Michaelmas Term [2009] UKSC 10 On appeal from: [2009] EWCA Civ 965

 

JUDGMENT
I (A Child)
before
Lord Hope, Deputy President
Lady Hale
Lord Collins
Lord Kerr
Lord Clarke
JUDGMENT GIVEN ON
1 December 2009
Heard on 12 and 13 October 2009
Appellant (MY) Respondent (WI)
Jonathan Baker QC Alison H Russell QC
Edward Devereux Divya Bhatia
(Instructed by Bindmans
LLP)
(Instructed by Mullinger
Banks Solicitors)
Respondent (QI)
Interveners (Reunite
International Child
Abduction Centre and the
Centre for Family Law and
Practice)
Judith Charlton Henry Setright QC
Teertha Gupta
(Instructed by Edwards
Duthie)
(Instructed by Dawson
Cornwell)
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LADY HALE
1. 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
2. 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.
3. 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.
4. 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
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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.
5. 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.
6. The relevant parts of the Brussels II Revised Regulation applied from 1
March 2005.
7. 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.
8. 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.
9. 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
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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.
10. 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.
11. 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.
12. 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
13. 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 –
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(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.”
14. 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.
15. 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.
16. The basic rule in Brussels II Revised governing jurisdiction in children’s
cases is in article 8.1:
“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.”
But that is subject to articles 9, 10 and 12. We are concerned with article 12, which
deals with “Prorogation of jurisdiction”. It is worth quoting article 12 in full,
although articles 12.1 and 12.2 are not directly relevant in this case, because the
answer to the first question must apply equally to the prorogation covered by
article 12.1 as it does to the prorogation covered by article 12.3:

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“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.
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 relating 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.
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
(b) 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.
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
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Convention of 19 October 1996 on jurisdiction, applicable law,
recognition, enforcement and co-operation in respect of parental
responsibility and measures for the protection of children,
jurisdiction under this Article shall be deemed to be in the child’s
interest, in particular if it is found impossible to hold proceedings in
the third State in question.”
The first question
17. Can article 12 apply at all where the child is lawfully resident outside the
European Union? In my view it clearly can. There is nothing in either article 12.1
or article 12.3 to limit jurisdiction to children who are resident within the EU.
Jurisdiction in divorce, nullity and legal separation is governed by article 3 of the
Regulation, which lists no less than seven different bases of jurisdiction. It is easy
to think of cases in which a court in the EU will have jurisdiction under article 3
but one of the spouses and their children will be resident outside the EU. A court
in England and Wales would have jurisdiction if the petitioning mother were living
with the children in the USA and the respondent father were living in this country.
A court in England and Wales would have jurisdiction if the petitioning father had
lived here for at least a year and the respondent mother were living with the
children in the USA. A court in England and Wales would have jurisdiction if the
spouses were living here but their children were living in the USA. In some of
these cases the spouses might well wish to accept the jurisdiction of the English
court to decide matters relating to parental responsibility so that their children’s
future could be decided in the same jurisdiction as their status, property and
finances. Professor Rauscher is quite clear that “the new rule not only applies to
children residing in a Member State which is not the forum State (as Article 3
Brussels II did) but also to children residing in Non-Member States” (T Rauscher,
“Parental Responsibility Cases under the new Council Regulation ‘Brussels IIA’”,
The European Legal Forum, 1-2005, 37 – 46 at p 40). There is nothing to
differentiate article 12.3 from article 12.1 in this respect.
18. This view of the matter is confirmed, if the “third State” which is referred to
in article 12.4 means a “non-Member State”. The term “third State” occurs only
twice in Brussels II Revised. Article 61 provides that:
“As concerns the relation with the Hague Convention of 19 October
1996 on Jurisdiction, Applicable law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for
the Protection of Children, this Regulation shall apply:
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(a) where the child concerned has his or her habitual residence on
the territory of a Member State;
(b) as concerns the recognition and enforcement of a judgment
given in a court of a Member State on the territory of another
Member State, even if the child concerned has his or her habitual
residence on the territory of a third State which is a contracting Party
to the Convention.”
If “third State” in article 61 referred to some other Member State, there would be
no need for paragraph (b) because paragraph (a) would cover all cases. But in any
event, both article 61 and article 12.4 are looking at the relationship between the
Regulation and the 1996 Hague Convention. 16 countries have so far ratified that
Convention, half within and half outside the EU (the UK has signed but not
ratified; Pakistan has done neither). If the child is habitually resident in “a third
State” which is a party to the 1996 Convention, the Regulation applies to the
recognition and enforcement in one Member State of a judgment given in another
Member State. If the child is habitually resident in a third State which is not a
party to the Convention, article 12.4 lays down a presumption that it will be in the
interests of the child for the EU State to assume jurisdiction if the parties have
agreed to accept it. All of this makes sense if the “third State” lies outside the EU
but would add nothing if it lies within it. Indeed, why limit the presumption in
article 12.4 to the rare case where there are three EU States involved but not apply
it to the more common situation where there are two? Nor does the reference in
article 12.4 to the impossibility of holding proceedings in the “third State” make
much sense within the EU. Professor Rauscher predicts that “Most cases under
Article 12(3) will probably feature strange situations of habitual residence
particularly with children being nationals of a Member State but residing farther
abroad in countries with unreliable judicial structures” (loc cit, p 41).
19. There is no case law on the meaning of “third State” in Brussels II Revised.
For what it is worth, the Practice Guide to the Regulation states that the option of
voluntarily accepting the jurisdiction of a Member State “is not limited to
situations where the child is habitually resident within the territory of a Member
State” (p 45). Reunite have helpfully also drawn our attention to other sources
emanating from the EU which define the term to mean a State outside the EU: see,
for example, the Community Research and Development Information Service
(CORDIS), which uses the term “Third State” to mean a state that is neither a
Member State nor an Associated State.
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20. This merely reinforces the conclusion arrived at on ordinary principles of
construction that article 12 can apply to children who are habitually resident
outside the EU.
The second question
21. The second question is whether the criteria in article 12.3 are made out.
Paragraph (a) of article 12.3 requires that the child have a substantial connection
with the Member State in question, in particular by virtue of the fact that one of the
holders of parental responsibility is habitually resident in that State or that the
child is a national of that State. This is clearly satisfied in this case. At the time
these proceedings began, both parents were habitually resident in the United
Kingdom and the child was and is a British national.
22. More complicated questions arise under paragraph (b) of article 12.3. This
can be broken down into two components: first, that “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 second, that the
jurisdiction of the court “is in the best interests of the child”. Each of these raises
interesting subsidiary questions.
“At the time the court is seised”
23. The most difficult questions are posed by the words “at the time the court is
seised”. The first is whether they refer to a moment in time or, as held by the Court
of Appeal, to any time while the proceedings are continuing. As a general
proposition, it should be clear at any particular point during the proceedings, and
preferably from the outset, whether or not the court has jurisdiction. Certainly a
party who has once accepted jurisdiction should not be able to withdraw it at any
time before the conclusion of the case. Acceptance of jurisdiction must include
acceptance of the court’s decision whatever it may be. Otherwise there would be
no point in submitting to the court’s jurisdiction.
24. It is clear from article 16 that a court is seised at a particular moment in
time. This provides that:
“A court shall be deemed to be seised:
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(a) at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the
applicant has not subsequently failed to take the steps he was
required to take to have service effected on the respondent; or
(b) if the document has to be served before being lodged with the
court, at the time when it is received by the authority responsible for
service, provided that the applicant has not subsequently failed to
take the steps he was required to take to have the document lodged
with the court.”
From this it is clear that the time of seisin is fixed when the document initiating the
proceedings is lodged with the court or, if it has to be served before lodging, is
received by the authority responsible for service, although in each case the court
may not actually be seised if the applicant does not take the steps required to
inform either the respondent or the court. There has to be a fixed time of seisin for
the purpose of the rule in article 19, that the court “second seised” of divorce,
separation or nullity proceedings shall decline jurisdiction in favour of the court
“first seised”.
25. There was some debate about what constituted “the proceedings” in this
case. In one sense, no order about the upbringing of a child is ever final. The
parties can always agree to make different arrangements or bring the matter back
to court for the court to do so. But the reality in this case was that there were care
proceedings brought by the local authority in 2002 which were concluded by the
residence, contact and supervision orders made in 2003. There were then private
law proceedings brought by the father to enable him to take the child abroad to live
which were concluded by the orders made by Hedley J on 16 September 2004.
There were then new proceedings brought by the mother in 2007, the object of
which was to make provision for her contact with the child which had not been
done in the 2004 order. It is common ground between the parties that these are “the
proceedings” for this purpose and in my view that is correct. It follows, therefore,
that the court became seised of this matter on 31 October 2007.
26. But the next question is “what do those words describe?” Do they, as had
been assumed by all before the hearing in this Court, describe the time at which the
parties have accepted jurisdiction? Or do they, as proposed by Mr Setright QC on
behalf of the interveners Reunite, describe the parties whose acceptance is
required? In other words, does article 12.3(b) mean “the jurisdiction of the courts
was accepted when the proceedings began by all those who were then parties”? Or
does it mean “the jurisdiction of the courts has been accepted at any time after the
proceedings have begun by all those who were parties when they began”?
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27. There is much to be said for Mr Setright’s interpretation, both linguistically
and in practice. He draws our attention to the German text of article 12.3(b), which
begins “alle Parteien des Verfahrens zum Zeitpunkt der Anrufung des Gerichts . . .
”. However, given what to us is the reverse word order of most German sentences,
it would be unwise to place too much reliance upon this. The French, Italian and
Spanish texts follow the same word order as the English and are therefore equally
ambiguous. Another linguistic clue could be the particular tense used in the
English text. “Has been accepted” is more consistent with the possibility of later
acceptance of jurisdiction. If it had been intended to limit acceptance to the exact
time of seisin, it would have been more natural to use the words “was accepted”.
Once again, however, it might be unwise to place too much reliance upon the
precise tense chosen in the English text, given that other European languages do
not have the same variety of ways of referring to something which has happened in
the past.
28. The practical attraction of Mr Setright’s argument is that this interpretation
would enable the court considering whether there has been unequivocal acceptance
of jurisdiction to take into account the parties’ conduct after as well as before the
proceedings have begun. Given that the court may be seised before the respondent
knows anything about the proceedings (as may well have happened here), it should
be possible for the respondent to accept jurisdiction expressly or in an unequivocal
manner by the way in which he reacts to the proceedings when he learns about
them. If the respondent is indeed content to accept the jurisdiction of the court it
should be possible for him to indicate that, either expressly or by his conduct, even
though he had not addressed his mind to the matter before the court became seised.
Otherwise the scope of both article 12.1 and article 12.3 would be limited (in the
vast majority of cases) to cases where there was a written agreement in place when
the proceedings were instituted. Admittedly, this was said by the Court of Appeal
in Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, at para 53, to be the
“paradigm case” but there is no reason why it should be virtually the only case.
Prorogation of jurisdiction under article 17 of the Brussels Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
1968 was limited to agreements in writing or in a form which accords with the
practice of the international trade or commerce in question. Prorogation under
article 12 is not so limited. It is clearly contemplated that conduct other than
express agreement can constitute unequivocal acceptance of the jurisdiction.
Furthermore, as Lord Collins demonstrates at paragraph 53, there is no reason in
principle why there should not be acceptance of jurisdiction after the proceedings
have began.
29. Professor Rauscher accepts that jurisdiction must be accepted at the time
the court is seised but argues that too literal an interpretation would render article
12.1
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“almost useless. The parties to a divorce proceeding won’t even
think about jurisdiction as to parental responsibility before the court
is seised. Therefore a more liberal interpretation is advisable. The
wording should probably be understood in the sense of ‘at the time
the court has been seised’, thereby excluding any binding
prorogation before the case has been brought to court.” (p 40)
So now we have a suggestion that prior agreement is not the paradigm case and the
parties’ conduct once the proceedings have begun is what matters. After all, the
parallel with agreements under the Brussels Convention is not close in matrimonial
and family cases, where it is less common (and in some cases not possible) to have
a binding agreement between spouses or parents before proceedings have begun.
30. There is, however, another way of achieving much the same result. Article
16 fixes which is first in time for priority purposes under article 19. But it contains
within itself the possibility that apparent seisin may not mature into actual seisin
unless the applicant later effects service or lodges the document with the court.
Whether this is regarded as a condition defeasant makes no difference: the result in
the actual decision depends upon what happens later. It might be possible to take a
similar approach to prorogation, so that the apparent seisin when the application is
lodged does not mature into actual seisin until the respondent is served and has an
opportunity to indicate whether or not he accepts jurisdiction. This too would be
consistent with the English use of “has been” rather than “was”.
31. As will become apparent shortly, we do not need to resolve this question in
this particular case, because we have unequivocal acceptance of the jurisdiction
both before and after the proceedings were begun. Moreover, it may not matter
much in practice. Even if the words “at the time the court is seised” qualify the
parties’ acceptance, and refer only to the precise date when the proceedings are
initiated rather than to once they have begun, the court is entitled to look at the
parties’ conduct after the proceedings have begun in order to decide whether they
had accepted jurisdiction at the time the proceedings did begin. There is nothing
unusual about this. Courts often take into account later behaviour as evidence of an
earlier state of affairs.
32. Whichever is the correct interpretation, the acceptance in question must be
that of the parties to the proceedings at the time when the court is seised. Later
parties cannot come along and upset the agreement which the original parties have
made. In this case, as it happens, the child was later made a party to the
proceedings. Brussels II Revised rightly places great stress on the importance of
the voice of the child in proceedings about his future: see paragraph 19 of the
Preamble and article 11.2 dealing with the return of children under the Hague
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Convention on the Civil Aspects of International Child Abduction 1980. But the
way in which the child is heard will depend upon national procedures. As was
made plain by the House of Lords in In re D (A Child) (Abduction: Rights of
Custody) [2006] UKHL 51, [2007] 1 AC 619, para 60, there are different ways of
doing this, ranging from full scale legal representation of the child, through
independent expert reporting, to a face to face interview with the judge. It is not
usually necessary for the child to become a full party to proceedings between his
parents, although of course it can and should be done in an appropriate case. The
participation of the child is aimed at helping the court decide what outcome to the
proceedings will be in the best interests of the child. It is usually less relevant to
questions of jurisdiction.
Acceptance
33. The father expressly accepted the court’s jurisdiction in the position
statement put before the court by his counsel for the hearing on 2 March 2009.
This is scarcely surprising, as all his conduct up until that time had been consistent
with this stance. He appeared before the court in response to the mother’s
application. He participated in a conciliation appointment on 12 December 2007
and consented to the order then made. He participated in the hearing before Hedley
J on 17 June 2008. At that stage he was acting in person. But the solicitors who
had appeared for him in the care proceedings and their aftermath then came on the
record for the purpose of his application to set aside Hedley J’s order that he bring
the child back into the jurisdiction in 2009. No objection was then taken to the
court’s jurisdiction. Far from it. Counsel was instructed for the hearing before the
Deputy High Court Judge on 2 March 2009 and expressly accepted jurisdiction on
his behalf.
34. All of this conduct indicates his acceptance of jurisdiction both expressly
and in an unequivocal manner from the outset of the proceedings. He recanted only
when the court itself indicated that there might not be any basis upon which there
could be jurisdiction. But there was also a binding prior acceptance. On 16
September 2004, with the benefit of legal advice, he gave an undertaking to the
court to return the child to this jurisdiction when called upon to do so. The object
of the proceedings was to enable him to take the child to live in Pakistan and thus
lawfully to establish a habitual residence outside the jurisdiction. Yet at the same
time he was undertaking to bring the child back when required by the court to do
so. This inevitably involved accepting the court’s jurisdiction to make an order in
relation, not only to him, but to the child.
35. In my view, the jurisdiction of the English courts has been accepted by the
father, both expressly and otherwise in an unequivocal manner. This is so whatever
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interpretation is placed upon article 12.3, but the diversity of views expressed by
this court indicates that the interpretation is not acte clair and may have to be the
subject of a reference to the European Court of Justice in another case. But I would
favour an interpretation which catered both for a binding acceptance before the
proceedings began and for an unequivocal acceptance once they had begun.
“In the best interests of the child”
36. The final requirement in article 12.3 is that the jurisdiction of the English
courts should be in the best interests of the child. Nothing turns, in my view, on the
difference between “the best interests of the child” in article 12.3, “the superior
interests of the child” in article 12.1 and “the child’s interest” in article 12.4. They
must mean the same thing, which is that it is in the child’s interests for the case to
be determined in the courts of this country rather than elsewhere. This question is
quite different from the substantive question in the proceedings, which is “what
outcome to these proceedings will be in the best interests of the child?” It will not
depend upon a profound investigation of the child’s situation and upbringing but
upon the sort of considerations which come into play when deciding upon the most
appropriate forum. The fact that the parties have submitted to the jurisdiction and
are both habitually resident within it is clearly relevant though by no means the
only factor.
37. In this case there are two reasons to conclude that the exercise of
jurisdiction in this country would be in the child’s interests. The first is the
presumption in article 12.4. Although expressed as a “deeming” provision, no-one
suggests that this is irrebuttable. But it makes sense. If the child is habitually
resident in a country outside the EU which, like Pakistan, is not a party to the 1996
Hague Convention on jurisdiction, applicable law, recognition, enforcement and
co-operation in respect of parental responsibility and measures for the protection
of children, then even if the EU country in question is a party to that Convention,
there would be no provision for recognition and enforcement of one another’s
orders. If, therefore, the parties have accepted the jurisdiction of an EU State, it
makes sense for that State to determine the issue. The difficulty or otherwise of
holding the proceedings in the third State in question are obviously relevant. It is
not suggested that it would be impossible to hold these proceedings in Pakistan,
but while neither party has had difficulty with the proceedings here, the mother
would certainly face difficulties litigating in Pakistan.
38. The other factor in this case is the very proper stance taken by the child’s
guardian ad litem. When the issue of forum non conveniens was ventilated before
HHJ Barnett in the High Court, the guardian took the view that on balance it would
be better for the case to be heard here. The nub of the issue is the contact which the
Page 15
child should have with his mother in this country. Any continuing risks associated
with that contact will be better assessed here and any safeguards will need to be
put in place here. Inquiries in Pakistan can be made through international social
services or other agencies.
39. Of course, the difficulties of enforcement must also be taken into account.
But it must be borne in mind that contact orders have always been enforced in
personam, against the person to whom they are addressed. Unlike residence orders,
they are not enforced by the physical transport of the child from one place to
another. The court is bound to view with some scepticism the protestations of a
father, who has the benefit of an order that the child is to live with him, that he will
be unable in practice to secure the child’s compliance with an order for contact
with the mother. It may be so but it is not very likely.
40. But this is to anticipate the outcome of the court’s investigation into what
will be in the best interests of this child as he grows up. Is he to make a clean break
from the past and be cut off from his mother and his mother’s family indefinitely?
Or should he be enabled to have a relationship with both sides of his heritage and
in due course to form his own opinions of his mother? If the latter, how practically
can that be facilitated? All of that lies in the future. There are many conclusions
which the court hearing this case might reach. Among them is an order that it
would be better for the child to make no order at all: Children Act 1989, s 1(5).
But this is not a refusal of jurisdiction (cf Owusu v Jackson (Case C-281/02)
[2005] QB 801). It is a positive conclusion, reached after the court has exercised
its jurisdiction to hear and determine the case, that in all the circumstances it will
be better for the child to make no further order about his future. It is impossible at
this stage to speculate upon how likely that will be.
The Pakistan Protocol
41. Thorpe LJ was understandably troubled about the implications for the
“Pakistan Protocol” if the English courts were to accept jurisdiction in respect of a
child who was habitually resident in Pakistan. We have had the benefit of an
intervention from Reunite, an organisation with great knowledge and experience in
the field of international child abduction, and represented by lawyers who also
have knowledge and experience of how these things work on the ground.
42. The UK-Pakistan Judicial Protocol on Children Matters is not an
international agreement between States. It is an understanding first reached in
January 2003 between the then President of the Family Division of the High Court
in England and Wales and the then Chief Justice of the Supreme Court of Pakistan,
Page 16
supplemented in September 2003 by guidelines for judicial co-operation to which
Judges from the Court of Session in Scotland and the High Court in Northern
Ireland were also party. It was agreed that “in normal circumstances the welfare of
a child is best determined by the courts of the country of the child’s
habitual/ordinary residence” (para 1). Hence, if a child is wrongfully removed
from his country of ordinary residence, the courts of the country to which he is
taken should not ordinarily exercise jurisdiction save for the purpose of sending
the child back (para 2). The same should apply if a child is brought from one
country to the other for the purposes of contact, and is then wrongfully retained
(para 3). This very largely reflects the principal provisions of the Hague
Convention on Child Abduction.
43. Neither of the two substantive paragraphs is directly applicable to this case.
There has been no abduction or wrongful retention. We are concerned only with a
very limited exception, in far from “normal” circumstances, to the general
statement in paragraph 1. The two can, as Mr Setright pointed out, complement
one another. The courts in Pakistan might welcome the fact that the courts in
England had investigated the situation here and put in place safeguards which
would enable the child to visit his mother and other members of his family in this
country in safety. The Protocol would operate to secure his prompt return to
Pakistan after any such visit. Alternatively, the court in this country might, after
beginning its investigation, conclude that, had this been a case within the EU, it
would have been appropriate to invoke the procedure in article 15 of Brussels II
Revised, for requesting the courts of another Member State which is “better placed
to hear the case” to assume jurisdiction. The Protocol, with the associated
Guidelines for judicial co-operation, provides the ideal vehicle for achieving this
outside the EU. In the view of Reunite, therefore, far from undermining the
Protocol, article 12 can work harmoniously with it.
44. In any event, it has to be acknowledged that the proper interpretation of the
Brussels II Revised Regulation cannot be affected by the terms of a private
agreement between the judiciaries of one Member State and a non-Member State.
Conclusion
45. For these reasons, therefore, I would allow this appeal and declare that the
courts of England and Wales have jurisdiction in this case.
Page 17
LORD HOPE
46. I agree with Lady Hale that the appeal should be allowed, for the reasons
given by her and by Lord Collins.
LORD COLLINS
47. I agree with Lady Hale that the appeal should be allowed and that the
declaration proposed by her should be made.
48. There is something to be said for the view that the proceedings began with
the father’s application in mid-2004 for leave to take the child to live in Pakistan.
If that view were right, then the proceedings would have commenced before the
Brussels II Revised Regulation (Council Regulation (EC) 2201/2203) became
applicable in March 2005. The then existing Brussels II Regulation (Council
Regulation (EC) 1347/2000) did not deal with matters of parental responsibility
outside the context of matrimonial proceedings, and the court would have had
jurisdiction on the basis of the then habitual residence or presence of the child in
England: Family Law Act 1986, sections 2 and 3. But as a matter of English law,
the mother’s application in 2007, was treated, and is to be treated, as a new
proceeding. Since it was issued after the Brussels II Revised Regulation became
applicable, there must be a basis of jurisdiction in that Regulation.
49. The general rule under the Brussels II Revised Regulation is that the
Member State in which the child has his or her habitual residence has jurisdiction
in matters of parental responsibility: Article 8(1). In the present case it is common
ground that the child is habitually resident in Pakistan, where his residence reflects
“integration in a social and family environment”: In re A (Case C-523/07) [2009] 2
FLR 1, at para 38. Consequently, the English court will have jurisdiction only if
one of the exceptions to the general rule applies.
50. The only potentially relevant exception is in Article 12 (which is set out in
full by Lady Hale at para 16). Article 12 deals with prorogation of jurisdiction in
matters of parental responsibility both in matrimonial proceedings and in separate
proceedings. These are not matrimonial proceedings, and the only available basis
of jurisdiction, if any, is in Article 12(3). Where there has been a submission to the
jurisdiction within the terms of Article 12(3), the court will have jurisdiction if it
“is in the best interests of the child”. Where the child has his or her habitual
residence in the territory of a “third State” which is not a party to the Hague
Page 18
Convention of 1996, jurisdiction under Article 12 “shall be deemed to be in the
child’s interest”, in particular if it is impossible to hold proceedings in the third
State in question: Article 12(4). There is no significance in the difference between
“best interests” in Article 12(3) and “superior interests” in Article 12(1). Other
language versions use the identical term for both: supérieur in French, superiore in
Italian, and superior in Spanish. It is also plain from the context and from other
language versions that “shall be deemed” means no more than “shall be presumed”
and that the presumption is rebuttable: est présumée/si presume/se presumirà. Lady
Hale has shown that “third State” means a State which is not a Member State for
the purposes of the Brussels II Revised Regulation. On Article 12(4) see Professor
Alegria Borrás, in Brussels II bis: its Impact and Application in the Member States
(ed. Boele-Woelki and Gonzales Beilfuss, 2007), 3 at 14-15.
51. The question is whether “the jurisdiction of the [English court] has been
accepted expressly or otherwise in an unequivocal manner by all the parties to the
proceedings at the time the court is seised…”. The difficulty arises from the use of
the words “at the time the court is seised.” Does the use of those words in the place
in which they occur mean that it is necessary that the acceptance of jurisdiction by
all parties must take place, or must have taken place, at the time the court is seised,
which by Article 16 is, in a case of this kind, “the time when the document
instituting the proceedings … is lodged with the court …”? Or are those words
intended simply to identify the parties “at the time the court is seised” whose
acceptance of jurisdiction is required, as the German version of the Regulation (but
not the English, French, Italian, or Spanish versions) suggests?
52. The answer to this question must be found in the light of Article 12 as a
whole in the context of the Regulation as a whole, and in the light of the
instruments which preceded it.
53. The Brussels Convention and the Brussels I Regulation (Council Regulation
(EC) 44/2001) each contain sections on prorogation of jurisdiction by prior
agreement (Article 17 and 23 respectively) and by appearance after the
proceedings have commenced (Articles 18 and 24). They both show that, as is
obvious, there is no reason in principle why there should not be acceptance of
jurisdiction after the commencement, or service, of proceedings.
54. The basic rule of jurisdiction in the 1996 Hague Convention is the habitual
residence of the child; but where the courts of a Contracting State are exercising
jurisdiction in matrimonial proceedings, they may take measures directed to the
protection of a child habitually resident in another Contracting State if
Page 19
“a at the time of commencement of the
proceedings, one of his or her parents habitually
resides in that State and one of them has parental
responsibility in relation to the child, and
b the jurisdiction of these authorities to take such
measures has been accepted by the parents, as well as
by any other person who has parental responsibility in
relation to the child, and is in the best interests of the
child.” (Article 10)
55. A draft Convention on jurisdiction and the recognition and enforcement of
judgments in matrimonial matters was approved by the EU Council on 28 May
1998 ([1998] OJ C221), but was superseded by the Brussels II Regulation in 2000.
Neither the draft Convention nor the Brussels II Regulation contained provision
for matters of parental responsibility outside the context of matrimonial
proceedings. Article 3(2) of the draft Convention (in the same terms as what
became Article 3 of the Brussels II Regulation) provides that the courts of a
Member State have jurisdiction in relation to matters of parental responsibility
where the child is habitually resident in another Member State and “(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 by the spouses and is in the best
interests of the child.”
56. This provision was modelled on Article 10(1) of the Hague Convention: see
the Report by Professor Alegria Borrás on the draft Convention, para 38. It is
therefore apparent that there was no suggestion that the acceptance of jurisdiction
under Article 3 of the draft Convention or of the Brussels II Regulation had to be
prior to, or at the time of, commencement of the proceedings.
57. The Commission proposal for what became the Brussels II Revised
Regulation was presented on 17 May 2002: COM(2002) 222 final/2. The proposal
in relation to what became Article 12(1) in the Regulation provided for jurisdiction
in matters of parental responsibility where the child was habitually resident in one
of the Member States, at least one of the spouses had parental responsibility in
relation to the child and “if the jurisdiction of the courts has been accepted by the
spouses and is in the best interests of the child” (Article 12(1)(c)). The proposal in
relation to what became Article 12(3) provided that the courts of a Member State
would have jurisdiction where “all holders of parental responsibility have accepted
jurisdiction at the time the court is seised” (Article 12(2)(a)), where the child had a
Page 20
substantial connection with that State (in particular where one of the holders of
parental responsibility was habitually resident there, or the child was a national)
and jurisdiction was in the best interests of the child. Article 12(4) of the draft
provided: “For the purposes of this Article the appearance of a holder of parental
responsibility before a court shall not be deemed in itself to constitute acceptance
of the court’s jurisdiction.” The draft contained in Article 16 the same provision as
to date of seisin as the Regulation.
58. This suggests that the Commission’s intention was to require acceptance of
jurisdiction at or before the date of seisin, and the Commission’s Practice Guide on
the Brussels II Revised Regulation (pp 16-17), which is of course not authoritative,
expresses the view (in relation to both Article 12(1) and Article 12(3)) that it is at
the time the court is seised when the judge has to determine whether the relevant
parties have accepted the jurisdiction either explicitly or otherwise unequivocally.
59. If this is the correct interpretation of Article 12(1) and Article 12(3) it leads
to a result which does not commend itself to common sense. There is no reason in
principle why there should not be provision for acceptance of jurisdiction after the
commencement of proceedings, as Article 18 of the Brussels Convention and
Article 24 of the Brussels I Regulation show.
60. In Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, para 53 I
expressed the view that the paradigm case for acceptance of jurisdiction would be
actual agreement by the parents at the time the matrimonial proceedings were
instituted. The question in that case was not the time when acceptance of
jurisdiction was to be tested but whether the steps taken by the father amounted to
an acceptance of the jurisdiction of the English court.
61. Lady Hale has referred (at 29) to Rauscher, Parental Responsibility Cases
under the new Council Regulation “Brussels IIA”, in European Legal Forum (E) I2005, 35 at 40. He points out, in relation to Article 12(1) that if “at the time the
court is seised” is to be understood literally, only an acceptance before the relevant
steps under Article 16 are taken would be sufficient. In practice such an
interpretation would render Article 12(1) almost useless. The parties to a divorce
proceeding will not think about jurisdiction as regards parental responsibility
before the court is seised. He suggests a more liberal interpretation, so that it
would be understood in the sense of “at the time the court has been seised”,
thereby not requiring prorogation before the case has been brought to court. As
soon as the case is pending, consensus can be achieved (and other holders of
parental responsibility must also agree). He suggests the same solution for Article
12(3).
Page 21
62. Another way of approaching Article 12 is to treat the words “at the time the
court is seised” as qualifying the words “by the holders of parental responsibility”
in Article 12(1) and the words “all the parties to the proceedings” in Article 12(3).
In each case this would be a sensible construction, and would be consistent with
the approach in the Brussels Convention, the Brussels I Regulation, the Hague
Convention, and the Brussels II Regulation. It would also be consistent with the
German version of the Brussels II Revised Regulation. It is well established that
provisions of EU law must be interpreted and applied uniformly in the light of the
versions in all the official languages: see, among many others, Dirk Endendijk
(Case C-187/07) [2008] ECR I-2115, at paras 22-24. In the context of Article 18 of
the Brussels Convention the European Court adopted the French version as being
more in keeping with the objectives and spirit of the Convention: Elefanten Schuh
GmbH v Jacqmain (Case 150/80) [1981] ECR 1671, at para 14.
63. This solution is an attractive one, but it is by no means an inevitable or a
clear one, and, if the appeal depended on whether it was right, it would be
necessary to make a reference to the European Court under Articles 68 and 234 of
the EC Treaty.
64. But it is not necessary for this important question to be decided because on
the facts it is clear that as at the date the court was seised with the mother’s
proceedings in 2007, the father had unequivocally accepted the court’s jurisdiction
in his own prior application and that everything he did after the mother’s
application confirmed his acceptance of the jurisdiction. The mother has plainly
accepted the jurisdiction of the court by making her application in October 2007.
Nor can there be any doubt that the father has “in an unequivocal manner”
accepted the jurisdiction of the English court to deal with matters of parental
responsibility. On his own application in 2004 he gave an undertaking to the court
to return the child from Pakistan to England if ordered by the court so to do. When
the mother issued her own application in 2007, the father attended a hearing when
an agreed order for contact was made. He appeared at a hearing in 2008 before
Hedley J when it was ordered that the mother could visit the child in Pakistan, and
that he should bring the child to England in June/July 2009. Finally, counsel stated
in March 2009 on the father’s behalf that he accepted the court’s jurisdiction, and
that the court retained jurisdiction to make contact orders directed to him. All of
those steps confirmed what was apparent and inevitable when the mother issued
her application, namely that the father was already subject to the jurisdiction of the
court and had accepted it in relation to matter of parental responsibility. There was,
therefore, in the circumstances of the case an unequivocal acceptance of the
court’s jurisdiction at the date of seisin.
Page 22
LORD KERR
65. I also agree with Lady Hale that the appeal should be allowed and that the
declaration proposed by her should be made.
66. I wish to say but a few words on the approach to the interpretation of article
12.1 and 12.3 of Council Regulation (EC) No 2201/2003. I consider that the
interpretation discussed by Lord Collins in paragraph 62 of his judgment (which
was that advanced by Mr Setright QC on behalf of the intervener) is the correct
one.
67. The structure of both article 12.1 and article 12.3, if closely examined,
support that conclusion, in my opinion. Article 12.1 (b) provides that the courts of
a Member State exercising jurisdiction by virtue of article 3 on an application for
divorce etc shall have jurisdiction in relation to any matter relating to parental
responsibility connected with the application where at least one of the spouses has
parental responsibility in relation to the child and: –
“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 best interests of the child.”
68. If it had been intended that the words, “at the time the court is seised”
should qualify the words, “accepted expressly or otherwise in an unequivocal
manner”, the composition of the sentence would surely have been different. To
achieve that result the provision should have read thus: –
“the jurisdiction of the courts has been accepted
expressly or otherwise in an unequivocal manner at the
time that the court is seised by the spouses and by the
holders of parental responsibility and is in the best
interests of the child.”
69. The juxtaposition of the phrase, “at the time the court is seised” with the
preceding, “the holders of parental responsibility” and the enclosing of the phrase
referring to the timing by commas indicate that the time that the court is seised was
intended to refer to the holders of parental responsibility, in my opinion.
Page 23
70. That this should be so is entirely to be expected. The holders of parental
responsibility may change from time to time. It is important that those who purport
to consent to the jurisdiction of the court should be those who hold that
responsibility at a time when the court is seised of the proceedings. Self evidently,
spouses do not need to be identified in any temporal dimension and the words, “at
the time the court is seised” have no reference to them.
71. The position is at least equally clear in relation to article 12.3 (b). Under
this provision the courts of a Member State shall have jurisdiction in relation to
parental responsibility where the child has a substantial connection with 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.”
72. If it had been intended that the words, “at the time the court is seised”
should refer to the timing of the acceptance of jurisdiction, it appears to me that the
structure of the sentence best suited to achieve that result would be as follows: –
“the jurisdiction of the courts has been accepted
expressly or otherwise in an unequivocal manner at the
time the court is seised by all the parties to the
proceedings and is in the best interests of the child.”
73. This interpretation would be, as Lord Collins suggests, sensible and would
accord with the spirit of the Brussels Convention, the Brussels I Regulation, the
Hague Convention, and the Brussels II Regulation. It also avoids the spectre,
identified by Professor Rauscher, of rendering article 12. 1 virtually ineffectual. I
am afraid that I could not be sanguine about the workability of article 12.1 or 12.3
if the interpretation advanced by the respondent is accepted.
74. Although I am reasonably firm in my opinion that the proper construction
of these provisions is as Mr Setright submitted it should be, I agree with Lady Hale
and Lord Collins that it is not necessary for a final view on the question to be
reached in the present case. This is so because it is clear that the father had
unequivocally accepted the jurisdiction of the court when, in 2007, it was
indisputably seised of the proceedings. As has been pointed out, moreover, his
Page 24
subsequent attitude to the proceedings evinced unambiguous acceptance of the
court’s jurisdiction.
LORD CLARKE
75. I agree with Lady Hale that this appeal should be allowed and that we should
make a declaration that the courts of England and Wales have jurisdiction in this case. I
entirely agree with the reasoning and conclusions of Lady Hale and Lord Collins as to the
meaning of “third State”, as to the use that can properly be made of post-seisin evidence
to demonstrate unequivocal acceptance at the time of seisin, as to the father’s unequivocal
acceptance at that time on the facts and as to the best interests of the child. Those
conclusions are sufficient for this appeal to be decided by declaring that the English court
has jurisdiction. The only point which has caused me some concern, and which I wish
briefly to address in this judgment, is the true construction of article 12.3(b) of the
Brussels II Revised Regulation.
76. Lord Collins has considered article 12.3(b) in some detail. I entirely agree with
paragraphs 47 to 58 of his analysis. I also agree with him that the questions whether the
relevant acceptance of jurisdiction must be before the court is seised or whether it can be
later and, if so when, are important questions and, if the appeal depended upon the
answers, (subject to what I say below) may have to be referred to the European Court of
Justice. It is perhaps for this reason that Lord Collins does not express a concluded view
on the point. As stated above, I agree with him and Lady Hale that the outcome of the
appeal does not depend upon the answers to these questions.
77. I add a few words of my own because I am less concerned than Lady Hale and
Lord Collins about what I regard as the natural construction of article 12.3(b). Indeed it
seems to me that there is much to be said for the conclusion that that construction is acte
clair. As I see it, the natural construction of article 12.3(b) construed in its context and
having regard to its provenance as set out by Lord Collins at paragraphs 57 and 58 is that
the relevant acceptance of jurisdiction must be before the court is seised.
78. The question is what is meant by the expression “at the time the court is seised” in
articles 12.1 and 12.3 of Brussels II Revised. For present purposes the relevant provision
is article 12.3, which provides:
“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:
Page 25
(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
(b) 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.”
Article 12.1(b) is in very similar terms.
79. Until after Mr Setright QC had made his submissions, it had been contended by
Mr Baker QC on behalf of the mother that the expression “the time the court is seised” in
both article 12.1 and article 12.3 meant the specific point when the court is seised as
defined by article 16 of the Regulation. Mr Baker submitted that that construction was to
be preferred to that of the Court of Appeal, which held, as Thorpe LJ put it at para 28, that
the court was seised throughout the continuance of the proceedings.
80. Article 16 has been set out by Lady Hale. It identifies the time when “a court shall
be deemed to be seised”. It is plain that it is describing a particular moment and not a
period of time. Thus in both (a) and (b) it provides for a particular moment when the court
is seised, namely either when the document instituting the proceedings is lodged with the
court or, if the document has to be served before being lodged with the court, when it is
received by the authority responsible for service. In each case there is a proviso (or
condition defeasant), namely that the applicant has not subsequently failed to take steps
he was required to take, in the first case to have service effected on the respondent and in
the second case to have the document lodged with the court. As Lady Hale says, the
importance of having a fixed time when the court is seised is explained by article 19
because, if the court first seised has jurisdiction, the court second seised must decline
jurisdiction. It is thus important to know in each case when the court is seised and which
is the court first seised.
81. Mr Baker’s submission was based on the natural construction of the article
construed in its context, which includes articles 16 and 19. While I entirely agree with
Lady Hale that evidence of subsequent events may (and often will) assist the court to
decide what the position was at the moment identified as the time the court is deemed to
be seised under article 16, I see nothing in the language of article 12.3 (or the equivalent
language of article 12.1) to suggest that, if the court was not seised in accordance with
article 16 at the time the document instituting the proceedings is lodged, it can somehow
become seised at a later date. The only provision affecting the position as at the date of
seisin is the proviso in article 16, which might defeat the seisin. However, subject to that,
Page 26
as I see it, there is no scope for later seisin. Once jurisdiction is acquired, the court has
jurisdiction throughout the proceedings.
82. It appears to me that in principle no-one should commence proceedings of any
kind unless the court has jurisdiction or will have it at the moment it is seised of the
proceedings. Otherwise the court is being asked to exercise jurisdiction which it does not
have. This is of particular importance in this context because, where the court first seised
has jurisdiction, under article 19 a court second seised must decline jurisdiction, once it is
established that the court first seised has jurisdiction. Article 16 makes it clear that
whether it has jurisdiction is to be tested as at the time of seisin as defined by article 16.
Any other conclusion seems to me to be likely to lead to confusion.
83. Although Mr Setright submitted that in both article 12.1(b) and article 12.3(b) the
words “at the time the court is seised” identify the parties, I do not think that that is a
convincing reading of the language. It is much more natural to read the expression as
requiring the acceptance of jurisdiction at the time the court is seised. All the articles of
the Regulation relate to the moment of seisin. This seems to me to be implicit in articles
3, 6 and 7 and explicit in articles 8, 12, 13 and 14. Moreover, as Lord Collins
demonstrates at paragraphs 57 and 58, the provenance of article 12 strongly supports this
approach. Thus the Commission proposal in relation to what became article 12(3)
provided that the courts of a Member State would have jurisdiction where “all holders of
parental responsibility have accepted jurisdiction at the time the court is seised”. The
Commission’s Practice Guide is to the same effect. Although I quite understand that the
point was not argued, it is I think of some note that this conclusion is consistent with a
dictum of Lawrence Collins LJ in Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR
1437 at para 53. As he puts it paragraph 60 above, the paradigm case for acceptance of
jurisdiction would be actual agreement by the parents at the time proceedings were
instituted.
84. In addition it seems to me that the words “has been accepted” support the same
approach. Thus, as I read them, both article 12.1(b) and 12.3(b) require that “the
jurisdiction of the courts has been accepted … at the time the court is seised” as defined
in article 16. I respectfully disagree with Lady Hale at paragraph 27 that the expression
‘has been accepted’ is more consistent with the possibility of later acceptance of
jurisdiction. On the contrary, it seems to me to support the proposition that the acceptance
must be before the seisin.
85. Various other solutions have been suggested. The Court of Appeal suggested that
the parties can reach agreement at any time after seisin. This might be months or years
after the moment identified in article 16. I do not see how such an approach fits with
articles 16 and 19. Mr Setright’s construction does not seem to me to be a convincing
reading of the language. Nor to my mind is that of Professor Rauscher quoted by Lady
Hale at paragraph 29. The expression “at the time the court is seised” appears not only in
article 12 but also in article 8, where it surely relates to the time the court is seised as
defined in article 16, and does not mean “has been seised”.
Page 27
86. Further, if “is seised” means “has been seised”, it is not easy to see why the Court
of Appeal’s approach, namely that it means during the whole period of seisin, is wrong.
The problem with it is that stated above, namely that it does not readily fit in with the
approach of the Regulation to the court first seised. Lady Hale suggests at paragraph 30
that article 16 fixes which proceedings are first in time for priority purposes but contains
the possibility that apparent seisin may not mature into actual seisin unless the applicant
effects service or lodges with the court. The suggestion is that a similar approach might
be taken to prorogation so that the apparent seisin when the application is lodged does not
mature into actual seisin until the respondent is served and has an opportunity to indicate
whether or not he accepts jurisdiction. It is also suggested that that would be consistent
with the English use of “has been” rather than “was”.
87. For my part, I find those suggestions difficult to accept. The Regulation could no
doubt have so provided but it did not. As I see it, as stated above, the way article 16
works is that there is seisin on the date identified subject to a condition defeasant. That is
not a case of apparent seisin maturing into actual seisin but there being actual seisin,
which would take priority over any subsequent seisin, unless there was no service or
lodgement. This would be known to the respondent immediately and the position would
thus be clear immediately and, absent a failure of the kind expressly specified in article
16, the seisin would have priority over seisin in another jurisdiction before service or
lodgement. I do not see how this can readily be applied to article 12.1(b) or article
12.3(b). On the face of it the court would have no jurisdiction at the moment of seisin; yet
the suggestion must I think involve the proposition that the court would have jurisdiction
retrospectively if at some future moment the jurisdiction was unequivocally accepted. By
then another court might be seised and have jurisdiction as the court first seised. Is it
really to be supposed that that other court would be required to decline jurisdiction under
article 19 even though at the time it was seised no other court was seised? My answer to
that question would be no.
88. I appreciate that it is contemplated that the respondent would take a stance
immediately and that the position would be much as occurs (or occurred) under, for
example, article 23 of the Brussels Convention and article 24 of the Brussels I Regulation
which are referred to by Lord Collins at paragraph 53. I also appreciate the force of the
point that it is very odd for an unconditional appearance, which of course takes place after
seisin, to be a ground of jurisdiction in, say, the Brussels I Regulation and not in the
Brussels II Revised Regulation. However, in article 24 of Brussels I appearance is a free
standing ground of jurisdiction, whereas there is no equivalent provision in the Brussels II
Revised Regulation.
89. I fully understand the concerns expressed by Lady Hale and Lord Collins (and
indeed Professor Rauscher) that article 12 will or may be of limited value if it does not
extend to post seisin acceptance or agreement. However, it seems to me that the concerns
are somewhat overstated. As I see it, the time for parties to decide in what jurisdiction to
proceed in matters relating to parental responsibility is before issuing the relevant
proceedings. It is at that time that questions of jurisdiction should surely be considered, if
only in order to decide where to issue the relevant process. It seems to me to be desirable
that parents considering proceedings should be advised that that is the time to make an
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appropriate agreement. I agree with Lord Collins that that is the paradigm case and it
seems to me that the problem should be tackled at the outset rather than that proceedings
should be started without jurisdiction in the hope that the other party (or parties) will
agree later or do something which could be construed as unequivocal acceptance of
jurisdiction.
90. The concerns expressed can I think be resolved in this way. If an express
agreement to jurisdiction is made or there is an unequivocal acceptance of jurisdiction
after the court is seised and, by that time, proceedings have been commenced in a court in
another Member State and that court has become seised, article 19 will operate to give
exclusive jurisdiction to that second court. This is on the basis that at the time the first
court was seised it did not have jurisdiction and there is nothing in the Regulation to
provide for retrospective seisin; so that for the purposes of the Regulation the court first
seised is the second court. The parties’ legitimate interests are however protected by
article 15, which gives the court “having jurisdiction as to the substance of the matter” a
power to transfer all or part of the case to a court of another Member State if it concludes
that such a court is in a Member State with which the child has a particular connection
and that it would be better placed to hear the case or part of it.
91. If, on the other hand, there is no court of another Member State that has
jurisdiction under the Regulation, I can at present see no reason why the applicant should
not issue fresh proceedings and rely upon the agreement or unequivocal acceptance in
those proceedings to satisfy article 12.3(b). In this way the court will have jurisdiction at
the time of seisin, which to my mind is what the Regulation intended. As I see it, in this
way the concerns expressed by the Court of Appeal, Lady Hale, Lord Collins and others
can be allayed. In particular in a case of this kind, where there is no other Member State
which could have jurisdiction, the court in which the respondent has unequivocally
accepted jurisdiction will have jurisdiction, albeit in proceedings commenced thereafter.
92. I appreciate that these are all questions for decision in another case. I express
provisional views upon them in the hope that they may help to resolve potential issues in
the future without the delay inevitably involved in a reference to the European Court of
Justice. In the meantime, I agree that the appeal in this case should be allowed.