Dr. Agne Limante, Law Institute of Lithuania
On 16th June 2016 the Advocate General Melchior Wathelet issued his opinion in Child and Family Agency (CAFA) v. J. D. In it, the Advocate General offered his position as to how conditions for the transfer of proceedings under Article 15 of the Brussels II bis Regulation should be interpreted. This opinion is of interest to those dealing with private international law and family law issues, and especially to those interested with the application of the Brussels II bis Regulation.
The Brussels II bis Regulation establishes rules for jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility to be applied in all EU Member States (with the exception of Denmark). It provides rules for conflicts of laws in family disputes related to divorce, parental responsibility and international child abduction.
Child and Family Agency (CAFA) v J. D. fell under this Regulation because it raised questions of parental responsibility with an international element. The national court in which the proceedings originated had jurisdiction to deal with the case. However, it considered a transfer of jurisdiction to a court in another Member State – a possibility envisaged in the Brussels II bis Regulation.
Transfer of jurisdiction under Article 15
The general rule under Article 8(1) of the Brussels II bis Regulation is that jurisdiction lies with the courts of the Member State in which the child is habitually resident at the time the court is seized. However, Article 15 of the Regulation permits, by way of exception, a transfer of proceedings to courts of other Member States. The initiative for transfer may come from a party, the original court or a court of another Member State to which the child has a particular connection.
Such transfer of proceedings under Article 15 of the Regulation is possible if the court having jurisdiction as to the substance of the matter considers that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and finds this to be in the best interests of the child. As a result, the wording of the Article 15 presupposes that the court considering transfer of the case should answer three material questions in order to establish whether the transfer should be requested:
- Does the child have a particular connection with another Member State? (Article 15(3) lists relevant grounds).
- Would a court in that Member State be “better placed” to hear the case?
- Would a transfer to that court be in the “best interests of the child”?
Up until now there was a limited amount of guidance from the Court of Justice of the European Union (CJEU) as to how those conditions for transfer of proceedings should be interpreted. In particular, there remained some doubts of what issues should be taken into account when determining whether a court in another Member State is “better placed” to hear the case and whether a transfer to that court is in the “best interests of the child.” Preliminary questions submitted by the Supreme Court of Ireland in Child and Family Agency (CAFA) v J. D. provide the CJEU with an opportunity to elaborate on that.
Child and Family Agency (CAFA) v J. D. case: factual circumstances
The case Child and Family Agency (CAFA) v J. D. relates to the possibility of transferring proceedings from Ireland to the UK in order to decide on the future of a very young child, R. Before his birth, R’s mother resided in the UK, where she had another child, R’s older brother, who was placed in a foster family. Being pregnant with R, the mother had deliberately left the UK and moved to have her baby in Ireland in order to avoid care proceedings in the UK. Nevertheless, soon after R’s birth, an Irish court ordered the provisional placement of R. in a foster family.
In the proceedings before that court, the Child and Family Agency (CAFA) requested that the Irish court transfer the case to the UK under Article 15 of the Brussels II bis Regulation. The High Court (Ireland) agreed with such CAFA’s proposal. The mother objected and appealed to the Supreme Court.
The Supreme Court, however, had several doubts as to how it should proceed. First of all, the court was unsure whether Article 15 of the Brussels II bis Regulation may apply to child protection proceedings based on public law where such proceedings are brought by a local authority in a first Member State although it is an institution of another Member State that will have to bring separate proceedings, under different legislation and possibly, if not probably, relating to different factual circumstances, if the court of that other Member State assumes jurisdiction (preliminary question 1). Moreover, it had many doubts as to how the requirement that the transfer of proceedings need be in the “best interests of the child” should be interpreted, and what issues are to be considered in determining which court is best placed to determine the matter (preliminary questions 2-6).
Advocate General’s suggestions: preconditions for application of Article 15
The Advocate General first analyzed the preliminary question 1 related to what he referred to as a “precondition” for the application of Article 15 of the Brussels II bis Regulation: “1. Does Article 15 of Regulation 2201/2003 apply to public law care applications by a local authority in a Member State, when[,] if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?”
In short, the Advocate General considered that although parental responsibility as provided for in the Brussels II bis Regulation is formally concerned with “civil matters,” the classification used in national legislation is irrelevant. It was also of the opinion that the Article 15 of the Regulation may be applied even though no administrative or court proceedings are currently pending in the Member State to which the court that would normally have jurisdiction intends to transfer the case.
The Advocate General suggested, however, that provision does not apply if the jurisdiction of the court to which transfer of the case is intended is conditional on the proceedings being brought by an applicant who is not a party to the proceedings before the court which would normally have jurisdiction.
Satisfying the three criteria for the transfer of proceedings
As to a “particular connection,” the Advocate General confirmed what was already held in the case law of national courts: Establishing whether a child has a particular connection with the relevant Member State within the meaning of Article 15(3), is in essence a question of fact as it only requires to check a list of circumstances set out in Article 15(3)(a)-(e). This list must be interpreted restrictively as an exhaustive list of situations in which the particular connection required by Article 15(1) is presumed to have been established (para 61-62).
While the Supreme Court of Ireland saw the “best interests of the child” as a separate condition to be fulfilled in addition to the requirement of a “particularly connection” and the requirement that the other court be “better placed” to hear the case, the Advocate General took a different approach. He saw “best interests of the child” as a guiding principle and not as a separate condition to be evaluated on its own.
Generally speaking, the Advocate General suggested that the statement concerning the best interests of the child should not be seen as an independent condition, but a repetition of the general objective underlying the grounds of jurisdiction in matters of parental responsibility (para 67). Having analyzed the wording of the Regulation overall, the Advocate General considered that the best interests of the child is the general criterion which must guide every decision concerning jurisdiction in matters of parental responsibility, whether the decision to be made was one of principle or an exceptional one.
Having taken such an approach, the Advocate General did not provide any guidelines as to how the “best interests of the child” should be assessed – however, he just stressed that it is only the forum most appropriate for serving the interests of the child that must be assessed by the court initially having jurisdiction.
Having clarified this, the Advocate General only deemed it necessary to identify some of the specific factors that may be taken into consideration in order to determine the court better placed to hear the case.
Requirement that a court of another Member State would be better placed to hear the case
It is already widely accepted that 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) must be evaluated by taking reference to all the circumstances of the case. Importantly, as noted by the Advocate General, it is a question not of determining the place where the best outcome as to the substance of the case will be obtained, but of identifying the court best placed to determine that outcome.
The Advocate General suggested that factors such as the language of the proceedings, the availability of relevant evidence concerning, for example, the ability of the parent or parents to provide education and maintenance, the possibility of calling appropriate witnesses and the probability that those witnesses will appear in court, the availability of medical and social reports and the possibility of updating those reports, where appropriate, and even the period of delivery of the judgment may have a direct impact on the ability of a court to assess the case in the interests of the child. They may therefore be taken into consideration when deciding whether a court of another Member State would be better placed to hear the case (para 95).
The Advocate General noted, however, that the location of those factors or of some of them in the territory of a Member State other than that of the court which would normally have jurisdiction must not detract from the importance of the environment in which the child develops (the environment of his or her habitual residence) and the possible impact on his or her physical and moral well-being of any move connected with a transfer of the case to a court in another Member State (para 96). The Advocate General reminded that that certain necessary information could be obtained merely by making use of the cooperation requirement established by Article 15(5) of the Regulation, without need to transfer the case (para 97).
One of the questions submitted for preliminary reference further asked whether the desire of a mother to move beyond the reach of the social services of her home State to another Member State with a social services system she considers to be more favorable, should be given certain weight. The Advocate General considered that that fact does not, in itself, seem to be relevant in determining the court best placed to hear the case. It may be considered only if it is capable of having an impact on the ability of the court to hear the case in the interests of the child (para 93). Following the same line of argument, consideration of the right to free movement of the persons concerned makes sense only if it can have an impact on the determination of the ability of a court to hear the case in the best interests of the child (para 94).
At this time it is still difficult to predict whether the CJEU will follow the same approach to interpreting the “best interests of the child” as had been suggested in the opinion of the Advocate General. Indeed, it might reach a different conclusion and see “best interests of the child” as an independent condition to be analyzed separately.
Interestingly, while the courts in earlier UK cases the courts merged the “best interests of the child” with the requirement that the other court would be “better placed” to hear the case, more recent decisions suggest that UK judges have started to separate the two conditions. In the matter of N (Children), a decision delivered in April 2016, the UK Supreme Court analyzed the “best interests of the child” as a third independent condition and even provided some guidelines as to what circumstances could be evaluated thereunder.
On the other hand, the issues the Advocate General suggested to be taken into account when deciding whether a court in another Member State is “better placed” to hear a case seem to reiterate the issues brought forward in cases analyzed by national courts, especially in the UK. Therefore, the CJEU will most probably follow this line of reasoning as well.
 See, for example, Medway Council v JB & Ors  EWHC 3064 (Fam) (26 October 2015), Norfolk County Council v VE & Ors (a child: Art 15)  EWFC 30 (22 April 2015); HA (A Child), Re (No.2)  EWHC 1310 (Fam) (08 May 2015), G&A (Children: Habitual Residence and Article 15 Transfer)  EWFC B41; UK Supreme Court: In the matter of N (Children)  UKSC 15.
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