High Court Rules on Transfer of Jurisdiction in International Child Abduction Case

Citation: [2024] EWHC 17 (Fam)
Judgment on

Introduction

In the case of B v N (No 2) (Art 7 and Transfer of Jurisdiction) [2024] EWHC 17 (Fam), the English High Court of Justice, Family Division, presided by Mr Justice MacDonald, deliberated on substantive issues surrounding jurisdiction and the transfer of proceedings in the context of a child abduction case. The case necessitated an interpretation of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the 1980 Convention) and the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention). This article provides a structured analysis of the case, elucidating the legal principles applied and linking them to the relevant parts of the case summary.

Key Facts

The central facts of the case involve the wrongful removal of a child, referred to as X, by the father, B, from England to Germany, in breach of the 1980 Convention. Following the removal, the mother, N, made an application in the German court under the 1980 Convention, which was dismissed. Both parties concurred that the English court retained jurisdiction pursuant to Art 7(1) of the 1996 Convention, and the primary issue became one of forum. The father advocated for the German court as the appropriate forum, invoking Art 8(1) of the 1996 Convention to transfer jurisdiction, while the mother resisted this, highlighting her lack of confidence in the German system and asserting the case fell outside the scope of Art 8(1) when Art 7(1) was already engaged.

Mr Justice MacDonald approached the legal question of whether the English court, which retained jurisdiction by operation of Art 7(1) of the 1996 Convention due to the child’s wrongful removal, could transfer jurisdiction to the German court under Art 8(1) of the same Convention. The court evaluated the following pivotal legal points:

  1. The operation of Art 7(1) of the 1996 Convention in maintaining jurisdiction when there is a wrongful removal.
  2. The applicability and scope of Art 8(1) of the 1996 Convention regarding the transfer of jurisdiction and whether it can be invoked when Art 7(1) is at play.
  3. The best interests of the child as the primary consideration in deciding whether the transfer should occur.
  4. The principles of deterrence of child abduction, prohibiting jurisdictional benefit to the abducting party, and discouraging forum shopping.
  5. The effect of a jurisdiction transfer on current proceedings in light of Art 13 of the 1996 Convention concerning lis pendens.

The court discharged the mother’s application, emphasizing that jurisdiction should be vested in the forum with the most immediate relation to the child’s day-to-day life and where his welfare could be best assessed.

Outcomes

The court concluded Art 8(1) applies even when a court retains jurisdiction due to a wrongful abduction under Art 7(1). It further determined that the German court was better placed to assess the child’s best interests, factoring in the child’s connection to Germany, his current situation, and his stated wishes. As such, the court requested that German authorities assume jurisdiction for protective measures relating to X. The judge issued a stay on the proceedings under Part II of the Children Act 1989, specifying that they would stand dismissed should the German court accept jurisdiction. Similarly, the stay on the return order to England would be lifted if the German court assumed jurisdiction.

Conclusion

In B v N (No 2) (Art 7 and Transfer of Jurisdiction), the High Court delivered a nuanced decision that prioritized the child’s best interests while carefully navigating the interplay between Art 7(1) and Art 8(1) of the 1996 Convention. The court’s interpretation of the 1996 Convention supported the protection of children’s welfare interests and facilitated a practical solution aligning with the child’s day-to-day life. Importantly, the decision underlines the court’s systemic approach to avoiding jurisdictional conflict and forum shopping in cases of international child abduction, ensuring a process that is both lawful and focused on the well-being of the child involved.