Strand, London, WC2A 2LL
B e f o r e :
| A B
|- and -
|J L B
Mr Michael Glaser (instructed by Mills & Reeve LLP) for the Respondent (father)
Hearing date: 27 November 2008
Crown Copyright ©
Mr Justice Munby :
"for the English court to make an application under Article 15(2)(c) of [Brussels II bis] to the [Hague court] to transfer the proceedings concerning H to the High Court in London given the particular connection H has to England and given also the divorce and financial proceedings already ongoing in England."
It is that preliminary application which came on before me for hearing on 27 November 2008.
"Transfer to a court better placed to hear the case
1 By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State … ; or(b) request a court of another Member State to assume jurisdiction …
2 Paragraph 1 shall apply:
(a) upon application from a party; or(b) of the court's own motion; or(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3 The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or(b) is the former habitual residence of the child; or(c) is the place of the child's nationality; or(d) is the habitual residence of a holder of parental responsibility; or(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property."
Ms Segal and Mr Glaser helpfully referred me to a recent authority on Article 15, the decision of Mr Jonathan Baker QC, sitting as Deputy Judge of the Division, in Re S-R (Jurisdiction: Contact)  2 FLR 1741. But that, as they correctly observe, does not bear directly on the point with which I am concerned. Neither Ms Segal nor Mr Glaser was able to direct me to any relevant authority on the present point – apparently there is none – nor were they aware of any previous case in which the present point had arisen.
The decision of the Hague court in relation to Article 15
"The wife has requested that the case be referred to the English court pursuant to Article 15 of the Brussels II bis regulation. Article 15 of the Brussels II bis regulation determines that courts in a member state that are competent to decide on a case in substantive proceedings, shall, by way of an exception and where they feel that it would be easier for a court in another member state with which the child has a special tie to hear the case or a specific part thereof, be able to defer hearing of the case or a specific part of said case, in the interest of the child, and invite the parties to address an application to this end to the court in the said other member state, in accordance with Paragraph 4.
In the present case, the court sees no reason to make the exception indicated in Article 15(1) of the Brussels II bis regulation. Although his British nationality means that the minor has a special tie with England, the court is not of the opinion that it would be easier for the English court to hear the case, in the interests of the child, since the minor has his place of residence in the Netherlands."
The mother's case
The father's case
The mother's case in detail
i) First, the mother returned to this country on 1 August 2008 and has since re-acquired an English habitual residence.
ii) Secondly, the father on 10 September 2008 conceded that the divorce should proceed in this jurisdiction. Decree nisi was pronounced on 6 October 2008 and the ancillary relief proceedings are ongoing. In her Form C1 issued on 24 October 2008 the mother asserts that the continuation of the order made by the Hague court "was dependent on the issue of divorce proceedings in the Netherlands."
iii) Thirdly, H's circumstances, she says, have changed or are about to change inasmuch as H's continuation at the American school is now, she suggests, in doubt given what she reports is the father's unwillingness or inability to fund the school fees (evidenced, she says, by directions he has sought in the ancillary relief proceedings). The consequence, she fears, is that if he remains in the Netherlands H will have to go to a Dutch (and therefore Dutch-speaking) school.
The father's case in detail
i) First, and so far as concerns the mother's relocation to this country, he points out that this was a matter which the Hague court had very much in mind when coming to its decision. Indeed, its decision sets out that "The wife … intends to move back to England with effect from 1 August 2008." And, as he points out, the Hague court based its decision primarily on the fact that H was living, as he still does, in the Netherlands. So the mother's change of habitual residence is not, he says, a relevant or substantive change of circumstance.
ii) Secondly, and so far as concerns the fact that the divorce and ancillary relief proceedings are now ongoing in this country, he points out that, as can be seen from the passage in its decision which I have already quoted, the Hague court addressed its mind to the implications of the divorce proceeding otherwise than in the Netherlands. So, he says, it is simply wrong for the mother to assert that the continuation of the order made by the Hague court "was dependent on the issue of divorce proceedings in the Netherlands."
iii) Thirdly, and so far as concerns H's education, he says that, even if what the mother says is factually correct (and this is not accepted), the issue is one properly to be ventilated in the Hague court – as the court still seised with the proceedings relating to H – and not one which can justify re-opening the Article 15 issue. After all, he says, a dispute about a child's schooling does not of itself necessarily raise any issue about the child's residence. Using English terms of art, an issue as to schooling is usually resolved by a specific issue order, not by a residence order. In the circumstances of this case, the resolution of any issue about H's schooling is not of itself, he says, going to determine whether H continues to live in the Netherlands with his father or in this country with his mother – and even if this were to turn out to be critical in that connection that is not, of itself, he says, any reason for taking away from the court currently seised of jurisdiction in the matter – the Hague court – the responsibility of determining the issue. And the mere existence of such a dispute cannot, he says, justify re-opening the Article 15 issue, with which, in truth, it has no meaningful connection. The key point is that H remains in and habitually resident in the Netherlands. That fact gave the Hague court jurisdiction in accordance with Article 8 and, to repeat, underpinned its decision as recently as 19 June 2008 to refuse the mother's application under Article 15.
i) First, it must determine whether the child has, within the meaning of Article 15(3), "a particular connection" with the relevant other member State – here, the United Kingdom. Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child's nationality (see Article 15(3)(c))?
ii) Secondly, it must determine whether the court of that other Member State "would be better placed to hear the case, or a specific part thereof". This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
iii) Thirdly, it must determine if a transfer to the other court "is in the best interests of the child." This again involves an evaluation undertaken in the light of all the circumstances of the particular child.
At the risk of repetition I emphasise that what I have described as the process of evaluation under Article 15(1) is one that Brussels II bis confides to the court having jurisdiction – here the Hague court – and not to the other court. It is not for this court to evaluate in this context which court is "better placed" to deal with the matter or what is "in the best interests of the child" (or, indeed, to determine the factual issues arising under Article 15(3)). Those are questions for the Hague court, not for this court.