This judgment is being handed down in private on 25th March It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
IN THE MATTER OF PROCEEDINGS UNDER COUNCIL REGULATION (EC) No.2201/2003
CONCERNING JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS
IN MATRIMONIAL MATTERS AND THE MATTERS OF PARENTAL RESPONSIBILITY
AND IN THE MATTER OF 'S' A CHILD
Strand, London, WC2A 2LL
B e f o r e :
| PB (mother)
|- and -
The father in person
Hearing dates: 15 February 2013
Crown Copyright ©
The Hon. Mr. Justice Cobb :
(a) Whether the Court of a Member State (the Spanish Court), which exercised jurisdiction in relation to S in October 2010, with the express agreement of the parties (involving prorogation by the mother), continues to exercise jurisdiction in respect of S notwithstanding the conclusion of those proceedings?
(b) If the Spanish Court does continue to exercise jurisdiction, whether I should take any steps to request that the Spanish Court transfer jurisdiction to the English Court, and if so, in the absence of actual court proceedings there, how should I do so?
(c) If the Spanish Court does not continue to exercise jurisdiction, whether the English Court can and should now exercise jurisdiction in respect of S?
"And upon the Defendant mother confirming that
(a) she now accepts that there was a prorogation of the Spanish jurisdiction within the meaning of Article 12(3) of Brussels II Revised leading to the making of the Spanish order, which order regulates the residence of and contact with the child;
(b) she no longer seeks to resist the enforcement of the aforementioned Spanish order as sought by the father by his Originating Summons…
AND UPON the Defendant mother informing the court through her leading counsel that she intends to issue (and has commenced steps in preparation for the issuing of) an application to transfer any jurisdiction as the courts of the jurisdiction of the Kingdom of Spain may continue to have in respect of the child herein, and particularly as regards variation of the terms of the aforementioned Spanish Order, to the jurisdiction of England and Wales pursuant to Article 15 of Brussels II Revised.
AND UPON the Plaintiff father indicating his intention to oppose the mother's application for the transfer of jurisdiction from the Kingdom of Spain to England and Wales".
(a) she asked the Spanish Court to declare that it lacked jurisdiction to deal with S or any proceedings concerning S,
(b) in the event that the Spanish Court considered that it continued to have jurisdiction to hear proceedings concerning S, she requested under Article 15(2)(a) that the proceedings be transferred to England pursuant to Article 15(1) and Article 15(3)(a) on the basis that England had become the habitual residence of S after the court was seised, that the English Court would be better placed to deal with issues concerning S, and it would be in S's best interests.
"The judgment delivered in these proceedings having become final, the proceedings having been filed and there being no other family proceedings pending between the parties in this court, there is no reason to declare the lack of jurisdiction applied for".
The parties positions before this Court
(a) the mother's prorogation of jurisdiction of the Spanish Court came to an end on 20 October 2010, with the making of the final order on that date;
(b) that as S is undoubtedly habitually resident in England, the English Courts should now assume jurisdiction under Article 8 BIIR (and as more than three months having elapsed since 20 October 2010, there can be no retained jurisdiction of the Spanish Court – under article 9);
(c) if contrary to the contention in (a) above, I were to conclude that there is an enduring jurisdiction vested in the Spanish Court, by reason of the prorogation or otherwise (or there is doubt about this), then I ought to give consideration to applying under Article 15(2)(c) to the Spanish Court for a transfer of the process to England.
(1) A final order was made on 20 October 2010, and in the absence of fresh proceedings (and no new Article 12(3) prorogation), the Spanish court takes the view that it simply has no jurisdiction, and "no reason" to declare otherwise,
(2) In order to exercise jurisdiction to effect a transfer under Article 15, there needs to be some proceedings before the court to transfer, and as there are no current proceedings in Spain, there is nothing to transfer.
(1) First, where the court of the Member State is exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment, in which case it is provided that the court shall have jurisdiction if the prescribed conditions are satisfied (i.e. the parties agree and it is in the superior interests of the child) in "any matter relating to parental responsibility connected with that application" (Article 12(1)); and
(2) Secondly, ("also" in the original) where the child has a substantial connection with that Member State (e.g. where one of the holders of parental responsibility is habitually resident in that Member State or the child is a national of that state), and the jurisdiction of the 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 and is in the best interests of the child" (Article 12(3)).
"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"
International Judicial Liaison
(1) Can any assistance be offered as to how I should interpret the Judge's ruling (i.e. of 29 February 2012)?
(2) Generally, would the Spanish Court consider that it has any continuing jurisdiction in relation to a child in these circumstances, where although the mother prorogued the jurisdiction of the Spanish Court in the past (i.e. in October 2010), those proceedings have now concluded (Order 20 October 2010), there are no fresh proceedings, and the child is now habitually resident in another Member State?
(3) Put another way, does the Spanish Court regard the prorogation in October 2010 as endowing it with continuing jurisdiction in relation to all subsequent proceedings concerning the child for the balance of his minority or until/unless the proceedings are transferred under Article 15 elsewhere?
(4) If the Spanish Court considered that it did continue to exercise some jurisdiction in relation to S - by virtue of the October 2010 prorogation or otherwise - how would it be likely to view an application by this Court to transfer any proceedings to the Courts of England and Wales pursuant to Article 15(2)(c), and what mechanism would be proposed to achieve this (in the absence of any active proceedings in Spain)?
"By Order of 29th February 2012, I considered that it was not appropriate to declare the lack of competency with regards to Ms [PB], by understanding that the actions were filed and there were no other proceedings between the parties, and so on as requested by Judge Cobb, I understand that in accordance with the articles 8 and 9.1 of Regulation 2201/2003, the child has for more than two years been living in the UK with his mother, and there is NO ROOM FOR EXTENSION OF JURISDICTION OF THE COURT No 1 OF TORROX.
Notwithstanding the above, and if I had considered that I was still the Judge, I would not oppose to a remission of the case as is stated in article 15 because the requirements for it concur with what is stated in this legislation. Nonetheless, I understand that I am not competent and that the child's best interests are more effectively safeguarded if these issues concerning parental responsibility are considered by the English Courts."
[Capitals in the original]
"The question of jurisdiction is determined at the time the court is seised. Once a competent court is seised, in principle it retains jurisdiction even if the child acquires habitual residence in another Member State during the course of the court proceeding (principle of 'perpetuatio fori'). A change of habitual residence of the child while the proceeding is pending does therefore not itself entail a change of jurisdiction.
However, if it is in the best interests of the child, Article 15 provides for the possible transfer of the case, subject to certain conditions, to a court of the Member State to which the child has moved. If a child's habitual residence changes as a result of a wrongful removal or retention, jurisdiction may only shift under very strict conditions"
The references to habitual residence changing "during the course of the court proceeding", and "while the proceeding is pending" in the passage of the Practice Guide (above) appears to contemplate that the prorogation continues only for the life of the proceedings. This interpretation is consistent, in my judgment, with the approach of the Supreme Court in Re I (citation above) at -).
(1) That the prorogation of the Spanish Court under Article 12(3) by the mother came to an end with the making of the final order on 20 October 2010;
(2) There is no residual jurisdiction in Spain;
(3) I do not need to seek a transfer; in any event, there are no current proceedings in Spain to transfer to this jurisdiction pursuant to Article 15;
(4) The Court of England and Wales can properly assume jurisdiction to determine issues relating to S pursuant to Article 8 of BIIR.