N (Children), Re

Easter Term

[2016] UKSC 15

On appeal from: [2015] EWCA Civ 1112

LADY HALE: (with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agree)

1.                   The issue in this case is whether the future of two little girls, one now aged four years and two months and the other now aged two years and 11 months, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and have lived all their lives here. But their parents are Hungarian and the children are nationals of Hungary, not the United Kingdom. Under article 8.1 of Council Regulation (EC) No 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, known as the Brussels II revised Regulation (“the Regulation”), the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. That would be England in this case. However, an exception is made by article 15, under which those courts can transfer the case to a court in another member state with which the child has a particular connection, if that court would be “better placed” to hear the case, or part of it, and the transfer is in the best interests of the child. These children have a particular connection with Hungary, as it is the place of their nationality. The issue, therefore, is the proper approach to deciding whether a Hungarian court would be better placed to hear the case and to whether transferring it would be in the best interests of the children.

2.                   The context in which these questions arise is important. Free movement of workers and their families within the European Union has led to many children living, permanently or temporarily, in countries of which they are not nationals. Inevitably, some of them will come to the attention of the child protection authorities, because of ill-treatment or neglect or the risk of it. In the past, the courts in this country might assume that…