The following judgments have helped shape interpretation of EU Family Law and how jurisdictional disputes/decisions should be considered. Most recently, in October 2014, the European Court of Justice gave further clarification.
EU Law sets out that following lawful relocation of a child to a foreign jurisdiction, and that country becoming the child's habitual residence, jurisdiction passes to that EU state after three months, unless certain criteria are met (see the judgments below, and Articles 12 and 15 as detailed further on). Relevant Articles under EU Regulations in relation to how jurisdictional matters (excluding abduction) are normally handled are:
Article 8
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.
and
Article 9
9.1 Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the childīs former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the childīs former habitual residence.
9.2 Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the childīs new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.
I (A Child) [2009] EWCA Civ 965
The case involved a dispute over jurisdiction between the UK and Pakistan courts. The father had been granted leave to remove, with the child going to live with his aunt and grandparents in Pakistan. Following a dispute over contact with his mother in the UK, the mother applied to the UK court to enforce contact.
EU family law (EC Regulation 2201/2003, also referred to as BIIR or the Brussels II Revised Regulations) discusses jurisdiction (and the prorogation of jurisdiction between States), but there was uncertainty as to its application where a jurisdiction dispute arose between an EU State and non-EU State (note, while Denmark is in Europe, it is not a party to BIIR).
Prorogation in this context is the deferment of jurisdiction from one national court to another... e.g. handing decisions on the child to another country (the grounds for which are laid out in Article 12 of BIIR "Prorogation of Jurisdiction". That legislation can be read via the link below:
BIIR - EC Regulation 2201/2003
The mother made an appeal, arguing that BIIR should apply globally. Her appeal was dismissed (but reconsidered in the Supreme Court in the case I (A Child) [2009] UKSC 10 - see below).
Lord Justice Thorpe made the following comments:
"Every instinct suggests to me that the Regulation is intended simply for the solution of jurisdictional and other problems within the European Union to ensure a common judicial area within which decisions of competent courts are recognised and enforced under a common set of rules."
and
"My last word is to emphasise that pro rogation is a dangerous road to go. In the huge majority of cases, the future evolution of any global accordance of international family law depends upon the readiness of states to recognise that, save in exceptional circumstances, the habitual residence of the child dictates which state holds the primary jurisdiction."
I (A Child) [2009] UKSC 10
The Supreme Court heard the appeal from I (A Child) [2009] EWCA Civ 965 and disagreed with the decision in the Court of Appeal. They held that nothing in Articles 12.1 or 12.3 (of BIIR) limited jurisdiction to children resident in the EU. A substantial connection existed between the child and the jurisdiction of the court of England and Wales as the child was a British citizen and had spent much of his life in the UK, and both parties (the mother and father) were habitually resident in the UK (albeit the extended family with whom the child lived were in Pakistan).
An important factor in considering whether the courts in another State can consider a matter is whether both parties have expressly and otherwise in an unequivocable manner, accepted the jurisdiction of the courts of the other State and when such an acceptance was required for jurisdiction to be ´seised´ by the courts in that other jurisdiction.
Articles 12.1 reads:
1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
a. at least one of the spouses has parental responsibility in relation to the child;
and
b. the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.
Article 12.3 reads:
3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
a. the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;
and
the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.
It is also worth considering Article 12.4, in light of the difficulties the mother may have had in enforcing contact via the courts in Pakistan:
12.4 Where the child has his or her habitual residence 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 and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the childīs interest, in particular if it is found impossible to hold proceedings in the third State in question.
and Article 15.1
15.1 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 in accordance with paragraph 4; or
b. request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
Regardless of the interpretation of Article 12, both before and after proceedings had begun, the father had accepted the jurisdiction of the courts of England and Wales.
Read Full Text Download Judgment (PDF)
Reference:
BIIR - EC Regulation 2201/2003 UK Pakistan Protocol 1996 Hague Convention
AP and TD [2010] EWHC 2040 (Fam)
The mother had emigrated to Canada following a consent order for leave to remove. The father applied to the court in England and Wales to enforce contact. Mrs Justice Parker held that the court of England and Wales had jurisdiction to consider the case under BIIR as the order contained wording agreeing to future disputes being heard in the UK. The mother had unequivocally accepted the jurisdiction of the courts of England and Wales.
The mother´s case had been that as the child was now habitually resident in Canada, matters should be heard in the Canadian Court (relying on Article 13.1 of BIIR):
1. Where a childīs 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.
Parker J also found that acceptance of the court´s jurisdiction in relation to one aspect of parental responsibility should be taken as an acceptance of jurisdiction generally in respect of parental responsibility.
S (A Child) [2013] EWHC 647 (Fam)
A further aspect when considering prorogation of jurisdiction is that such ends following the making of a final order as per Article 12.2:
12.2 The jurisdiction conferred in paragraph 1 shall cease as soon as:
a. the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;
b. in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;
c. the proceedings referred to in (a) and (b) have come to an end for another reason.
The mother advanced the argument, in this case, that the jurisdiction of the Spanish court had come to an end once they had made the final order and the child was now habitually resident in England.
Mr Justice Cobb considered the relevence of Articles 12 and 15 and whether prorogation of jurisdiction was open-ended. He concluded that prorogation of jurisdiction did not continue after the making of a final order and there was no residual jurisdiction (in favour of the Spanish court) in this case.
E v B [2014] C 436/13
Clarification on matters related to residual jurisdiction were raised by the Court of Appeal in its request for a preliminary ruling under Article 267 to the European Court of Justice.
The European Court made clear that:
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Family law information for parents whose children are resident in England and Wales
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