ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT OF JUSTICE
Mr Justice Mostyn
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE RYDER
| Nottingham City Council
|- and -
M (A Child) 
(by his Children's Guardian)
Mr Clive Newton QC with Mr William Metaxa (instructed by Bhatia Best Solicitors) for the First Respondent, LM
Ms Rachel Langdale QC with Mr Steven Veitch (instructed by Tallents Solicitors) for the child, M, by his Children's Guardian
Hearing dates: 17th December 2013
Crown Copyright ©
Lord Justice Ryder:
"The District Court of Novy Jicin is requested to assume jurisdiction to decide upon the future of the child [M], but such request shall not formally be issued until and unless the intended appeal against this order is dismissed. In that event the request shall be issued within 14 days of the date of the dismissal of the appeal"
i) SD's relationship with DD was 'a toxic mixture of love, hatred, domination and submission' and involved a history of sustained abuse and deliberate cruelty by SD;
ii) SD had been convicted in the Czech Republic in 2000 of the offences of causing a girl under the age of 15 to be a prostitute, the unauthorised production and keeping of psychotropic drugs and poisons, the rape of a girl under the age of 15 and endangering the moral upbringing of a minor;
iii) SD was 'deeply involved' in the offence of human trafficking in respect of which a conviction was entered against DD in 2001;
iv) SD committed a serious sexual offence of sexual activity with a child family member contrary to the Sexual Offences Act 2003 ss25 and 27 having raised LM as his step-daughter from the age of 10 and then when she was 17 and after 'a period of wooing and seduction', engaging in a sexual relationship with her;
v) SD introduced LM to illicit drug use and gave her drugs (on occasion by way of intravenous injection) on each occasion of sexual intercourse, including while she was pregnant with M;
vi) SD was a 'Svengali' figure and an extremely dangerous and depraved individual who by his malign powers of influence and domination to a large extent robbed DD and LM of their autonomy;
vii) By their continued association with him both DD and LM failed to protect their children and exposed them to significant risk;
viii) All three children, including M, suffered significant harm and were at risk of suffering significant harm at the time proceedings were commenced;
ix) Whether that risk continues depends in large part on whether SD re-enters the children's lives.
Brussels 2 Revised:
"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"
It is settled law that B2R applies to care proceedings in this jurisdiction: Re C (Case C-435/06)  1 FLR 490 ECJ at  and  to . By parity of reasoning the same must apply to placement for adoption proceedings which are a 'civil matter relating to the attribution, exercise, delegation, restriction or termination of parental responsibility' and 'the placement of a child against the will of a child':  and . Accordingly the starting point in every care or placement order case with a European dimension is a consideration by the court whether B2R applies and that will involve an inquiry into the habitual residence of the child.
"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."
" … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):
i) First, it must determine whether the child has, within the meaning of Art 15(3), 'a particular connection' with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child's nationality (see Art 15(3) (c))?
ii) Secondly, it must determine whether the court of that other member state 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
iii) Thirdly, it must determine if a transfer to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."
"this question is quite different from the substantive question in the proceedings, which is "what outcome to these proceedings will be in the best interests of the child?" It will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum"
"Article 24 The rights of the child
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary conclusion"
"Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law"
a) The English court was better placed to make the ultimate welfare decision because of the benefits to be obtained by maintaining judicial continuity and finishing its part heard process;
b) The English court was better placed and it was in M's best interests to make the welfare decision here because it was only the English court that would be likely to consider non-consensual adoption which is the welfare option that it is submitted is in the best interests of M;
c) The test applied by the judge in respect of the Art 15 welfare question was wrong in law; and
d) The judge identified and applied a legal policy with respect to the application of B2R which was wrong in law.
"I unhesitatingly decline to be drawn into a process of evaluation of the competence of the Child Protective Services in Novy Jicin, let alone of the Czech court. In my judgment the statement of Thorpe LJ in para 24 of Re K is not a mere rebuttable presumption but is a no entry sign. Criticisms of the performance of local authorities and judicial services in fellow EU countries is territory into which I must not go."
"… whether, and if so to what extent, the remit of our own child protection system should extend to children who are citizens of other EU countries (but not this country) where there exists a clearly defined transfer procedure to enable their future to be determined in the court of their homeland"
"In my judgment, although Art 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration"
Lord Justice Lewison:
"The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's habitual residence or pursuant to an agreement between the holders of parental responsibility."
"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."
Sir James Munby P:
i) Article 15 operates "by way of exception" to the principle, which is the starting point under B2R, that jurisdiction is vested in the courts of the Member State where the child is habitually resident (Article 8), not the courts of the Member State of which the child is a national.
ii) Article 15 requires the court to address three questions: (1) Does the child have, within the meaning of Article 15(3), "a particular connection" with another Member State? (2) Would the court of that other Member State "be better placed to hear the case, or a specific part thereof"? (3) Will a transfer to the other court be "in the best interests of the child"? The first is, in essence, a simple question of fact which goes to the jurisdiction of the court to consider making an order under Article 15. The other two each involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case and the particular child.
iii) The court cannot exercise its powers under Article 15 unless all three questions are answered in the affirmative. If they are, then the court has to exercise its discretion in deciding whether or not to make an order. I repeat in this context what I said in AB v JLB, para :
"Given the use in Article 15(1) of the word "may" rather than the mandatory "shall", the court must exercise its discretion in deciding whether or not to direct a transfer. That said, the ambit of the discretion is likely to be limited in most cases, for the court cannot direct a transfer – see the use in Article 15(1) of the words "if" and "and" – unless all three conditions are met while, on the other hand, since the discretion is exercisable only if the court has satisfied itself both that the other court is "better placed" to deal with the case than it is and that it is in the best interests of the child to transfer the case, it is not easy to envisage circumstances where, those two conditions having been met, it would nonetheless be appropriate not to transfer the case."
iv) In framing these questions I have deliberately tracked the language of Article 15. The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child's interests. Judges should focus on the language of Article 15: will a transfer be "in the best interests of the child"? That is the relevant question, and that is the question which the judge should ask himself.
v) In relation to the second and third questions there is one point to be added. In determining whether the other court is "better placed to hear the case" and whether, if it is, a transfer will be "in the best interests of the child", it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is "territory into which I must not go." I refer in this context, though without quotation, to what I said in Re E, paras -.
vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child's best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, "what outcome to these proceedings will be in the best interests of the child?"
vii) 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 B2R 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 B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 "will not depend upon a profound investigation of the child's situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum."
"It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:
(i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;
(ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.
This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital."
I added: "Judges must be astute to raise these points even if they have been overlooked by the parties."