Families do not recognise borders. But courts must recognise them. It is not uncommon for a family to have relatives in multiple countries, and even more common for a family to emigrate and still keep close contact with relatives in the country of their birth. Courts are having to deal with family proceedings about families spread across Europe and even the globe. How should they deal with it? Where is the best place for you to go to court?
Transferring family proceedings
Within the EU, family proceedings are governed by the Brussels II Regulation (“BIIR”). A court can hear a case if the child is “habitually resident” in their country. The proceedings can then be transferred between countries. Article 15 sets out a three-fold test: proceedings can be transferred if (i) the child has a “particular connection” with the other country, (ii) the other country is “better placed” to hear the case, and (iii) it is in the “best interests” of the child.
When should the court transfer?
The higher courts have repeatedly stated a transfer application should be considered “at the earliest opportunity”, ideally at the case management hearing. However, in two of the leading cases, the UK court had a fact-finding hearing prior to considering transfer. This met with strong criticism from the Court of Appeal in Nottingham CC v LM, but less so from the Supreme Court in Re N.
The reason for an early transfer is so that – in the words of BIIR – a single court is “seised” of the matter and there can be judicial continuity throughout the case. But it is easy to see how a fact-finding hearing about events in the UK, with UK witnesses and documents in English, might be better heard in the UK, even if the final hearing would be better heard abroad.
In Nottingham CC v LM, the Court of Appeal overturned a decision to transfer largely because a UK judge had already presided over the fact-finding hearing. But that judge, Mostyn J, had fierce words for the Court of Appeal about the importance of having a single judge for the whole case, stating it was a “misplaced view” and “with the profoundest of respect to them, wrong”.
Will the court transfer?
First you have to show a particular connection: it is enough if the child is a citizen of the other country. Then the court move on to consider the inter-related questions of which court is “better placed” and what is in the child’s “best interests”. Lady Hale has made very clear that this demands a full welfare analysis, but only in relation to the effect of transfer, not the overall outcome of the case (Re N, para. 44).
The kind of considerations that are relevant to the “better placed” question are where the parties are living, the first language of the parties, whether social work assessments have already been conducted, access to background information, and judicial continuity. In relation to “best interests” the court will want to know how the child will travel and with whom, where the child will be placed after transfer, and the potential for contact with parents and/or siblings until the end of proceedings.
What do I do?
The best option is not to have to apply to transfer at all. If you want to start proceedings, or you are aware that they may be started against you, it is best to make sure the child is habitually resident in your preferred jurisdiction.
Of course, this is often not an option. If you intend to apply for proceedings to be transferred, you should make your application as soon as possible so that proceedings can be transferred at an early stage and judicial continuity does not become a factor in the transfer application.
Mark accepts instructions in all areas of family and international family work, including private children, care proceedings and financial remedies, as well as applications for non-molestation orders and other injunctions. Mark also has experience of abduction and permanent relocation proceedings in the High Court Family Division.
