Supreme Court rejects attenuated welfare test: Re N (Children) [2016] UKSC 15

Roger McCarthy QC, Coram Chambers

Re N (Children) [2016] UKSC 15 unanimously allowed the appeal from an order transferring the care proceedings pursuant to Art 15 of Brussels IIa. 

The Supreme Court has rejected the attenuated welfare test which imposes a forum limitation on the best interests consideration of a proposed transfer to another EU Member State. The key passage is to be found in the Court’s judgment at para [44].

'The question remains, what is encompassed in the “best interests” requirement? The distinction drawn in Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 FLR 361 remains valid. The court is deciding whether to request a transfer of the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it “attenuated”. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome?This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.'

So the message is that courts must examine all of the best interests consequences of proposed Brussels IIa transfers. Article 15 transfer decisions will have to be dealt with in future on a more rounded basis than at present.

There are other interesting facts and issues in the judgment (provided by the Court within under 4 weeks from the hearing).

The case is now to go to a full hearing before a fresh judge on the welfare issues. The Supreme Court has dispensed with another Art 15 decision (unsurprising given the extensive delay to date and its view that there could only be one answer to the Art 15 dispute).

The full judgment for Re N (Children) [2016] UKSC 15 is available here.

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A more detailed commentary by Roger McCarthy QC will follow in the May issue of Family Law. A full article will be published in the June issue.