Supreme Court
Published December 4, 2009
In re I (a Child) (Jurisdiction)
Before Lord Hope of Craighead, Deputy President, Baroness Hale of Richmond, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore and Lord Clarke of Stone-cum-Ebony
Judgment December 1, 2009
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The right of parties in child contact proceedings to opt in to the jurisdiction of a European Union country which would not otherwise have jurisdiction to determine the child’s future could apply when the child lived outside the European Union.
The Supreme Court so held in allowing an appeal by Y, the mother of I, a child aged nine, against the order of the Court of Appeal (Lord Justice Thorpe, Lord Justice Scott Baker and Lord Justice Sullivan) ([2009] EWCA Civ 965) upholding the decision of Judge Barnett, sitting as a judge of the Family Division on May 28, 2009, that the court did not have jurisdiction to hear her application for contact with her son Following his being injured and consequent care proceedings, the child had lived with his father, who in 2004 was given permission to send the child to live with relatives in Pakistan upon his undertaking to return him to the jurisdiction if ordered to do so by the court.
In 2007 and 2008 the mother made applications under section 8 of the Children Act 1989 Act for contact, including the child being brought to the United Kingdom.
By section 2(1) of the Family Law Act 1986 an English court could not make such an order unless it had jurisdiction under Council Regulation (EC) No 2201/2003 (OJ December 23, 2003 L338/1) known as Brussels II Revised.
Article 12.3 of Brussels II Revised gave the courts of a member state jurisdiction in relation to parental responsibility in proceedings other than divorce or separation, which fell within article 12.1, where:
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“(a) the child has a substantial connection with that member state [because one parent] is habitually resident in that member state or the child is a national of that ... state, and:
“(b) the jurisdiction of the courts had 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.”
Mr Jonathan Baker, QC and Mr Edward Devereux for the mother; Ms Alison H. Russell, QC and Ms Divya Bhatia for the father; Ms Judith Charlton for the child, by his guardian ad litem; Mr Henry Setright, QC and Mr Teertha Gupta for the Centre for Family Law and Practice and Reunite International Child Abduction Centre, interveners.
LADY HALE said that article 12 could apply where the child was lawfully resident outside the European Union. There was nothing in article 12.1 or article 12.3 to limit jurisdiction to children who were resident within the EU.
As to whether the criteria in article 12.3 were made out, article 12.3(a) was clearly satisfied. A more complicated question arose as to article 12.3(b).
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It could mean “the jurisdiction of the courts was accepted when the proceedings began by all those who were then parties”.
Alternatively, it could mean “the jurisdiction of the courts has been accepted at any time after the proceedings have begun by all those who were parties when they began”.
Her Ladyship favoured the latter interpretation. It would enable the court considering whether there had been unequivocal acceptance of jurisdiction to take into account the parties’ conduct after as well as before the proceedings had begun.
However, it was not necessary to resolve the question, because there had been unequivocal acceptance of the jurisdiction both before and after the proceedings were begun.
All of the father’s conduct indicated his acceptance of the jurisdiction of the English courts both expressly and in an unequivocal manner from the outset of the proceedings.
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That was so whatever interpretation was placed upon article 12.3(b). As there was diversity of views which indicated that the interpretation was not acte clair, it might have to be the subject of a reference to the European Court of Justice in another case.
The exercise of jurisdiction in this country would be in the child’s best interests. The difficulty or otherwise of holding the proceedings in the third state in question was obviously relevant to article 12.3(b).
It was not suggested that it would be impossible to hold the present proceedings in Pakistan, but while neither party had had difficulty with the proceedings here, the mother would certainly face difficulties litigating in Pakistan.
The nub of the issue was the contact which the child should have with his mother in this country. Any continuing risks associated with that contact would be better assessed here and any safeguards would need to be put in place here.
LORD COLLINS, agreeing, was attracted by approaching article 12.3 as treating the words “at the time the court is seised” as qualifying the words “all the parties to the proceedings” but agreed that a reference might be necessary.
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LORD CLARKE agreed that the appeal be allowed but read article 12.3(b) as requiring acceptance of jurisdiction at the time the court was seised, while agreeing that the question fell for decision in another case.
Lord Kerr delivered a judgment concurring with Lady Hale and Lord Collins and Lord Hope agreed with them that the appeal be allowed.
Solicitors: Bindmans LLP; Mullinger Banks, Stratford; Edwards Duthie, Plaistow; Dawson Cornwell.