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Should delay subvert an Article 15 transfer of proceedings? J and E (Children - Brussels II Revised - Article 15)

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In J and E (Children - Brussels II Revised - Article 15) [2014] EWFC 45, HHJ Bellamy dealt with an application for a transfer of care proceedings to Hungary, 41 weeks in to those proceedings.

The proceedings had already been delayed in starting. The child concerned had been voluntarily accommodated under s.20 Children Act 1989 for eight months before they were issued, a state of affairs which ran contrary to the recent guidance on dealing with international issues in a public law context, in particular the judgment of Mr. Justice Moylan in Leicester City Council v S [2014] EWHC 1575 where the judge said:

“where it appears that jurisdiction (including under Article 15) is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in the child’s life”.

In considering whether to transfer the proceedings to Hungary under Article 15 Brussels II Revised, the judge, having found that the child had a ‘substantial connection’ to Hungary within the meaning of the provision, went on to consider whether the Hungarian court was better placed to hear the case.

It was submitted on behalf of the Local Authority that the Hungarian court was not better placed  because of the delay occasioned that would be caused by an Article 15 transfer.

The judge rejected the argument that s. 1 (2) of the Children Act 1989 applied to the determination of the issue of forum. He said that the question of whether proceedings should be transferred is not a ‘question with respect to the upbringing of a child’.

However, the judge accepted that: 

“depending upon the facts of the case, delay may be a relevant factor to be weighed in the balance when determining whether another State is 'better placed to hear the case'. Whether delay is relevant and, if it is, what weight should be accorded to it are issues to be determined on a case by case basis”

Ultimately, the judge did not consider that delay was a factor to which significant weight should be attached because, whilst the judge did not know the timescales for proceedings in Hungary, any delay occasioned by a transfer of proceedings was exacerbated by the significant delay attributable to the Local Authority which had already occurred. Ultimately the judge decided that the Hungarian court was better placed to hear the case, transfer was in the child’s best interests and that the proceedings should, as a result, be transferred.

Whilst not determinative in this case, J and E raises an interesting question about whether delay occasioned by the transfer itself should be a factor that is accorded weight in evaluating whether the court of another Member State is better placed to hear a case, and a factor which could ultimately defeat an Article 15 application. 

It would seem to undermine the purpose of Article 15 if this was the case.

As the judge noted in J and E, delay occasioned by the transfer of proceedings themselves is inevitable.

However, Article 15 has an in-built mechanism to avoid a serious delay. That is

a) If a request is being made (either by the parties or the court) that the court of another Member State assume jurisdiction, a time limit must be set by which the court of that Member State shall be seised (Article 15 (4), and

b) The court of the other Member State must accept jurisdiction within six weeks of seisure. If it does not, the ‘home’ Member State will continue to exercise jurisdiction as before (Article 15 (5)).

It would be contrary to the principle of comity if we were to say that the in-built mechanism for the avoidance of delay within the regulation was not a sufficient safeguard to avoid the delay brought about by an Article 15 transfer.

In terms of the delay that may result in actually determining the proceedings it should be remembered that whilst we now have a 26 week target for the determination of public law proceedings concerning children in this jurisdiction, that does not necessarily mean that our rules should be contrasted against the position in other Member States.

In conducting the evaluation as to whether the court of another Member State is better placed to hear the case, the starting point for the inquiry is the principle of comity (Re M [2014] EWCA Civ 152 per Ryder LJ para 19). The judicial and social care arrangements in other Member States are to be treated by the courts in England and Wales as being equally as competent as they are here (Re T (Brussels II Revised, Art 15) [2014] 1 FLR 749 para 24 per Thorpe LJ).  There is a danger of undermining the principle of comity if undue weight is given to the length of time that the court of another Member State takes to determine proceedings concerning children as a result of their domestic procedure being different to ours.