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Supreme Court clarifies ‘best interests’ test in Article 15 of Brussels IIa

The United Kingdom Supreme Court today handed down judgment in In the matter of N (Children) [2016] UKSC 15. Goodman Ray acted for Family Rights Group, who were given permission to intervene by the UK Supreme Court and intervened by way of written submissions. The Supreme Court described Family Rights Group’s intervention (at paragraphs 2 and 30 of the judgment) as “helpful” and “valuable”.

The case principally concerned the proper approach to the assessment of a child’s best interests in the context of an application to transfer public law care proceedings to another European State in accordance with Article 15 of the European Regulation, Brussels II Revised. That issue arose in care proceedings concerning two Hungarian girls, aged 4 and 2, brought by an English local authority, where the care plan was for adoption, but where the children’s parents wished for the proceedings to be transferred to Hungary. The issue is of particular importance given the freedom of movement of children and families throughout the European Union and the particular approach of the courts of England and Wales to adoption of children.

The Supreme Court allowed the appeal and determined that the previous approach to the “best interests” requirement in Article 15 of Brussels II Revised (which had been described as an “attenuated” best interests test) was wrong. The factors relevant to the question whether to transfer the case, the Supreme Court determined, would vary according to the circumstances. There was, however, the Supreme Court stated, “no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself”. Matters such as the immediate consequences of the transfer and the impact on the choices available to the court deciding upon the eventual outcome would be relevant.

Goodman Ray instructed (on a pro bono basis) John Vater QC, Edward Devereux, Mehvish Chaudhry and Rob George of Harcourt Chambers to represent Family Rights Group.

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