Case No. ZE22P01627

(1)By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either- request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or- suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.(2)The Contracting States whose authorities may be addressed as provided in the preceding paragraph area) a State of which the child is a national,b) a State in which property of the child is located,c) a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage,d) a State with which the child has a substantial connection.(3)The authorities concerned may proceed to an exchange of views.(4)The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child's best interests.”24.The test for transfer under Art 8(1) is whether the other Contracting State is better placed to assess the best interests of the child. Where the Contracting State with jurisdiction is better placed to assess the best interests of the child, or where the Contracting States are equally well placed to assess the best interests, the Art 8(1) test will not be made out and jurisdiction will remain with Contracting State having jurisdiction.25.The Practical Handbook on the Operation of the 1996 Hague Child Protection Convention at paragraph 5.9 makes clear that a transfer under Art 8 may only be effected when three conditions are satisfied. First, that there is a connection between the child and the Contracting State to whose authorities it is permissible to transfer jurisdiction. Art 8(2) provides an exhaustive list of the factors capable of demonstrating such a connection. Second, the transfer must be in the child’s best interests. Third, both Contracting States must agree to the transfer of jurisdiction. With respect to the best interests criteria, the Practical Handbook further observes as follows:“The authority making the request that jurisdiction be transferred must consider that this will allow for a better assessment of the child’s best interests. The authority asked to assume or cede jurisdiction can only do so if it believes this is in the child’s best interests.”26.Art 8(1) of the 1996 Hague Convention states expressly that the power to transfer jurisdiction under Art 8 is to be applied by way of an exception and, accordingly, represents an exception to the general rule of jurisdiction set out in Art 5. Further, the wording of Art 8(1) makes clear that even where the court concludes that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, the court with jurisdiction retains a discretion as to whether to effect that transfer and is not obliged to do so. 27.There would appear to be no prior domestic authorities that deal expressly with the terms of Art 8(1) of the 1996 Hague Convention and their application. However, in Child and Family Agency v D (R intervening) (ECJ) [2017] 2 WLR 949 the Court of Justice of the European Union (CJEU) held that, in the context of the similarly (but not identically) worded provision in Art 15(1) of Council Regulation (EC) 2201/2003), the court having jurisdiction must determine whether the transfer of the case to the other court is such as to provide genuine and specific added value with respect to the decision to be taken in relation to the child, as compared to the case remaining before the court having jurisdiction. In the later case of EP v FO (Case C-530/18) [2019] ILPr 32 at [30], the CJEU further observed in the context of the similarly worded provision of Art 15(1) of Council Regulation (EC) 2201/2003) that:“The court of a Member State that normally has jurisdiction to deal with a given case must, if it is to be able to request a transfer to a court of another Member State, be capable of rebutting the strong presumption in favour of maintaining its own jurisdiction, on the basis of that Regulation (judgment of 27 October 2016, Child and Family Agency v D (C-428/15) [2017] ILPr 5, [49]).”28.In deciding whether to transfer jurisdiction, both the domestic authorities and the European authorities make clear that it is not appropriate to engage in comparisons between the respective laws and legal systems of the two jurisdictions in question, and I make clear that I have not done so in this case. In Re N (Children) [2016] UKSC 15 at [4], the Supreme Court observed in the context of Art 15 of Council Regulation (EC) 2201/2003 that it is not for the courts of this or any other country to question the competence, diligence, resources, or efficacy of either the child protection services or the courts of another state. In the first domestic decision concerning transfer of jurisdiction under Art 9 of the 1996 Hague Convention, Baker J (as he then was) reflected those sentiments in Re M & L (Children) [2016] EWHC 2535 (Fam):“[33] In my judgment, the English and Norwegian courts are equally competent in general terms to determine issues about children. Each court operates in a sophisticated and advanced legal system manned by experienced judges who are manifestly capable of making decisions in this type of case. Although there are some differences in the respective processes, and each court has advantages which the other does not, overall there is no substantial difference. Comparisons are odious. As Mostyn J observed in Re T [2013] EWHC 521 (Fam) at paragraph 37, the court ‘should not descend to some kind of divisive value judgment about the laws and procedures of our European neighbours’ and as Sir James Munby P added in Re E (supra) at paragraph 20:‘beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and apply the same insights and approaches as those we are familiar with’.”DISCUSSION29.I am satisfied that by reference to the terms of the 1996 Hague Convention, to which both the United Kingdom and the Hellenic Republic are Contracting States, this court has substantive jurisdiction in respect of the subject children for the purposes of Art 5 of the Convention on the basis of the children’s habitual residence in the jurisdiction of England and Wales. In these circumstances, the Greek court does not have jurisdiction in respect of the children. I am further satisfied that it is not appropriate in this case, exceptionally, to transfer jurisdiction to the Greek court under Art 8 of the Convention. Finally, I am satisfied that the maternal grandparents should be granted permission pursuant to s.10(1)(a)(ii) of the Children Act 1989 to apply for a child arrangements order in this jurisdiction. My reasons for so deciding are as follows.Jurisdiction30.As I have noted, at the outset of the hearing the maternal grandparents accepted that this court has jurisdiction in respect of the children pursuant to the terms of Art 5 of the 1996 Hague Convention based on the children’s habitual residence. Once again, the corollary of this concession is that the maternal grandparents recognise that the Greek court is exercising jurisdiction outside the scope of the Convention and, accordingly, does not have jurisdiction in respect of the children absent a transfer of jurisdiction by this court under the terms of Art 8 of the Convention in circumstances where both the United Kingdom and the Hellenic Republic are Contracting States to the 1996 Hague Convention.31.The concession made by the maternal grandparents as to jurisdiction was plainly the correct, and indeed only, course open to them on the facts of the case. Having regard to the test set out in Area of Freedom, Security and Justice) (C-532/01) it cannot seriously be disputed that, as a matter of fact, the children are habitually resident in this jurisdiction for the purposes of Art 5. In these circumstances, whilst the jurisdictional formulation propounded in the learned Greek Judge’s judgment is interesting and whilst I am fully respectful of the Greek legal system, the only conclusion as to jurisdiction open under the 1996 Hague Convention, to which both the United Kingdom and the Hellenic Republic are Contracting States, is that this court has substantive jurisdiction in respect of the children, based on the fact of their habitual residence. 32.By reference to the terms of the Convention, the foregoing position is not changed by the Greek court purporting to exercise a “concurrent and not exclusive” domestic jurisdiction in respect of the children as described in the learned Judge’s judgment of 23 May 2022, whether urgent or otherwise. The exercise of the Greek court’s jurisdiction in May 2022 cannot fall within the terms of Art 11 of the 1996 Hague Convention as the children were not present in the jurisdiction of the Hellenic Republic. The terms of Art 5 of the 1996 Hague Convention are clear with respect to the general rule of jurisdiction. It is the judicial or administrative authorities of the Contracting State of the habitual residence of the children that have jurisdiction to take measures directed to the protection of the children’s person or property as further defined by Art 3, which includes rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence. In circumstances where the children are habitually resident in this jurisdiction, Art 5 is conclusive of the question of jurisdiction in this case and confers exclusive jurisdiction in respect of the children on this court.Transfer of Jurisdiction33.In this case, each child has Greek nationality and therefore satisfies the requirement for a connection between the children and the other Contracting State in this case for the purposes of Art 8(2)(a). However, I do not consider that the Greek court is better placed to assess the children’s best interests in this case and do not consider a transfer of jurisdiction to be in the children’s best interests. 34.Central to the general rule of jurisdiction under Art 5 of the 1996 Convention that the Contracting State of the children’s habitual residence has jurisdiction to determine questions in respect of the children’s welfare is the idea that, ordinarily, it is in children’s best interests for questions concerning their welfare to be decided in the place where the children are integrated into a family and social environment. The aim is that the court of the Contracting State with which the children have the closest connection will be the one to determine their best interests. The reason for this is self-evident. The authorities in the country of the children’s habitual residence are closer to, and will ordinarily have a greater understanding of, the children and their social and family environment. They are therefore, ordinarily, better able to assess fully the children’s situation and welfare needs when reaching decisions about the children’s best interests. 35.It is in this context that Art 8(1) of the 1996 Hague Convention requires that it be demonstrated that, by way of exception to the general jurisdictional rule, another Contracting State is better placed to assess the best interests of the child before a transfer of jurisdiction can take place and that such a transfer is in the children’s best interests. 36.In this case, both children were born in England, have each resided here with their parents for the entirety of their respective lives and speak only English. The children are British citizens, albeit they also hold Greek citizenship. They are registered with doctors in this jurisdiction and attend nursery provision in this jurisdiction. Each child’s day-to-day family and social life is centred in this jurisdiction. Within this context, as conceded by the maternal grandparents, both children are habitually resident in this jurisdiction. The corollary of this is that the vast majority of the evidence relevant to an assessment by a court of each child’s best interests is located in this jurisdiction. In this context, the court in this jurisdiction has far easier access to the evidence required to inform the assessment of the children’s best interests and is placed far more advantageously to consider, for example, the impact on children’s physical, emotional and educational needs of given contact regime in the context of their daily lives and routines. Having regard to the rationale underpinning this primary basis for jurisdiction under Art 5 of the 1996 Hague Convention, namely that it is in a children’s best interests for questions concerning their welfare to be decided in the place where the children are integrated into a family and social environment, in these circumstances I am satisfied that there is a strong presumption in favour of this court maintaining the jurisdiction in respect of the children conferred on it by Art 5 of the 1996 Hague Convention.37.In seeking to demonstrate that, in the foregoing context, it is nonetheless the case that the Greek court is “better placed” to assess the best interests of the children, on behalf of the maternal grandparents Ms Laurent submitted that the children have dual British and Greek citizenship, the Greek court has been purporting to exercise jurisdiction in respect of the children since 15 November 2021, all of the parties have engaged in and have legal representation in the proceedings in Greece, all of the parties speak Greek whereas only the parents speak English and, in light of the modest nature of the orders sought by the maternal grandparents, extensive evidence as to welfare will not need to be gathered from this jurisdiction. 38.The terms of Art 8 of the 1996 Hague Convention demonstrate that the Greek citizenship of the children will not be sufficient by itself to justify a transfer of jurisdiction. As set out above, Art 8 requires that in addition to that connecting factor under Art 8(2)(a), which in this case is the children’s Greek nationality, the court must be satisfied that the Greek court is better placed to assess the children’s best interests and that transfer is in the children’s best interests. Having regard to the fact that it is habitual residence that is the connecting factor conferring jurisdiction, and to the rationale underpinning this primary basis for jurisdiction under Art 5 of the 1996 Hague Convention, nationality is not capable on its own of demonstrating that another Contracting State is better placed to assess a child’s best interests for the purpose of Art 8.39.Whilst it is the case that the Greek court has been purporting to exercise jurisdiction since November 2021, the involvement of the Greek court since that date has, on the face of the evidence currently before the court, been limited to a single contested interim hearing and the making of interim orders with respect to indirect contact and limited direct contact. The maternal grandparents did not seek to assert that the Greek court has commissioned welfare assessments or expert assessments in respect of the children. The children have not been spoken to within the context of the proceedings by welfare professionals as part of the assessment of their best interests. It is not apparent from the judgment of the learned Greek judge that extensive findings of fact have been made in the interim proceedings in Greece and nor did the maternal grandparents seek to suggest there have been. 40.Further, whilst the Greek court has been exercising jurisdiction since 21 November 2021, for the reasons I have set out above it has been exercising jurisdiction outside the scope of the 1996 Hague Convention. In those circumstances, the interim orders made by the Greek court to date are, prima facie, unenforceable under Art 23(2)(a) of the 1996 Hague Convention in the jurisdiction in which the children live, subject to the discretion conferred on the court in the enforcing jurisdiction by Art 23. More widely, to transfer jurisdiction to the authorities of a Contracting State that have been exercising jurisdiction outside the scope of the 1996 Hague Convention simply because that has been occurring for a period of time would risk endorsing a course of action that cuts directly across the cardinal aims of the 1996 Hague Convention. Such an outcome would result in the children losing the benefits of their habitual residence, in so far as they relate to the assessment of their best interests, simply because the court in the other Contracting State has chosen to proceed outside the scope of the Convention to which both Contracting States are party. 41.In the foregoing circumstances, I am not satisfied that the fact that the Greek court has been exercising jurisdiction outside of the scope of the 1996 Hague Convention since November 2021 supports a conclusion in this case that the Greek court is better placed to assess the best interests of the children. 42.Ms Laurent’s submission that all of the parties have engaged in the proceedings in Greece, and have legal representation in those proceedings, also falls to be evaluated in light of the points made in the preceding three paragraphs. Further, the maternal grandparents have demonstrated themselves willing and able to instruct lawyers in this jurisdiction and they appear by specialist counsel at this hearing. They have complied with the direction of this court to file evidence. The maternal grandparents having already filed an extensive statement of evidence, ranging across the entire history of the case notwithstanding that the direction for that statement was limited by the court to the question of habitual residence. Any evidence filed in Greek court to date can be disclosed into these proceedings. Whilst I acknowledge that all of the parties speak Greek but only the parents speak English, as has been the case at this hearing, provision for an interpreter can be made for the maternal grandparents by the court.43.Finally, whilst Ms Laurent submits that the nature of the issues between the parties means that the evidence required from this jurisdiction is limited, it remains the case that the majority, if not all, of the evidence relevant to an assessment of the children’s best interests is located in this jurisdiction, by virtue of the fact that the children have each resided here with their parents for the entirety of their respective lives and each child’s day-to-day family and social life is centred almost exclusively on this jurisdiction. Whilst it may well be that the Greek court could make an order for disclosure of records concerning the children were it to become necessary to do so in the assessment of their best interests, that exercise would be complicated by disclosure of the children’s records having to be sought in a foreign jurisdiction by way of a foreign court order. That complication would not arise if this court maintains its jurisdiction under Art 5 of the 1996 Convention.44.By the application of the maternal grandparents under Art 8 of the 1996 Hague Convention, this court is being asked to transfer its jurisdiction under Art 5 of the Convention to a State in which the children are not habitually resident. In the circumstances set out above, I am not satisfied that in this case, exceptionally, the Greek court is better placed to assess the best interests of the children. It cannot be said in the circumstances to which I have referred that transfer of jurisdiction will, in the words of the CJEU in Child and Family Agency v D (R intervening), provide genuine and specific added value with respect to the decision to be taken in relation to the children compared to this court retaining jurisdiction. I am satisfied that it is not in either child’s best interests to transfer jurisdiction in respect of the children to a Contracting State in which the children are not habitually resident. 45.In the circumstances, I decline to accede to the application of the maternal grandparents pursuant to Art 8 of the 1996 Hague Convention to transfer jurisdiction in respect of the children to the Greek court and dismiss that application.Permission to apply for a Child Arrangements Order46.With respect to the application by the maternal grandparents under s. 10(1)(a)(ii) for permission to issue an application pursuant to s.8 of the Children Act 1989 for a child arrangements order in respect of the children, it follows from the conclusions set out above that in order for them to pursue their case in respect of the children that application requires to be granted. With respect to the factors set out in s.10(9) of the 1989 Act, the application is made by the maternal grandparents of the children and the application they seek to make under s.8 of the Children Act 1989 mirrors the application they have made before the Greek court. In circumstances where there is already ongoing litigation in respect of the children, and this application will simply replace the application currently on foot in the Greek court, I am satisfied that the proposed application will not of itself disrupt the children’s lives to such an extent that they would be harmed by it. The fact that the court grants permission to make the application does not create a presumption in favour of the substantive order (see Re A (Section 8 Order: Grandparent Application) [1995] 2 FLR 153).CONCLUSION47.As noted above, the provisions of the 1996 Hague Convention are designed to avoid conflicts between the legal systems of the Contracting States in respect of jurisdiction by delineating clearly, by reference to a legal framework agreed by all Contracting States, which Contracting State has jurisdiction. 48.For the reasons I have given in this judgment, by reference to the terms of the Convention to which both the Hellenic Republic and the United Kingdom are party, I am satisfied that it is this court that has jurisdiction in respect of the children. Although the Greek court has purported to exercise what it considers to be a concurrent domestic jurisdiction in respect of the children, and whilst I am of course fully respectful of the Greek legal system and the Greek court, in circumstances where the children are habitually resident in England and Wales the continued exercise of that jurisdiction by the Greek court is outside the scope of the 1996 Hague Convention. For the reasons I have given, it is not appropriate in this case to transfer the jurisdiction that this court has in respect of the children under the Convention to the court in Greece.49.In the circumstances, I find that this court has jurisdiction in respect of the children pursuant to Art 5 of the 1996 Hague Convention. I dismiss the application of the maternal grandparents for transfer of that jurisdiction to the Greek court pursuant to Art 8 of the 1996 Hague Convention. I grant the permission to the maternal grandparents to make an application in these proceedings for a child arrangements order in respect of the children. I further direct that the parties notify the court of the outcome of the hearing listed on 20 February 2023. This court will thereafter consider whether this case needs to remain before a judge of High Court level sitting in the Family Court or can be re-allocated to HHJ Purkiss for hearing of the applications before the court.50.That is my judgment.