Supreme Court allows appeal on the issue of jurisdiction between Member States

Supreme Court allows appeal on the issue of jurisdiction between Member States

The Supreme Court has handed down its judgment regarding the appeal of the children's guardian in In the matter of N (Children) [2016] UKSC 15 on the issue of jurisdiction between Member States, unanimously allowing the appeal, setting aside the request for a transfer of the proceedings to Hungary, and returning the case to the High Court. Lady Hale gave the only judgment. The primary issues were:

  • the proper approach to the assessment of the child’s best interests for the purposes of article 15, and
  • the correctness of the decision to transfer in this case

Background

The Supreme Court was concerned with the question of whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls. The children are Hungarian nationals but were born and have been resident in England all their lives.

Under article 8(1) of Council Regulation (EC) No 2201/2003 (Brussels II bis) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, the primary rule is that jurisdiction lies with the courts of the Member State where the child is habitually resident. The issue before the court in In the matter of N (Children) was whether the exception to this rule, found in article 15, permitted the transfer of certain proceedings to a court in another Member State if it is ‘better placed’ to hear the case and this would be in the best interests of the child, should apply.

The parents of the girls are Hungarian nationals, who moved to England in 2011. The older girl was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl in May 2013. Due to the conditions of extreme squalor in which the older child was found to be living, and the absence of medical attention for the younger child's birth, both girls were removed from their parents that day and have been living with foster carers ever since.

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).