The greatest remedy for anger is delay or international cooperation
In the last couple of years more and more cases have come before the Courts involving Art 15 Brussels IIR. They all have the pressing question: Which Court has jurisdiction?
In April this year, Deputy High Court Judge, Carol Atkinson decided in a case of a 12 year old girl from Lithuania ( G & A (Children: Habitual Residence and Article 15 Transfer)  EWFC B41 (14 April 2015) that this Court has jurisdiction and could also determine the habitual residence of the child. But how is “habitual residence” determined?
A child’s ‘habitual residence’
The basis by which habitual residence is determined is now clear. There are two key guidelines:
- Firstly, it is not a legal concept to be equated with domicile;
- Secondly, it is a factual exercise identifying the degree of integration by the child into his environment, whatever that environment might be.
The Supreme Court in A v A
The concept of “habitual residence” has recently been considered by the Supreme Court in language which is clear and unambiguous. In A v A (Children: Habitual Residence)  UKSC 60 per Baroness Hale at :
“All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. BIIR must also be interpreted consistently with those Conventions.
The test adopted by the European court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from Shah should be abandoned when deciding the habitual residence of a child.
The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
As the Advocate General pointed out in para AG45 and the court confirmed in para  of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time. When considering the integration of a mature or adolescent child the court can and should take account of the child’s own perceptions.”
Article 15 BIIR and beyond
On 22nd April this year Lady Theis decided also about a girl from Lithuania (see Norfolk County Council v VE & Ors (a child: Art 15)  EWFC 30 ). In this case the mother and child lived in England for nearly 3 years and the mother had parental responsibility. Since the beginning of 2014 her daughter was in the care of foster carers with the agreement of the mother pursuant to section 20 Children Act 1989. There was no interim care order in favour of the Local Authority and the girl’s father remained living in Lithuania.
The mother planned to return to Lithuania and made an application to the local courts for consideration to be given that her daughter being returned to her care. The father also planned to make an application to the courts in Lithuania seeking the placement of his daughter in his care. The Local Authority appointed an independent social worker who undertook initial assessments of the father and other proposed carers in Lithuania. Those assessments were completed in November 2014.
A common jurisdiction problem in international family cases
The matter was listed before a High Court Judge to consider the question of a request for a transfer to Lithuania under Article 15 Council Regulation (EC) no 2201/2003 (BIIR). Experienced international practitioners know that these cases are extremely fact specific. The important questions we always have to answer are:
(1) Has the Child “a particular connection with the relevant other member State” and
(2) Would the other Member State “be better placed to hear the case, or a specific part thereof”
What does Article 15 say?
Article 15 deals with the transfer requirements and provides in Art. 15 (1) the introduction:-
“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, will 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.”
Article 15 (3) sets out a list of the factual instances in which a child shall be considered as having “a particular connection” with another Member State such that a request could be made. In the Norfolk case it was significant that one of those instances is that the Member State in question “is the place of the child’s nationality” and another is that it was “the former habitual residence of the child”.
Further in Art 15 (5) covers the discretion of another Member State and says that:-
“The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seizure in accordance with paragraphs (1)(a) or (1)(b). In this case, the court first seized shall decline jurisdiction. Otherwise, the court first seized shall continue to exercise jurisdiction in accordance with Article 8 to 14”.
Munby J’s Tour de “Route to the exception of Article 15 BIIR”
On 1st December 2008, over six years ago, the issue of making a request for transfer pursuant to Article 15 was also considered in AB v JLB  EWHC 2965 (Fam) . At paragraph 35, Munby J., as he then was, distilled the route to the exception of Article 15 (1) into three essential questions:
“(1) 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 maters 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))?
(2) 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.
(3) 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.”
The Court of Appeal’s ‘evaluation principal’
Article 15 was considered more recently by the Court of Appeal in the case of Nottingham City Council v LM  EWCA Civ 152 . This was an appeal from a decision by Mostyn J to make a request to the courts of the Czech Republic to assume jurisdiction. The important paragraphs and principals are as follows:-
a. The Article 15 exception to the general rule of jurisdiction only comes into play when all three of the essential questions to which I refer in the paragraph above are answered in the affirmative (per Ryder LJ para 15 );
b. The question of whether a court of another Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed having considered all the circumstances of the case and that evaluation is “intimately connected” with the question of the best interests of the child (per Ryder LJ para 19);
c. The starting point for the evaluation of whether the other Member State is better placed to hear the proceedings is one of “comity and co-operation” between Member States and we are reminded that “the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent”
d. Factors which may inform the courts evaluation of whether one court is better placed to hear a case are factors such as – the availability of witnesses of fact, whether and by whom assessments can be conducted, the necessity for assessors to travel, whether one courts knowledge of the case (perhaps through judicial continuity) provides an advantage.
e. The best interests question asked by Art 15 (1) is whether it is in the child’s best interests for the case to be determined (or a specific part of the case to be determined) in another jurisdiction.
Lady Theis’ findings in Norfolk County Council v VE & Ors
The Judge found that “in relation to any issue regarding the longer term arrangements for V’s care I consider that aspect should be dealt with by the Lithuanian court, however she did not consider there should be an Article 15 request and pointed out at  that:-
- She anticipates that an Art 15 request to the Lithuanian Central Authority will be likely refused.
- The wider family in Lithuania will ensure that the girl’s cultural, identity and language needs will be met. Further delay would be not helpful. England also can’t undertake an effective evaluation of the long term future options for the girl in circumstances where she and all the relevant adults will be living in Lithuania.
- When the girl returns to Lithuania the intention is for her to remain living there long term, she will attend school and be fully integrated there and that will be her habitual residence.
- The Lithuanian court is clearly better placed to deal with any long term issues regarding her care as the assessments of the parents and any other family members and to deal with the anticipated applications.
- A Child Arrangements Order will be underpinned by a certificate under Article 39.
Back to the future: the old ECJ principals
Four months after Munby J gave his decision in AB v JLB (Brussels II Revised: Article 15),on the 2nd April 2009, the Third Chamber of the ECJ in Case C‑523/07 had to make findings about children, which have been previously in care in Finland and subsequently settled with their mother in Sweden while their Stepfather stayed in Finland.
The Third Chamber referred to the purpose of Brussels IIR and stated that an active and direct cooperation between the Courts and Central Authorities is needed to achieve what’s in the best interest of the child. The Court laid down strong principals at  to  and said that:-
- “..It remains to be ascertained whether, after a protective measure has been taken, the case must be automatically transferred to the court of another Member State having jurisdiction.
- Under Article 15(1) (b) of the Regulation, 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, request a court of that State to assume jurisdiction.
- In the context of provisions relating to the rules of jurisdiction in matters of parental responsibility, Article 15 is the only one to provide for a request to the court of another Member State to assume jurisdiction.
- The Regulation does not require the national courts which adopt provisional or protective measures to transfer the case to a court of another Member State after those measures have been taken.
- A separate issue is whether the national courts which have taken provisional or protective measures must inform the courts of another Member State having jurisdiction.
- As stated in paragraph 48 of this judgment, under Article 20(2) of the Regulation, provisional or protective measures cease to apply when the court of the Member State having jurisdiction as to the substance of the matter has taken the measures it considers appropriate.
- Since provisional or protective measures are temporary, circumstances related to the physical, psychological and intellectual development of the child may require early intervention by the court having jurisdiction in order for definitive measures to be adopted.
- The need for and urgency of definitive measures must be determined having regard to the child’s circumstances, his likely development and the effectiveness of the provisional or protective measures adopted.
- In that context, the protection of the best interests of the child may require that the national court which has taken provisional or protective measures inform, directly or through the central authority designated under Article 53 of the Regulation, the court of another Member State having jurisdiction.
- Cooperation in the context of cases specific to parental responsibility is provided for in Article 55 of the Regulation and includes, in particular, collection and exchange of information on the situation of the child, on any procedures under way and on decisions taken concerning the child.
- Article 55(c) of the Regulation provides for communication between the courts of the Member States for the application of the Regulation.
- It follows that, in so far as the protection of the best interests of the child so require, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Article 53 of the Regulation, the court of another Member State having jurisdiction.
- In light of the foregoing considerations, the answer to the third question is that a protective measure, such as the taking into care of children, may be decided by a national court under Article 20 of the Regulation if the following conditions are satisfied:
– the measure must be urgent;
– it must be taken in respect of persons in the Member State concerned, and
– it must be provisional.
- The taking of the measure and its binding nature are determined in accordance with national law. After the protective measure has been taken, the national court is not required to transfer the case to the court of another Member State having jurisdiction. However, in so far as the protection of the best interests of the child so requires, the national court which has taken provisional or protective measures must inform, directly or through the central authority designated under Article 53 of the Regulation, the court of another Member State having jurisdiction.
- Avoid delay: In international children cases, any delay is detrimental to the children’s welfare as it delays decision about the future care. Act immediately.
- Address jurisdiction issues early: Jurisdiction Article 15 issues have to be addressed at the earliest stage.
- Get an ‘international agreement’: If you intend to instruct an independent social worker, make sure that all Central Authorities are aware of this step. The practice of sending social workers from this country to conduct assessments in other member states requires very careful consideration, and should only usually be considered in circumstances where there is express agreement from the other member state
As Benjamin Franklin said, “You may delay, but time will not”. If you would like advice or have a family law query arising from the issues discussed above, please contact us at Paradigm Family Law on +44 (0)845 6020422 or email us at [email protected] for a free initial consultation with our family law experts.