England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/08/2016

Mr Justice Keehan:

1. In this matter, I am concerned with one child, 'C', who was born on 2^nd December 2014. She is the daughter of the applicant mother, 'A' and the respondent father, 'B'. The mother made an application for a s.8 order in this jurisdiction on 12^th July 2016. Prior to that, the father had issued a divorce petition in this jurisdiction on 26^th May of this year to which the mother served an acknowledgement of service on 18^th July.
2. An issue arises as to whether this court has jurisdiction to entertain the s.8 application in respect of the child. It had originally been submitted on behalf of the mother that the court had jurisdiction on the basis of either the provisions of art.12(1) of Brussels II Revised or of art.12(3).
3. At the start of the hearing this morning, Miss Tompkins on behalf of the mother quite rightly conceded that in the absence of clear evidence of the father's consent to the jurisdiction of the court, the provisions of art.12, be it art.12(1) or 12(3), did not apply and jurisdiction could not be founded under those provisions. It is therefore submitted on behalf of the mother that the court may then have taken into account and consider the residual jurisdiction provided by s.2(1)(b) and 2A of the Family Law Act 1986. That is resisted on behalf of the father who in terms submits that since the provisions of Brussels II Revised apply to the mother's application for a s.8 order, the court is not entitled to then go on to consider issues of residual jurisdiction as provided by s.2(1)(b) and 2A of the 1986 Act.
4. The mother is a British national and father holds dual Spanish and British nationality. C was born in Dubai where both the parents have been working. She has lived the whole of her life in Dubai. She has never been habitually resident in this jurisdiction. That is the part and parcel of the mother's s.8 application that she seeks for C to come and live with her in this jurisdiction. That is resisted by the father.
5. It was explained on behalf of the father that the reason why he issued the divorce proceedings in this jurisdiction is because he wanted finality in relation to matters of financial relief between the two parents. If he had issued divorce proceedings in Dubai, it would have been open to the mother to make a part 3 application for a consideration of financial remedies in this jurisdiction. I therefore understand and accept why the father sought to issue divorce proceedings in this jurisdiction and the jurisdictional basis was that both parents are domiciled in this jurisdiction.
6. The principal provision that I need to consider is the wording of s.2(1) which reads as follows:

"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 the Hague Convention, or

(b) neither the Council Regulation nor the Hague Convention applies that

(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".

7. The relevant provisions of s.2A of the 1986 Act found in subsection 1:

"The condition referred in section 2(1) of this Act is that ... proceedings are proceedings in respect of the marriage or civil partnership of the parents of the child concerned and –the proceedings--

(i) are proceedings for divorce or nullity of marriage or dissolution or annulment of a civil partnership, and

(ii) are continuing".

8. It is accepted by the parties that the court does not have jurisdiction under the Council Regulation or the Hague Convention. Therefore, the essential issue is can the court revert to and have consideration of the residual jurisdiction provided by s.2(1)(b)? Miss Tompkins invites me to read s.2(1)(b) as being the court has no jurisdiction under the Council Regulation or the Hague Convention and on that basis invites me to consider finding the court has jurisdiction under the residual provisions. That, as I have noted in argument, is not the wording of s.2(1)(b), it is neither the Council Regulation nor the Hague Convention applies, but it is conceded, rightly in my judgment, that the provisions of Brussels II Revised do apply to a consideration of jurisdiction in this case and I am satisfied in those circumstances that the first condition in the opening words of s.2(1)(b) are not satisfied and therefore it is not open to this court to go on to consider the residual jurisdiction and whether that can found jurisdiction.
9. I note that Baroness Hale in the case of Re I [2009] UKSC10 at para.14 and 15, said this:

"The 'Council Regulation' is Brussels II Revised. The s.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 ... 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.

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".

10. I am satisfied that, on the basis of those words and the judgment in Re I, consideration of the residual jurisdiction provided by s.2(1)(b) of the 1986 Act only comes into play and only can be considered by the court as a basis for providing jurisdiction if Brussels II (b) does not apply. It is plain, as I have indicated already, and is conceded that Brussels II does apply to this case and I come to the firm and clear conclusion that in those circumstances the court is not entitled to revert to or to have consideration of the residual jurisdiction pursuant to the provisions of s.2(1)(b) of the 1986 Act.