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T (A Child: Article 15 of B2R) [2013] EWHC 521 (Fam)

Habitual residence under Article 15 of Brussels II Revised

  • In brief:  Here Mr Justice Mostyn was concerned with a ten-month old boy ("T") who had been born in England to Slovakian citizens. T's parents both came from the Romani community, a community who remain persecuted in Eastern Europe. Before coming to England, T's mother ("M") had been ordered to be placed in a crisis centre following allegations by her against her own mother and stepfather; M was 13 at the time. She was eventually placed in a children's home. When she found out she was pregnant at the age of 16, and a few months before she was due to give birth, she ran away with T's father ("F") and travelled to the UK on false papers.  

    The local authority were concerned about M and T; protective measures had been in place since M's siblings arrival in the UK some time previous. There were care proceedings and adoption proceedings underway in relation to T but, before the final hearing could take place, the court had to determine the question of which was the most convenient forum for all the issues concerning T's future to be adjudicated in.  

    The director of the children's home in Slovakia wanted M to be returned to the home as soon as possible "as she is entrusted to our care by [our] courts". They later expanded this to include T and, eventually, the Slovakian Central Authority forcefully argued that under EU law, M and T were both habitually resident in Slovakia and that the proceedings should be transferred under Article 15 Brussels II Revised.  

    Mostyn J noted that there was precious little guidance on how Article 15 should be applied in these circumstances and that the only known case that touched on the area (AB v JLB [2008] EWHC 2965 (Fam) did not really address the points in issue here. Mostyn J said there was no dispute that M (and probably F) were habitually resident in Slovakia; T's habitual residence was a little less certain. The questions before Mostyn J were therefore: 

    • Was Article 15 to be interpreted in isolation, and be given an independent autonomous explication in the same way that the concept of "habitual residence" had been given an autonomous definition to be applied uniformly across the European Union?
    • Or could some assistance be derived from domestic decisions concerning the grant of a stay in favour of a more convenient forum in children proceedings whether under s.5 Family Law Act 1986 or under the inherent jurisdiction?
    • Further, could assistance be derived from the decisions in this jurisdiction concerning the principles to be applied when considering an application for a summary return to a country which is not a subscriber to the Hague Convention on International Child Abduction 1980?
    • Inasmuch as there was a requirement under the question above to consider the best interests of the child:

    what scope of enquiry did this mandate?; and 

    should the concept of paramountcy be read into Article 15?

    Confirming that in relation to the concept of "habitual residence" it was now established that we must all apply the autonomous definition given by the Court of Justice of the European Union in Re A (Area of Freedom, Security and Justice) (C-523/07) [2009] 2 FLR 1 and Mercredi v Chaffe (C-497/10) [2011] 1 FLR 1293, Mostyn J the referred to Wilson J's succinct summary of the principles to be applied as set out in M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam) [2006] 1 FLR 138: 

    "But, whether the jurisdiction is statutory or inherent, the same principles apply. Counsel agree that, written in terms of the facts of this case, they are as follows:

    (a) the burden is upon the father to establish that a stay of the Sunderland proceedings is appropriate; 

    (b) the father must show not only that England is not the natural or appropriate forum but also that South Africa is clearly the more appropriate forum; 

    (c) in assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses; 

    (d) if the court were to conclude that the South African forum was clearly more appropriate, it should grant a stay unless other more potent factors were to drive the opposite result; and 

    (e) in the exercise to be conducted at (d), the welfare of the girls is an important, but not a paramount, consideration. 

    Authority for the first four principles derives from Spiliada Maritime Corp v Cansulex Ltd The Spiliada [1987] AC 460. Authority for the fifth derives from Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325B per Thorpe J (as he then was)." 

    Mostyn J then turned to the  scope of the best interests enquiry mandated by Article 15. He said it was obvious that the scope of any best interests enquiry when deciding whether to make a transfer request under Article 15 should be the same as when determining jurisdiction under Article 12.:

    "It should not involve any profound investigation of the child's situation and upbringing but rather should be an attenuated one which informs the considerations which come into play when deciding upon the most appropriate forum." 

    Applying the law to the facts, Mostyn J concluded that the transfer request should be issued and that the Slovakian authorities should be given the opportunity to consider the short and long term arrangements for T. In the event that the Slovakian court declined the request, then the matter would be restored to the English courts for final determination.

    Finally, after careful consideration, Mostyn J reached the decision was not neither habitually resident in Slovakia nor in England. This was one of those rare cases where an individual has no habitual residence anywhere, a state of affairs expressly contemplated by Article 13.

Case note, published: 15/04/2013

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Published: 15/04/2013

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