Easter Term  
[2016] UKSC 15  
On appeal from: [2015] EWCA Civ 1112  
  
  
JUDGMENT  
  
  
  
In the matter of N (Children)  
  
  
before  
  
Lord Neuberger, President  
Lady Hale, Deputy President  
Lord Kerr  
Lord Wilson  
Lord Carnwath  
  
  
  
JUDGMENT GIVEN ON  
  
  
13 April 2016  
  
  
Heard on 17 March 2016  
  
  
  
Appellants  
(JN and EN)   
Henry Setright QC  
Martha Cover  
Michael Gration  
(Instructed by Hanne & 
Co)   Respondent (London 
Borough of Hounslow)   
Roger McCarthy QC  
Mark Twomey  
(Instructed by London 
Borough of Hounslow)  
      
    Respondent (AM - Mother) 
William Tyler QC  
Malcolm MacDonald  
(Instructed by Lawrence & 
Co Solicitors)  
      
    Respondent (ZN - Father)  
Frank Feehan QC  
Dorian Day  
(Instructed by Hecht 
Montgomery)  
  
Interveners (Written Submissions Only)  
  
    1st Intervener (AIRE 
Centre)  
Deirdre Fottrell QC  
Lucy Sprinz  
Michael Edwards  
(Instructed by Herbert 
Smith Freehills LLP)  
      
    2nd Intervener (Family 
Rights Group)   
John Vater QC  
Edward Devereux  
Mehvish Chaudhry  
Dr Rob George  
(Instructed by Goodman 
Ray LLP)  
      
    3rd Intervener (The 
International Centre for 
Family Law, Policy and 
Practice)  
David Williams QC  
Jacqueline Renton  
(Instructed by Kingsley 
Napley)  
  
  
LADY HALE: (with whom Lord Neuberger, Lord Kerr, Lord Wilson and Lord 
Carnwath agree)  
1.                   The issue in this case is whether the future of two little girls, one now aged 
four years and two months and the other now aged two years and 11 months, should 
be decided by th e courts of this country or by the authorities in Hungary. Both 
children were born in England and have lived all their lives here. But their parents are 
Hungarian and the children are nationals of Hungary, not the United Kingdom. Under 
article 8.1 of Counc il Regulation (EC) No 2201/2003, concerning jurisdiction and the 
recognition and enforcement of judgments in matrimonial matters and the matters of 
parental responsibility, known as the Brussels II revised Regulation (“the 
Regulation”), the primary rule is  that jurisdiction lies with the courts of the member 
state where the child is habitually resident. That would be England in this case. 
However, an exception is made by article 15, under which those courts can transfer 
the case to a court in another member  state with which the child has a particular 
connection, if that court would be “better placed” to hear the case, or part of it, and 
the transfer is in the best interests of the child. These children have a particular 
connection with Hungary, as it is the place of their nationality. The issue, therefore, is 
the proper approach to deciding whether a Hungarian court would be better placed to 
hear the case and to whether transferring it would be in the best interests of the 
children.  
2.                   The c ontext in which these questions arise is important. Free movement of 
workers and their families within the European Union has led to many children living, 
permanently or temporarily, in countries of which they are not nationals. Inevitably, 
some of them wi ll come to the attention of the child protection authorities, because of 
ill-treatment or neglect or the risk of it. In the past, the courts in this country might 
assume that they had jurisdiction simply because of the child’s presence here. It is 
now clea r, however, that public law proceedings fall within the scope of the 
Regulation (see In re C (Case C -435/06)  [2008] Fam 27 ), so that in every case with a 
Euro pean dimension (more properly, a Regulation dimension) the courts of this 
country have to ask themselves whether they have jurisdiction. Even if they do have 
jurisdiction, Sir James Munby P has said that in every case they will need to consider 
whether the  case should be transferred to another member state: see In re E (A Child) 
(Care Proceedings: European Dimension): Practice Note  [2014] EWHC 6 (Fam) ; 
[2014] 1 WLR 2670 , para 31; also Merton London Borough Council v B (Central 
Authority of the Republic of Latvia intervening) [2015] EWCA Civ 888 ; [2016] 2 
WLR 410 , para 84(ii).  As the Family Rights Group observe in their helpful 
intervention, this has led to a “remarkable proliferation” of case law over the last three 
years. Hitherto, courts would manage cases with a foreign element by evaluating 
foreign placement options and de ciding upon the best outcome for the child 
themselves. Now, they may be more inclined to transfer the decision -making abroad.  
3.                   One reason for this change in approach may be “the concerns voiced in many 
parts of Europe about the law and practice in England and Wales in relation to what is 
sometimes referred to as ‘forced adoption’” (referred to by the President in his 
judgment in this case: [2015] EWCA Civ 1112 ; [2016] 2 WLR 713 , para 8). Research 
compiled by the Council of Europe (O Borzova, Social services in Europe:  legislation 
and practice of the removal of children from their families in Council of Europe 
member states , Report to the Parliamentary Assembly, 2015, Doc 13730) and 
commissioned by the European Union (C Fenton -Glynn, Adoption without Consent, 
Directorat e General for Internal Policies of the EU Parliament, Policy Department C: 
Citizens’ Rights and Constitutional Affairs, 2015) shows that other member states do 
permit adoption without parental consent. However, England and Wales is unusual in 
permitting pa rental consent to be dispensed with where the welfare of the child 
requires this (Adoption and Children Act 2002, section 52(1)(b)) rather than on more 
precise grounds of parental absence or misconduct. This country is also unusual in the 
speed and frequen cy with which it resorts to adoption as the way to provide a 
permanent home for children who for one reason or another cannot live with their 
families. The European Court of Human Rights has, however, held our law to be 
compatible with the right to respect  for private and family life, protected by article 8 
of the European Convention on Human Rights: YC v United Kingdom (2012) 55 
EHRR 33 . 
4.                   It goes without saying that the provisions of the Regulation are based upon 
mutual respect and trust between the member states. 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 (see In re M 
(Brussels II Revised: Article 15) [2014] EWCA Civ 152 ; [2014] 2 FLR 1372 , para 
54(v), per Munby P). As the Practice Guide for the application of the Brussels IIa 
Regulation puts it, the assessment of whether a transfer would be in the best interests 
of the child “should be based on the principle of mutual trust and on the assumption 
that the courts of all member states are in principle competent to deal with a case” (p 
35, para 3.3.3). Th is principle goes both ways. Just as we must respect and trust the 
competence of other member states, so must they respect and trust ours.  
Article 15  
5.                   So far as relevant, article 15 of the Regulation reads as follows:  
“1.       By way o f exception, the courts of a member state having 
jurisdiction as to the substance of the matter may, if they consider that 
a court of another member state, with which the child has a particular 
connection, would be better placed to hear the case, or a spec ific part 
thereof, and where this is in the best interests of the child:  
(a)       stay the case or the part thereof in question and 
invite the parties to introduce a request before the court 
of that other member state in accordance with paragraph 
4; or  
(b)       request a court of another member state to assume 
jurisdiction in accordance with paragraph 5.  
2.         Paragraph 1 shall apply:  
(a)       upon application from a party; or  
(b)       of the court’s own motion; or  
(c)       upon application from a  court of another member state 
with which the child has a particular connection, in accordance 
with paragraph 3.  
A transfer made of the court’s own motion or by application of a court 
of another member state must be accepted by at least one of the parties.  
3.         The child shall be considered to have a particular connection to 
a member state as mentioned in paragraph 1, if that member state: …  
(c)       is the place of the child’s nationality; …  
4.         The court of the member state having jurisdicti on as to the 
substance of the matter shall set a time limit by which the courts of that 
other member state shall be seised in accordance with paragraph 1.  
If the courts are not seised by that time, the court which has been 
seised shall continue to exercise  jurisdiction in accordance with articles 
8 to 14.  
5.         The courts of that other member state may, where due to the 
specific circumstances of the case, this is in the best interests of the 
child, accept jurisdiction within six weeks of their seisure in 
accordance with paragraph 1(a) or 1(b). In this case, the court first 
seised shall decline jurisdiction. Otherwise, the court first seised shall 
continue to exercise jurisdiction in accordance with articles 8 to 14.  
6.         The courts shall cooperate  for the purposes of this article, either 
directly or through the central authorities designated pursuant to article 
53.” 
This case  
6.                   The parents are in their 20s. The father is of Hungarian Roma descent, the 
mother of mixed Hungarian an d Roma descent. The father has two older children, a 
girl now aged seven and a boy now aged five, half -siblings of the children with whom 
we are concerned. These parents met and began their relationship in 2010. In July 
2011, when the mother was pregnant w ith the older of the two children in this case, 
whom I shall call Janetta, they travelled to this country. Janetta was born here in 
January 2012. The family had some contact with the local authority in April and May 
2012, because of their accommodation pro blems, and both the local authority and the 
Hungarian embassy offered to support their return to Hungary, but in fact they stayed 
here.  
7.                   Their second child, whom I shall call Ella, was born here in May 2013. The 
mother had had no ante -natal care. The baby was born in the room in which the 
family were living without any medical assistance. The London Ambulance Service 
arrived after the baby was born but before the placenta was delivered. They called the 
police,  as the father was reported to be resisting the mother and baby receiving 
medical attention or being taken to hospital. The family were living in circumstances 
of extreme squalor, with no food, clothing or bedding seen for either child.  
8.                   Janetta was removed from her parents that same day. Ella was discharged 
from hospital into foster care when she was eight days old. They were initially placed 
separately but since 28 May 2013 they have both been living with the same foster 
carers. The lo cal authority originally applied for an emergency protection order, but 
this was not pursued because the parents agreed to the children being accommodated 
by the local authority under section 20 of the Children Act 1989 while an assessment 
was carried out.  The local authority originally arranged for the children to have 
contact with their parents three times a week; this was reduced to twice a week 
because the parents often failed to attend or left early; and in February 2014, it was 
reduced to once a week.  
9.                   Care proceedings were not issued until January 2014 and the first interim 
care order was made in February. Before beginning the proceedings, the local 
authority had commissioned assessments of the children’s maternal grandmother and 
great-grandmother in Hungary from Children and Families Across Borders (CFAB). 
The maternal grandmother was unable to offer a home but the great -grandmother had 
suitable accommodation and was willing to offer the mother and children a home, 
provided that th e father played no part in their lives. At that stage the father did not 
want his own mother to be assessed as a possible carer. The local authority had also 
been in touch with the Hungarian Central Authority (“HCA”), which had, in January 
2014, suggested that the solution was for the Hungarian authorities to bring the 
children back to Hungary, as they were Hungarian citizens and their relatives could 
keep in contact with them there. Also, if they were to be adopted, “only the Hungarian 
authorities have the  right to adopt Hungarian citizen minors”. That has been the 
consistent position of the HCA throughout.  
10.              At the first hearing in the High Court, the mother, then pregnant with the 
couple’s third child, indicated her intention to return to H ungary to have the baby and 
also to apply for the transfer of the proceedings under article 15. This she duly did and 
gave birth to a baby boy in March 2014 (she later accepted that her return was in 
order to avoid care proceedings here in respect of him).  At a hearing on 18 March 
2014, Holman J declared that the girls were habitually resident here and that is not 
now in dispute. He adjourned the article 15 application so that there could be “some 
clearer understanding of what arrangements might exist for t he transfer of the children 
themselves to live, whether long term or even during the course of the proceedings, 
under suitable arrangements in Hungary” ( [2014 ] EWHC 999 (Fam) , para 12).  
11.              Accordingly, the allocated social worker visited Hungary in April 2014. She 
met the mother and the new baby, who were then living with the maternal great -
grandmother. The great -grandmother was adamant that the f ather would not be 
allowed near her home, whereas the mother intended to reunite with the father as soon 
as they could find accommodation in Hungary. The social worker also met with 
representatives of the HCA and with social care professionals.  
12.              The mother’s application under article 15 came before Sir Peter Singer, 
sitting as a Deputy Judge of the High Court, on 9 May 2014. At that stage, both the 
local authority and the children’s guardian were supporting a transfer to Hungary, but 
only on ce the requisite assessments had been completed there and a clear 
recommendation made about the appropriate placement for the girls. By a judgment 
delivered on 12 May 2014, Sir Peter Singer refused the transfer application, but 
provided that a further appl ication could be considered after the “fact finding” hearing 
listed for 25 June 2014.  
13.              The purpose of that hearing was to establish whether the facts were such as to 
meet the threshold for compulsory state intervention in family life, set o ut in section 
31(2) of the Children Act 1989:  
“A court may only make a care order … if it is satisfied - 
(a)       that the child concerned is suffering, or is likely to suffer, 
significant harm; and  
(b)       that the harm, or likelihood of harm, is attri butable to - 
(i)        the care given to the child, or likely to be given 
to him if the order were not made, not being what it 
would be reasonable to expect a parent to give to him; 
or 
(ii)       the child’s being beyond parental control.”  
Only if that th reshold is crossed can the court go on to consider whether making the 
order that the local authority seek will best promote the welfare of the child, which is 
the court’s paramount consideration (1989 Act, section 1(1)).  
14.              Neither parent att ended the hearing on 25 June 2014, although both were 
legally represented. The father’s whereabouts were unknown but the mother had been 
in touch with her solicitor by telephone. At that stage she accepted 11 of the findings 
sought by the local authority. Five of these related to the circumstances in which the 
family were living and the lack of medical attention when Ella was born. Two related 
to the risk of harm stemming from domestic abuse in the parents’ relationship and the 
father’s aggressive and volat ile personality. Two related to the parents’ inconsistent 
and unsatisfactory contact with, and effective abandonment of, the girls: by the time 
of the hearing, the mother had not seen them since February and the father had not 
seen them since March 2014. T he last finding was the parents’ lack of insight into the 
local authority’s concerns and failure to co -operate with attempts to assess them. 
Hogg J made findings accordingly, which all agreed were sufficient to satisfy the 
threshold in section 31(2).  
15.              The hearing to decide what orders to make was planned for September 2014. 
In August, the social worker discovered that the mother, father and the new baby were 
all living with the paternal grandmother. The social worker’s assessment of the 
paternal grandmother (over the telephone) was negative. There being no viable family 
placement in Hungary, the local authority’s final care plan, supported by the 
Children’s Guardian, was that the girls should be adopted. Their current foster parents 
were bein g given active consideration as their adopters (and have since been approved 
as such). Accordingly the local authority issued a further application for a placement 
order under section 21 of the Adoption and Children Act 2002. This authorises the 
authority to place a child for adoption without parental consent (it is a separate 
question whether parental consent to the actual adoption order should be dispensed 
with). Under section 21(2), a court may not make a placement order unless:  
“(a)     the child is sub ject to a care order,  
(b)       the court is satisfied that the conditions in section 31(2) 
of the 1989 Act (conditions for making a care order) are met, or  
(c)       the child has no parent or guardian.”  
Thus, unless the child has no parent or guardian, t he “threshold conditions” for state 
intervention must be met, but they can be met either  by the prior making of a care 
order, or by making the requisite findings in the placement order proceedings, which 
may (but need not) be contemporaneous with the care proceedings.  
16.              The hearing listed for September could not proceed because interpreters 
failed to attend. It was relisted for November 2014. The mother’s position was that 
she wanted to look after the children in Hungary; failing that, she wa nted them to live 
with the paternal grandmother in Hungary; failing that, she wanted them to live with 
the maternal great -grandmother in Hungary; and failing that, for them to be placed in 
a children’s home in Hungary. The father wanted to look after them with the mother 
in the paternal grandmother’s home; if the parents’ cohabitation was not acceptable, 
the children should live with the mother in the maternal great -grandmother’s home 
and he would stay in England; in his oral evidence he said that he would stay and 
work in England, but spend holidays living with the mother and children at the 
maternal great -grandmother’s home. The HCA now took the view, apparently based 
on the CFAB and English social worker’s assessments, that there was no suitable 
family me mber in Hungary; so the children should be placed with a foster parent 
there, so that they could keep the connection with their parents. The local competent 
authority would make a decree appointing a guardian and foster parent for them. Two 
professional co lleagues would come to England to escort the children to their foster 
placement in Hungary. Only the Hungarian authorities had the right to adopt them.  
The High Court decision  
17.              The case was tried over five days, from 3 to 7 November 2014, b y His 
Honour Judge Bellamy, sitting as a Deputy High Court Judge. The mother renewed 
her application for an article 15 transfer on the first day, but the judge postponed 
deciding this until the end of the hearing, because the father’s counsel was unprepare d 
for it and further submissions were expected from the HCA. He proceeded to hear 
evidence and submissions on all aspects of the case. On 11 November 2014 he 
delivered judgment only on the article 15 application, which he granted: In re J 
(Children: Brusse ls II Revised: Article 15) [2014] EWFC 45 . 
18.              The judge directed himself (at para 70) in accordance with the guidance given 
by Sir James Munby P,  in In re M  (Brussels II Revised: Article 15)  [2014] EWCA Civ 
152; [2014] 2 FLR 1372 , at para 54: “The language of article 15 is clear and simple. It 
requires no gloss.” The court had to ask itself the three questions set out in article 
15.1. Unless they were answered in the affirmative t here was no power to seek a 
transfer. If they were, there was still a discretion, but “it is not easy to envisage 
circumstances in where, those … conditions having been met, it would nonetheless be 
appropriate not to transfer the case”. In answering those questions, “it is not 
permissible for the court to enter into a comparison of such matters as the 
competence, diligence, resources or efficacy of either the child protection services or 
the courts of the other state”. The judge cited two further important passages from Sir 
James’ judgment:  
“I wish to emphasise that the question of whether the other court will 
have available to it the full list of options available to the English court 
- for example, the ability to order a non-consensual adoption - is 
simply not relevant to either the second or the third question. As Ryder 
LJ has explained, by reference to the decisions of the Supreme Court in 
In re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10 ; 
[2010] 1 AC 319  and of this court in In re T (A Child) (Care 
Proceedings: Request to Assume Jurisdiction) [2013] EWCA Civ 895 , 
[2014] Fam 130 , the question asked by article 15 is whether it is in the 
child’s best interests for the case to be determined in another 
jurisdiction, and that is quite different from the substantive question in 
the proceedings, ‘what outcome to these proceedings will be in the best 
interests of the child?’.”  
Article 15 contemplated a relatively simple and straightforward process:  
“As Lady Hale observed in Re I, para 36, … the task for the judge 
under article 15, ‘will not depend upon a profoun d investigation of the 
child’s situation and upbringing but upon the sort of considerations 
which come into play when deciding upon the most appropriate 
forum’.”  
19.              So the judge proceeded to ask himself the three questions. It was common 
ground that, because of their nationality, the children had a particular connection with 
Hungary (para 80).  
20.              In considering whether a Hungarian court was better placed to hear the case, 
he set out the following factors in favour (para 82): (i) the mother’s only language is 
Hungarian; the father speaks only a little English; in England they require the support 
of an interpreter; (ii) one full sibling and two half -siblings are habitually resident in 
Hungary; the Hungarian court could promote conta ct between them in ways not open 
to an English court and is likely to be better placed to assess whether the girls should 
establish a relationship with their baby brother; (iii) any further assessment required 
(given that he had already expressed concern a bout the brevity of the CFAB 
assessment of the maternal great -grandmother and the social worker’s telephone 
assessment of the paternal grandmother) would be better undertaken in Hungary than 
in England; (iv) the Hungarian authorities would have access to b ackground 
information about the family (the mother’s step -father’s conviction for physically 
abusing her; the father’s time in foster care; the removal of the two half -siblings from 
their mother and placement in foster care); (v) the limits to what the Eng lish court 
could do to ensure that the children’s cultural and linguistic needs are met (the final 
care plan being silent about what the authority intended to do to promote this); (vi) a 
change of placement might be necessary, should the current foster car ers not be 
approved as adopters for them and not be willing to become their special guardians; 
and (vii) there was good reason to believe that force of circumstances might compel 
both parents to return to Hungary.  
21.              He then turned to the fac tors pointing the other way (para 83): (i) the English 
court had heard all the evidence and it was possible that a final determination could be 
made immediately; further delay would be avoided; (ii) social work assessments had 
been completed of the parents , the maternal grandmother and great -grandmother, and 
the paternal grandmother, and of the children’s best interests by a very experienced 
Children’s Guardian; no detailed assessments had been undertaken by the Hungarian 
authorities although they had had t ime to do so; (iii) the parents had had full legal 
representation and interpretation before the English court; (iv) the allocated social 
worker had a relationship with the children and a thorough knowledge of the case and 
had travelled to Hungary to make h er own inquiries; (v) retaining the proceedings in 
England would retain judicial continuity in the sense of having access to all the case 
papers and a picture of the development of the case over time (including the frequent 
changes in the parents’ position s); and (vi) the children had lived here all their short 
lives; their ethnic, cultural and linguistic needs must be weighed against the 
importance of growing up in a safe, stable, secure and risk -free environment.  
22.              He discussed the issue of  delay (paras 84 to 92). He concluded that, although 
it was inevitable that there would be some further delay in settling the children’s 
future if the case were transferred, and he did not know what the extent of that would 
be, it had to been seen in the c ontext of the significant delay so far, much of which 
was attributable to the local authority. He was not therefore persuaded that significant 
weight should be attached to it.  
23.              He concluded (para 93) that the Hungarian court was better plac ed to hear the 
case. He attached particular weight to the point made at para 20(ii) above (the 
potential for contact with siblings), a factor which had tipped the balance for Pauffley 
J in In re J (A Child: Brussels II revised: Article 15: Practice and Pro cedure) [2014] 
EWFC 41 . 
24.              The judge then turned to consider whether transfer of the proceedings to 
Hungary would be in the children’s best inter ests. The local authority argued that “the 
stark choice now facing the court on the article 15 application is for the children to 
keep their long term carers and preserve the status quo or be removed to foster care in 
Hungary”. The judge however did  
“not a ccept that this is a point which the court may take into account in 
determining ‘best interests’ in this context. It is relevant to the 
determination of the question ‘what outcome to these proceedings will 
be in the best interests of these children?’; it i s not relevant to the 
determination of the question ‘is transfer of these proceedings to the 
Hungarian court in these children’s best interests?’.” (para 94)  
Having found that the Hungarian court was better placed to hear the case, it followed 
that it woul d be in their best interests to transfer it (para 95).  
25.              Finally, he considered the exercise of his discretion under article 15. Having 
answered all three of the questions in article 15.1 in the affirmative, there were no 
features which woul d properly entitle him to exercise his discretion against requesting 
the Hungarian court to assume jurisdiction (para 98).  
26.              Accordingly, his order asked the courts of Hungary to accept the request for a 
transfer of the case; the request wou ld be transmitted by the local authority to the 
HCA for onward transmission to the Hungarian court; in the event that the Hungarian 
courts accepted the request within the six week time limit laid down in article 15, the 
case would be urgently re -listed bef ore him for consequential orders, including the 
transfer of the children to Hungary; in the event that the request was not accepted 
within that time, it would be relisted for further directions. It would appear that by 
“the case” he had in mind, not only t he care proceedings, but also the placement order 
proceedings.  
The Court of Appeal decision  
27.              The local authority and the Children’s Guardian appealed to the Court of 
Appeal with the permission of Black LJ. The hearing took place in March 20 15, 
before Sir James Munby P, Black LJ and Sir Richard Aikens, but judgment was not 
delivered until November (this time adopting the initial of the children’s surname): In 
re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 ; [2016] 2 WLR 
713. A great deal of the President’s le ading judgment is devoted to some very 
important questions relating to jurisdiction in adoption generally, which are not before 
this court on this appeal. In summary, these are (para 63):  
(i)                Does an English court have jurisdiction (a) to ma ke an adoption order 
in relation to a child who is a foreign national, and (b) to dispense with the 
consent of a parent who is a foreign national? This was a difficult question, 
given that the Brussels II revised Regulation does not cover adoption or 
measu res preparatory to adoption, nor is there any other international 
instrument covering the matter. The Court of Appeal answered both (a) and (b) 
in the affirmative and this issue is not before this court.  
(ii)              If the English court does have such  jurisdiction, how should that be 
exercised? The President gave guidance on this issue (paras 104 to 111). Once 
again, this guidance is not before this Court on this appeal, but it does have 
some relevance to the issue which is before us, as we shall see.  
(iii)            What is the scope of the Brussels II revised Regulation? It is well -
established that the Regulation applies to care proceedings, as well as to 
proceedings between private parties: see In re C (Case C -435/06)  [2008] Fam 
27. However, by excluding “decisions on adoption, measures preparatory to 
adoption, or the annulment or revocation of adoption” from the scope of the 
Regulation, does article 1.3. b also exclude (a) care proceedings where the care 
plan is adoption, or (b) placement order proceedings? The court concluded that 
(a) was within the scope of the Regulation, but (b) was not. This is not under 
appeal to this court.  
28.              That lea ves the remaining three issues, which related to article 15 (para 63):  
(iv)            What, upon the true construction of article 15 of the Regulation, are the 
requirements before the English court can make a request for a transfer to 
another member state?  The President observed that “there is much English 
learning on the meaning and application” of article 15.1 (para 113). He 
repeated the guidance he had given in In re M (Brussels II Revised: Article 15)  
[2014] EWCA Civ 152 ; [2014] 2 FLR 1372 , para 54 (see para 18 above), on 
which the jud ge had also relied. He went on to emphasise how important it is 
that article 15 is considered at the earliest possible opportunity (para 114), 
although it could be considered at any stage of the proceedings (para 117); that 
repeat applications were to be d eprecated and would usually fail unless there 
had been a change of circumstances, although they might sometimes be 
appropriate (para 118); that a transfer could be considered after a fact -finding 
hearing, but only in exceptional circumstances (para 120); a nd that the process 
should be summary, measured in hours not days and not dependent on a 
profound investigation of the evidence (para 122).  
(v)               Leaving on one side any question arising in relation to article 1.3.b, 
was the judge justified in d eciding as he did? Could it be said that he was 
wrong to do so? The court concluded that he was justified in deciding to 
exercise jurisdiction to request transfer under article 15; he undertook a careful 
examination of all the relevant factors; he did not consider any irrelevant 
factors; he did not err in the weight he attached to the relevant factors, or 
misdirect himself in law (para 64(v)).  
(vi)            Was the judge’s decision vitiated by his failure to address article 1.3.b? 
What were the consequence s of his omission to do so? The court held that the 
fact that he did not appreciate the effect of article 1.3.b did not vitiate his 
decision. His decision in relation to the care proceedings could and should 
stand and they should be stayed. His decision in  relation to the placement 
order proceedings could not stand, but as they were of their nature 
consequential on the care proceedings, they too were stayed (para 64(vi)).  
29.              Black LJ and Sir Richard Aikens delivered short concurring judgments.  The 
appeal was therefore dismissed.  
The issues in this appeal  
30.              The Children’s Guardian, on behalf of the children, and with the support of 
the local authority, now appeals to this court. The mother and the father resist that 
appeal. Althou gh not formally represented before this Court, the HCA also supports 
the decision. Their letter of 3 February 2016 informs the court that the HCA accepted 
jurisdiction under article 15.5 on 15 January 2015 following the High Court’s request; 
they were noti fied of the Court of Appeal decision on 2 December 2015; while 
waiting for the children’s social worker to contact them about the details of bringing 
the children to Hungary, their competent local authority Guardianship Office had 
ascertained that the pare nts’ living circumstances were not convenient to take care of 
the children; however they wished to keep the connection with them; and the girls had 
“two half -sister/brother who are living in the mother’s care” (sic?). An English 
speaking foster parent had been identified for the girls, as had a child protection 
guardian. The HCA reiterated their consistent view that only the Hungarian 
authorities have the right to adopt Hungarian citizens and that the children have the 
possibility of keeping connection with  their parents and family members if they live 
in Hungary. In addition, this court has received valuable written submissions from 
three interveners: the AIRE Centre, the Family Rights Group and the International 
Centre for Family Law, Policy and Practice.  
31.              The principal issue before this Court is the proper approach to the assessment 
of the child’s best interests in the context of an application for transfer under article 
15. In particular, is it limited to questions of forum, and if so, how  does it differ from 
the question of whether the foreign court is better placed to hear the case? Is the court 
entitled to take into account the consequences for the child of transferring the 
proceedings where, as here, the transfer will also result in the  child’s removal from 
her current placement to a placement in another country? A further issue is whether 
the judge was correct to find that the Hungarian court was “better placed” when he 
had heard all the evidence and was in a position to give a final ju dgment upon it.  
32.              The local authority has raised additional issues relating to the placement 
order proceedings. As the Regulation does not apply to these, was the Court of Appeal 
correct to impose a stay upon them in consequence of staying the care proceedings?  
33.              As this is the United Kingdom’s court of final instance, the further issue 
arises as to whether we are obliged to make a reference to the Court of Justice of the 
European Union on the ground that the interpretation of  article 15 is not acte clair. 
Between the hearing in the Court of Appeal and the handing down of judgment, the 
CJEU accepted a reference from the Supreme Court of Ireland in the case of Child 
and Family Agency (CAFA) v JD (Case C -428/15). Four of the six questions referred 
are relevant to this case:  
“(1)     Does article 15 of Regulation 2201/2003 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?  
… 
(3)       If the ‘best interests of the child’ in article 15.1 of Regulation 
2201 /2003 refers only to the decision as to forum, what factors may a 
court consider under this heading, which have not already been 
considered in determining whether another court is ‘better placed’?  
(4)       May a court for the purposes of article 15 of Reg ulation 
2201/2003 have regard to the substantive law, procedural provisions, 
or practice of the courts of the relevant member state?  
… 
(6)       Precisely what matters are to be considered by a national court 
in determining which court is best placed to de termine the matter?”  
34.              At the time of writing, the CJEU has not given judgment. The Guardian 
sought permission to appeal to this court on question (1) above. It is certainly 
arguable, for the reasons sketched in the question from the Irish c ourt, that article 15 
is not applicable to care proceedings. The “case” cannot be transferred in the same 
way that a case between parents or other private parties can be transferred. The 
proceedings in the other member state will inevitably be different pr oceedings, with 
different parties, different procedures, and possibly different substantive law. Indeed, 
there may not be proceedings in a court at all, but only within administrative 
authorities, as in this case. As Black LJ elegantly put it, what is bein g transferred is 
not “the case” but “the problem” (para 189(i)). However, given that the Regulation 
clearly does apply to public law proceedings, the question whether article 15 does not 
apply in public law proceedings is obviously not acte clair . It must await the 
determination of the Irish reference.  
35.              For that reason, it seemed to this court more convenient to refuse permission 
to appeal on that ground and proceed on the basis that article 15 can apply to public 
law proceedings. Whether it is necessary to await the decision of the CJEU on 
questions (3), (4) and (6) before deciding this case is another matter, to which I shall 
return.  
The proper approach to article 15.1  
36.              The argument before us has principally focuss ed on the nature of the “best 
interests” evaluation required by article 15.1 and in particular whether it is limited to 
questions relevant to the choice of forum. This has been described as the “attenuated” 
welfare test (see In re T (A child: Article 15, B russels II Revised ) [2013] EWHC 521 
(Fam) ; [2013] 2 FLR 909 , para 21). Its source appears to be my own observation in In 
re I, quoted in In re M (see above at para 18). Contrary to the impression given there, 
In re I was not a case about article 15, but a case about article 12 of the Regu lation, 
which relates to Prorogation of Jurisdiction. Article 12.1 allows a court dealing with 
divorce, separation or nullity proceedings also to deal with connected parental 
responsibility matters if the spouses and holders of parental responsibility agre e. 
Article 12.3 gives the courts of a member state jurisdiction in relation to parental 
responsibility, even though the child is not habitually resident there, where:  
“a.       the child has a substantial connection with that member state, in 
particular by  virtue of the fact that one of the holders of parental 
responsibility is habitually resident in that member state or that the 
child is a national of that member state; and  
b.         the jurisdiction of the courts has been accepted expressly or 
otherwise in an unequivocal manner by all the parties to the 
proceedings at the time the court is seised and is in the best interests of 
the child.”  
It was in that context that I observed (at para 36):  
“The final requirement in article 12(3) is that the jurisdiction  of the 
English courts should be in the best interests of the child. Nothing 
turns, in my view, on the difference between ‘the best interests of the 
child’ in article 12(3), ‘the superior interests of the child’ in article 
12(1) and ‘the child’s interest’ in article 12(4). They must mean the 
same thing, which is that it is in the child’s interests for the case to be 
determined in the courts of this country rather than elsewhere. This 
question is quite different from the substantive question in the 
proceedin gs, which is ‘what outcome to these proceedings will be in 
the best interests of the child?’ It will not depend upon a profound 
investigation of the child’s situation and upbringing but upon the sort 
of considerations which come into play when deciding upo n the most 
appropriate forum. The fact that the parties have submitted to the 
jurisdiction and are both habitually resident within it is clearly relevant 
though by no means the only factor.”  
37.              It appears to have been the Court of Appeal’s en dorsement of this approach 
to the best interests test in article 15.1 which led the judge to hold (see para 24 above) 
that the consequences for these children of being removed from their long term carers 
and taken to new foster carers in Hungary was comple tely irrelevant to whether 
transferring the case would be in their best interests.  
38.              The first point made by the appellants is that the requirement in article 12.3 is 
quite different from the requirement in article 15.1. In article 12.3 (as also in article 
12.1) it is the court which is deciding whether to accept  jurisdiction, which it would 
not otherwise have, that has to decide whether to do so is in the best interests of the 
child. This is roughly equivalent to the requirement in article 1 5.5 that the court which 
is requested  to take the case (here the Hungarian court) must consider that it is the 
best interests of the child to accept jurisdiction. Article 15.1 is directed towards the 
court which already has jurisdiction in an existing case . It imposes an additional 
requirement that the transferring  court considers this to be in the best interests of the 
child. Obviously, the considerations applicable when deciding whether to relinquish 
jurisdiction may be somewhat different from the conside rations applicable when 
deciding whether to accept it.  
39.              Secondly, article 12.3 contains no requirement that the court accepting 
jurisdiction be “better placed” to hear the case than the court which would otherwise 
have it. Interestingly, th e draft of article 15.1 proposed by the EU Commission did not 
contain this requirement, although the Explanatory Memorandum referred to 
“situations (albeit exceptional) where the courts of another member state would be 
better placed to hear the case”. The requirement does, however, appear in article 8 of 
the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, 
Enforcement and Co -operation in respect of Parental Responsibility and Measures for 
the Protection of Children, which the Commission d escribed as a “similar 
mechanism” in their Explanatory Memorandum. That may be why it found its way 
into the eventual Regulation. The European legislator must have considered that the 
“better placed” requirement was something different from the “best inter ests” 
requirement, otherwise they would not both be there.  
40.              Thirdly, as originally drafted, article 15.1 limited transfer to “exceptional 
circumstances”. As finally adopted, it no longer does so, merely introducing the 
power with the words “by way of exception”. An exception does not necessarily 
require that the circumstances be exceptional. Nevertheless, it is an exception to the 
general rule, that the future of children should be decided in the courts of the member 
state where they are hab itually resident. In general, it is expected that exceptions will 
be narrowly construed and applied (see, for example, Somafer SA v Saar -Ferngas AG  
(Case C -33/78) [1978] EUECJ R -33/78 ; [1979] 1 CMLR 490 , para 7), although the 
text which was eventually adopted is more “open -ended” than that originally 
proposed.  
41.              Fourthly, however, it is clear that the Commission regarded the requirement 
that the court proposing the transfer, as well as the court accepting it, should evaluate 
whether the transfer would be in the best interests of the child as “an additional 
safeguard”. By this they must have meant an additional safeguard for the child. In this 
connection, recital 12 to the Regulation is relevant:  
“The grounds of jurisdiction in matters of parental responsibility 
established in t he present Regulation are shaped in the light of the best 
interests of the child, in particular on the criterion of proximity. This 
means that jurisdiction should lie in the first place with the member 
state of the child’s habitual residence, except for ce rtain cases of a 
change in the child’s residence or pursuant to an agreement between 
the holders of parental responsibility.”  
Recital 33 is also relevant:  
“This Regulation recognises the fundamental rights and observes the 
principles of the Charter of Fund amental Rights of the European 
Union. In particular, it seeks to ensure respect for the fundamental 
rights of the child as set out in article 24 of the Charter of Fundamental 
Rights of the European Union.”  
42.              Article 24 of the Charter of Fund amental Rights is headed “The rights of the 
child”:  
“1.       Children shall have the right to such protection and care as is 
necessary for their well -being. They may express their views freely. 
Such views shall be taken into consideration on matters which  concern 
them in accordance with their age and maturity.  
2.         In all actions relating to children, whether taken by public 
authorities or private institutions, the child’s best interests must be a 
primary consideration.  
3.         Every child shall have the right to maintain on a regular basis a 
personal relationship and direct contact with both his or her parents, 
unless that is contrary to his or her interests.”  
As the AIRE Centre point out in their helpful intervention , article 24.2 is clearly 
modelled on article 3.1 of the United National Convention on the Rights of the Child. 
They further point out that secondary EU legislation, such as the Regulation, must be 
interpreted consistently with the Treaties, including the Charter of Fundamental 
Rights: Criminal proceedings against  Lindqvist (Case C -101/01) [2003] ECR I -
12971 , Ordre des barreaux franco phones et germanophone v Conseil des ministres 
(Case C -305/05) [2007] ECR I -5305 . The provisions of the Charter only apply when 
mem ber states are implementing EU law, but we are clearly doing so in this case. If 
there were any doubt about the need to interpret and apply the Regulation consistently 
with article 24 of the Charter, recital 33 puts that beyond doubt. This is a case about 
children’s rights, and in particular, the right to have their best interests regarded as a 
primary consideration in all actions relating to them. As the AIRE Centre also point 
out, the line of case law leading to the “attenuated” welfare test does not appe ar to 
have had any explicit regard to the best interests obligation. The test might have 
looked very different if it had done.  
43.              It is the case, as argued on behalf of the mother, that the “better placed” and 
“best interests” questions are i nter-related. Some of the same factors may be relevant 
to both. But it is clear that they are separate questions and must be addressed 
separately. The second one does not inexorably follow from the first.  
44.              The question remains, what is enco mpassed in the “best interests” 
requirement? The distinction drawn in In re I 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 questio n 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 im possible 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.  
Application in this case  
45.              It follows that the judge was wrong to accept that it followed from his 
decision that the Hungarian court was better place d to hear the case that it would be in 
the best interests of the children to transfer it. He ought to have addressed his mind to 
the short and long term consequences for them of doing so and also of not doing so. 
The short term consequence was that these l ittle girls would be removed from the 
home where Ella had lived for virtually all her life and Janetta had lived for most of 
hers, where they were happy and settled, and doing well (Janetta’s behaviour having 
been seriously disturbed when they first arrive d). They would be transferred to a 
foster placement about which the court knew nothing other than that the foster carer 
spoke English. The country, the language and the surroundings would be completely 
unfamiliar to them. The long term consequence would be  to rule out one possible 
option for their future care and upbringing, that is, remaining in their present home on 
a long term legally sanctioned basis, whether through adoption, or through a special 
guardianship order, or through an ordinary residence ord er. It would not be in the best 
interests of these children to transfer a dispute about their future to a court which 
would be unable to consider one of the possible outcomes, indeed the outcome which 
those professionals with the closest knowledge of the c ase and the children now 
consider would be best for them.  
46.              That is not, of course, to say that that is the outcome which the court should 
eventually decide. There is a very live issue as to whether in the long run these little 
girls of Hung arian nationality and descent, with mixed Hungarian and Roma 
ethnicity, and many family members in Hungary, including their parents, 
grandparents, a sibling and half siblings, would be better living in Hungary. The judge 
took into account the importance of  their siblings and their background when 
addressing the question of which court was “better placed”. But in addressing that 
question, he did not take into account what the real issues in the case were.  
47.              The real issues were that the parent s wanted the girls to come to Hungary, 
preferably to live with them or with members of the extended family. The advantages 
and disadvantages of this had been explored by the girls’ social worker. The 
underlying problem was that the mother’s family would ha ve nothing to do with the 
father, whom they saw as abusive, while the father’s family supported him, and the 
mother wished to stay with him. The HCA, therefore, apparently relying largely on 
the assessments carried out by or for the local authority, did no t see family placement 
as viable, and so proposed foster care, but preserving the possibility of some sort of 
relationship with the parents and siblings. The local authority, with the support of the 
Children’s Guardian, now proposed placement for adoption,  preferably with the 
existing foster carers.  
48.              The judge considered the Hungarian authorities better placed to achieve the 
first two of these outcomes. He did not consider how far it would be open to him to 
achieve the same outcomes without transferring the case. Yet there clearly would 
have been ways of securing that the children were placed under the aegis of the 
relevant Guardianship Office in Hungary. As the Family Rights Group observe, the 
courts have been arranging foreign placements fo r years. The mother is right to say 
that the court cannot dictate the content of a local authority’s care plan when it makes 
a final care order in care proceedings. On the other hand, the local authority may be 
willing to change its care plan in the light of clear findings as to the children’s best 
interests. In any event, a placement abroad can be achieved without making a care 
order. If the child is not subject to a care order, the inherent jurisdiction of the High 
Court may be used in a flexible way to s ecure the desired outcome. The prohibitions 
on its use in section 100(2) of the Children Act 1989 would not preclude the court 
from making orders in favour of the relevant Hungarian authority. A similar result 
might be achieved through orders under section  8 of the Children Act 1989, which 
again would not be precluded by section 9(5) (sections 100(2) and 9(5) preclude the 
use of such orders in effect to place children in the care of a local authority).  
49.              Nor did the judge consider which court  would be better placed to achieve the 
third outcome. There could only be one answer to this. But there would be a variety of 
ways of achieving that outcome. The local authority did propose a closed adoption, 
but there are other ways of achieving permanenc e and stability in this country without 
cutting off all links with the children’s family and background. There are orders in 
favour of foster parents which fall short of adoption. Whether the children remain in 
foster care under a care order or under some order in favour of the foster carers, the 
court is in charge of contact. It could make contact orders which would be 
recognisable and enforceable in Hungary. Alternatively, it could transfer the contact 
part of the proceedings to Hungary under article 15. All of these things should have 
been taken into account in deciding which court was “better placed”.  
50.              Above all, in this particular case, the judge had heard and read all the 
evidence that anyone involved wished to put before him. He was in  a position to 
decide the outcome. Although a transfer request can be made and determined at any 
time, it would be rare indeed that, the case having reached such a point, another court 
would be better placed to hear it.  
51.              Thus, in my view, n ot 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. I shall return to the consequences of that after 
considering the other issues in  the case.  
The placement order proceedings  
52.              The local authority argue that, as the placement order proceedings are not 
within the scope of the Regulation, there was no power to stay them with a view to 
transfer under article 15. The Court of Appeal was correct to recognise that, but 
wrong to stay them as consequential on the care proceedings. Section 21(2) of the 
Adoption and Children Act 2002 (para 15 above) makes it clear that the threshold 
may be determined either in care proceedings or in separate placement order 
proceedings. Thus they argue that the placement order proceedings should have been 
left to take their course.  
53.              It is, of course, correct that article 15 does not apply  to placement order 
proceedings. The judge was wrong to think that it did. But that, in itself, did not 
invalidate his decision to transfer the care proceedings. If it was right to transfer the 
care proceedings, then it made no sense to leave the placement  order proceedings to 
continue as if nothing had happened. The object of the transfer was that the children’s 
future should be decided in Hungary and not in England. As the mother points out, 
under the Family Procedure Rules 2010, the court has wide case m anagement powers, 
including, under rule 4.1(3)(g), the power to stay the whole or part of any proceedings 
either generally or until a specified later date. The Court of Appeal has the same 
powers as the trial judge. It clearly had the power to do this. If it had been right to 
uphold the transfer, it would clearly have been right to stay the placement order 
proceedings.  
Reference to the CJEU?  
54.              As already noted, there is a live question before the CJEU as to whether 
article 15 is capable of ap plying to public law proceedings such as these. This cannot 
be regarded as acte clair . This court has to decide whether to make its own reference 
of essentially the same question that the Supreme Court of Ireland has already 
referred; whether to delay its decision until the outcome of that reference is known; or 
whether to proceed on the assumption that article 15 is capable of applying to public 
law proceedings and review the decisions of the courts below on their merits.  
55.              In my view, the t hird course is infinitely preferable to the other two. These 
proceedings have already taken far too long. Some of the delay is attributable to the 
local authority, which should have brought proceedings long before they did, rather 
than relying upon the par ents’ agreement for the children to be accommodated; some 
of the delay is attributable to the vacillations of the parents and their failure to co -
operate with the authority over assessments and contact with their children; some of it 
is attributable to the  courts. There may be good, or at least understandable, reasons for 
much of this. But the children are the last people who should be made to suffer for the 
actions or inaction of others. Janetta is now aged four years and two months. Ella is 
now aged two y ears and 11 months. For almost all of Ella’s life the girls have lived 
with their present foster parents. One way or another, their best interests demand that 
their future should be decided as soon as possible.  
56.              But does that leave this cou rt free to decide upon the correct approach to an 
article 15 application? The Supreme Court of Ireland has referred questions which are 
essentially the same as the principal issue in this case. However, it has done so in a 
very different context - a pregna nt woman who had deliberately left England and 
moved to have her baby in Ireland in order to avoid care proceedings here. The 
transfer question therefore also raised issues about the free movement of workers 
within the European Union which do not arise in this case.  
57.              I share the President’s view that the language of article 15.1 is simple and 
clear. It requires no gloss or explanation. The court has three questions to answer: 
does the child have a particular connection (as defined in article  15.3) with another 
member state; would a court in that member state be better placed to hear the case, or 
a specified part of it; and would this be in the best interests of the child? The “better 
placed” and “best interests” questions are separate questio ns and the “best interests” 
question is intended to be an additional safeguard for the child. The question is not 
what eventual outcome to the case will be in the best interests of the child but whether 
the transfer will be in her best interests. Subject t o that, the scope of the inquiry will 
depend upon all the circumstances of the case. I would therefore proceed on the basis 
that the meaning of article 15.1 is acte clair , albeit not yet éclairé , and we are merely 
applying it to the facts of the case, whic h is the task of the national courts.  
58.              Furthermore, for the reasons already explained, the judge was, in my view, 
plainly wrong to conclude that the Hungarian authorities were, on the particular facts 
of this case, “better placed” to hear t he case. He left out of account the vital factor that 
to transfer the case would preclude one possible outcome which might be in the best 
interests of the children concerned, whereas retaining jurisdiction would allow all the 
possible outcomes to be consid ered. Transfer would also precipitate their removal 
from their long -standing home without any evaluation of the impact of this upon their 
psychological well -being.  
59.              In my view, therefore, it is not necessary for this court to make a referen ce to 
the CJEU or to await the outcome of the reference made by the Supreme Court of 
Ireland. We should proceed to decide the case.  
Conclusion  
60.              It follows that the appeal must be allowed and the transfer request set aside. 
After this period  of time, there can be no question of re -opening the transfer 
application. It is in the best interests of these children for their future to be decided as 
soon as possible. Unfortunately, it will be necessary for the evidence to be updated. 
The case should  therefore be returned to the Family Division of the High Court, to be 
heard by a judge of that division, as soon as possible.  
61.              As has already been made clear, the range of possible outcomes for these two 
children is not limited to the prim ary case presented to the judge: closed adoption here 
as against foster placement in Hungary. There are several other options in between. 
The guidance given by the President in this case (paras 104 to 111) is relevant. He 
emphasised the importance in the c hecklist of factors to be considered when deciding 
whether to make an adoption order in section 1(4) of the 2002 Act, “(c) the likely 
effect on the child (throughout his life) of having ceased to be a member of the 
original family and become an adopted per son” and “(d) the child’s … background” 
(para 104). The court and the professionals “must give the most careful consideration 
… to those parts of the checklist which focus attention, explicitly or implicitly, on the 
child’s national, cultural, linguistic, ethnic and religious background”. The court is 
directed to consider the likely effect, throughout her life, of having ceased to be a 
member of her original family (para 105). As he had said in Merton London Borough 
Council v B [2015] EWCA Civ 888 ; [2016] 2 WLR 410 , para 84, “We must be 
understanding of the concerns about our processes voiced by European colleagues;” 
and “the court … must rigorously apply the principle that [non -consensual] adoption 
is ‘the last resort’ and only permissible ‘if nothing else will do’” (para 106). On the 
other hand, as he had said in In re J (Care Proceeding: Appeal) [2014] EWFC 4 ; 
[2015] 1 FLR 850 , para 36, at the end of the day matters had to be judged “according 
to the law of England and by reference to the standards of reasonable men and women 
in contemporary English society. The parents’ vie ws, whether religious, cultural, 
secular or social, are entitled to respect but cannot be determinative” (para 108). One 
important factor, in considering the child’s welfare, is whether an adoption order 
would be recognised in the country where the child i s domiciled, or a national, or has 
been habitually resident. If it would not be, the court will have to consider the 
disadvantages of a “limping” adoption order (see In re B(S) (An Infant) [1968] Ch 
204), which might make it difficult for them ever to visi t Hungary. This might tell in 
favour of finding other ways of giving the children the security and stability they 
need.  
62.              Much will, of course, depend upon the evidence before the judge at the 
rehearing. It will be for him or her to decide u pon the outcome which will be in the 
best interests of these little girls .