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The jurisdiction of the UK courts over EEA national children

Posted by Soma Barzinji on July 07, 2016

In the matter of N (Children) [2016] UKSC 15 dated 13/04/16

This case was heard in the Supreme Court and concerned the jurisdiction of the UK courts over EEA national children. The Appellants in this case were the parents of two Hungarian national children born in the UK and the Respondent was the London Borough of Hounslow (Local Authority).

The jurisdiction of the UK courts over EEA national children

Brief Facts and Chronology

The Appellants were both EEA Nationals. The Appllant father was of Hungarian Roma descent and the Appellant mother of mixed Hungarian and Roma descent. The father already had two children from a previous relationship who were resident in Hungary.

The Appellants started their relationship in 2010 and moved to the UK in July 2011 when the Appellant mother was pregnant with the couple’s first child together. This child  was born in January 2012.

In April and May 2012, the Local Authority and the Hungarian Embassy in London, offered to support the Appellants’ return to Hungary because of their accommodation problems but the family remained in the UK. Without ante-natal care and direction, a second child was born to the Appellant’s in May 2013 in the single room shared by the family. An Ambulance was called and they, contacted the police when the Appellant father resisted the provision of medical treatment to  the Appellant mother and their new-born child. It was noted that the family were living in circumstances of extreme squalor with no food, clothing or bedding seen for either child. As a result, both children were placed into foster care.

The Local Authority’s application for an emergency protection order was not immediately pursued as arrangements for Appellants to have contact with both children had been put in place. Additionally, the  Local Authority contacted the Hungarian Central Authority (“HCA”) which concluded that as Hungarian nationals, the children should be cared for by relatives living in Hungary and that only the Hungarian authorities had the jurisdiction to adopt Hungarian citizen minors.

Care proceedings were issued by the Local Authority in the High Court in January 2014.

Hearing in the High Court

At First Hearing in the High Court the Appellant mother was pregnant with the couple’s third child and indicated her intention to return to Hungary to have the baby and also to apply for the transfer of the Family Law proceedings from the UK to Hungarian jurisdiction.

Under Council Regulation (EC) No 2201/2003 (“The Regulation”), the court of a Member State where a child is habitually resident  (in this case the UK), would ordinarily have jurisdiction to hear a case concerning that child. An exception to this rule is made by Article 15 of the Regulation which permits a court to transfer the case to the court of another Member State with which the child has a connection, but only if that receiving court would be better placed to hear the case and if it would be in the child’s best interest.

Decision of the High Court

Although the court found the Appellants’ children to be habitually resident in the UK, it concluded that the Hungarian court was better placed to have jurisdiction, taking into consideration:

  • That Hungarian was the mother tongue of both Appellant’s and both required interpreters to participate in proceedings in the UK
  • The children had a newly-born full sibling and two half siblings who were no resident in Hungary and the Hungarian court could promote contact between them in ways not open to the UK court
  • Any further assessments required would be better undertaken in Hungary than in the UK.

The Local Authority and Guardian appointed to represent the interests of the children, appealed to the Court of Appeal.

The Court of Appeal Decision (CoA)

The principal issue before the COA was whether the High Court had used the proper approach to its assessment of the best interest of the children in their decision to transfer the Case from the UK to Hungarian jurisdiction under Article 15 of the Regulation.

The CoA concluded that High Court had failed to properly consider the short and long term consequences for transferring the case to Hungary and removing children who had spent all or almost all their lives in the UK, who were happy, settled, and doing well, to a country where the language and the surroundings would be completely unfamiliar to them.

The CoA concluded that it was not in the best interest of these children to transfer the case.

An appeal was made to the Supreme Court.

The Supreme Court Decision

The Supreme Court agreed with the findings of the CoA and held that the High Court had been plainly wrong to conclude that the Hungarian authorities were, on the particular facts of this case, “better placed” to have jurisdiction of the case. A Transfer would also speed up the process of removal of the children from their long-standing home without any evaluation of how this would impact their psychological well-being. The transfer request to Hungary was set aside and it was held to be in the best interest of the children for their future to be decided as soon as possible in the UK.

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