THE RATIO. One judgment, decoded twice: once for anyone, once for the profession.

Headnote

Two Hungarian sisters, born and raised in England, were weeks from being sent to foster care in Hungary when the Supreme Court intervened. A High Court judge had decided that Hungary was the better court to decide their future under EU rules on cross-border child protection, and treated that finding as settling the separate question of whether the move itself served their interests. The Supreme Court held that this was wrong. Choosing the right court and choosing the right outcome are different questions, and a judge cannot answer the second by assuming it follows from the first.

Factual Background

Janetta and Ella were born in England in 2012 and 2013 to Hungarian Roma parents living in extreme poverty. Ella was born at home without medical help, in a room the family shared with no food, clothing or bedding for either child. Janetta was removed the same day. Ella went into foster care eight days later. By the end of May 2013 both girls were living with the same foster carers, where they remained throughout these proceedings.

The local authority initially accommodated the children with the parents’ agreement while it carried out assessments. Contact was reduced repeatedly, from three visits a week to one, largely because the parents often failed to attend. Care proceedings were not issued until January 2014.

The Hungarian Central Authority took a consistent position throughout: the children should return to Hungary, since only Hungarian authorities can adopt a Hungarian national. Assessments of relatives in Hungary found no viable family placement. The maternal great-grandmother offered a home, on condition the father stayed away. The father would not agree to this.

The mother, then pregnant with a third child, returned to Hungary in 2014 and applied under article 15 of the Brussels IIA Regulation to have the English proceedings transferred there. She later accepted that the return was also to avoid care proceedings over the new baby. Two earlier judges considered the transfer application and deferred a final decision. A full hearing was eventually held over five days in November 2014 before His Honour Judge Bellamy, sitting as a deputy High Court judge, who heard evidence on every issue in the case.

On 11 November 2014, the judge ruled on the transfer application alone. He granted it, directing that the case be sent to Hungary. The Court of Appeal upheld that decision in November 2015. The local authority and the children’s guardian appealed to the Supreme Court.

The Question for Determination

Article 15 of the Brussels IIA Regulation lets a court that already has jurisdiction over a child, here the English court, since the girls were habitually resident in England, transfer a case to a court in another member state with which the child has a particular connection, such as nationality. Three conditions must be satisfied: a particular connection with the other state, a finding that its court is better placed to hear the case, and a finding that transfer serves the child’s best interests.

The dispute before the Supreme Court concerned the third condition. Earlier Court of Appeal guidance had described the best interests test in this context as attenuated, confined to matters of forum rather than outcome. Applying that guidance, the judge treated the consequences of the girls being removed from their settled foster home, including the loss of the option of a long-term placement with their current carers, as irrelevant to the best interests question. That question, he held, was answered once he found Hungary better placed to hear the case.

The children’s guardian and the local authority argued that this collapsed two separate questions into one. Being better placed to hear a case and being the right place to send a child are different inquiries. A transfer that removes a child from a stable home and forecloses an available outcome cannot be resolved as a matter of forum alone.

The Court’s Reasoning

Lady Hale, writing for a unanimous court, traced the attenuated welfare test to a misreading of her own words in an earlier case, In re I, which concerned a different provision of the Regulation entirely. Article 15 carries its own distinct best interests requirement, described in the Regulation’s recitals as an additional safeguard for the child and grounded in the right, under the EU Charter of Fundamental Rights, to have a child’s best interests treated as a primary consideration. Nothing in that history supported folding the best interests question into the better placed question.

The two questions are related but must be addressed separately. Better placed asks which court has the stronger practical connection to the case: language, family ties, access to background information, the capacity to carry out further assessments. Best interests asks something narrower but still substantive: whether sending the case away serves the child now and in the future. That second question requires a judge to weigh the immediate consequences of transfer, disruption to a settled home, an unfamiliar country and language, against what the transfer would preserve or foreclose for the child’s longer-term future.

On the facts, the judge had heard every piece of evidence in the case and was in a position to decide the outcome himself. The Supreme Court thought it would be rare for a transfer to be justified at that late stage, particularly since sending the case to Hungary would remove one of the outcomes available in England: a permanent placement with the girls’ existing foster carers, through adoption, a special guardianship order, or an ordinary residence order. Hungarian authorities can adopt only their own nationals through their own domestic process, so this option would simply disappear. The judge had never weighed that loss against what a transfer might gain.

The Court also declined to refer a related question, whether article 15 applies to care proceedings at all, to the Court of Justice of the European Union, despite a similar reference already pending from the Supreme Court of Ireland. Further delay, Lady Hale held, would itself harm two young children who had already waited too long for a settled future. The Court proceeded on the assumption that article 15 does apply to proceedings of this kind, leaving the wider question for another case.

The appeal was allowed. The transfer request was set aside, and the case was sent back to the Family Division for a fresh hearing, with the evidence brought up to date.

Critical Assessment

The judgment sits within a tension the Regulation itself creates. Article 15 rests on mutual trust between member states, and the Court repeats the settled position that an English court may not weigh the relative competence of another state’s child protection system. Part of what makes England the better place to keep this case, on the Court’s own reasoning, is that English law permits adoption without parental consent on welfare grounds, an option Hungary does not offer in the same form. Keeping that option available is framed as a neutral fact about which outcomes remain possible rather than a judgment on Hungary’s approach. The distinction holds, but only just. England’s use of non-consensual adoption is itself the subject of the European concern the judgment records in its own opening paragraphs. Treating access to a distinctively English, internationally contested tool as a reason to retain jurisdiction risks quietly favouring retention in exactly the cases where that tool is most likely to be used.

A second tension concerns time rather than principle. Lady Hale is emphatic that children should not suffer for the delay of adults or institutions. The proceedings that produced this correction ran from an interim care order in February 2014 to a Supreme Court judgment in April 2016, and settled nothing beyond which country should decide the underlying question. The case returned to the Family Division for a fresh hearing with updated evidence. Ella, not yet three when this judgment was handed down, was likely to be of school age before any final decision on her actual home was made. Some of that delay flows directly from the structure the Regulation and English procedure impose. A transfer application considered only after a judge has heard every piece of evidence in the case is, almost by definition, being considered too late for transfer to remain a live option, which is exactly what happened here. If that sequencing is common rather than unusual, the guidance that transfer will rarely be appropriate once a judge has heard the evidence may describe an outcome the system tends to produce on its own, regardless of the merits of any given case.

The judgment is also no longer directly operative in England. The Regulation it interprets applied to the United Kingdom as an EU member state. Since the end of the Brexit transition period, England relies on the 1996 Hague Convention rather than Brussels IIA for jurisdiction in cross-border cases involving children. The separation the Court draws here, between choosing a forum and choosing an outcome, remains a sound statement of principle, and the Regulation continues to bind the remaining member states in its recast form. The specific article 15 mechanism this judgment interprets no longer governs an English court’s own decision to send a case abroad.

Implications

If you’re not a lawyer: anyone dealing with a cross-border child protection case, as a parent, a foster carer, or someone trying to understand how these decisions get made, should take one point from this case. A court cannot send a child’s future to another country by asking only which country is better connected to the family. It must also ask what actually happens to the child if the case moves, now and in years to come, and weigh that honestly. A settled home is not a detail set aside once a forum is chosen. It is part of the decision itself.

For the profession: this remains the leading authority for separating the better placed and best interests limbs of a transfer request, a distinction with continuing relevance wherever a jurisdiction test asks both questions, including under the recast Brussels IIb Regulation now applied across the remaining EU member states and, by analogy, under comparable provisions of the 1996 Hague Convention that England itself now applies. Three points travel beyond the immediate facts. First, a transfer request considered after a court has heard the full evidence faces a high bar, since one of the clearest justifications for transfer, unresolved evidential gaps only the other state can fill, will usually have disappeared by then. Second, the loss of an available outcome, here adoption or special guardianship with existing carers, is itself a weighty factor against transfer, not a side effect to be discounted. Third, an article 15 application should be raised at the earliest possible stage of a case rather than late, since delay in resolving the forum question compounds directly into delay for the child, a point this judgment makes as forcefully as any of its doctrinal holdings.

Case Details

  • Citation: [2016] UKSC 15, on appeal from [2015] EWCA Civ 1112
  • Court: UK Supreme Court. Judgment given by Lady Hale, with Lord Neuberger, Lord Kerr, Lord Wilson and Lord Carnwath agreeing
  • Heard: 17 March 2016 · Decided: 13 April 2016
  • Governing provision: Article 15, Council Regulation (EC) No 2201/2003 (Brussels IIA), no longer applied by the United Kingdom following its departure from the EU
  • Interveners: the AIRE Centre, the Family Rights Group, the International Centre for Family Law, Policy and Practice
  • Key paragraphs: [36]-[44] (best interests separated from better placed) · [45]-[51] (the error identified on these facts) · [54]-[59] (declining a reference to the CJEU)