Re N – Transfer of proceedings – When to make an application under Article 15Dawn Tighe
Dawn Tighe considers the recent case of Re N Court of Appeal EWCA Civ 112 2015, determined by the Court of Appeal on 2nd November 2015 with regard to Article 15 applications.
This case dealt with an appeal from His Honour Judge Bellamy sitting as a High Court Judge in relation to the decision to transfer proceedings to Hungary under A15. The appeal was heard by Sir James Munby President of the Family Division, Lady Justice Black and Sir Richard Aikens.
The court found that he was right to transfer proceedings and the appeal brought by the Local Authority and the children’s Guardian was dismissed.
His Honour Judge Bellamy’s judgement is found at BAILII Re J and E A15 2014 EWPC 45.
The background to the case concerned 2 children both Hungarian. J was born in January 2012 and E was born on the 6th of May 2013. The mother was Hungarian, the father was Hungarian/Roma. Although J was born in the UK she was not a British citizen but was a citizen of Hungary. The police exercised their powers of protection and J was placed with emergency foster carers, both parents agreed to the children being accommodated in accordance with S20 on the 9th of May 2013. E was discharged from hospital on the 14th of June 2013 and after 2 weeks both children were placed in a joint placement where they remained until the hearing.
Aside from the additional guidance which the Court of Appeal gives in this case, it was noted at paragraph 50 that the fact mother and the daughter had been unable to converse with each other save through an interpreter was of great concern.
His Honour Judge Bellamy said that “although the foster placement [English ] had proved a positive placement, it was not a cultural match and the children are therefore learning and understanding only English , one of the concerning consequences of this is that the mother and daughters are unable to converse with each other in contact save through an interpreter “.
This view was repeated in the Court of Appeal “Whatever the circumstances which brought about the need for state intervention, it is almost unbearable trying to imagine the feelings of a mother unable to speak to her own small children in her own tongue “.
The issue of delay was also raised by HHJ Bellamy who was critical of the LA for failing to initiate proceedings for 8 months. Again this was a view endorsed by the Court of Appeal.
HHJ Bellamy conducted a finding of fact hearing and this lasted for 5 days. He decided to transfer the case and the HCA accepted the request to transfer.
On appeal one of the issues concerned the requirements which needed to be met before the English court can request transfer.
Sir James Munby President of the Family Division set out the summary which he had given in Re M 2014. The provisions of A15 are set out in full at paragraph 112.He then added to these relevant principles four points that he said needed to be added to Re M. These are found at paragraph 117.
- The first point “without wishing in any way to erode the imperative need for the A15 issue to be considered at the outset of the proceedings, there is no doubt that, as a matter of law, it is open to the court to consider the matter “at any stage of proceedings “ as Thorpe LJ said in Bush v Bush 2008 EWCA Civ 865 also Pauffley J in Re J 2014 EWFC para 36. [in this case Pauffley J decided to transfer the case parag 62 identifying the “absolute requirement of achieving the best possible welfare solution rather than striving for speed “.
- The second point parag 118 is that, ” although repeat applications are to be deprecated, and if there has been no material change of circumstances can be expected to be dismissed summarily, there may be circumstances in which a renewed application is appropriate. ” see Re MP 2013 EWHC 2063. Theis J ordering transfer to Slovakia after the conclusion of a finding of fact hearing.
Sir James Munby setting out at paragraph 120 that “I have no problem with this approach in this particular case, though it will only be in exceptional circumstances that a request will be considered after the conclusion of a finding of fact hearing “
This is further emphasised at paragraph 115 when he sets out the reason for the need for early consideration of A15 being well explained by Moylan J in Leicester City Council V S and others 2014 EWHC 1575.
“the longer the determination of any jurisdictional issue including under A15 is delayed, the more established the child`s situation becomes. The more established the child becomes in one jurisdiction the more that fact in itself will gain in weight and significance . At one extreme , it might, of itself , become determinative . This is in addition to the general principle that delay in determination of proceedings is likely to prejudice the welfare of the child”
“Accordingly, where it appears that jurisdiction [including A15 ]is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in a child’s life “
- The third point (parag121): ” The need for judicial continuity will usually be a weighty factor in determining whether or not to make an A15 request. But just how weighty will in the nature of things, depend upon the particular circumstances of the case. “
- The final point: “Consideration of the issues that arise under A15 requires an appropriately summary process, measured in hours not days and not dependant upon a profound investigation of the evidence. So the evidence must be kept within strict limits. The matter should be dealt with quickly and without oral evidence The essential exercise is one of judicial evaluation. That said the judge must at the end of the day be satisfied that the grounds for making an A15 request are made out and that as a matter of judicial discretion the request ought to have been made. If some touchstone is needed the question is not one of the burden or standard of proof but rather which side has the better argument. ”
In summary the Court of Appeal held that HHJ Bellamy was right to consider a renewed application under A15 see paragraph 144.
There was considerable criticism of the delay in this case, “whilst acknowledging that cases such as this necessitate collaboration with foreign authorities and investigations which almost inevitably take longer than domestic cases, this is nonetheless a wholly unacceptable state of affairs. “
Lady Justice Black at paragraph 189 vi] stated: “ What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility, leaving our proceedings either stayed or discontinued “.
A comprehensive list of the matters which HHJ Bellamy took into account with regard to the advantages and disadvantages of transfer is found at paragraph 132.
This is the most recent case concerning the additional four point guidance when considering these applications. The need on the part of all practitioners dealing and advising on A15 applications is clearly to do so promptly, although appropriate applications may be made at any stage of the proceedings. In representing parents an issue which may arise is the fluctuating nature of their instructions and wish to remain in this country.