English Court has jurisdiction to determine proceedings concerning the future welfare of two young girls who are Hungarian Nationals

Supreme Court of the United Kingdom: Deciding on an appeal as to whether courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls, the Court by a majority set aside the request for a transfer of the proceedings to Hungary and returned the case to the family division of the high Court. The Court reasoned that in every case it is necessary for the court to consider whether the case should be transferred to another state and it is also important as to where the English court might exercise its power to place children for adoption without parental consent, on the basis that the welfare of the child requires this, as this power is unavailable in many other member states.

In the instant case, the two young girls were 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 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as ‘Brussels II Revised’) the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. The issue is whether the exception to this rule, found in Article 15, permitting 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 in this case. The only connection which the girls have with Hungary is their Nationality.

Lady Hale while giving the majority decision observed that the court proceeded on the assumption that Article 15 is capable of being applied and reviews the decisions of the courts below on their merits, rather than making a further reference. Moreover, the best interests of the girls required a decision on their future without any further delay. The majority held that judge was wrong to accept that it followed from his decision that the Hungarian court was better placed to hear the case that it would be in the best interests of the children to transfer it and he ought to have had addressed short and long term consequences for them of doing so and also of not doing so. [In the matter of N (Children), [2016] UKSC 15, decided on 13.04.2016]

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