England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Kevin Barnett
FD09P0235

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/06/2011

Lord Justice Thorpe:

1. This appeal raises fundamental questions as to the nature of a mirror order, the jurisdiction of the High Court to make a mirror order and the consequential effect of a mirror order. The appeal is from the judgment of HHJ Barnett sitting as a Deputy Judge of the Family Division, who on 28th October 2010 concluded that the mirror order made by Moylan J on 30th October 2009 bestowed on him an unrestricted jurisdiction to make orders under the Children Act 1989 in respect of a child habitually resident in Malaysia, notwithstanding prior orders of the Sharia Court in Kuala Lumpur dissolving the parents' marriage and making ancillary orders as to custody and access.
2. For the purposes of this judgment any detailed examination of the history is neither necessary nor possible given the absence of any investigation or findings in this jurisdiction.
3. All that can be said with confidence is that the father is English and the mother Columbian: they married on 27th July 1994 and their only child, [A], was born [in] 2002.
4. Although [A] has British citizenship, derived from his father, he has lived all his life in Malaysia, save for a brief visit to this jurisdiction in 2005. In August 2005, whilst [A] was present in this jurisdiction, the mother obtained an ex-parte interim residence order on application to Kirkwood J.
5. By orders of 25th and 26th August 2005 that order was set aside and, by agreement, [A] returned to Malaysia with his father, the court declaring that any future issues would be decided by the courts of that jurisdiction.
6. The final and current order of the Malaysian court provided, according to the translation bearing the seal of the court:

"1.The right of Custody, Care and Control for the child named [A.W.] born [in] 2002 be awarded to the Plaintiff [S.W.].

2. That the Defendant be granted visitation rights upon the said child at reasonable times."

7. It is to be noted that the contact order was general rather than specific. In that form it allowed the parties to negotiate when and where contact should take place and for what duration. Absent agreement it would be for the court to specify whatever the parties could not agree.
8. It is common ground that there was no direct contact after January 2008. It seems that the relationship between the parents is particularly bitter and conflicted. Most of the history is in dispute and each makes serious allegations against the other.
9. It is pointless to speculate where the truth lies. It is however common ground that the mother has never made an application to the court to specify the nature and extent of [A]'s contact with his absent parent. Clearly specification is an essential preliminary to any enforcement.
10. It is clear from the limited correspondence within the second appeal bundle that the father has, from time to time, offered contact in Malaysia facilitated by a return plane ticket for the mother and independent accommodation at a venue for four weeks of staying contact.
11. The mother has not responded to those offers. She is dependant on thrice weekly dialysis whilst awaiting a kidney transplant and therefore protests that the father's offer is impossible of acceptance. However she has made no application to the court in Kuala Lumpur to direct that she should have contact in this jurisdiction in the vicinity of the treating hospital.
12. Perhaps the father took advantage of the mother's passivity. Certainly with the passage of time the practical difficulty of rebuilding a relationship between [A] and his mother only magnified.
13. Plainly in all these circumstances it would have seemed safe to predict that there would be no further application in England unless the court acquired jurisdiction as a result of [A]'s presence here.
14. It seems that the father contemplated such a visit. On 25th August 2009 a firm of solicitors in Market Harborough issued an application in the Principal Registry that was, indeed, a curious document. It was said to be a Notice of Application in "FAMILY PROCEEDINGS RULES". That heading probably reflects some uncertainty as to the jurisdiction invoked. Thereunder appears the father as applicant and the mother as respondent. Below that appears:

"Take notice that the Applicant intends to apply to a District Judge of the Family Division of the Principal Registry ex parte for an Order as follows:

1. That a Mirror Order be granted in confirmation of the Order for Custody made by the High Court of Malaysia on 9th January 2009.

2. That service of the application on the Respondent be dispensed with.

The grounds for the application are set out in Form C100 attached hereto, together with a copy of the order of the High Court of Malaysia dated 9th January 2009."

15. This text reveals confusion. On its face it appears to be a free standing application under some unspecified jurisdiction. It would conventionally be supported by an affidavit setting out the nature of the case. C100 is the general form for the launch of an application under the Children Act 1989. Therefore if this was an application under the Children Act 1989 the Notice of Application was not required. If this was a freestanding application under some other jurisdiction the form C100 could not be used in support.
16. No doubt this confusion prompted communication between the father's solicitors and Ms Adamson at the PRFD. By letter of 2nd October, the father's solicitors wrote:

"Further to our telephone conversation on 14th September 2009, I now enclose the notarised documents which you required… I also enclose our cheque for the sum of £100 as requested and I look forward to hearing from you further."

17. The notarised documents were five in number and comprised the Malaysian orders with certified translations. Clearly the payment was for an issue fee, probably for a Children Act application since the C100 submitted with the application of 25th August bears the seal of the Registry and has been given a case number in manuscript on its face.
18. The C100 also contains on its face a summary box. Under the heading "order applied for" is written:

"Mirror residence order to confirm order for custody made in Malaysian High Court."

19. The third section poses the question: "Why are you making this application?" There appears:

"I need to obtain a passport for my son…so that my son can travel freely to and from England…the United Kingdom High Commission in Kuala Lumpur requires an order in the British Court before it can validate the passport. I have been informed that I must apply for a Mirror Order confirming the Malaysian Order for Custody. I therefore ask the court to issue a Mirror Order confirming the Malaysian order for custody."

20. In the box concerning mediation is written:

"The High Court in Malaysia has heard the case and given judgment. I do not seek to revisit the arguments or the judgment. I simply seek, on advice from the United Kingdom High Commission in Kuala Lumpur, to obtain a Mirror Order in confirmation of the Malaysian judgment so that I can obtain a passport for my son."

21. The form is seemingly signed by the father and dated 25th August.
22. By letter of 9th October the father's solicitors submitted a draft order. The draft anticipates an order of a judge of the division in chambers:

"1. That the Child, [A.W.], born [in] 2002 do reside with the Applicant/Father.

2. That the Respondent/Mother be granted contact with the said child at reasonable times."

23. Whilst an order in that form suggests the exercise of a welfare discretion, the covering letter states:

"Following the hearing of this matter in the Malaysian High Court and the judgment reached, our client asks for a Mirror Order to satisfy the requirements of the British High Commission…we would be grateful if the court would make a Mirror Order as drawn."

24. On 30th October 2009 the papers were put before Mr Justice Moylan. His order recites the reading of the letters of 2nd and 9th October from the father's solicitor and the documents attached to the form. The first two paragraphs of the order replicate the draft submitted. However it seems plain that Moylan J read the papers with care. He was plainly troubled by the father's intention that the mother should have no knowledge of the proceedings, for he required service upon the mother forthwith and granted "permission to either party to apply to vary this order."
25. We have no information as to the mother's reaction to service nor as to whether the order achieved its stated purpose.
26. The next event is the issue on 31st March 2010 of an application by the mother on Form C2 for an order "in existing family proceedings", namely the case designation that had been given to the Form C100 in August 2009. In paragraph 2 the order sought was said to be "residence/contact-variation of order of Mr Justice Moylan dated 30.10.09. Directions to facilitate the same."
27. In paragraph 5 the reason for the application was stated to be that the Malaysian order was in the Sharia and not the civil court and that "since the order of the Principal Registry (Mr Justice Moylan) dated 30.10.09 there has been no contact between client and her son despite attempts to obtain his whereabouts." The accompanying Form C1A shed no further light beyond the briefest assertion of domestic violence.
28. Unsurprisingly the father's Malaysian solicitors challenged the jurisdiction of the court. The mother's response (recited in the order of District Judge Aitken) was "that the English Court has jurisdiction by virtue of Article 12(3) of Council Regulation 2201/2003; the mother's contention being founded on the father's application by letters to the English Court dated 2nd and 9th October 2009 and Mr Justice Moylan's order dated 30th October 2009."
29. The order of the District Judge transferred the application to the High Court and provided for a directions hearing in August 2010.
30. That hearing was taken by Judge Barnett. He made sensible directions in preparation for a final hearing of the Mother's application of the 16th March 2010, both as to the jurisdiction issue and, if established, resulting orders.
31. Unsurprisingly the Father did not comply with the directions for trial and on the day he was neither present nor represented. He did, however, submit an affidavit on 11th August 2010 and his Malaysian lawyers composed written submissions dated 4th October 2010.
32. So it seems that, although the Father was not prepared to participate in compliance with the judge's direction, he was still anxious to put his side of the story before the judge through his Malaysian lawyers.
33. At the hearing on 28th October 2010 the Mother was represented by Mr Sirikanda and, as the order recites, the Father was neither present nor represented, in breach of the directions order which had required his attendance.
34. In his absence a strong order resulted. The judge declared that he had jurisdiction pursuant to Article 12(3) of the Council Regulation 2201/2003, he ordered the Father to file a statement setting out his proposals for contact in this jurisdiction and he set up a review hearing before himself in Chester in December.
35. The order is supported by a careful judgment fully explaining his conclusion that he was entitled to exercise jurisdiction under the provisions of Article 12(3).
36. The Father's Appellant's Notice was filed on 20th December supported by a persuasive skeleton argument settled by Mr Edward Devereux. Having read it, on 25th January 2011 I granted permission to appeal.
37. Mr James Turner QC was subsequently instructed to lead Mr Devereux and the mother's case has been advanced in an equally skilful skeleton argument from Mr Charles Hyde QC and Mr Sirikanda.
38. Before considering the judgment below and the submissions on the appeal it is necessary to set out the statutory provisions that we must construe.
39. The Family Law Act 1986 provides in Section 1(1)(a) and (d) as follows:

"(a) 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;

…

(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children-

(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii) excluding an order varying or revoking such an order."

40. Section 2(1) and (3) provide:

"2 Jurisdiction: general

(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless-

(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 of this Act is satisfied, or

(ii) the condition in section 3 of this Act is satisfied.

…

(3) A court in England and Wales shall not make a section 1(1)(d) order unless –

(a) it has jurisdiction under the Council Regulation, or

(b) The Council Regulation does not apply but –

(i) the condition in section 3 of this Act is satisfied, or

(ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection."

41. Article 12(3) of the Council Regulation 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:

(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."

Submissions

42. Mr Turner for the father submits that Article 12(3) is simply not engaged because his client has not accepted the jurisdiction expressly or otherwise in an unequivocal manner. The order of Moylan J was not made under Article 12(3) but under the courts' inherent jurisdiction. If that submission fails in the face of the language of section 1(1)(d) of the Family Law Act 1986 then the purported order was made without jurisdiction. In either case the Father's application for a mirror order to meet the requirements of the British High Commission plainly did not vest jurisdiction here consensually. Still less could it be said that he had accepted the jurisdiction of this court to determine the mother's application of 16th March 2010.
43. Nor could it be said that the mother's application is in the best interests of [A], as Article 12(3) requires. The creation of a competitive jurisdiction does not serve the best interests of the child.
44. Mr Hyde supports all the reasoning of the judge below. He submits that the father plainly accepted the jurisdiction of English court by applying here for a residence order in his favour. If that did not amount to acceptance he plainly accepted the order of Moylan J which expressly directed service on the mother and gave the mother the right to apply for variation. He submits that the order of Moylan J could only have been made under the provisions of Article 12(3). Before that jurisdiction was available to the High Court Judge the judgment of Singer J in re P (A Child: Mirror Orders) [2000]1FLR 435 demonstrates the absence of any clear jurisdiction before the enactment of Brussels II Revised. Singer J had rightly rejected the existence of a wardship jurisdiction and his device of finding a prospective jurisdiction of presence was expedient but unorthodox. The best interest test was clearly satisfied since the mother's medical condition necessitates contact in this jurisdiction, which is best assessed and regulated here.

Conclusion

45. I begin by paying tribute to the judgment of Judge Barnett which is carefully reflected and clearly expressed. He did not have the advantage of full argument.
46. However, I am in no doubt that he was wrong to lay claim to primary, or even shared, jurisdiction to exercise discretionary powers to manage future contact, still less to entertain an application by the mother for a residence order. Essentially any such jurisdiction could only be the consequence of either the habitual residence or the presence of [A] within the jurisdiction. One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.
47. Another realistic aim is to provide protective measures to safeguard children in transit from one jurisdiction to another or to ensure their return at the conclusion of a planned visit.
48. Protective measures take the form of undertakings, mirror orders and safe harbour orders. As yet there is no accepted international, let alone universal, mechanism to achieve protective measures. Even amongst common law jurisdictions there is no common coin.
49. In many ways the power to make mirror orders is the most effective way of achieving protective measures. What the court in the jurisdiction of the child's habitual residence has ordered is replicated in the jurisdiction transiently involved in order to ensure that the parents are equally bound in each State.
50. The mirror order is precisely what it suggests, an order that precisely reflects the protection ordered in the primary jurisdiction. The order in the jurisdiction transiently involved is ancillary or auxiliary in character.
51. This categorisation is well established in our case law. In F v F ((minors) (custody): Foreign Order)) [1989] Fam 1 Booth J directed that no access should take place in France until a mirror order was made in that jurisdiction. There are innumerable other examples of the use of mirror orders both in this jurisdiction and in other jurisdictions, most but not all States party to the 1980 Hague Abduction Convention. By way of further example I cite the case of Re HB [1998] 1 FLR 422.
52. However this appeal also illustrates the practical difficulty of a requirement in State A for a mirror order in State B which, for jurisdictional or other reasons, then declares itself unable to comply.
53. Undoubtedly the controlled movement of children across international frontiers would be a good deal safer and easier if, say, the jurisdictions of the common law world or the jurisdictions operating the 1980 Hague Convention, put in place powers to enable mirror orders to be made in response to appropriate requests.
54. It has long been perceived by specialist judges and practitioners that in England and Wales there is no clear jurisdiction to make a mirror order in response to an appropriate request. As a matter of history the International Family Law Committee has repeatedly drawn attention to this deficit and requested an enabling section in a related statute.
55. The government's failure to provide an express power to make mirror orders presented Singer J with the dilemma. In Re P (A Child: Mirror Order) [2000] 1 FLR 435 the pressure on the judge to find jurisdiction was considerable. The request was entirely meritorious. Accordingly Singer J observed:

"I therefore have no difficulty at all in concluding as a matter of common sense, of comity and indeed, may I say of public policy, the High Court should have the ability to make orders such as this: that is to say orders of the sort which English judges have frequently, in past years, invited other courts to make."

56. Singer J prefaced his consideration of the submissions advanced with the following formulation:

"When it makes a mirror order, which of course I would have no difficulty in doing if the child were physically present in this country today, the English judge does not consider the welfare of the child. He takes the order of the foreign court as read. Thus I can frankly say that I have not for a moment considered whether I would have provided this contact or different contact, and indeed I have not investigated the merits, nor been shown any materials beyond the order of the American court.

Thus (this argument runs) in taking the jurisdiction to make such an order without consideration of the welfare principle which otherwise s 1 of the Children Act would render paramount, the English Court is exercising a power of a fundamentally different type from when it considers a domestic s 8 or inherent jurisdiction dispute and reaches welfare decisions. The "mirror order" jurisdiction is supportive of the foreign order. It is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement."

57. From that formulation Singer J rejected the submission that he could found the mirror order on the inherent jurisdiction and accepted the alternative argument, which I would term a prospective presence jurisdiction.
58. Singer J recognised that his solution was speculative when he concluded:

"Thus the English court has in such technical areas in the past put expediency before technicality and I hope that I may be permitted to follow suit on this occasion in this area."

59. His judgment has been the subject of considerable academic criticism. However it has been cited and adopted in many cases over the past decade where mirror orders have been sought of this jurisdiction.
60. The problems encountered by Singer J in the case of Re P should be largely overcome by the commencement of the 1996 Child Protection Convention when it comes into force this autumn. Article 24 of that Convention provides jurisdiction for advance recognition orders.
61. The order of Moylan J is not the subject of any appeal to this court and I do not think it necessary to express any concluded view on Singer J's rationalisation. Of course the jurisdictional rules provided by Brussels II Revised have since changed the landscape.
62. For the purposes of this appeal what is valuable is Singer J's recorded analysis of the essential character of a mirror order. I would adopt all that he said on that point which is fundamental to the disposal of the present appeal.
63. There is not the smallest possibility of doubting the nature of the order made by Moylan J. He did not investigate the merits of the Malaysian order. Still less did he exercise any discretion. He simply acceded to a very clear request for a mirror order, despite the fact that the stated necessity was unconventional and questionable. It was nothing to do with protective measures for the child in any direct sense. The stated requirement was more administrative. That consideration only emphasises the inevitable conclusion that Moylan J was certainly not considering the welfare of the child in acceding to a request, the need for which might have been questioned and the procedural presentation of which was inept.
64. It is an elementary extension to state that a litigant who seeks a mirror order is manifestly not accepting the jurisdiction of the ancillary State to do any more than to reiterate the provisions of the primary jurisdiction.
65. For the purposes of Article 12(3) "jurisdiction" must mean primary jurisdiction to exercise judgment and to issue orders according to the paramount welfare discretion. An application for a mirror order, by definition, cannot supplant the primary jurisdiction.
66. Equally unacceptable is the concept that an application for a mirror order might create jurisdictional conflict for the responsibility of exercising the welfare discretion.
67. I regard the additions made by Moylan J as inconsequential. As a matter of principle he required the mirror order to be served on the mother since the order that he was making was without notice. It was automatically subject to the right to apply for variation, but that must mean variation of the mirror order rather than variation of the provisions of the Malaysian order which it merely repeated.
68. In my view the mother's application was opportunistic. It is significant that she has taken no active step in Malaysia for the specification or enforcement of her right to contact. She has seemingly got a strong merit argument for saying that contact should be in this jurisdiction rather than in Malaysia. But that argument must be presented to the Malaysian court, the court of original and primary jurisdiction, the court of the child's habitual residence.
69. Not only am I satisfied that the mother's application advanced under the provisions of Article 12(3) fails on the ground that the father has never accepted England and Wales as the lead jurisdiction but also that she has failed to demonstrate that the application is in the best interests of [A].
70. It can seldom be in the interests of the child to create a jurisdictional conflict as to which judge controls future issues. That development is not only adverse to every consideration of comity but it simply increases parental hostility and enlarges the field of litigation, with corresponding expansion of the risk of wasted costs and wasted effort.
71. Furthermore the prospects of setting up a regime of contact for [A] in this jurisdiction are solidly based on the availability of England to act as an ancillary jurisdiction, mirroring whatever order for return the Malaysian court might attach to the contact visit. Self-evidently if the father is led to fear that the English court will assume primary jurisdiction and future control on [A]'s arrival, he is exceedingly unlikely to comply with orders in this jurisdiction which have little apparent prospect of enforcement so long as [A] remains in Malaysia.
72. In this field, in the situation with which the judge was confronted, a useful cross check is for the judge to ask himself "if I make this order will it be of any practical benefit to the child or will it be practically unenforceable?" If it has no prospect of enforcement it is probably better not written.
73. For the reasons stated above I would allow this appeal and set aside the order made by His Honour Judge Barnett.

Lord Justice Rimer:

74. I have had the advantage of reading in draft the judgments of Thorpe and Stanley Burnton LJJ. I agree with both, for the reasons they give, that the father's appeal should be allowed. Because we are differing from the careful judgment of His Honour Judge Barnett, I add some short reasons of my own.
75. The father's application leading to Moylan J's order of 30 October 2009 incorporated the use of Form C100, which suggested on its face that he was seeking an order under section 8 of the Children Act 1989. It appears to me to be plain, however, that the father was not applying for such an order. He was not asking the court to make substantive residence and contact orders in relation to the child, which would have required the court to consider the merits of the earlier Malaysian custody, care, control and contact order of 9 January 2009, and also the welfare of the child, and then to exercise a discretion. It would anyway have been inappropriate for him to apply for relief of that nature on an ex parte basis. He was applying, as his completion of the form C100 and his separately drafted application notice made clear, for no more than a 'mirror order' by way of confirmation of the order made by the Malaysian court. As he said in his Form C100:

'The High Court in Malaysia has heard the case and given judgment. I do not seek to revisit the arguments or the judgment. I simply seek, on advice from the United Kingdom High Commission in Kuala Lumpur, to obtain a Mirror Order in confirmation of the Malaysian judgment so that I can obtain a passport for my son.'

76. Thorpe LJ has described the essential character of a 'mirror order', which (adopting what Singer J said in Re P (a child) (Mirror Order) [2000] 1 FLR 435, at 441H to 442C) is intended to be no more than ancillary or auxiliary to, and supportive of, the order of the foreign court with primary jurisdiction. That is the nature of the order for which the father was applying and that, as Thorpe LJ has also explained, is the limit of the reach of the order that Moylan J made. The fact that his order was also, and inappropriately, headed 'Contact Order – Section 8 Children Act 1989' does not detract from this. What counts is the substance not the label. Moylan J did not of course grant the father precisely what he had asked for. He also permitted either party 'to apply to vary this order', no doubt because every ex parte order ought to do so; and conventionally it ought also to have entitled the respondent to apply to discharge it. But his departure from the form of order asked for by the father did not change the limited nature of the order he had sought.
77. I do, however, have a difficulty in identifying the jurisdiction Moylan J was exercising when making his order. Given the limited nature of what the father was asking for, he cannot in my view be taken as having accepted the English court as having jurisdiction in relation to 'parental responsibility' within the meaning of Article 12.3 of Council Regulation (EC) No 2201/2003. It was the courts of Malaysia, where the child is habitually resident, that had that jurisdiction and the father was not seeking to supplant it; he was doing no more than asking the English court to exercise an auxiliary supportive jurisdiction. If the father was not accepting that the court should have an Article 12.3 jurisdiction, there is no need also to consider the mother's position. It follows, I consider, that Moylan J's order cannot have been made under either section 8 of the Children Act 1989 or the inherent jurisdiction referred to in section 1(1)(d) of the Family Law Act 1986. That is because such orders are 'Part 1' orders within the meaning of section 1 of the 1986 Act and, in the circumstances of the present case, Moylan J would only have had jurisdiction to make such orders if he had jurisdiction to do so under Article 12.3 (see section 2 of the 1986 Act). In the further circumstances just described, however, the jurisdictional condition in the first limb of Article 12.3(b) was not met. Unfortunately Moylan J's order did not recite the jurisdiction which he regarded himself as exercising.
78. There is in my view therefore a question mark over the jurisdictional basis of his order; and, therefore, over whether he should have made it at all. But whatever concerns there may be about that, the order was nevertheless made; and, as an order of a court of unlimited jurisdiction, it remains valid unless and until set aside, which it has not been (Isaacs v. Robertson [1985] AC 97). The fact that it remains valid does not, however, also require it to be regarded as having been made under a jurisdiction that Moylan J did not have. In particular, it cannot be regarded as having been made under the jurisdiction conferred by Article 12.3.
79. In my view that background gives the quietus to the mother's bid to use the father's English proceedings as a jurisdictional base for what she presented as an intended variation of what was said to be a substantive residence and contact order made by Moylan J. She was asking the English court to make a defined contact order under section 8 of the Children Act 1989 by way of variation of what was said to be an undefined contact order made by Moylan J. That is to mischaracterise the nature of Moylan J's order. Her problem is that the court could only make a defined contact order if it had jurisdiction to do so under Article 12.3. As Moylan J had no jurisdiction under Article 12.3, his order was not made under it and so the mother's requested variation of what was said to be his undefined contact order was in substance a new freestanding application for a defined contact order. But the father has never accepted the court's jurisdiction to entertain that application so as to satisfy the jurisdictional condition of Article 12.3(b). I cannot see, therefore, upon what basis the English court could entertain it. I would allow the father's appeal.

Lord Justice Stanley Burnton:

80. I entirely agree with the judgments of Lord Justice Thorpe and Lord Justice Rimer, and add to them only in deference to the quality of the submissions made to us and of the judgment of HH Judge Kevin Barnett.
81. In other contexts, a party who applies to the court for it to make an order is taken to have accepted its jurisdiction. However, in the present context, under Article 12.3(b), the first question is whether the parents accepted the jurisdiction of the court "expressly or otherwise in an unequivocal manner" at the time the court was seised. In order to answer this question, it is necessary to consider the meaning of the expression "jurisdiction" in the Regulation.
82. In my judgment, "jurisdiction" in the Regulation refers to the power of the court to make orders on matters in dispute. This appears from its scope, which includes such controversial matters as divorce and issues of custody of and access to children, from the primary jurisdictional requirement that "jurisdiction" is to be exercised by the courts of the Member State of habitual residence, and from the fact that the Regulation includes, in Section 4 of Chapter III, provisions for international enforcement of judgments made in the exercise of jurisdiction "concerning rights of access and of certain judgments which require the return of the child". Enforcement is only necessary if there has been or is a dispute.
83. The father never accepted the jurisdiction of the courts of this country in this sense. What he asked for was an order in the same terms as the order of the Malaysian court. He did not ask the Court to make any substantive decision on any controversy as to his or the mother's rights of custody or access: his solicitors' documents are inconsistent with any such request.
84. It is true that he accepted the order made by Moylan J by serving it, but his solicitors were required to do so by that order. That service was not an express or unequivocal acceptance of the jurisdiction of the court in the sense in which that word is used in the Regulation. Article 12.3(b) requires an express or otherwise unequivocal acceptance of jurisdiction. It envisages something akin to a contractual acceptance of jurisdiction of the courts of a specified jurisdiction, or the conferment of jurisdiction on arbitrators in an arbitration agreement. Such agreements normally refer to disputes. The father and mother did not agree that any dispute as to the exercise of parental responsibility should be determined by the courts of this country.
85. It follows that the order of Moylan J was made without jurisdiction under the Regulation.
86. It also follows that it is unnecessary to decide whether the relevant time for the acceptance of the jurisdiction of the court for the purposes of Article 12.3(b) was when the father issued his application or when the mother issued hers: at neither time was there the necessary acceptance by both parties of the jurisdiction of the court. It is also unnecessary to determine whether the exercise of the jurisdiction of the court is in A's best interests, a question to which paragraph 4 of Article 12 is relevant.
87. I would also reject the mother's submission that the order she sought was neither a section 1(1)(a) order nor a section 1(1)(d) order, because it was an order varying the order made by Moylan J. This submission was made by Mr Hyde very much as a long stop, and rightly so. It would be a perverse result for the court to have jurisdiction to vary an order if it did not have jurisdiction to make the order sought to be varied. In my judgment, the exclusions in those paragraphs relate to orders made varying or revoking an order that was itself made with jurisdiction. On this basis, the High Court does not have jurisdiction to vary Moylan J's order.