M (A Child), Re

This is an appeal concerning a child whose parents live in the Czech Republic. The child, who I shall call M, is and has always been habitually resident in England and Wales. The appeal raises important points of principle relating to how the courts in England and Wales determine family cases that involve nationals of other countries, in particular Member States of the European Union and for that reason, permission to appeal was granted by Mostyn J in accordance with CPR 52.3(6) (b).

The appeal arises out of a decision made on 18 December 2013 by Mostyn J to request the district court in Novy Jicin, that is the court exercising public child protection responsibilities in the relevant part of the Czech Republic, to assume jurisdiction in relation to a child who is the subject of public law children (care) proceedings under the Children Act 1989 and placement for adoption proceedings under the Adoption and Children Act 2002. The request was made in accordance with the provisions of Art 15(1) of Council Regulation (EC) No 2201/2003 ‘concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility’ [Brussels 2 Revised or B2R]. The request, if accepted, would have the effect of bringing to an end the proceedings in this jurisdiction, that is if the court in the Czech Republic accepts jurisdiction, the court in England and Wales is required to decline jurisdiction in accordance with Art 15(5) leaving the court in the Czech Republic with sole responsibility for any proceedings thereafter. The request has been stayed pending the hearing of this appeal.

The history behind the request is as follows. M is a young boy who is now 19 months old. He was conceived out of a relationship between his mother [LM] and his mother's stepfather [SD] when his mother was 17 years old. His maternal step-grandfather is therefore his father. Care proceedings were commenced by the local authority, Nottingham City Council, on 7 August 2012. On 30 November 2012 Mostyn J gave judgment on the facts. There is an agreed summary of those findings sufficient for this appeal to which I shall return in due course. After the finding of fact hearing, Mostyn J raised the question of whether there had been or was intended to be a B2R request. On 27 November 2013 LM made a request for the transfer to Novy Jicin.

The concurrent care and placement order applications were timetabled to a final hearing which was listed for two days beginning on 17 December 2013. Mostyn J considered the Art 15 request as a preliminary issue and gave judgment leading to the order which is the subject of this appeal and which is as follows:

“The District Court of Novy Jicin is requested to assume jurisdiction to decide upon the future of the child [M], but such request shall not formally be issued until and unless the intended appeal against this order is dismissed. In that event the request shall be issued within 14 days of the date of the dismissal of the appeal”

The request was opposed by the local authority and the children's guardian on behalf of M. They maintain their opposition in this appeal which is brought by the local authority with the support of the children's guardian. There is a Respondent's Notice filed on behalf of the children’s guardian in which it is submitted that there are additional or alternative grounds upon which the appeal should be granted, namely the asserted advantage that the court in England and Wales would have over the court in the Czech Republic because of a) the judicial continuity that would be provided for between the fact finding and welfare determinations and b) the English court’s obligation to ensure that adequate protective arrangements are made in respect of the child.

The court is very grateful to the advocates for the parties for the high quality of their written and oral submissions.

The background circumstances are these. SD and his then wife, M’s maternal grandmother, DD, moved to the United Kingdom in 2004. They were accompanied by DD’s daughter, LM. SD raised LM as a child of the family and had two further children with DD. When LM was aged 17 SD began a sexual relationship with her. Their son, M, was born on the 27 June 2012.

The local authority began care proceedings in respect of M on 7 August 2012. The first interim care order was made on 8 August 2012 and M has been residing with foster carers ever since. The local authority also began proceedings in respect of the two children of SD and DD in respect of whom final orders have been made. On 15 August 2012 the local authority was granted an order under section 34 of the Children Act 1989 permitting it to refuse contact between M and his father, SD. There has been no contact between M and SD since M’s removal into care. M’s mother, LM, had twice weekly direct contact with her son until she left the jurisdiction in August 2013. Since then she has had direct contact on the occasions that she has returned to the jurisdiction.

Between 16 and 23 November 2012 Mostyn J conducted the fact finding hearing. On Monday 19 November 2012, while in the middle of being cross-examined, SD failed to attend court. It became clear he had returned to the Czech Republic. In circumstances I shall describe, M’s mother and father now live in the Czech Republic with their new child who was born last year.

Mostyn J’s findings of fact can be summarised as follows:

Following the finding of fact hearing LM said that she intended to separate from SD and to care for M on her own. In December 2012 LM returned to the Czech Republic and again became pregnant by SD. She returned to this jurisdiction in January 2013 and departed again for the Czech Republic in August 2013. She now lives with SD and their new child in Novy Jicin. Czech child protection services are involved in supporting the family.

As my Lord, the President recently articulated in In the matter of E (A Child) [2014] EWHC 6 (Fam), the jurisdiction of the courts of England and Wales in relation to public law children (care) proceedings is modified by B2R. The basic principle, set out in Art 8(1), is that jurisdiction under B2R is dependent upon habitual residence:

“The courts of a member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised”

It is settled law that B2R applies to care proceedings in this jurisdiction: Re C (Case C-435/06) [2008] 1 FLR 490 ECJ at [53] and [26] to [35]. By parity of reasoning the same must apply to placement for adoption proceedings which are a ‘civil matter relating to the attribution, exercise, delegation, restriction or termination of parental responsibility’ and ‘the placement of a child against the will of a child’: [26] and [35]. Accordingly the starting point in every care or placement order case with a European dimension is a consideration by the court whether B2R applies and that will involve an inquiry into the habitual residence of the child.

It is not necessary for this court to articulate the principles to be applied to that exercise. They were set out by the President in In the matter of E at [24] and [25], with which I respectfully agree. In these proceedings it is an agreed fact that M’s habitual residence is and has always been in the jurisdiction of England and Wales. The representatives of the Czech Embassy in London have attended the hearings before Mostyn J from as long ago as 16 October 2012 and have never taken issue with that fact or with the exercise of jurisdiction by the English court.

The jurisdictional test set out in B2R is the same regardless of whether the application for a request originates from a party, the court of its own motion or the court of another Member State with which the child has a particular connection. Similarly, the same test applies whether the request is made by a court or by a party at the invitation of the court. The test is at Art 15(1):

“By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)

stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other member State in accordance with paragraph 4; or

(b)

request a court of another Member State to assume jurisdiction in accordance with paragraph 5.”

Art 15(1) was considered by Munby J, as my Lord then was, in AB v JLB (Brussels II Revised: Article 15) [2009] 1 FLR 517 at [35] where he identified the three questions to be considered:

“ … as Art 15(1) makes clear there are three questions to be considered by the court – here The Hague court – in deciding whether to exercise its powers under Art 15(1):

i)

First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii)

Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii)

Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

The Art 15 power is, as is stated on its face, an exception to the general rule of jurisdiction in Art 8 which is grounded in the habitual residence of the child. The power may only be exercised when all three questions can be answered in the affirmative. The court must make a decision i.e. exercise its discretion whether or not to request a court of another Member State to assume jurisdiction, but is constrained so that it cannot make that request unless the three questions have been answered in the affirmative: AL v JLB at [36]. The corollary of that principle is that a court in England and Wales cannot divest itself of jurisdiction in respect of a child who is habitually resident in England and Wales simply because she is a national of another Member State or where one or more of the Art 15(1) questions cannot be answered affirmatively.

In that context, what do the three questions reveal in terms of the answers to be evaluated by the judge?

On the facts of this case, there is no question that a child who by birth is a national of another relevant Member State (even if also a national of this country) and whose parents have chosen to live in that Member State with other relatives, in particular his new sibling, has a particular connection with that Member State. As Munby J said in AB v JLB at [35] that is a ‘simple question of fact’. The non-exclusive examples of particular connections set out in Art 15(3) include two factual circumstances that are relevant to this case, namely (c) …the place of the child’s nationality; and (d) … the habitual residence of a holder of parental responsibility.

The question of whether a court of another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child, given the construction of the regulation and the logical connection between the questions. That said, the starting point for the enquiry into the second question is the principle of comity and co-operation between Member States of the European Union enshrined in the European Union Treaty which the provisions of B2R were designed to reflect and implement (see, for example [2], [21] and [23] of the preamble to B2R). In particular, the judicial and social care arrangements in Member States are to be treated by the courts in England and Wales as being equally competent: Re K (A Child) [2013] EWCA Civ 895 at [24] per Thorpe LJ.

It is entirely proper to enquire into questions of fact that might inform the court’s evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court’s knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on.

The evaluation of a child’s best interests under Art 15(1) is limited in its extent to the issue of forum i.e. the best interests question asked by Art 15(1) is whether it is in the child’s best interests for the case to be determined (or the specific part of the case to be determined) in another jurisdiction. In relation to the same question asked in analogous circumstances, namely the language of Art 12(3), whether it is in the child’s best interests for a case to be determined in this country rather than elsewhere, the Supreme Court of the United Kingdom held in Re I (A Child) (Contact Application: Jurisdiction) 2010 1 AC 319 (per Lady Hale at [36]) that:

“this question is quite different from the substantive question in the proceedings, which is “what outcome to these proceedings will be in the best interests of the child?” It will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum”

This court has previously determined that the construction of the best interests test in Art 15(1) is the same as that in Art 12(3): Re K at [25] and [26] and accordingly the test to be applied to the third question is that described by Lady Hale in Re I. It is worth noting that in Re K this court rejected the proposition that best interests are an important but not a paramount consideration: per Thorpe LJ at [19] overruling Mostyn J in Re T (A Child: Article 15 of B2R) [2013] 2 FLR 909 at [16] to [18]. The decision in Re K is consistent with the attenuated test articulated by Lady Hale and with the preamble to the Regulation at [33] which “recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union:”

“Article 24 The rights of the child

2.

In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary conclusion”

Furthermore, Lady Hale’s test is consistent with the decisions of the European Court of Human Rights, see, for example: R and H v United Kingdom [2011] 2 FLR 1236 at [73] and Art 3(1) of the United Nations Convention on the Rights of the Child. The Supreme Court of the United Kingdom has already observed that B2R was devised in the best interests of children generally and of the individual children involved in such proceedings as a primary consideration and that the UNCRC should be taken into account in deriving the autonomous meaning of the language of Art 15: Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 at [17] and [18].

In my judgment, there is no utility in trying to improve on the plain language of the Regulation. The autonomous meaning should not be limited or enlarged upon by the domestic concept of paramountcy or any other reference to national law unless that is express or implied in the language of the Regulation: Re K (supra) per Tomlinson LJ at [30] and Marinos v Marinos [2007] EWHC 2047 (Fam) per Munby J citing the principle by reference to Hagen v Einfuhr-und Vorratsstella Gertreide (Case 49/71) [1973] 12 CMLR 23:

“Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law”

In his application of each of the questions to the facts found and the issues remaining to be determined, the judge loyally set out each and every consideration that the parties advanced. No-one has suggested otherwise before this court and I need not repeat the extensive matters he took into consideration at [17] to [23] inclusive. There were also detailed enquiries made of the Central Authority of the Czech Republic (the Office for the International Legal Protection of Children or OILPC).

It is said that the judge was wrong in four respects:

There is a respectable argument about whether the English court is better placed to decide the welfare of M than the Czech court which derives from the fact that the English court has so far heard all of the evidence and determined the key issues. There are at least two aspects to this. The English court has seen and heard the oral evidence of all of the witnesses including the father (until he absented himself) and the mother. It can and should ordinarily follow through its findings of fact and its impressions about reliability and credibility into its evaluations, future predictions and final determinations: Re O & N, Re B [2003] UKHL 18, [2004] 1 AC 523 at [32] and [35] and In the matter of B (A Child) [2013] UKSC 33 at [42] and [200-1]. There are good reasons for that. A judge is not to be expected to commit to paper all of the nuances and impressions he has gained during a contested hearing (see, for example: Biogen Inc v Medeva Plc [1997] RPC 1 at [45] and Piglowska v Piglowski [1999] 1 WLR 1360 at 1372). Furthermore, judicial continuity is a desirable aim, not just in the case management of the individual proceedings but as among all proceedings. It tends to promote consistency of approach i.e. good practice as well as internal consistency within the proceedings.

In accordance with ordinary English principles, the proceedings are part heard and that protects the child from the possibility that “useful information” will fall between the gaps: Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 at [76]. Although this case has been case managed as a ‘split hearing’ where findings of fact are severed from the welfare analysis and proportionality evaluation, that has not been justified from first principles before this court and unless facts needed to be found to determine a jurisdiction issue, it is otherwise an unlikely case to come within the split hearing principles (see, Cambridgeshire County Council v S (A Child) [2014] EWCA Civ 25 at [27] to [31]). That said, a split hearing was conducted and a great deal of analysis has already been undertaken by the judge.

Art 15 specifically contemplates the transfer of a specific part of proceedings where that is appropriate. The power to do so does not inform the question whether it should be exercised and the relative merits and demerits of such a possibility. Provided that in any evaluation of the factors that arise in a particular case, no one factor is raised to the status of a principle that has the effect of making transfer impossible, I do not believe that the existence of the power adds anything to the analysis.

According the respect that must be given to the view of a judge who has conducted a significant contested hearing, I find it difficult to agree with his proposition that “generally speaking, the advantage that I have by virtue of having conducted a fact finding hearing over a fellow judge is marginal”. In particular, the court that determines the welfare of M will have to hear evidence about the relative differences between the parents’ care of M and their care of their new baby and, for example, whether the support available to them since they returned to the Czech Republic has been decisive in that any change that there has been because of the availability of that support might be a key issue in any decision about the realistic welfare options for M.

Mr Newton and Mr Metaxa rightly submit that the court in the Czech Republic is likely to be best placed to assess the quality of care and support that are presently available to the family and, as Mostyn J remarked at [30] and [40], the parents are in the Czech Republic, their baby is in the Czech Republic, any proceedings there will be conducted in their first language and the Czech court is likely to be better placed to assess whether the relationship between M and his baby sister can and should be established and maintained. These are strong factors, but equally strong, in my judgment, is the question of judicial continuity. The welfare hearing will involve consideration of the positions of both mother and father which have changed over time and the factual baseline already determined against which (in the absence of further evidence) the new circumstances fall to be considered. I agree with Mostyn J that these factors were in a marginal balance but in the absence of any evidence that assessments had not or could not be undertaken in one jurisdiction or another (for example because it might not be professional, permissible or lawful for a social worker to undertake an assessment in another jurisdiction) or that evidence of fact or opinion would be unavailable in one jurisdiction or another, the deciding factor in respect of the second question was the advantage a judge has who had already conducted the proceedings through a significant contested hearing. In a world where the use of information technology is a commonplace, the physical location of a professional witness is rarely likely to be decisive.

The advantage of judicial continuity and the disadvantage of transferring a part heard process would not have been a factor in the balance had the question of jurisdiction been taken during early case management and before the finding of fact hearing had taken place. In giving permission to appeal Mostyn J presciently remarked at [42] that “any court hearing a public law case where there is a potential Article 15 aspect should raise this with counsel at an early stage”. I strongly agree and would recommend to the Family Procedure Rules Committee that Practice Direction 12A be amended to alert practitioners to the need to raise jurisdiction issues when making an application, during the process of issue and allocation (so that standard directions can be made) and subsequently and most importantly at the Case Management Hearing so that directions can be given relating to contact with Central Authorities and other State bodies. That would help to facilitate, where appropriate, a request for transfer before substantive as distinct from urgent and interim issues have been decided.

Mostyn J confronted with clarity the issue of the competence of the courts and child protection authorities of Member States and in particular, the Czech Republic and England and Wales. He set out the detailed response to the parties’ enquiries from OILPC and recorded the fact that the Department of Social Legal Protection of Children in Novy Jicin had decided that they would supervise the parents’ care of their new child in the Czech Republic (as distinct from any immediate plan to remove that child from the parents’ care). The children’s guardian was particularly concerned about that and submitted to him that “if there is clear evidence, as it is submitted there is in the instant case, that the Czech authorities are not appropriately protecting a child the court should not ignore that fact”.

In response, Mostyn J commented that “Criticisms of the actions of the Child Protective Services in Novy Jicin is obviously very dangerous territory for me to be lured into”. He articulated the principle extracted from Re K to which I have referred in [19] above, namely: “We must take it that the child protection services and judicial services (in Slovakia) are no less competent than the social and judicial services in this jurisdiction”. He concluded:

“I unhesitatingly decline to be drawn into a process of evaluation of the competence of the Child Protective Services in Novy Jicin, let alone of the Czech court. In my judgment the statement of Thorpe LJ in para 24 of Re K is not a mere rebuttable presumption but is a no entry sign. Criticisms of the performance of local authorities and judicial services in fellow EU countries is territory into which I must not go.”

I agree. Before this court Ms Langdale QC and Mr Veitch on behalf of the child went further and submitted that it was relevant to the second and third questions under Art 15, namely which court is better placed to hear the case and the attenuated welfare question, that only the English court would be likely to consider non-consensual adoption for M. They developed the submission in two ways.

They submitted that “the English court is in a unique position to consider the fullest range of welfare options” for M which includes adoption. They further submitted that “it is in [M’s] interests that the safety and security adoption can provide remains an option for the Court responsible for determining his future”. The implication of that submission is that the courts in the Czech Republic are either unable or unlikely to consider adoption which is, in the opinion of the children’s guardian, the placement that is in the best interests of M. Accordingly, any placement decision which limits or excludes adoption as an option would not be a decision in the best interests of M.

That submission taken at face value implies that in any public law children proceedings with a European element, the Art 15 exception to Art 8 should not apply where the local authority’s care plan is with a view to adoption or where placement order proceedings have been commenced to approve the placement of a child for adoption unless the receiving court is likely to consider non-consensual adoption in the same way as the English court. That cannot be right. To elevate the best interests question to a paramount procedural bar is to misunderstand the nature of the question described by Lady Hale. It would also operate in a manner that required the English court to assess and evaluate whether courts of Member States were indeed able and willing to protect children and young people in the same way as the courts in this jurisdiction. Aside from the fact that the submission involves an assumption which ignores the question of the child’s Czech/Roma heritage which is a factor in the welfare analysis, the exercise suggested would be an impermissible comparative evaluation.

The children’s guardian also submits that because of the child protection approach of the Department of Social Legal Protection in Novy Jicin towards the parents and their new baby, there is a likelihood of the return of M to their joint parental care if proceedings are transferred to that court. Again, the implication is that the court in the Czech Republic may be minded to take a different view of the seriousness of risk to M from his birth father in particular, from that identified in the findings of Mostyn J. That is no more or less a comparative evaluation of the efficacy of the courts of a Member State than the discussion about whether adoption is an ultimate welfare option open to those courts. It is equally impermissible.

In fairness to the children’s guardian, the submissions made were hypothetically predicated on a factual circumstance that does not exist in this case, namely where protection would not or cannot be afforded to a child or young person in need of the same without the intervention of the English court. That extreme case is not before this court and whether the same degree of respect is to be afforded to the competence and decisions of a jurisdiction that is unable to protect a child must wait until the situation arises, if it ever does. It is now common ground that the child protection authorities and courts in the Czech Republic are able to deploy the full range of protections available to the local authority and courts in England and Wales although the concept of non-consensual adoption is very limited, in common with many jurisdictions both in Europe and around the World and in contrast with our own practice. The difference in practice and principle relating to the measures to be taken in different Member States to meet risk and/or to meet the needs of a child including the use of non-consensual adoption is not a basis under Art 15 to decide the second or third questions.

It is submitted by the appellants that the judge’s formulation of the third question was in error because he held that “the principle of paramountcy did not apply”. The language that the judge used has to be taken in context. At [12] he analysed the effect of this court’s consideration in Re K on appeal from his own decision in Re T (A Child: Article 15 of B2R). He set out in full the Art 15 questions identified in AB v JLB and then set out the attenuated welfare test described by Lady Hale in Re I which is the appropriate test for the third question. It was only in the context of cross referencing this court’s commendation of that test in Re K that he paraphrased the discussion about the domestic concept of paramountcy as against the autonomous meaning of best interests in Art 15. Accordingly, I do not agree that Mostyn J fell into error in the identification of the appropriate test for this question.

At [24] of the judgment challenged in this appeal, Mostyn J posed a question which he characterised as a “very important political and social issue” , namely:

“… whether, and if so to what extent, the remit of our own child protection system should extend to children who are citizens of other EU countries (but not this country) where there exists a clearly defined transfer procedure to enable their future to be determined in the court of their homeland”

That is not of course a question which falls to be answered under the terms of Art 15(1) or as a consequence of any relevant binding decisions upon the court. It is arguably an impermissible gloss on the plain words of Art 15(1) and in any event, if answered in the negative, it has the effect of formulating a legal policy which contradicts or would be in conflict with that expressed in B2R in that it would tend to elevate the first question in Art 15(1), whether a child has a particular connection with a relevant other member State, to being determinative of jurisdiction when Art 8 identifies and prescribes the question of habitual residence as being determinative save and unless the exception in Art 15 applies.

Having asked the question in the way I have described, Mostyn J answered it in the following terms at [26]:

“In my judgment, although Art 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”

If there was any doubt about the judge’s reasoning in asking the question, the answer articulates with clarity the error of principle I have identified. That is an error of law and were it to be carried through into the evaluative exercise undertaken by the judge would have fatal consequences. That has particular force in these proceedings because the parties are agreed that the first question, whether the child has a particular connection with a relevant other Member State, here the Czech Republic, was conceded and the judge described the answers to the remaining two questions as being ‘finely balanced’.

Did the judge allow the answer to the question of the child’s particular connection with the Czech Republic to become the dominant issue in his evaluative exercise to the exclusion of any proper consideration of the two remaining questions, as alleged by the Appellants? I bear in mind the caveat he expressed that his conclusion was in respect of a circumstance where all other things were equal, but that does not help to neutralize the imperative that he identified which raises nationality to being a decisive factor. In his concluding remarks at [40] it is not just the practical merits and demerits of the continuation of proceedings in England or the Czech Republic that are described. In my judgment, the identification of the nationality of the family has become decisive. Even if I am wrong, the force of the asserted legal policy expressed by the judge is sufficient to vitiate his decision.

If one removes the judge’s impermissible legal policy gloss from the evaluation, the transfer question was at best marginal. Having regard to my conclusion about the benefits of judicial continuity, the Art 15 preliminary issue, on the facts of this case, should have been decided in favour of the English court retaining jurisdiction.

For these reasons, I would allow the appeal, and if my Lords agree, set aside the request under Art 15 and remit the proceedings to Mostyn J to conduct the balance of the hearings that are necessary. Although on the facts of this case it is not appropriate to request another Member State to assume jurisdiction, the central message of this case and recent similar examples such as In the matter of E should not be overlooked. Jurisdiction must be considered in every children case with an international element and at the earliest opportunity i.e. when the proceedings are issued and at the Case Management Hearing.

I agree. The basic policy underpinning B2R is clearly set out in recital (12):

“The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s habitual residence or pursuant to an agreement between the holders of parental responsibility.”

The two points that emerge clearly from this recital are: first, that the basic test for jurisdiction is the child’s habitual residence; and second, that this test has itself been framed in the best interests of the child. Recital (13) continues:

“In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.”

It is clear, therefore, that the power to transfer a case (or part of a case) to the courts of another Member State is an exception to the general principle, as the opening words of article 15 (1) themselves make clear. One of the fundamental principles of community law is that of legal certainty. It is for that reason that the ECJ (now the CJEU) has consistently held that exceptions to general principles should be narrowly interpreted: see Case 33/78 Etablissements Somafer SA v Saar-Ferngas AG [1979] 1 CMLR 490 at [7] (concerning jurisdiction in civil and commercial matters) and Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737 (concerning exceptions to VAT liability).

There is, in my judgment, no room for a “sub-text” in the interpretation of B2R, as the judge held at [29]. Still less is there any room for a sub-text that directly contradicts the basic policy of B2R as set out in recital (12). So the real question is whether the judge’s view that there was a sub-text of the kind that he identified vitiated his balancing exercise. It is difficult, in any event, to shake off the impression that the text of the judge’s judgment had its own sub-text, which he had articulated at [29]. But even allowing for the fact that he posed himself the right questions, I agree with Ryder LJ, for the reasons that he gives, that his answers were vitiated by his mistaken view of the underlying policy of B2R.

I, too, would allow the appeal, and I agree with the disposal proposed by Ryder LJ.

I agree with my Lords that this appeal should be allowed for the reasons they have given. But I venture to add some words of my own, both because of the intrinsic importance of the points in issue and because we are differing from the learned judge.

I need not rehearse what I said in AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965 (Fam), [2009] 1 FLR 517, recently approved by this court in Re K (A Child) [2013] EWCA Civ 895, or what I said very recently in Re E [2014] EWHC 6 (Fam). The relevant principles can be summarised as follows:

Before turning to Mostyn J’s judgment there is another point to be noted. Although Article 15(3)(c) identifies that there is a particular connection with the Member State which is the place of the child’s nationality, the other limbs of Article 15(3) refer to matters other than nationality. So the child’s nationality is only one of a number of factors that, if established, can bring Article 15 into play. And even where it is the child’s nationality that establishes the particular connection required by Article 15, the other two questions to be addressed focus on quite different matters: forum and best interests. In other words, nationality is merely one gateway to establishing that the court has jurisdiction to consider making an order under Article 15. It can never alone determine whether it should.

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.

Before parting with this case there is one final matter which I wish to emphasise. The ultimate outcome of this appeal should not be allowed to obscure the great importance of Article 15. In the nature of things one cannot be sure, but I have an uncomfortable feeling that Article 15 has hitherto played far too little part in the daily practice of our courts and that its great importance has not been as widely appreciated as it should be. I repeat what I said in Re E, paras [35]-[36]:

“It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

(i)

the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii)

the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital.”

I added: “Judges must be astute to raise these points even if they have been overlooked by the parties.”

It is also vital, as this case has demonstrated, that the Article 15 issue is considered at the earliest opportunity, that is, as Ryder LJ has pointed out, when the proceedings are issued and at the Case Management Hearing. I agree with him that the Family Procedure Rules Committee should be invited as a matter of urgency to consider appropriate alterations to Practice Direction 12A to ensure that this happens in future