A decision on the possible adoption of two siblings should not after all be transferred to Hungary, the Supreme Court has ruled.
In The Matter of N concerned jurisdiction of two sisters, born to Hungarian parents in the UK. They were removed from their parents following the birth of the younger girl when her older sister was found living “in conditions of extreme squalor”. The sisters were placed in foster care by the London Borough of Hounslow and have remained there ever since.
The council planned to have them adopted, a move firmly supported by the children’s legal guardian, but both parents were opposed. The mother applied to have the case transferred to Hungary, arguing that the courts in her native country were better placed to hear the case, as defined by Article 15 of EU legislation Brussels II Revised. The Hungarian authorities offered to keep the sisters in foster care if the case transferred until a considered decision was made.
The High Court ordered transfer and that decision was upheld by the Court of Appeal. But the children’s guardian was determined and took the case all the way to the Supreme Court, arguing that the child’s best interests did not support a transfer.
The Supreme Court agreed. In a brand new ruling, the decision to order a transfer was set aside and the case sent back to the lower courts for a rehearing.
In a key passage from the ruling, Lady Justice Hale explained that Article 15 transfers might not be in the best of the interests of the child, saying that this was a separate issue to whether or not the eventual outcome might be:
“…there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of [hearing] the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.”
Read the ruling here.
Image: Lady Hale by June Mendoza