(Court of Appeal, Thorpe, Tomlinson, Briggs LJJ, 11 June 2013)
The teenage parents fled from Slovakia when the mother was pregnant having herself been subject to a care order and residing in a children's home. Proceedings were initiated in the UK in respect of the mother's siblings and her baby who was born shortly after their arrival.
As a preliminary issue consideration was given as to whether an Art 15 transfer request should be made. The judge held that the requirements of Art 15 had been met and that proceedings should be continued in Slovakia. The mother appealed.
The appeal was dismissed. The best interests of the child was one of the central questions to an Art 15 determination. The judge had erred when he introduced consideration of the M v M principles which concerned facts of a very different context and predated Art 15. It was well established that an application for a stay on the basis of forum non conveniens should be determined as a preliminary issue before the substantive issues. The submission that the judge should have considered the authority's care proceedings before making a transcript request was misconceived. Notwithstanding that the judge had misdirected himself, it was clear that even if he had properly directed himself he would have come to the same conclusion.