The Supreme Court has overturned a High Court decision to transfer two girls’ care proceedings to Hungary after concluding that the move would not be in their best interests.
The ruling means that family courts must consider the welfare implications of transferring care proceedings to other European Union countries.
The case concerned two sisters, aged four and two, who are both Hungarian nationals but were born in England and have never lived in Hungary.
Since May 2013 the two have been in foster care under a section 20 voluntary care arrangement after the “extreme squalor” they and their parents lived in came to the attention of social services. In January 2014 the local authority issued care proceedings for the sisters.
The mother returned to Hungary before the birth of her third child in March 2014 and applied to have the care proceedings moved to Hungary under Article 15 of the European Union’s Brussels II revised Regulation, which sets out the rules for transferring care proceedings between EU countries.
Article 15 allows family courts to transfer care proceedings when a child has a connection to that country and the judge believes the foreign court is “better placed” to hear the case and moving the proceedings abroad would be in the child’s “best interests”.
The High Court decided the Hungarian courts would be better placed to hear the case because, in large part, it would allow an outcome that would give the girls more contact with their extended family.
The judge also accepted the mother’s argument that if the Hungarian courts were better placed to hear the case it therefore followed that approving the transfer would be in the children’s best interest too.
But now the Supreme Court has overturned the decision after concluding that it would not be in the girls’ best interests to move the case to Hungary because doing so would rule out the possibility of them having a stable, permanent placement with the foster carers who they have lived with for most of their lives.
The Supreme Court judgement said that the High Court was wrong to treat the ‘better placed’ and ‘best interests’ tests of Article 15 as inter-related rather than as separate tests.
The Supreme Court said that when considering a request to transfer care proceedings to another EU country, the ‘best interests’ test of Article 15 means family courts must consider the short-term and long-term consequences moving the case would have on children’s welfare.
In the girls’ case the court said the short-term consequence of transferring the case would be that the sisters would be removed from the foster home and country they had spent almost their entire lives in.
Longer-term transferring the case to Hungary would eliminate the option of the girls being adopted or placed under a special guardianship order with their current foster carers.
Keeping the case in England, however, would not prevent the court from arranging a placement with family or foster carers in Hungary.
The Supreme Court noted that family courts have been arranging placements in foreign countries for years and that the Children Act 1989 enables such arrangements.
The High Court, it added, could also use contact orders – which are recognised and enforceable in Hungary – to allow family contact even if the girls’ placement was in England.
“In my view, not only did the judge take the wrong approach to the ‘best interests’ question, he also left out of account some crucial factors in deciding upon the ‘better placed’ question,” said Lady Hale in the Supreme Court’s judgement.
Having reached this conclusion, the Supreme Court overturned the High Court’s decision to grant a transfer of the case to Hungary and also said that there is “no question of reopening the transfer application” due to the delays that have dogged the case.
It said the High Court must hear the case again as soon as possible and decide what outcome will be best for the two girls in light of its judgement.