Re L (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 2013 |
| Year | 2013 |
| Date | 2013 |
| Court | Court of Appeal (Civil Division) |
Conflict of laws – Jurisdiction – Challenge to jurisdiction – Child having British mother and Portuguese father – Portuguese court approving agreement as to care of child – Child spending alternate two-month periods with each parent – Mother applying to English court whilst in England for prohibited steps order and residence order – Judge preferring English jurisdiction over Portuguese and finding that agreement contrary to public policy – Father appealing – Whether judge erring in preferring English jurisdiction – Whether child resident in England – Whether judge erring in finding that agreement contrary to public policy – Council Regulation (EC) 2201/2003, arts 13, 23, 26.
L, a child, had a British mother and a Portuguese father. The parents never married. In June 2011, the parents moved to Portugal where they lived with the father’s parents. The relationship came under strain. As a result, the mother attempted to leave Portugal clandestinely with L but was prevented from doing so following police intervention. In November 2011, following a meeting at the Portuguese Commission for the Protection of Children and Juveniles attended by, inter alia, the parents, an agreement was made to the effect that L’s care would be provided for on a rotating two-monthly basis in England and Portugal, to endure until his third birthday. The Portuguese judge ratified the agreement (the Portuguese judgment) and ordered the parents to abide by its terms. The mother came to England in accordance with the Portuguese judgment and applied without notice to the county court for a prohibited steps order and a residence order under the Children Act 1989. The judge granted an interim order which, inter alia, prevented the father from removing L from the jurisdiction of England and Wales. The matter was transferred to the High Court. The Portuguese court issued certificates in accordance with Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (OJ 2003 L338 p 1) (Brussels II Revised). At the inter partes hearing, the father applied to enforce the Portuguese judgment in accordance with, inter alia, art 21 of Brussels II Revised. Article 21 had to be read in conjunction with arts 23, 24 and 26 and so far as material provided that: ‘A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’. Article 26 provided that: ‘Under no circumstances may a judgment be reviewed as to its substance’. The issue of the jurisdiction of the English courts under arts 8(1) and 13 of Brussels II
Revised also arose. Article 8(1) provided that: ‘The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised’. Article 13.1 provided that: ‘Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction’. The father submitted that L was habitually resident in Portugal and therefore it was the Portuguese courts that had jurisdiction. The mother submitted that the English courts had jurisdiction and relied upon arts 23(a), (d) and (e) as grounds for non-recognition of the Portuguese judgment. Article 23(a) so far as material provided ‘A judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child … (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard …’. The mother submitted that the Portuguese judgment was so contrary to L’s welfare, having particular regard to his chronological age, that its recognition would be manifestly contrary to public policy taking into account L’s best interests. Further, she submitted that her state of mind at the time of the making of the Portuguese judgment meant that she was not capable of entering into the agreement. The judge dismissed the father’s application. In relation to jurisdiction she held that although L had been habitually resident in Portugal at the time of the Portuguese judgment, the mother on her return to England had resumed her previous habitual residence and, given the age and understanding of L, he had to be deemed to acquire the habitual residence of the parent who was exercising de facto sole parental responsibility at that time. She ruled against the mother in relation to arts 23(d) and (e) but found in her favour on the basis of art 23(a). She stated that although she would not have ratified the agreement at first instance, she was unable to conclude that the overall situation envisaged would be so obviously and extremely abusive so as to qualify as an exceptional case. The judge however found that the mother’s mental/emotional health was such as to concern her as to the mother’s ostensible consent to the arrangement, or the ability to make any dissent known, and on that basis it would be manifestly contrary to public policy to recognise the Portuguese judgment. The father appealed. He submitted, inter alia, that first, the judge had erred in finding that the instant case fell within art 23(a) of Brussels II Revised. Secondly, he submitted that the judge had erred in holding that L was habitually resident in England.
Held – (1) Jurisdiction under Brussels II Revised depended on whether L was ‘habitually resident’ in England when the proceedings had been commenced in the county court. ‘Habitual residence’ had an autonomous meaning in European Union law and at any given time a person could only
have one habitual residence. L’s parents, both of whom had parental responsibility for him, had been habitually resident in different countries: his mother in England and his father in Portugal. The habitual residence of the parents at the relevant date, therefore, provided no assistance in determining where L was habitually resident. As L had been habitually resident in Portugal at the time of the Portuguese judgment, and, given that his mother’s subsequent acquisition of an English habitual residence was irrelevant, L’s arrival in England for the purpose of living with his mother for two months had not had the effect of changing his habitual residence. Physical presence was not enough. A child’s residence had to have a ‘certain permanence or regularity’, it had to as a general rule ‘have a certain duration which reflects an adequate degree of permanence’, it had to ‘reflect some degree of integration in a social and family environment’, rather than being ‘temporary or intermittent’. L’s residence in England on a constantly revolving two-monthly cycle had lacked the necessary degree of permanence and although it had provided for presence, that had been, on each occasion, only temporary and intermittent. L’s perpetual oscillation between Portugal and England had been inconsistent with his acquisition of habitual residence in the latter. L remained habitually resident in Portugal. The English court did not have jurisdiction. In accordance with Brussels II Revised it was the Portuguese court alone that had jurisdiction (see [64], [67], [77]–[79], [82], below); Proceedings brought by A [2009] 2 FLR 1 and Mercredi v Chaffe [2012] Fam 22 applied.
(2) Article 23(a) contained a very narrow exception to the general scheme of Brussels II Revised that under no circumstances might the judgment of the court of the member state of origin be reviewed as to its substance by the court of the member state of enforcement. Consistent with the entire scheme of Brussels II Revised, the test was stringent and the bar was set high. In the instant case, the judge had been right to find that the arguments based on L’s welfare had not sufficed to bring the case within art 23(a). The judge had been faced with an application for enforcement of an order which she herself would not have made, however, as she properly held, she was unable to conclude that the situation was an exceptional case. She had been entitled to come to that view and in expressing herself as she had done, she had not set the bar too high. The instant case, insofar as it was based on L’s welfare, fell far short of what was required to bring art 23(a) into play. The judge had been wrong however to find that the test in art 23(a) had been met by virtue of the mother’s mental or emotional state. It could not be said that in the circumstances it was manifestly contrary to public policy to recognise the Portuguese judgment. On the contrary, to take that course was to embark impermissibly, and in breach of art 26, upon a review as to its substance. The father therefore succeeded in his appeal in relation to art 23(a) (see [46], [53], [54], [56], below); Re S [2004] 1 FLR 571 applied; Krombach v Bamberski Case C-7/98, [2001] All ER (EC) 584, LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664 considered.
Cases referred to in judgmentsA, Proceedings brought by Case C-523/07, [2010] Fam 42, [2010] 2 WLR 527, [2009] 2 FLR 1, [2009] ECR I-2805, ECJ.
C (a child) (suspension of contact), Re[2011] EWCA Civ 521, [2011] 3 FCR 208, [2011] 2 FLR 912.
D-F (Children), Re[2011] EWCA Civ 963.
E (children) (wrongful removal: exceptions to return), Re[2011] UKSC 27, [2011] 2 FCR 419, [2011] 4 All ER 517, sub nom Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144, [2011] 2 WLR 1326, [2011] 2 FLR 758.
Gnahore v France (2000) 34 EHRR 967, [2000] ECHR 40031/98, ECt HR.
Ikimi v Ikimi[2001] EWCA Civ 873, [2001] 2 FCR 385, [2002] Fam 72, [2001] 3 WLR 672, [2001] 2 FLR 1288.
Krombach v Bamberski Case C-7/98, [2001] All ER (EC) 584, [2001]...
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