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Have the courts shut the door on BIIR retention of EU children care cases?

Date:16 NOV 2015

Re N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112

The Court of Appeal recently gave a judgment setting out the points against the retention of care/placement cases in the English courts where children are of EU nationality. The judgment was published very shortly before the publication of the report to the PETI committee of the European Parliament dealing with various member states' concerns about what they describe as 'forced adoptions'.

The language of Art 15 of the Council Regulation (EC) No 2201/2003 of 27 November 2003 'BIIR' seems to be straightforward and sets a three-part test for whether cases should be transferred with no presumption in favour or against. But BIIR has spawned a lot of case-law in this country and has led to multiple judicial statements of principle as to how BIIR cases should be handled. The Re N judgment sets out to draw all of this together in relation to EU children care and placement proceedings. It may now be that all those involved must prioritise the aspects of the case which will point towards such proceedings being sent to the childrens' country of nationality. These aspects start with the requirement to deal with the transfer issues at a stage when long-term planning in this country may not have been settled and ending with the requirement to prioritise EU cultural, language and family care issues at all subsequent stages.

This case is crucial to how this type of case should be handled in future. An article by Roger McCarthy QC and Mark Twomey (both acting for the appellant in Re N) setting out the important consequences of this judgment will be published in a forthcoming issue of Family Law