EU law Brussels II does not apply within the UK

Children|Family Law|News|August 11th 2013

A mother who applied to have care proceedings involving her children transferred from England to Scotland has lost her case at the High Court after relying on an EU regulation that does not apply within the UK.

In London Borough of Camden v Caratt & Others, Mr Justice Baker considered the case of a Venezuelan woman who had moved to Scotland to be with her husband. In 2009 the marriage broke down, but the woman and her three children remained in Scotland for several years.

Eventually they left Scotland and travelled to London, living in a refuge in the capital. Shortly afterwards, the mother left her children in the care of another person living at the refuge and went back to Scotland, reportedly in order to attend a court hearing.

While she was gone, the children were taken into care under an ‘interim’ care order. The mother returned, saw her children on a supervised basis, and then went back to Scotland. She applied for the care proceedings to be transferred to Scotland under Article 15 of Brussels II Revised, which defines jurisdiction in and the enforcement of international family law cases. Article 15 allows cases to be transferred from one country  to another if the new court is thought to be better suited to the case. Doing so must be in the best interests of children involved.

By the time of the court hearing, the Venezuelan woman had not seen her children for three months.

The judge ruled against her. He said that Brussels II Revised did not apply to the question of jurisdiction in cases involving different parts of the United Kingdom. He based this conclusion on earlier rulings, in particular Re W-B. This 2012 Court of Appeal case centred on whether legal proceedings regarding a couple’s child should be heard in Scotland or England. The Court declared that Scotland and England are both parts of one member state within the EU, and therefore Brussels II did not apply.

There were no grounds for transferring the case, said Mr Justice Baker.

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