AB v Jlb
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 01 December 2008 |
| Neutral Citation | [2008] EWHC 2965 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD08P00949 |
| Date | 01 December 2008 |
[2008] EWHC 2965 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
Case No: FD08P00949
Ms Sharon Segal (instructed by Hughes Fowler Carruthers) for the Applicant (mother)
Mr Michael Glaser (instructed by Mills & Reeve LLP) for the Respondent (father)
Hearing date: 27 November 2008
I have before me an interesting and seemingly novel point in relation to Article 15 of Council Regulation (EC) no 2210/2203 (Brussels II bis).
The background
The mother and the father, as I shall refer to them, are both English. They married in 1999. From then until August 2003 they both worked in the Netherlands, where their only child, a son, H, was born in May 2002. In August 2003 the mother's employment took her to London, where she moved with H. The father remained in the Netherlands until February 2005 when he joined the mother and H in this country. From November 2005 until July 2007 the family lived and worked in Scotland. In August 2007 they moved to the Netherlands and H started at the American School there.
By early 2008 the marriage was in serious difficulties.
The proceedings
Coincidentally, on 14 May 2008 both the mother and the father started proceedings. The mother issued a divorce petition in the Principal Registry (FD08D02235) based on the English domicile of both parties. (At that time both parties were still living in the Netherlands (see below) and, as the father would have it, habitually resident there. In these circumstances he characterises the mother's issue of a petition in this country as 'forum shopping', presumably, he says, with a view to her achieving a more favourable financial settlement.) The father, for his part, applied to the District Court of the Hague for 'provisional measures', seeking the care of H, the exclusive use of the former matrimonial home in the Netherlands and maintenance for both himself and H. An important element of the father's case was that he did not consider it to be in H's interest to move yet again, which would, he said, involve H moving to another school and leaving behind his new friends. The following day, 15 May 2008, and whilst unaware of the father's application in the Netherlands, the mother applied to the Principal Registry for a residence order (FD08P00949).
Since then the parents have been disputing which court(s) should have jurisdiction, in particular in relation to the divorce and H. I need not go into all the details. In the upshot, the father conceded in a letter from his solicitors dated 10 September 2008 that the divorce should proceed in this jurisdiction. Decree nisi was pronounced by the District Judge on 6 October 2008. The ancillary relief proceedings continue; the mother had issued her Form A on 4 July 2008 and the FDR is fixed for 3 December 2008.
The proceedings in relation to H in the Hague court came on for hearing on 5 June 2008, both parties being legally represented. Judgment was given on 19 June 2008. The mother sought, but failed, to persuade the Hague court to make an order under Article 15(1). The father was given temporary care of H and exclusive entitlement to use the former matrimonial home.
The parties finally separated on 27 June 2008; previously they had both been living, in tense conditions, in the former matrimonial home. The mother subsequently returned to this country on 1 August 2008. The father and H continue to live in the Netherlands.
On 11 July 2008 the District Judge made an order giving the mother leave to withdraw her application for a residence order. However, on 24 October 2008 the mother applied again for residence or, in the alternative, a defined contact order. In her Form C1 the mother indicated that she was also seeking, by way of "preliminary application",
"for the English court to make an application under Article 15(2)(c) of [Brussels II bis] to the [Hague court] to transfer the proceedings concerning H to the High Court in London given the particular connection H has to England and given also the divorce and financial proceedings already ongoing in England."
It is that preliminary application which came on before me for hearing on 27 November 2008.
The listing was in accordance with the joint request of the parties, set out in a letter dated 6 November 2008, signed by both firms of solicitors, asking the court to list the matter "for a 30 minutes directions appointment in relation to jurisdiction". On 13 November 2008 the mother's solicitor appeared before the District Judge of the day who, upon production of the letter, listed the matter for "a directions hearing" before a High Court Judge with a time estimate of 30 minutes.
As early as 28 October 2008 the father's solicitors had written to the mother's solicitors asserting that the application was "entirely without merit" and inviting her to withdraw it. I am told that, in the course of a conversation between counsel on 24 November 2008, Mr Michael Glaser, who appeared before me on behalf of the father, told Ms Sharon Segal, who appeared on behalf of the mother, that he would be seeking a final determination and summary dismissal of the application at the forthcoming hearing. The stance of the father's solicitors was reinforced by a letter the next day, 25 November 2008, putting her solicitors on notice that they would be seeking costs against the mother in relation to the hearing two days later and serving on them a statement of costs.
In the event the hearing on 27 November 2008 lasted for longer than the 30 minutes allowed by the District Judge. The Associate's 'blue' records the hearing as having lasted from 11.33 to 12.52. At the end of the hearing I reserved judgment.
Article 15
Article 15 of Brussels II bis provides, so far as material, as follows:
"Transfer to a court better placed to hear the case
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, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question 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…
2 Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3 The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property."
Ms Segal and Mr Glaser helpfully referred me to a recent authority on Article 15, the decision of Mr Jonathan Baker QC, sitting as Deputy Judge of the Division, in Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741. But that, as they correctly observe, does not bear directly on the point with which I am concerned. Neither Ms Segal nor Mr Glaser was able to direct me to any relevant authority on the present point – apparently there is none – nor were they aware of any previous case in which the present point had arisen.
The decision of the Hague court in relation to Article 15
I have been supplied with an agreed translation of the decision of the Hague court handed down in writing on 19 June 2008.
The court set out the background circumstances and rehearsed the parties' arguments in some detail. It then turned to consider a preliminary point the mother had taken challenging the jurisdiction of the court. The court held that it had jurisdiction in accordance with Article 8 of Brussels II bis because H was habitually resident in the Netherlands. It added that "The question of whether and when divorce proceedings will be instituted in the Netherlands does not alter this."
The court then turned to consider the mother's application under Article 15. The part of its decision which deals with the Article 15 point is short and can usefully be set out in full:
"The wife has requested that the case be referred to the English court pursuant to Article 15 of the Brussels II bis regulation. Article 15 of the Brussels II bis regulation determines that courts in a member state that are competent to decide on a case in substantive proceedings, shall, by way of an exception and where they feel that it would be easier for a court in another member state with which the child has a special tie to hear the case or a specific part thereof, be able to defer hearing of the case or a specific part of said case, in the interest of the child, and invite the parties to address an application to this end to the court in the said other member state, in accordance with Paragraph 4.
In the present case, the court sees no reason to make the exception indicated in Article 15(1) of the Brussels II bis regulation. Although his British nationality means that the minor has a special tie with England, the court is not of the opinion that it would be easier for the English court to hear the...
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