PIL instrument(s)

Case number and/or case name

Re: D (a Child) [2013] EWHC 4078 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

18 December 2013

Appeal history

CJEU's case law cited by the court

Summary

The public care proceedings were initiated by the Local Authority. The proceedings were in respect of a child, born in June 2012 in Birmingham. The father of the child was the step-father of the mother. The child was placed with the foster carers in England. The local authority sought a full care order, and a placement for adoption order for the child. On 27th November 2013, the mother made an application for a transfer of the proceedings to Slovakia. The English High Court granted the mother’s request. Mr Justice Mostyn held: “24 […] the issues that are raised go a good deal wider than a simple application of the words of the regulation to the specific facts of this case. They raise the very important political and social issue of whether, and if so to what extent, the remit of our child protection system should extend to children who are citizens of other EU countries (but not of this country) where there exists a clearly defined transfer procedure to enable their future to be determined in the court of their homeland. There has recently been a public clamour about a certain Italian case (see In the matter of P (A Child) [2013] EWHC 4048 (Fam), where the press reporting is described) and it is fair to say that the issues which I have to determine are a matter of pressing public concern. 25 It is important to recognise what an order authorising a transfer request under Article 15 entails. It is a request of the foreign court, no more than that. It is not a request to the government of the other EU state. Nor is it a request to its executive arm, the central authority. Nor is it a request to the local authority of the municipality of the foreign state. It is a request to a fellow EU court. And that court has the final say on whether to accept the case or not. It must decide within six weeks. If it accepts the request the case will go here. If it does not it will stay here and be determined here. 26 In my judgment although Article 15 is neutrally phrased it contains an important subtext which is that in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration.” [24-26] An appeal was made to the Court of Appeal. The appeal was allowed, and the mother’s request for transfer of the proceedings to Slovakia was refused. Lord Justice Lewison held: “56 It follows in my judgment, in agreement with my Lords, that the question posed by Mostyn J in para [24] of his judgment was irrelevant and that the answer he gave in para [26] was wrong in law. The appeal must be allowed.” [2014] EWCA Civ 152 [56]