On 13 April the Supreme Court delivered judgment in a significant case concerning children who are born in England and Wales to parents who are EU nationals. The case, N (Children)  UKSC 15, set down important guidance about where the future for these children should be determined.
Specialists in our children and education team are regularly dealing with these issues in care cases brought by Local Authorities because of concerns about the children’s welfare.
These cases are often particularly sensitive because the Family Court in England and Wales can be asked by Local Authorities to allow children of EU nationals to be placed for adoption in this jurisdiction, against their parents’ wishes, and where the law and practice around adoption can differ significantly in other EU member states from that in England and Wales.
Background to the Re N case
The case concerned two little girls born in the UK to Hungarian parents and who were therefore Hungarian nationals, but who had lived in the UK all their lives. The children were placed into foster care when they were very young, and the Local Authority started care proceedings for them. After assessments of family members had been undertaken, the Local Authority recommended that the children should be adopted. The foster carers looking after the children had expressed an interest in adopting them.
The jurisdiction challenge
In the meantime the children’s mother had returned to Hungary where she had given birth to a third child. She asked the Family Court in this jurisdiction to transfer the proceedings for her elder children to the Hungarian courts so that a decision could be made there regarding their long term care. The mechanism for such a transfer is set out in EU legislation in Article 15 of the ‘Brussels II Revised Regulation’.
The Family Court in England and Wales has been increasingly required to consider whether cases about the welfare of children of EU nationals are best dealt with here, or in their parents’ home state, and there have been a number of important decisions handed down in recent years.
In general terms Article 15 allows that if the Family Court considers the courts in another EU member state with which a child has a ‘particular connection’ would be ‘better placed’ to hear proceedings about a child, and where this is in the ‘best interests’ of the child, then the proceedings may be transferred.
In considering the child’s ‘best interests’ in whether or not a case should be transferred, the Family Court had emphasised that its evaluation should not, in the words of the President of the Family Division, be ‘dependant on a profound investigation of the evidence’. The Family Court’s exercise of its discretion to refuse transfer requests when the Article 15 factors have been established has been limited.
The complication of time
In the Re N case, the judge hearing the matter in the High Court Family Division ruled the two girls’ proceedings should be transferred to Hungary. By this time, the view of the Hungarian authorities was that the children could not live with any family members in Hungary and so it was proposed they would move to a foster placement there, whilst preserving the possible of maintaining relationships with family members. At this point the girls had been living with their foster carers in the UK for well over a year.
The Local Authority and the children’s Guardian argued that the case should stay in the Family Court for a final decision about the girls’ future care to be made, with one of the options for the Family Court being to place them in Hungary. They argued that it would not be in the girls’ best interests to remove them from their current foster carers, with whom it was agreed they were well settled, before a final decision about their long term futures was taken.
The Family Court’s decision
The judge granted the application to transfer their case to Hungary. He found that the issue of whether it was in the best interests of the girls to remove them from their foster carers, who were one of the options the Family Court here could consider for their long term care, was not relevant to determining whether or not transferring the case to Hungary was in their best interests.
The Court of Appeal decision
The Local Authority and Guardian appealed but the High Court judge’s decision was upheld by the court of appeal, judgment being handed down by the President of the Family Division in Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112. The Guardian, supported by the Local Authority, appealed to the Supreme Court.
Lady Hale handed down a unanimous judgment analysing the approach of the High Court judge hearing the case at first instance, and of the Court of Appeal judges. She allowed the appeal against transferring the case to Hungary and remitted the case back to the High Court Family Division for the girls’ long term future to be decided there.
Applying the 'best interests' test
Lady Hale found that, although the questions of whether the courts in another EU member state were ‘better placed’ to decide a child’s case, and of what is in that child’s best interests, are inter-related, they are separate questions. It does not necessarily follow that because another court may be better placed, then it will be in a child’s best interests to transfer his or her proceedings to be decided in that court.
She went on to say that when considering the ‘best interests’ test, the question of whether a transfer would be in a child’s best interests is different from what long term outcome for the child would be in its best interests. However, ‘there is no reason at all to exclude the impact upon the child’s welfare, in the shorter or longer term, of the transfer itself’.
Considering the options for the girls’ long term care, Lady Hale observed that transferring the proceedings to Hungary would remove one of the options before the Family Court, that of them remaining with their current foster carers, either if they were adopted by them or if they remained with them as fostered children. She also highlighted that the transfer decision had not involved any evaluation of what psychological effect it may have on the girls to remove them from their long standing home with their foster carers.
The impact of Re N
Applications to transfer care proceedings to a court in another EU member state are by their nature fact specific, and in circumstances where children have a connection to another state and can be placed with family members there, the Family Court can be expected to remain ready to grant such applications.
However, following Re N, we can expect the courts to pay significantly greater attention to a global evaluation of whether or not a transfer will be in a child’s best interests. It is clear this can include what the long term options for the child might be if the proceedings remained heard in England and Wales. The courts are likely to scrutinise the ‘best interests’ of the child more closely and more holistically, even if there are good arguments that the courts in another member state are ‘better placed’ to deal with the proceedings.
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