On the plain language of article 1(3)(b) of Council Regulation (EC) No 2201/2003, and having regard to the Explanatory Report on the 1996 Hague Child Protection Convention (1998) by Paul Lagarde, it was clear that an application for a placement order was a “measure preparatory” to adoption within the meaning of article 1(3)(b). In contrast, care proceedings, even if the plan was for adoption, were not, as such, part of the process of adoption. It followed that, although care proceedings were within the scope of article 1.1(b) even if the local authority’s approved plan was for adoption, article 15 of the Regulation did not apply to proceedings for a placement order.

The Court of Appeal so held in a reserved judgment when dismissing the appeal by the local authority, supported by the children’s guardian, against the decision of Judge Bellamy, sitting as a deputy High Court judge (sub nom In re J and E (Children: Brussels II Revised: Article 15) [2014] EWFC 45) on 11 November 2014 at the final hearing of care and placement proceedings, to direct that the proceedings be transferred to Hungary in accordance with article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (OJ 2003, L338, p 1) (“BIIR”). The grounds of appeal were, inter alia, that (i) the judge had no jurisdiction to make an order under article 15.1 of BIIR since article 1(3)(b) applied and the case could not reasonably be split into article 1(3)(b) elements and other elements; (ii) the retention of the article 1(3)(b) proceedings obliged the court to give a negative answer to the article 15.1 questions; and (iii) the judge was wrong to make an article 15.1 direction but give no judgment in the substantive proceedings.

SIR JAMES MUNBY P said that the children, although born in England, were Hungarian citizens. In the course of the care proceedings both children had been held to be habitually resident in England and, accordingly, the English court had jurisdiction under article 8 of BIIR: [2014] EWHC 999 (Fam). As matters had developed, the following issues arose for determination: (1) Did the English court have jurisdiction (a) to make an adoption order in relation to a child who was a foreign national and (b) to dispense with the consent of a parent who was a foreign national? (2) If the English court had such jurisdiction how should it be exercised? (3) What was the scope or ambit of BIIR? In particular, what was included within its scope by virtue of article 1.1(b) and excluded from its scope by virtue of article 1(3)(b)? Specifically, were care proceedings within the scope of article 1.1(b) even if the local authority's care plan was for adoption? Were proceedings for a placement order within the scope of article 1(3)(b)? (4) What, on the true construction of article 15 of BIIR, were the requirements before the English court could make a request for a transfer to the other member state? (5) Leaving on one side any question arising in relation to article 1(3)(b), was the judge justified in deciding as he did to exercise jurisdiction under article 15? Could it be said that he was “wrong” to do so? (6) Was the judge’s decision vitiated by his failure to address article 1(3)(b)? What were the consequences of his omission to do so?

Issues (2) and (4) of their nature did not admit of a simple yes/no answer. But in relation to the remaining issues: Issue (1): The English court had jurisdiction (a) to make an adoption order in relation to a child who was a foreign national and (b) to dispense with the consent of a parent who was a foreign national. Issue (3): Care proceedings were within the scope of article 1.1(b) even if the local authority's care plan was for adoption; proceedings for a placement order were within the scope of article 1(3)(b). It followed that article 15 applied to care proceedings, even if the local authority's care plan was for adoption, but did not apply to proceedings for a placement order. Issue (5): Leaving on one side the impact of article 1(3)(b), the judge was justified in deciding as he did, and for the reasons he gave, to exercise jurisdiction under article 15. It could not be said that he was “wrong” to do so: he undertook a very careful evaluation 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; he did not misdirect himself in law or err in principle; looked at overall, his conclusion was not perverse and was not wrong. Issue (6): The fact that the judge did not appreciate the effect of article 1(3)(b) did not vitiate his decision. His decision under article 15 in relation to the care proceedings could, and should, stand. His decision in relation to the placement proceedings, which were within the ambit of article 1(3)(b), could not stand. The consequence was that (a) the care proceedings were stayed in consequence of the transfer under article 15 and (b) the placement order proceedings, which were of their nature consequential upon the care proceedings, were stayed in consequence.

article 1(3)(b) of BIIR provided that BIIR: “shall not apply to … decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption.” Plainly that applied to an application for an adoption order under the Adoption and Children Act 2002 (see Merton London Borough Council v B (Central Authority of the Republic of Latvia, intervening) [2015] Fam Law 1344); but how much further did the exception reach? On the plain language of article 1(3)(b), and having regard to the Lagarde report, it was clear that an application for a placement order was a “measure preparatory” to adoption within the meaning of article 1(3)(b). It formed part of the process of adoption as set out in the 2002 Act; it was a precursor to the making in due course of an adoption order, and it had to do, as its name indicated, with the “placement” of the child, specifically with a view to adoption. In contrast, care proceedings, even if the plan was for adoption, were not, as such, part of the process of adoption. A care order, even if the court had approved a plan for adoption, did not of itself authorise a placement with a view to adoption. It might be a step along the way of implementing the local authority's plans for the child, but it was not a “measure preparatory” to adoption: see Leicester City Council v S [2015] 1 FLR 1182 and In re J (A Child: Brussels II Revised: Article 5: Practice and Procedure) [2015] Fam Law 129. The argument that the crucial stage in the process at which article 1(3)(b) began to operate was when the child was placed for adoption so that an application for a placement order was not a “measure preparatory” to adoption, in contrast to an actual placement of a child for adoption pursuant to an order of the court, was plainly wrong. It elevated the placement—a concept which was not even referred to in article 1(3)(b)—to a determinative role. No doubt, the placement of a child following the making of a placement order was a “measure preparatory” to adoption, but there was nothing, either in article 1(3)(b) or in the Lagarde report, to prevent some earlier step being such a “measure”. The application for a placement order, the inevitable precursor to the actual placement of the child for adoption, was as much a “measure preparatory” as the placement itself.

BLACK LJ and SIR RICHARD AIKENS handed down concurring judgments.