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Success for Dorian Day in the Court of Appeal

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Judgment was handed down by the Court of Appeal in Re N (Children) (Adoption: Jurisdiction) on 2nd November 2015.

Dorian Day and Alistair MacDonald QC (as he then was) appeared on behalf of the father and resisted the appeals.

The Court of Appeal (The President, Black LJ and Aikens LJ) considered an appeal by the local authority and the childrens’ guardian against the decision of HHJ Bellamy, sitting as a deputy Judge of the High Court, whereby he transferred care proceedings to Hungary pursuant to the provisions of Article 15 of Council Regulation (EC) No 2201/2003.

In an extensive review of the jurisprudence the Court of Appeal dismissed the appeals and upheld the judge’s decision to transfer.

The case was particularly unusual as the judge had made the decision to transfer at the conclusion of the final hearing of care and placement proceedings.

During the appeal the court considered extensive argument as to the jurisdiction to make forced adoption order in respect of children who are nationals in other jurisdictions.

In relation to the core issues the Court decided that:-
1. The English court has jurisdiction to make adoption orders and dispense with the consent of the parents in relation to a child who is a foreign national;

2. The provisions of Article 15 applies to care proceedings but does not apply to placement proceedings;

3. The judge was correct in law and could not be criticized for ordering the transfer ;

4. That in some case in the future it will be necessary for the UK court to receive evidence of whether the UK order will be recognized in the foreign Court;

The Court went on to make some illuminating remarks by way of criticism about the misuse of s20 Children Act 1989, delay and the need for judicial continuity.

For further detail see full judgment here.

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