement with her elder, adopted sibling among the options possible for S; this is now no longer contended for by any party, so no longer represents a reason for the case remaining in England; and
b. FC1 and FC2 are forced by circumstances to play a part in the English proceedings relating to S (and via an English lawyer, 'at arm's length'); it is likely that they will have to do so, at least to some extent, in the Irish proceedings relating to X; it would be very much easier if there were one set of proceedings, in one jurisdiction.
a. the then heavily pregnant M has given birth to X; thus, S has a full sibling in the RoI;
b. X is the subject of care proceedings in Ireland; and
c. X has been removed from her parents' care.
a. S is now placed with her full sibling, X;
b. there is no longer any (current) likelihood of S's being placed with her adopted full sibling in England;
c. the LA plan is for S to remain in the long-term with her current foster carers;
d. as things stand, the only two reasonably realistic options for S's welfare now are placement with (one or more of) her parents in the RoI and remaining in the care of FC1 and FC2 in the RoI; and
e. the LA now fully intends that jurisdiction in relation to S's future welfare transfers to the courts of the RoI, the only question being when this should happen.
a. proceedings have been underway for all of S's young life and for far, far longer than good practice or s.32(1)(a)(ii) of the Children Act 1989 would consider acceptable;
b. at the point of the hearing before me, more than a year had passed since the Irish court first requested the English courts to accept jurisdiction;
c. during the intervening period, all of the necessary assessments had been undertaken and evidence obtained in order to inform the English care proceedings;
d. this, self-evidently, involved the application of English rules of court (e.g. Part 25, FPR 2010) and assessment against the criteria contained in English legislation and jurisprudence;
e. at the point of the hearing before me in January, a final hearing was already listed which would result in final decisions being made by no later than the end of March 2019.