Re I (A Child) (Contact Application: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD HOPE,LORD CLARKE,LORD COLLINS,LORD KERR,LADY HALE |
| Judgment Date | 01 December 2009 |
| Neutral Citation | [2009] UKSC 10 |
| Date | 01 December 2009 |
| Court | Supreme Court |
[2009] UKSC 10
Lord Hope, Deputy President
Lady Hale
Lord Collins
Lord Kerr
Lord Clarke
Appellant (MY)
Jonathan Baker QC
Edward Devereux
(Instructed by Bindmans LLP)
Respondent (WI)
Alison H Russell QC
Divya Bhatia
(Instructed by Mullinger Banks Solicitors)
Respondent (QI)
Judith Charlton
(Instructed by Edwards Duthie)
Interveners (Reunite International Child Abduction Centre and the Centre for Family Law and Practice)
Henry Setright QC
Teertha Gupta
(Instructed by Dawson Cornwell)
The first and principal question before us is whether the parties' right of "prorogation", to "opt in' to the jurisdiction of an EU country which would not otherwise have jurisdiction to determine a child's future, contained in article 12 of Council Regulation (EC) No 2201/2003 (" Brussels II Revised"), can apply to a child who is habitually resident outside the European Union. If the answer to that question is "yes", then the second question is whether that is what has happened in this case. That depends both upon the interpretation of the criteria for opting in and upon an evaluation of what these parties did. The first question is a good deal easier to answer than the second.
The facts
The child in question was born on 27 July 2000 and is now aged nine. He was born in this country and is a British citizen. His mother originates from India but has lived in this country for many years. His father originates from Pakistan. Both are British citizens. They married in Pakistan on 28 October 1999 and later lived together in this country. They separated in September 2002 and divorced in 2003. As is common, no orders were made about the child in the course of the divorce proceedings.
In this case there were already care proceedings on foot about the child. He was taken to hospital on 1 November 2001 and found to have several fractures to his arms. The local authority began proceedings on 6 November 2001 and a "split" hearing was directed. At the fact-finding hearing in May 2002, District Judge Brasse found that the injuries were non-accidental and that the father had caused them. However, at the welfare hearing in December 2002, he reviewed that finding in the light of the new evidence which had emerged during the welfare inquiries and decided that the mother had been responsible. At the final hearing on 22 May 2003, he made an order that the child should live with his father and have supervised contact with his mother in accordance with an agreement made between the local authority and the mother. He also made a supervision order for 12 months. That concluded the care proceedings.
It is an automatic condition of all residence orders that the child is not to be taken out of the jurisdiction without either the written consent of every person who has parental responsibility for the child or the leave of the court: Children Act 1989, s 13(1). In mid 2004 the father applied for leave to take the child to live in Pakistan with the father's mother and sister. On 16 September 2004, Hedley J granted that leave. At the same time, the father (who was represented by counsel at the hearing) gave the conventional undertaking to return the child to this jurisdiction when ordered to do so by the court. The order also provided for interim contact with the mother until the child left the jurisdiction.
The father took him to Pakistan on 22 December 2004 and he has lived there ever since. It is common ground that, whatever the precise legal test to be applied, he is now habitually resident in Pakistan. His father returned to this country some months later. His mother has visited him in Pakistan and he has visited his parents here.
The relevant parts of the Brussels II Revised Regulation applied from 1 March 2005.
On 31 October 2007 the mother, acting in person, issued an application in the Principal Registry of the Family Division for a "contact and prohibition" order, seeking to enforce "telephone contact and as much contact as possible" and to stop the paternal grandparents encouraging the child to call them "mum" and "dad". It is common ground between the parties that this is when the relevant proceedings began for the purposes of the jurisdictional questions before us.
At the first directions hearing on 5 November 2007, both parties attended, acting in person, and the matter was adjourned to a conciliation hearing on 12 December 2007. Again, both attended that hearing acting in person and an agreed order for contact was made. Among other things, the father agreed to facilitate the child visiting the UK if possible on an annual basis during his school holidays and seeing his mother then. On 15 April 2008, the mother issued a further application, seeking to "enforce and vary" the contact order so as to ensure that the child was in the UK to facilitate contact and a local authority assessment of the possibility of unsupervised contact.
The matter eventually came before Hedley J on 17 June 2008. The parties were still acting in person. At that stage it appeared "uncontentious" that the child should come back here in 2009, possibly for more than a visit; but the parties were "hopelessly divided" about 2008. Hedley J remarked that it was unusual for the Court to be retaining jurisdiction as the child was living in Pakistan, but that "the Court undoubtedly does have jurisdiction because both parties have not only submitted to the jurisdiction but have actually invoked it on a number of occasions" (para 29). He directed that CAFCASS appoint a guardian for the child. He also ordered the father to bring the child into the jurisdiction in June and July 2009, the child to have reasonable contact with the mother, and the mother to be at liberty to visit the child in Pakistan. She spent about three weeks there in the summer of 2008 and saw the child then but she has not seen him since. The CAFCASS guardian reported in January 2009 that his provisional view was that the child should visit this country every other year and the mother visit Pakistan in the intervening years.
The matter came back before the High Court on 2 March 2009. By this time both parties were legally represented. A "position statement" filed by counsel on the father's behalf stated that "The court has retained jurisdiction in this case and the father accepts the Court's jurisdiction" and that "The father accepts the court has retained jurisdiction to make orders directed towards himself in relation to contact". He had, however, changed his mind about bringing the child to this country in 2009 and undertook to issue an application to set aside Hedley J's order that he should do so. This he duly did on 4 March 2009.
At a directions hearing on 12 March 2009, Black J for the first time questioned whether the court did indeed have jurisdiction to make orders relating to the child. That issue was tried before HHJ Barnett, sitting as a deputy High Court judge, on 5 and 6 May 2009. It was then common ground between counsel that Brussels II Revised did not apply. On 28 May 2009 HHJ Barnett held that the court did not have jurisdiction under the Family Law Act 1986. However he also held that if the court did have jurisdiction he would not have granted a stay on the ground of forum non conveniens. The child's guardian considered that the English court was the most appropriate forum to decide the issues between the parents, both of whom were resident here.
The mother appealed and for the first time it was argued on her behalf that article 12 of Brussels II Revised applied. One can only feel sympathy for the Court of Appeal, confronted as they were with a novel and at first blush surprising argument. Thorpe LJ found it obvious that HHJ Barnett had reached the right result and "would have been dismayed had it been necessary to set aside his very sensible conclusion": [2009] EWCA Civ 965, para 35. The House of Lords gave permission to appeal to this Court over the long vacation.
The law
As amended following the implementation of Brussels II Revised, section 2 of the Family Law Act 1986 reads as follows:
"(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless –
(a) it has jurisdiction under the Council Regulation, or
(b) the Council Regulation does not apply but –
(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A is satisfied, or
(ii) the condition in section 3 of this Act is satisfied."
The "council regulation" is Brussels II Revised. A section 1(1)(a) order includes a "section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order". Section 2A need not concern us as there are no continuing matrimonial proceedings between the parties, nor were any orders made in connection with them. Section 3 gives jurisdiction on the basis that the child is either habitually resident in England and Wales on the date of the application or (if there was no application) of the order, or was present here on that date and not habitually resident in another part of the United Kingdom.
It will be noted that, if Brussels II Revised applies, it governs the situation. If some other EU country (excluding Denmark for this purpose) has jurisdiction under the Regulation, then this country does not. But if Brussels II Revised applies and gives this country jurisdiction, it will give jurisdiction even though the residual jurisdictional rules contained in the 1986 Act would not. Only if Brussels II Revised does not apply at all will the residual rules in the 1986 Act come into play.
The basic rule in Brussels II Revised governing jurisdiction in children's cases is in article 8.1:
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