Summary
The care proceedings were in respect of a child, J.
The child was born in England in November 2013. Both parents were Hungarian nationals. The father was homeless. The mother and the baby were occupying a foster home. The child, J, had three siblings who were living in Hungary. Two of the siblings were in the care of Hungarian Children’s Services.
The care proceedings commenced in March 2014, when DJ Aiken made a combined case management and an interim order.
The issue of jurisdiction was considered early on.
After the English court assumed jurisdiction under Article 8 of Brussels IIa, the questions was whether a transfer request was to be made under Article 15. Mrs Justice Pauffley exercised her discretion and made such a request to the Hungarian courts. In this context, it was held that:
“54 Perhaps of greatest significance is the undeniable fact that J's three older siblings are in Hungary. Though Miss Rayson is correct in saying that currently there is no relationship between the baby here and the older children there, that is highly likely to change if the Article 15 request is successful. As the letter from Dr Csilla Lantai, Deputy Head of the Hungarian Central Authority makes clear, “consideration (would be taken) of the sisters living all together.” The gap which had existed as to the likely attitude of the courts in Hungary to the issues of sibling relationships and contact, to some extent at least, has been swept away.
55 If, by contrast, the English court were to retain jurisdiction and accede to the local authority's application to place J with adopters, the strong likelihood is that J would be denied, for all time the prospect of any relationship with her siblings. During the course of argument, I speculated as to the probable impact upon J of such an outcome and how she might view such a decision in the years to come. Mr Larizadeh characterised the likely scenario as a “time bomb,” an assessment which does not strike me as unduly alarmist.
56 The importance for J of sibling relationships cannot be overstated. This court would be impotent in securing their establishment and continuation. The Hungarian court would have no such problem. On its own, this factor tips the balance, decisively so, in favour of a transfer request.
57 Another factor strongly supportive of a decision that the courts in Hungary are ‘better placed’ is that neither the mother nor N speak English. Had the hearing been an effective final hearing, every word would have had to be translated, likewise every document. The parents' participation in a court process conducted entirely in a foreign language cannot be as satisfactory as one at which their first language is used.
58 It is also relevant to consider the availability of maternal family relatives in Hungary not just as potential long term carers for J but also as potential providers of support for the mother. It might be, for example, that the court decided she could manage to look after J with assistance. In that regard, it should be noted that the mother's intention, in the event that the Hungarian courts assume jurisdiction, is to travel there with J and participate in any litigation.
[…]
60 The third question, as to whether transfer will be in the ‘best interests’ of the child, is intricately connected with the second. I emphasise that the Article 15 question is whether it would be in the child's best interests for the case to be determined in another jurisdiction which is quite different from the substantive ‘welfare’ question.” [54-58 and 60]