The best interests of the child: transferring family cases

Family Law|November 19th 2016

Two sets of proceedings in a bitter family dispute involving brothers living in different countries should be unified in England, the High Court has ruled.

As members of the European Union and therefore parties to Council Regulation (EC) 2201/2003 (more commonly known as Brussels IIA or Brussels II Revised), the UK courts are able to request the transfer of family disputes from other member states to the UK courts if, for example, it is thought that doing so would be in the best interests of the child. However, it is possible that leaving the European Union will mean that Brussells IIA will eventually cease to apply to the UK. Currently its future remains unknown. But if we do lose it, what options will we be left with? One possibility is that lawyers will end up turning much more frequently to the provisions of the international child-focused treaty formally known as the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. More concisely dubbed the Hague Convention on Parental Responsibility and Protection of Children, this also allows for the  transfer of family disputes from one country’s courts to another, so there is some overlap with Brussels II.

By way of illustration, on 14 October the Honorable Mr Justice Baker noted in the ruling that that as far as he was aware, he was making “…the first reported judgment in the UK concerning the power to submit a request to the court of another country to assume jurisdiction under Article 8, or for authorisation to exercise jurisdiction under Article 9” of the 1996 Convention.

Tellingly, he added:

“At first sight, it might seem surprising that these provisions have not been considered in any court proceedings before now.”

The explanation offered by the Honourable Judge was that those countries closest to the UK who have signed the 1996 treaty are also parties to Brussels IIA by virtue of being members of the European Union.

This interesting case concerned a family with two sons, aged eight and ten at the time of the hearing. The mother was Norwegian and the father English. After the marriage broke down, the mother returned to Norway with the younger child.

Norway is not a member of the European Union but it is a signatory to the 1996 Convention.

The Judge explained:

“The breakdown has been described as acrimonious by a CAFCASS officer who has reported in the course of the English proceedings. It seems that there were a number of referrals to social services, principally as a result of concerns about M’s angry and violent behaviour.”

Following the split, the mother announced that she wanted to take both boys with her but the father objected and it was eventually agreed that the older son could stay with him. A child arrangements order set out an agreed contact plan for the father with the younger boy. Meanwhile, the father agreed to “permit and facilitate contact” between the mother and the older boy.

Later the mother insisted that she had only agreed to these arrangements under duress. They had meant abandoning her original plan to take both boys back with her.

To quote Mr Justice Baker:

“Regrettably, the optimism concerning the parents’ co-operation about the boys’ future proved misguided. Contact did not take place fully in accordance with the schedule.”

In the ensuing dispute the father claimed the mother tried to involve the children in the parents’ disagreements.

“He alleges that there were ongoing difficulties over the FaceTime contact which he also attributes to the mother’s failure to adhere to the terms set out in the schedule. He claims that the mother used the sessions to manipulate the children by involving them in discussions about where [the older boy] should live. He also asserts that the mother sent [the older boy] emails with a link to the UN Convention on the Rights of the Child, and to a YouTube video of a child being interviewed about abuse.”

The mother disputed these allegations, saying it was actually the father who had attempted to put pressure on the older boy. Meanwhile, the father recorded video chats between him and the mother, and transcripts of these were included in his evidence.

Mr Justice Baker explained:

“It is neither necessary nor appropriate for me to comment in any detail upon the transcripts at this stage, save to record that they appear to show the mother talking to [the older boy] about moving to Norway and also that [he] was uncomfortable and distressed at times during the sessions.”

The mother admitted that “on at least one occasion she said things that should not have been said”.

A complex series of hearings followed. Both parents issued proceedings regarding in their respective countries regarding future arrangements for the two boys. Then the father applied to transfer the mother’s case in the Norwegian courts to the UK – and was successful.  He satisfied the court that there was a material connection to the UK court and that it was in the best interests of the children for both cases to be heard together in the UK. A decisive factor, said the Judge, was the fact that it was in “manifestly” in the interests of the siblings for their cases to be heard together so they could more easily see each other.

He explained:

“A crucial issue between the parties – perhaps, in the long run, the most important issue – concerns the contact between the two boys. This issue arises in both the English proceedings and the Norwegian proceedings. If the two sets of proceedings continue as at present, there is a risk that they will result in inconsistent orders. It does not make any sense for two courts in two separate countries to attempt to make decisions about the same issue at the same time.”

The request was therefore made for the transfer. It is noted that the Mother, whilst objecting, did not issue an application to transfer the UK proceedings to Norway.

This may be the first known reported case in the English courts concerning the 1996 Convention, but it is unlikely to be the last.

You can read the full ruling here.

Author: Amy Foweather

Amy is a solicitor at the Stowe Family Law office in Beverley. She specialises in a wide range of family cases, including divorce, separation, cohabitation, adoption, pre- and postnuptial agreements and matters involving children.

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