Transferring the case – Article 15
Article 15(1) – By way of 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… and where this is in the best interests of the child: (a) stay the case… and invite the parties to introduce a request before the court of that other Member State OR (b) request a court of another Member State to assume jurisdiction.
- Article 15 is an exception to the general principle that the court first seised will hear the case if it has jurisdiction under the Regulation.
- Article 15 accounts for the situation where it is more appropriate to hear the case in another State with a substantial connection to the dispute, but it is a tightly controlled exception to the general rule and is strictly interpreted.
It must be demonstrated that:
- The case should be transferred to another EU Member State court which must be better placed to hear the case
- That the child has a particular connection to the alternative Member State, either:
o The child’s habitual residence which has changed, subsequent to the court being seised
o It is the former habitual residence of the child
o It is the place of the child’s nationality
o It is the habitual residence of a holder of parental responsibility
o Or in cases concerning the child’s property, the place of the location of the property
o It is the former habitual residence of the child
o It is the place of the child’s nationality
o It is the habitual residence of a holder of parental responsibility
o Or in cases concerning the child’s property, the place of the location of the property
- That the transfer is in the child’s best interests
The requirements of Article 15 are cumulative, so they must all be demonstrated before the court will permit the transfer to another jurisdiction. The closer the child’s connection to the alternative jurisdiction and the more linked the dispute to the jurisdiction, the more likely it is that that court is better placed to hear the case and transfer will be in the child’s best interests.