Article 15 Transfers; The CJEU give judgment

Child and Family Agency v D [2016] CJEU case 428/15 (27^th October 2016) L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský (Rapporteur), M. Safjan and D. Šváby, Judges – Curia link http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d579fb7ee630aa40c1a6a3ca3d4fbbcde3.e34KaxiLc3qMb40Rch0SaxyKaxr0?text=&docid=184896&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=796653

 

Summary

The Irish Supreme Court referred to the Court of Justice of the European Union for a preliminary ruling the matter of whether a request for the transfer of Irish Public Law children proceedings from the Irish High Court to the courts of England and Wales fell within the scope of Art 15 BIIa. The CJEU (differing from the Opinion of the Advocate-General) concluded that it did, notwithstanding that the parties would be different and possibly the factual matrix in each state. Any other interpretation would run counter to the purpose of the Regulation and Art 15.  

Issue: Does Article 15 apply to public law care applications by a local authority in a Member State, when, if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?
Answer: Yes, it does

Issue: was guidance given on the approach to ‘particular connection’ under Article 15(1)?

Answer: Yes – in order to rebut the ‘strong presumption’ that an Article 8 jurisdiction would be maintained, the establishment of a ‘particular connection’ was essential for there to be eligibility to transfer, and the criteria under Article 1(3) were exhaustive, and were in character evidence of a relation to proximity.




Issue: was guidance given on the approach to ‘a court that is better placed to hear the case’?
Answer: Yes – in addressing that question, the court having jurisdiction must ask itself whether a transfer to the other court was ‘such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child’,




Issue:  was guidance given on the approach to ‘the best interests of the child’?
Answer: Yes – the requirement that the transfer must be in ‘the best interests of the child’ implied that the court with jurisdiction must be satisfied ‘having regard to the specific circumstances of the case’ that the transfer was ‘not liable to be detrimental to the situation of the child’