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The Supreme Court has now resolved the issue of whether the parties’ right, created by Brussels IIa, Art 12.3, to choose to ‘opt in’ to the jurisdiction of an EU Member State that would otherwise not have jurisdiction, can apply in cases concerning children who are habitually resident not only outside the Member State in question but outside the European Union.

The case concerned a nine-year-old boy who had moved to live in Pakistan, with his paternal grandparents, in 2004 when he was aged four. Both his parents continue to live in the UK. Proceedings in 2001-2004 concluded with an order that provided for his contact with his mother up until the time of his move to Pakistan, but not thereafter, apparently on the basis that the parties expected that contact arrangements would be agreed.

 In 2007 the mother, acting in person, issued an application for a contact order. That was resolved by agreement without the issue of jurisdiction being raised. In April 2008 she issued further proceedings to ‘enforce and vary’ contact. The issue of jurisdiction was not determined by the first instance court until May 2009, when HHJ Barnett, sitting as a Deputy High Court Judge, ruled that the English courts did not have jurisdiction over the child. At first instance it had been agreed between the parties that Brussels IIa did not apply, the child being resident outside the European Union, and HHJ Barnett’s decision was based solely on the ‘residual’ provisions of FLA 1986.

The mother appealed to the Court of Appeal and, represented by Leading Counsel, raised for the first time the argument that the ‘opt-in’ provisions of Art 12.3 applied as much to children resident outside the European Union as to those still resident within it. Lady Hale expresses ‘sympathy’ for the Court of Appeal, confronted for the first time with a ‘novel and surprising’ argument. The Court of Appeal refused the mother’s appeal, essentially for pragmatic reasons, holding that HHJ Barnett’s conclusion was the only sensible one and that to find otherwise would be to prejudice international cooperation between jurisdictions in future cases.

In the Supreme Court Lady Hale, giving the lead judgment, commented that ‘the first question’ – whether Art 12.3 can apply to a child resident outside the European Union – was ‘a good deal easier to answer’ than the second, which was whether Art 12.3 had in fact had that effect in the present case. On the first question, the Court has held that the answer is ‘yes.’ Lady Hale pointed to the provisions of Art 12.1, which permit prorogation of jurisdiction in relation to issues of parental responsibility where there are ongoing divorce proceedings in the relevant Member State. She said that it was easy to imagine a case where a parent living with a child in the USA would nevertheless wish the English court, dealing with divorce and ancillary relief issues on the basis of the other parent’s habitual residence here, also to determine issues relating to the child.

Lady Hale also pointed out that the term, ‘third State’, as contained in Art 12.4, occurs in only one other place in Brussels IIa, in Art 61, and it is clear from the context there that the phrase must mean a non-EU Member State. Art 12.4 itself creates a presumption that where the child is habitually resident in a ‘third State’ that is not a party to the 1996 Hague Convention, prorogation shall be deemed to be in the child’s best interests, particularly where it is found to be impossible to hold proceedings in the state in question. As Lady Hale commented, that is unlikely to apply to many Member States within the EU.

The rest of Lady Hale’s judgment, and the judgments of Lords Collins, Kerr and Clarke, are devoted to the more difficult issue of whether, in the particular case, the parties had in fact exercised the right given them under Art 12.3 at all. This issue came down to the Court’s findings as to whether the parties had accepted jurisdiction ‘expressly or otherwise in an unequivocal manner at the time the court [was] seised’; and whether prorogation was in the best interests of the child. All agreed that the provisions of Art 12.3 had in fact been triggered, although there was divergence of opinion as to when, as a matter of interpretation, the parties’ acceptance of jurisdiction must be demonstrated.

The words, ‘at the time the court is seised,’ mean, according to Art 16, the time when the document initiating the proceedings is lodged with the court, provided that the applicant thereafter takes any required steps (to effect service or to communicate with the court.) Proceeding from this basis Lady Hale and Lords Collins, Kerr and Clarke each then discuss, without forming a definite conclusion (because in the present case the parties’ acceptance of jurisdiction had in any event been clear and explicit from at least 2004 until late in the proceedings), the issue of the timing of the parties’ acceptance of jurisdiction. Lady Hale expressed a view that while acceptance will ideally be demonstrated by a formal agreement prior to seisin (as in Bush v Bush [2008] EWCA Civ 865; [2008] 2 FLR 1437), it may also be possible to show that the parties accepted jurisdiction by their conduct thereafter. There should be some flexibility: in parental responsibility cases, it is unlikely that the parties will even have considered the issue of jurisdiction before proceedings are issued, and Lady Hale left open the possibility of later acceptance of jurisdiction.owev

Lord Collins, with whom Lord Kerr agreed, suggested that it should be possible to treat the words, ‘at the time the court is seised’ as qualifying the words, ‘by the holders of parental responsibility’ in Art 12.1 and ‘by the parties to the proceedings’ in Art 12.3. Lord Kerr went further and said that the proper interpretation of the provision did not require acceptance at the time the court is seised, but merely acceptance – at some time – by those who were parties at the time of seisin.

Lord Clarke disagreed with the rest of the Court, holding that the relevant acceptance of jurisdiction must take place, unequivocally, before the court is seised. The issue was important because ‘in principle no one should commence proceedings of any kind unless the court has jurisdiction or will have it at the moment it is seised of the proceedings.’ It should not be possible to accept jurisdiction at a later date.

In any event, the Court agreed that for the reasons already explained the issue need not be decided in the present case, and that should it arise in future it may be that there would be a need for a reference to the ECJ. Plainly this question is likely to be of relevance to a wide category of cases, and so it may not be too long before that reference is made.

Madeleine Reardon practices in all areas of family law at 1KBW.  She has a particular interest in both public and private law children work. She is an update editor of Hershman and McFarlane: Children Law and Practice’.

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