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Medway Council v JB and Ors [2015] EWHC 3064 (Fam)

Date:10 NOV 2015
Law Reporter
(Family Division, MacDonald J, 26 October 2015)

Jurisdiction – Public law children – BIIR, Art 15 – Expressed wishes not to return to Slovakia – Plan for younger children to be placed in Slovakia – Extent to wish the children’s wishes and feelings should be considered in determining an Art 15 transfer
Please see attached file below for the full judgment.

 An Art 15, BIIR, transfer request would be made in respect of the five younger children to the Slovakian courts but would not be made in relation to the two older children who had clearly and consistently expressed their objections to returning to Slovakia.

 The seven children were of Slovakian Roma origin and ranged in ages between 3 and 15. The local authority applied for care orders in respect of all 7 children. The mother conceded that the threshold had been met.

 All parties to the proceedings and the Slovak Central Authority submitted that the proceedings should be transferred to the Slovakian courts pursuant to Art 14 of BIIR. It was accepted that the children were habitually resident in England and Wales and that, therefore, the English court had jurisdiction. The two older children and three of the younger children expressed their wish to remain in the UK. It fell to be determined whether the requirements of Art 15, BIIR had been met.

 In accordance with Art 15 and the established principles the court had to determine whether the child in question had a particular connection with the relevant Member State, whether it would be better placed to hear the case and whether a transfer was in the best interests of the child.

 With regard to the five younger children the criteria under Art 15 had been met and a transfer request would be made of the Slovakian courts. However, it had not been met in respect of the older two children. While all the children had a particular connection with Slovakia, the realistic options for the long-term care of the younger children lay in Slovakia and fell logically to be assessed in that jurisdiction. The expressed wishes of three of the five younger children not to return to Slovakia did not change the overall conclusion that the Slovakian court was better placed to hear the cases. In respect of the older two children, the court was satisfied that it was not in their best interests for jurisdiction to be transferred in the face of their strongly and consistently expressed objections to returning there. There was an appreciable risk that their behaviour would regress significantly and that their emotional welfare would be damaged if their clearly expressed wishes and feelings were ignored.
  Case No: ME15C00611
 Neutral Citation Number: [2015] EWHC 3064 (Fam)


 Royal Courts of Justice

 Date: 26/10/2015



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 First Respondent
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 Second Respondent
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 Third Respondent
 - and -
 KB, NB, ZB, AB, KB, ALB and RB
 Fourth to Tenth Respondents
 - and -
 Centre for the International Legal Protection of Children and Youth of the Slovak Republic

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 Ms Sandra Fisher (instructed by Medway Council Legal Department) for the Applicant
 Mr Jonathan Bennett (instructed by Pearsons) for the First Respondent
 Ms Hari Kaur (instructed by Bridge McFarland Solicitors) for the Second Respondent
 Mr Donaghey (of Davis, Simmons & Donaghey) for the Fourth to Tenth Respondents

 Hearing dates: 2 October 2015

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 Medway Council v JB and Ors [2015] EWHC 3064 (Fam)