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Family Law

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07 AUG 2013

BRUSSELS II REVISED, Art 15: Re K (Brussels II Revised, Art 15) [2013] EWCA Civ 895

(Court of Appeal, Thorpe, Tomlinson, Briggs LJJ, 11 June 2013)

The one-year-old child was born in the UK to Slovakian, Romany parents who left Slovakia in flight from social services. The child was made subject to an interim care order due to the chaotic behaviour of the mother. The Slovak Central Authority contacted ICACU and thereafter the Republic of Slovakia was joined to the proceedings. The jurisdiction of the English court was accepted but a transfer of proceedings to the Slovakian jurisdiction was sought pursuant to Art 15 of BIIR.

Mostyn J found in favour of the Slovakian authority and directed that arrangements be made for the child's transfer there. The children's guardian appealed.

Mostyn J had correctly applied the three principles from Art 15 but erred when he introduced a consideration of the domestic judgment of M v M (Stay of Proceedings: Return of Children) [2005] EWHC 1159 (Fam) [2006] 1 FLR 138. The construction of Art 15 had to be uniform throughout the courts of the Member States. It could not be dominated by a domestic law approach in cases brought under the domestic jurisdiction, whether it was statutory or inherent. The context of the issue before Wilson J and the law that he was applying were radically different to the determination of Art 15, which was hardly in being when he was sitting in the domestic case. The Article was transparently clear. The court could not request a transfer unless so to do would be in the best interests of the child. 

It had been demonstrated that the judge misdirected himself but this was a very minor aberration from the straight and narrow, and the judge would have arrived at precisely the same conclusion had he directed himself correctly and not imported into the search for the autonomous law of the Regulation, observations made by Wilson J in a domestic case some years earlier. It was unrealistic to remit the case for a fresh hearing. Appeal dismissed.

 

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