Case Study #4 - Transferral of Proceedings (art. 15 Brussels IIa reg.)

CASE STUDY 4.1:Romanian minors resident in Italy; parents separate, mother relocates to Romania with children. Considering a transfer of proceedings to Romania.

Vassily and Mihaela are Romanian nationals resident in Italy with their two children since several years. When the couple decides to divorce, Mihaela lodges a request for divorce before the Italian court. She also asks the court for sole custody of both children.

Pending the proceedings, she leaves Italy and relocates to Romania, taking the children with her. She cancels her own and her children’s residence in Italy; she finds a house close to her mother’s in Romania and ultimately finds a job there; children are further enrolled in school in Romania.

The father never enters an appearance before the Italian court and shows no interest for the proceeding; at the hearing the mother’s solicitor insists on sole custody.

What should the Italian court do?

(drawn from Trib. Vercelli, sez. I, 18 December 2014)

Should the Italian Court affirm jurisdiction or transfer proceedings?
do the children have a ‘particular connection’ to Romania?
is the Romanian court better placed to hear the case?
Is it in the interest of the children that the case is heard in Romania?
Can the Court transfer the case by its own motion? How should the Court proceed?
Need for the approval of the party/ies (Article 15.2)

Questions to be analysed: jurisdiction on parental responsibility and divorce matters, conditions for Article 15 transfer of proceedings, content of ‘particular connection’, ‘court better placed to hear the case’ and ‘best interest of the child’, the requirement of the consent to the transfer.

Applicable legislation:

Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
Jurisdiction on divorce: Article 3 Brussels IIa Regulation
Transfer of proceedings: Article 15
Article 15(2): “A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.”

EU case law:

Case C-428/15, Child and Family Agency v. J.D., EU:C:2016:819.

CASE STUDY 4.2: Italian minors resident in the UK; parents separate and mother relocates to Italy with the two girls. Considering a transferral of proceedings to Italy

James (UK national) and Luisa (Italian national) are a double-nationality couple. They got married in the UK several years ago and since then they are habitually resident in the UK. They are also parents to 2 daughters. The girls – who are both bi-national – are now 12 and 14 years old and through these years have been spending time regularly in Italy with the enlarged family. They are fully confident in Italian, have friends and family here and the eldest is considering attending high school in Italy with her cousin.

Upon separation, the Italian mother relocates to Italy and takes the girls with her for a short period on holiday. British father seeks sole custody of the daughters before the UK courts, alleging psychological abuses by the mother. The mother appears in Court and – among others – asks the UK Court to consider transferring proceedings to the Italian judge as the girls are registered in the Italian Registry and want to enrol in the Italian school next Fall.

The UK Court sets a time limit for the parties to deposit their views on the issue and to decide on it. In the meantime the mother lodges a request before the Italian court asking such court to «assert jurisdiction in the case pursuing Article 15 of the Brussels Reg.»

(drawn from Trib. Milano, sez. IX, 11 February 2014)

Should the Italian Court affirm jurisdiction?
do the children have a ‘particular connection’ to Italy?
is the Italian court better placed to hear the case?
Is it in the interest of the children that the case is heard in Italy?

Does the pattern change depending on the activity of the UK Court? For example, is it necessary that the request for transferral comes from the first competent court? Or can it be triggered by the party itself? (case at hand)

Questions to be analysed: jurisdiction on parental responsibility and divorce matters, conditions for Article 15 transfer of proceedings: who can initiate the transfer and who has a power to decide on that.

Applicable legislation:

Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
Jurisdiction on divorce: Article 3 Brussels IIa Regulation
Transfer of proceedings: Article 15
Article 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:…...”

– Does the result change if the UK Court follows on with the proceedings and begins instructing the Social services so as to collect more information on the alleged abuse?

Questions to be analysed: who can initiate the transfer and who has a power to decide on that; what are the rights of parties in this regard

Are the child’s view relevant at this stage? Should he/she be heard?
See Medway Council v. JB, BB etc. High Court of Justice Fam. Div., 26 October 2015 [2015] EWHC 3064 (Fam)

Questions to be analysed: duty to hear the child in transfer proceedings, the extent of hearing of the child (child views only as to transfer), interaction of ‘best interest of the child’ and child’s objections to transfer

Applicable legislation:

Transfer of proceedings: Article 15 Brussels IIa Regulation
Duty to hear the child in Article 12 of the 1989 United Nations Convention on the Right of the Child

CASE STUDY 4.3: Lithuanian minor resident in UK, in care of the UK social services. Mother in UK is not able to care for him. Considering a transferral of proceedings to Lithuania

Henry and his mother Teresa are from Lithuania and have lived in that country until a few years ago. Teresa became pregnant with Henry as a result of a one-night stand with a man who was never aware of the pregnancy. While she was pregnant, Teresa married George, who is registered as Henry’s father and is considered as such by Henry. Over the time George became increasingly violent towards Teresa; Henry witnessed this violence over a period of time. As a result of this, Teresa eventually decided to leave Lithuania and bring Henry to the United Kingdom. They arrived in this country in March 2013.

After arriving, they lived in accommodation with ten other adults, all Lithuanian. Sadly, the mother became a victim of people-trafficking and, like all the adults in the property, began working for a criminal network. Short afterwards she got married to a new man, James, active in the same criminal activity.

Henry was enrolled to school in Spring 2013 and returned there at the start of the Fall term. On several occasions, however, he was found in the care of the mother or of other adults when she was (or they were) under the influence of alcohol. Following a referral to social services by his school, Henry was made the subject of a child protection plan. When he once failed to attend school and the police arrived at his home, he was again found to be in the care of his mother when she was in a state of extreme intoxication and was therefore placed under police protection. Subsequently the mother agreed that he should be put in a foster care. Henry is still in a foster care while this proceeding is pending.

The UK authority decided to start care proceedings and, being informed by the mother that Henry has a grandmother with whom he has a good relation, got in touch with the Lithuanian Authority (State Child Rights Protection and Adoption Service in Lithuania, hereafter “SCRPAS”, which also serves as the Lithuanian Central Authority), requesting a viability assessment of the maternal grandmother. The maternal grandmother indicated that she would like to take care of Henry. SCRPAS instructed her to attend a training for prospective carers and informed that after that the training had been completed she would be assessed by the responsible social worker.

The UK Court found that it has jurisdiction under Article 8. Such finding is based on the fact that the intention of Teresa, both before and after her arrival, was to stay indefinitely in the UK; Henry has been living in UK for some time and has been attending school here. He is thus habitually resident in the UK at the start of the care proceedings.

The question arises however if the UK Court should consider a transfer under Article 15 to the Lithuanian court.

(drawn from: HA (A Child), Re (No.2) [2015] EWHC 1310 – (Fam Court, 8 May 2015)

Does Henry have a ‘particular connection’ with Lithuania?
Is the Lithuanian Court better placed to hear the case (or a specific part thereof)? Which elements should one take into account?
Is a transfer of proceedings to the Lithuanian court in Henry’s interest?

How do you assess this requirement? How is it related to the general principle of best interest of the child?

See also ultimately In the matter of N (children), [2016] UKSC 15 – (UK Supreme Court, 13 April 2016)

Questions to be analysed: jurisdiction on parental responsibility matters, conditions for Article 15 transfer of proceedings, content of ‘particular connection’, ‘court better placed to hear the case’ and ‘best interest of the child’ (what is meant under ‘child’s best interest’ and is it separate form other conditions), the requirement of the consent to the transfer.

Applicable legislation:

Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
Transfer of proceedings: Article 15 Brussels IIa Regulation

EU case law:

Case C-428/15, Child and Family Agency v. J.D., EU:C:2016:819.

How does the time factor impact on the decision to transfer the case?

Questions to be analysed: at what stage transfer of proceedings could be contemplated; when are they not advisable or to be considered with caution. Evaluating factors that could counter-weigh the opportunity of a transfer (the most relevant factor is the issue of time and of judicial continuity).

VARIATION No 1

Suppose that, after the order for transferral of proceedings was made, the grandmother, who had previously accepted to take care of Henry, changes her mind and finds that, due to financial constraints, she no longer thinks it is possible for her to provide assistance to her grandson. What should the Lithuanian Court then do?

Suppose the Lithuanian Court first assumes jurisdiction and then ‘closes the case’ on this specific issue, what should the UK Court do? (the child never left UK)

Can you ‘resume’ jurisdiction after that this has been transferred?
How do you assess when the proceeding is actually transferred, and which part of it is actually transferred ?

(See Article 16)

Questions to be analysed: conditions for Article 15 transfer of proceedings, change in circumstances, scope of the transfer order, transfering part of the case v. transferring whole proceedings, need to draft the transfer order precisely, position of both courts after the transfer

Applicable legislation:

Transfer of proceedings: Article 15

VARIATION No 2

Suppose that in the meantime George (the former spouse of Teresa, registered as a father to Henry, but not his biological father) applies to the Lithuanian court for custody over Henry, declaring he has the financial and material means to do so, he has always loved the child but was not able to keep contact with the boy because of Teresa’s opposition.

Teresa now firmly opposes to the proceedings being transferred to Lithuania (and the child being returned there). The UK child authority too, having doubts in regard of George’s fatherhood and considering that under English law he would have no parental responsibility, also opposes the transferral of proceedings.

The UK child authority also emphasizes that Henry has been living in UK for the last two years, where he has been placed in a foster family; furthermore the proceeding have been pending before the UK court for the last 18 months.

The question is if the former order for transferral is referred only to the specific case as this was pending when the order was made, or if such order transfers general jurisdiction in respect of all questions related to parental responsibility over the child.

What is the nature and scope of transferral of proceedings (see, mutatis mutandis EUCJ, case E v.B) ?
Is the transfer referred only to ‘part of’ a proceedings? How should this be made clear?
What weight should be given to the principle of judicial continuity ?

Applicable legislation:

Transfer of proceedings: Article 15