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In this case the Supreme Court will decide an issue relating to the circumstances in which the courts in England and Wales may assume jurisdic
tion in respect of a child who is habitually resident elsewhere. The case in the Court of Appeal considered the interpretation of Brussels
IIa, Art 12.3 and
12.4: does the Regulation apply only to conflicts of jurisdiction as between EU Member States, or are there any circumstances in which its terms may be applied to an issue of jurisdiction between a Member State and a country outside the EU?

The case concerns contact between a mother, habitually resident in the United Kingdom, and her nine-year-old son, who is habitually resident in Pakistan. It is an unusual feature of the case that not only the child’s mother but his father also both live in this country, the child having been living since late 2004 with paternal relatives in Pakistan. In 2004, before the child’s move, a contact order was made providing for contact to take place between the mother and child until the move to Pakistan, but not thereafter, apparently because there was no issue between the parents as to the level of contact that would then take place.

In 2007 and again in 2008 the mother made applications relating to contact. Both of these were expressed as applications to enforce and/or vary ‘contact’. The issue of jurisdiction was raised at a number of hearings but not finally determined until a hearing before HHJ Barnett, sitting as a Judge of the High Court on 28 May 2009.

At that hearing the Judge ruled that there was no jurisdiction to entertain the mother’s applications. The argument at first instance centred around the provisions of the Family Law Act 1986, ss1-3. The mother’s argument in support of her case that the court had jurisdiction was based on both parents’ habitual residence in England and Wales; on the history of litigation within this jurisdiction; and, to some extent, on the nationality of the child. The Judge concluded, on the facts, that:

The court did not have jurisdiction under the Council Regulation [EC No 2201/2003 ‘Brussels IIa’] because the child was not habitually resident in the UK at the time when the court was seised: FLA 1986 s 2 and Brussels IIa Art 8.1;

The mother’s applications were not applications to vary or discharge an existing s.8 order and therefore did not fall within the exception created by FLA 1986 s1(1);

At the time of (each of) the mother’s applications, the child was neither habitually resident nor present in England and Wales and so there was no jurisdiction under FLA 1986 s3.

The mother appealed, with the permission of the trial Judge. Thorpe LJ gave the only judgment, Scott Baker and Sullivan LJJ concurring. It was an unusual feature of the appeal that the mother (by then represented by leading counsel, who had not appeared below) abandoned her arguments on the facts, as presented at first instance, and advanced a new argument based on Brussels IIa, Art 12 (‘the prorogation argument.’)

Brussels IIa, Art 12.3 permits the courts of a Member State to assume jurisdiction in respect of a child where the child has a ‘substantial connection’ with that Member State; where jurisdiction has been accepted expressly or otherwise by all parties; and where it is in the best interests of the child for the court to assume jurisdiction. Art 12.4 provides that jurisdiction shall be deemed to be in a child’s best interests where the child’s habitual residence is in ‘the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996’ (on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility.) An important question for the Court of Appeal was whether the words ‘third state’ in Art 12.4 are confined to other EU Member States (a number of which are not parties to the Hague Convention), or can be interpreted, as the mother argued, to include a non-EU state.

Thorpe LJ was firm in his rejection of the mother’s arguments in support of prorogation. He commented that ‘every instinct suggests to me that the Regulation is intended simply for the solution of jurisdictional and other problems within the European Union.’ He was, however, careful not to reject the mother’s case on this basis alone, as the point was not argued in the court below and the language of the Regulation is ‘not clear.’ Instead the mother’s arguments for jurisdiction were rejected primarily on the basis that the conditions in Art 12.3 were not met: jurisdiction had not, in the Court of Appeal’s view, been accepted by all parties (the father having been equivocal at various stages in the proceedings, and the child, through his Guardian, arguing that there was no jurisdiction.) As to the child’s best interests and generally, Thorpe LJ made the point that the courts of this jurisdiction regularly ask the Pakistani courts to acknowledge the primary jurisdiction of the English courts in relation to the welfare of children who are habitually resident here. In these circumstances, ‘we can hardly expect the judges of Pakistan to honour the protocol beyond the immediate territory of abduction if we lay exorbitant claims to jurisdiction in relation to children who are essentially Pakistani.’

The mother’s appeal to the Supreme Court will be heard on 12 October 2009. It will be interesting to see whether or not the Supreme Court grasps the nettle of the interpretation of ‘third party’ in Article 12.4, and the wide issues that arise in connection with that point.

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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