Lord Justice Thorpe:
1. This is an appeal from the judgment of HHJ Barnett sitting as a
judge of the High Court here in London on 28 May 2009. The appeal is
brought with the permission of the judge. The essential question which he
considered and determined was whether the courts in in this country have
jurisdiction to decide issues as to the mother's contact to the only child of
the family, a boy, Qadeer, who is nearly nine years of age.
2. The judge recorded the factual background in the first 19 paragraphs of
his judgment. It would be superfluous for me either to summarise them
or to record the history in different words, and accordingly I gratefully
adopt HHJ Barnet's summary and findings:
"INTRODUCTION
[1] There are two main applications before the court. Both were issued by
Y ('the Mother'), and both were issued when the Mother was acting as a
litigant in person. The first application was issued on 31st October 2007
and the relief sought is defined in the Form C1A as '...an order to enforce
the telephone contact and as much contact as possible'. The second was
issued on 15th April 2008 and the Mother sought to 'enforce and vary'
contact together with an assessment to be undertaking with the hope of
moving to unsupervised contact. Mention is also made of the possibility of
residence. The Respondent to both applications is I ('the Father'), and the
child at the centre of these proceedings is Q I ('Q') who was born on 27th
July 2000 and who is rapidly approaching his 9th birthday.
[2] The issues with which I am concerned are, firstly, whether the court
has any jurisdiction to entertain the Mother's applications, and secondly,
if I were to find such jurisdiction, whether I should decline to exercise it
and stay the present proceedings on the basis that this Court is a forum
non conveniens. The Mother asserts that there is jurisdiction, the Father
and Q's Guardian ad litem assert there is not. If the court were to find
it had jurisdiction, the Father submits that the Court should decline to
exercise it as the courts in Pakistan are the appropriate forum. On the
other hand the Mother and Guardian maintain that the jurisdiction should
be exercised as this Court is the appropriate and convenient forum.
[3] For completeness it should be observed that the Father launched an
application. That was dated 3rd March 2009 and issued by the Court the
following day. The application was to set aside part of an Order made by
Hedley J on 17th June 2008. If I find there was no jurisdiction to entertain
the Mother's applications it would follow that the Order of Hedley J
was made without jurisdiction and the Father's application becomes
redundant.
BACKGROUND
[4] The background circumstances which give rise to the present
applications have been described as extraordinary. Certainly they are
unusual.
[5] The Mother was born in England. Her parents are from Gujerat in
India. The Father was born and brought up in Pakistan, and it was whilst
on a visit there that the Mother met the Father. Within a week of meeting
they were married. That was in October 1999. The Mother quickly fell
pregnant. About two months after the marriage the Mother returned
to England and sponsored the Father's application for indefinite leave
to remain in this country. It seems clear that, at that time, it was their
intention to live in this country as a family. Q was born in England on 27th
July 2000.
[6] In November 2001 Q was found to have sustained fractures to
the shoulder, elbow and forearm. Q was removed into foster care and
the London Borough of Newham ('the Local Authority') instituted care
proceedings. On 29th May 2002 District Judge Brasse sitting at the
Principal Registry commenced a fact finding hearing. On 29th May he
delivered a long and detailed judgment, and concluded:
'I find, therefore, that, whilst the father himself inflicted the injuries and
has failed to further protect his child by making sure that he was brought
to the attention of medical authorities in time, sadly the mother, quite out
of character, has also failed to protect her child by seeking medical advice,
and she did this in order to protect her own interests, and in this instance
she has put her own interests before those of her child in a very serious
way. She has sought to protect herself, possibly her marriage, possibly
her job and possibly her position as mother of the child who she does not
want to lose. All of those are understandable motives, but in covering up
and, frankly, lying in order to protect herself, she has not helped her child
from whom she has been separated for many months.'
[7] The final, or 'welfare', part of the care proceedings was listed for 17th
December 2002. Somewhat unusually DJ Brasse decided to revisit his
original findings in the light of the evidence which had emerged since
the May hearing. The conclusion was a complete volte face. DJ Brasse
exonerated the Father and found the injuries were caused by the Mother.
[8] Within the care proceedings Dr Bashir, a Consultant Psychiatrist, was
instructed and prepared two reports. For the purposes of this judgment
it is only necessary to give brief consideration to the second dated 29th
April 2003. The focus of that report was upon the ability of the father and
his family in Pakistan to care for Q. Indeed as part of his investigation Dr
Bashir visited the paternal family in Pakistan. He recommended that Q
should either live with his Father or the paternal family in Pakistan.
[9] On 22nd May 2003 final orders were made in the care proceedings. A
residence order was made in favour of the Father. A regime of supervised
contact with the Mother was defined and a 12 months Supervision
Order to the Local Authority was made. Annexed to the Order were (a)
a 'Contact Agreement' between the Local Authority and the Mother,
designed to help implement and regulate the contact arrangements
between Q and the Mother; and (b) an 'Agreement' between the Local
Authority and the Father. I need not consider the terms of that Agreement
in any detail, it is sufficient to record that paragraph 13 provided:
'The Local Authority will assist in facilitating any move to Pakistan by the
Father with Q.'
Thus it was in the contemplation of all concerned that the Father and Q
could move to Pakistan.
[10] The Order of 22nd May 2003 effectively concluded the public law
proceedings. It is right to observe that the Mother felt aggrieved and has
never accepted the findings made against her. In May 2003 she sought
to persuade DJ Brasse to reopen the issue of causation. That failed. The
Mother launched an appeal which was eventually dismissed by Hogg J on
15th June 2004. An appeal to the Court of Appeal failed at the permission
stage.
[11] The Father applied for leave to remove Q permanently from the
jurisdiction, namely, to Pakistan. The Mother applied for increased
contact. Pursuant to Rule 9.5 of the Family Proceedings Rules 1991
Q was joined as a party to both applications and a Guardian ad litem
appointed for him. Those applications came on for hearing before Hedley
J on 16th September 2004. Leave was granted to the Father to remove
Q permanently from the jurisdiction and an undertaking by the Father
to return Q when ordered to do so was given and recorded. In addition
a contact order was made. The order provided for supervised visiting
contact and weekly telephone contact, with 'the matter', by which I
assume, is meant the issue of contact, to be listed before DJ Brasse in
January 2005, unless by then and pursuant to the leave given, Q had left
the jurisdiction. Although Mr Devereux argued strongly to the contrary, in
my judgment, and read as a whole, the contact provisions were designed
to regulate contact up until Q left the country. Mr Devereux submitted
it would be extraordinary for there to have been no order dealing with
contact post relocation. As a matter of practice I disagree. If there is no
dispute about contact there may be no need to attempt to define it. In
this case the Father has never sought to say there should not be contact
between Q and the Mother, albeit that he has been concerned that it
should be properly supervised given the findings against the Mother. At
the end of the day the simple but clear conclusion I have come to is that
the order of 16th September 2004 did not purport to define or regulate
contact after Q had relocated to Pakistan. In December 2004 the Father
and Q moved to Pakistan and hence there was no need for a further
hearing before DJ Brasse.
[12] In April 2005 the Father returned to England leaving Q with his
paternal grandparents and aunt in Pakistan. At first sight that may seem
highly unusual. However, it is a situation which was, at least to some
extent, foreshadowed in Dr Bashir's second report, where he wrote:
'It is not clear if' [the Father] 'would continue to offer long-term
resident care to Q as he planned to travel abroad if he migrated back
to' [Pakistan].
Accordingly from April 2005 to the present day Q has lived in Pakistan and
has been brought up there by his paternal grandparents and aunt.
[13] Contact proceeded by agreement. There was telephone contact
which took place, at least initially, on a weekly basis. In July/August
2005 and March/April 2006 the Mother stayed with the paternal family in
Pakistan. In summer 2006 Q came to England for four weeks. He stayed
with the Father and had daily contact with the Mother. In summer 2007
Q together with the paternal grandmother came to England on a 9 week
visit. Q and his grandmother initially stayed with the Mother. That lasted
for about 6 weeks but there was an argument as a result of which they
went to live with the Father for the remainder of their stay.
[14] It appears that it was the events of the summer 2007 which led
the Mother to issue her first application of 30th October 2007: see
paragraph [1] above. That application proceeded to a conciliation hearing
before Deputy District Judge Crowther on 12th December 2007. Both
parties attended in person although the Father had the assistance of
an interpreter. The parties managed to agree a way forward which (a)
provided for weekly telephone contact when Q was in Pakistan, and daily
telephone contact when in this country; and (b) defined arrangements for
face-to-face contact when Q was in this country. The second part of the
agreement was, of course, predicated upon Q visiting this country and
that was provided for in the following (albeit badly phrased) way:
'[The Father] to facilitate Q to visit UK if possible on an annual basis and
his Mother during his school holidays.'
The telephone contact took place. However, because the Mother wanted
the contact to progress to unsupervised contact and, possibly, to
eventually care for Q herself, the application of 15th April 2008 (see
paragraph [1] above) was launched.
[15] Eventually on 17th June 2008 the applications came on for hearing
before Hedley J. Prior to that hearing Deputy District Judge Airey had
given directions transferring the applications to the High Court and
providing that each party should file a statement in relation to 'the issues
of jurisdiction and contact'. The Mother filed a statement the Father did
not. In her statement the Mother said:
'Q is habitually resident in both countries, and his centre of interest is in
the UK where his parents are and where his father has residency and is
habitually resident.'
The Mother, and indeed the Father were then acting in person.
[16] Hedley J dealt with the question of jurisdiction in the following way:
'… the child is entirely lawfully in Pakistan, and indeed it is unusual that
the Court should be retaining jurisdiction in this case because, of course,
the child is habitually resident in Pakistan, and were this a European case
the Court would be positively deprived of jurisdiction by the structure
of European parenting law, but it is not and 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, and
so the question of jurisdiction of itself does not present a problem in this
case, though the question of enforcement of orders might.'
[17] I will analyse the approach taken by Hedley J at a later stage of
this judgment, for the present purposes it is sufficient to observe that
having satisfied himself that he had jurisdiction, he proceeded to make
a number of orders. Thus, pursuant to rule 9.5 of the FPR 1991 Q was
joined as a party and CAFCASS invited to appoint a Guardian. The Order
also provided that the Mother was to have both telephone contact and
visiting contact to Q in Pakistan (as I understand it the Father has never
sought to prevent contact taking place in Pakistan). Further, paragraph 4
(as amended pursuant to the slip rule) of the Order provided:
'The father to bring or cause the child to be brought into the jurisdiction of
England and Wales on a date not later than 4th June 2009 and to remain
in the jurisdiction until 30th July2009.'
That again was an uncontentious provision. The Father had re-married
and the plan, at the time of Hedley J's order, was for his new wife to come
to this country and to bring Q with her.
[18] This matter was next before the Court on 2nd March 2009. All parties
were legally represented for that hearing before Mr Stephen Bellamy Q.C.
sitting as a Deputy High Court Judge. It appears that some consideration
may have been to the question of jurisdiction as the Order he made
recited 'And upon the Court considering that it retains jurisdiction to
make orders in respect of Q'. By that date it was clear that the Father was
asserting that he was no longer in a position to comply with paragraph 4
of the Order of 17th June 2008 (see paragraph [17] above). Put briefly
the Father's position was that his relationship with his new wife was not
good, she, therefore, no longer intended to come to this country, he
was unemployed and therefore unable to finance the necessary travel
arrangements. Accordingly the Father's solicitors gave an undertaking
to issue an application to set aside paragraph 4 of the Order. Such an
application was issued.
[19] The final hearing prior to this matter coming on before me on
5th May was on 12th March 2009 before Black J. It appears clear,
notwithstanding the previous Orders of Hedley J and Mr Stephen Bellamy
Q.C., that Black J was concerned and exercised by the question of
jurisdiction. Although the Order she made does not expressly deal with
this point, it appears to be the common understanding of all parties that
it was her intention that the question of jurisdiction should be heard as,
as it were, a preliminary issue at the hearing listed for 5th May 2009. On
5th May I heard detailed argument and it became apparent that even if I
found the Court had jurisdiction the Father would, in all likelihood, invite
the Court to decline jurisdiction on the basis that the courts in Pakistan,
where Q lives, were the convenient forum. I managed to secure time the
following afternoon to hear argument on that point and I am grateful to
the parties' representatives for their industry and for preparing written
arguments at such short notice."
3. On the essential issue of jurisdiction that HHJ Barnett was to decide
as a preliminary issue, the mother, through her counsel, Mr Devereux,
robustly asserted that the court had jurisdiction. There were obvious
pointers in that direction. Mr Devereux relied on the habitual residence of
both parents within the jurisdiction, the considerable history of litigation
in the jurisdiction and to some extent on the nationality of the child.
4. The father and the Guardian ad Litem both took advantage of the
doubts expressed by Black J and each submitted that there was no
jurisdiction in this state. Perhaps that submission was more difficult for
the father than the Guardian, since the Guardian had only entered the
fray following the order of Hedley J of 17 June 2008. The father also had
to present before HHJ Barnett a case that was at odds with the case that
he had presented to the various judges before whom this contact dispute
had previously been listed.
5. HHJ Barnett directed himself carefully as to the law, and in particular
read into his judgment the relevant sections of the Family Law Act
1986. The Family Law Act 1986 is unhappily drafted and has attracted
a good deal of criticism, both judicial and academic, in recent years.
It has of necessity altered in shape and form as a consequence of
European regulations that have invaded its territory and which prevail
over the statute itself. However, the Act has not received the wholesale
reconsideration that many are convinced it requires, the world having
changed fundamentally since it was brought into legislative existence.
6. The judge was quite clear in his judgment that the relevant dates
for the application of the statute were 31 October 2007, the date of the
mother's first application, 15 April 2008, the date of the mother's second
application, and 17 June 2008, when the applications were before Hedley
J. The judge concluded that on none of those dates was Qadeer habitually
resident in this jurisdiction nor had he been present.
7. The judge went on to consider the further submission of Mr Devereux
that the mother's applications were applications for the variation of
existing Section 8 orders and thus fell within the exception provided by
Section 1(1) of the 1986 Act. The judge rejected that submission for
reasons which it is unnecessary to recite. Essentially, he concluded that
there were simply no extant contact orders which the mother by her
applications had sought to vary. He held that on their construction the
orders provided only for contact within this jurisdiction pending Qadeer's
removal to Pakistan.
8. In approaching the issue of jurisdiction as he did, the judge was
following the course mapped for him by all counsel. Indeed, I note that in
paragraph 24 of his judgment the judge remarked:
'This, of course, is not a case where the Council Regulation applies'
That was a reference to the European Regulation commonly known as
Brussels II Revised.
9. The notice of appeal, filed pursuant to the judge's permission, was
settled by Mr Edward Devereux and advanced criticism of the judge's
conclusions on the issue of jurisdiction. The judge, despite the fact that he
had held that there was no jurisdiction, invited submissions from counsel
as to whether if, contrary to his findings, jurisdiction existed, it should
be exercised on forum conveniens considerations. Here the mother had
some support in that, perhaps surprisingly, the Guardian's submission
was positive rather than negative. The judge, however, concluded that
despite a number of pointers to Pakistan the forum conveniens balance
fell in favour of this jurisdiction.
10. The advent of Mr Jonathan Baker QC into the case has radically
altered the presentation of the appeal. Mr Jonathan Baker has candidly
accepted that on the grounds surveyed by the judge the conclusions
that he reached would be difficult to criticise. So in this court we have
heard no argument in support of the appeal that HHJ Barnett himself
created. All the argument has been directed to a fresh point that owes
its origins to Mr Baker's ingenuity. We have permitted Mr Baker to run
this novel argument despite the fact that it was never ventilated in the
court below since on Mr Baker's appraisal there is really nothing else for
us to consider. The novelty of Mr Baker's submission is that the Regulation
Brussels II Revised is not international family law having effect only within
Europe and amongst the Member States of the European Union, but has
in limited circumstances a global application. The limited circumstances
are, according to Mr Baker, in the provisions within the Regulation as to
pro-rogation, and all turns upon the meaning of the reference in Article
12(4) to 'a third state'.
11. This categorisation appears, we are told, only in Article 12(4) and
Article 61 of the Regulation. I hazard that there has been a universal
acceptance amongst international family lawyers in this jurisdiction that
the Regulation Brussels II Revised is a regulation that has effect only
within the Member States of Europe and Mr Baker's approach is certainly
not one that I have seen suggested in any authoritative source. It is not
specifically considered in the leading text book, International Movement
of Children by Professor Lowe, HHJ Everall and Mr Nicholls QC, because
that authority was concluded before the arrival of the Regulation. It is not
specifically considered in the good practice guide settled by a committee
of international experts and published by the European Commission with
an updated version 1 June 2005.
12. Mr Baker has supported his submission by suggesting that his
construction is the only natural construction, particularly when focussing
on Article 12(4). To do justice to Mr Baker's submissions, I read into this
judgment the whole of Articles 12 and 61;
"Article 12
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 in relation 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 Convention of
19 October 1996 on jurisdiction, applicable law, recognition, enforcement
and cooperation 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
Article 61
As concerns the relation with the Hague Convention of 19 October 1996
on jurisdiction, applicable law, recognition, enforcement, and cooperation
in respect of parental responsibility and measures for the protection of
children, this regulation shall apply;
(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 said Convention"
13. It is to be noted in relation to Article 12(4) that the purpose of the
paragraph is to create a deeming provision in the assessment of the best
interests of the child for the purposes of Article 3(b), where the child
is habitually resident "in the territory of the third state which is not a
contracting party to the Hague Convention of 19 October 1996".
14. Whilst states that are not parties to the 1996 Convention are the
large majority of the global population of states, there are now I think ten
European states that have ratified or adhered to the 1996 Convention. So
in differentiating between states party to the 1996 convention and states
not party, it is possible to find each group within the Member States of
Europe.
15. Article 61 falls within chapter 5 of the Regulation, which is headed
"Relations with other instruments". Article 59 deals with Scandinavian
instruments and Article 60 deals with a number of conventions, either
Hague or European, other than the 1996 Convention. Within Article 61,
dealing with the 1996 Convention, the emphasis is upon third states
which are contracting parties to the Convention.
16. Within the good practice guide, illumination is only to be found in
chapter XI, which is headed "Relationship between the Regulation and the
1996 Hague Convention". The authors consider Articles 61 and 62, and in
concluding their review they say:
"The aim is to ensure the creation of a common judicial area which
recognises that all decisions issued by competent courts within the
European Union are recognised and enforced under a common set of
rules."
In dealing with Article 12(4) the authors really do little more than to re-
express the effect of the Article without commentary.
17. It is therefore in my judgment impossible to find within the language
of the Regulation itself any clear definition as to whether the provisions
affecting third states are confined to European states or extend beyond.
Every instinct suggests to me that the Regulation is intended simply for
the solution of jurisdictional and other problems within the European
Union to ensure a common judicial area within which decisions of
competent courts are recognised and enforced under a common set of
rules. It would be surprising indeed if this laudable aim had any impact
at all on relationships between Member States and non-Member States
through the wider world. It would be in my judgment to ignore the aims
and objectives of the Regulation to afford it the construction that Mr Baker
urges.
18. However, the point was not argued below. We have heard only the
limited argument which is developed from the language of the Regulation
itself, and given the absence of transparent conclusion, it would be
preferable to avoid rejecting Mr Baker on that ground alone, however
there are effectively three fences that he has to negotiate to arrive
at his desired winning post. The extension of the Regulation to cover
relationships between this jurisdiction and Pakistan can be said to be
logically the first of those three fences. Mr Baker presented it to us as the
third, but unless a third state is to be construed to include Pakistan it is
unnecessary to address the more important provisions of Article 12(3).
19. The second and third fences that Mr Baker has to clear are of course
all presented by Article 12(3). He has to show in order to achieve pro-
rogation that the jurisdiction of the courts has been accepted, expressly
or otherwise, in an unequivocal manner by all of the parties to the
proceedings at the time the court is seised. And the third fence he has
to clear is to demonstrate that pro-rogation is in the best interests of
Qadeer.
20. Most of Mr Baker's argument was directed to establishing unequivocal
acceptance by the parties and particularly by the father. In advancing
that submission Mr Baker asked us to find the father's unequivocal
acceptance by, first, the consent order of 12 December 2007 entered by
the deputy district judge. That seems to me a difficult argument taken
individually, given that both parties appeared in person and arrived at an
accommodation with the assistance of a CAFCASS officer.
21. Mr Baker's second reliance is upon the order of Hedley J of 17 June
2008, in which the judge incorporated a paragraph requiring the father
to bring Qadeer into this jurisdiction for a period terminating in this
month of July 2009. Again, the father was a litigant in person appearing
with the aid of an interpreter, he was not contesting contact in principle,
and indeed he was telling the judge that his current wife would be in a
position to implement such an order.
22. Thirdly, Mr Baker relies upon the concessions made by the father in
his position statement for the purposes of a hearing before Mr Stephen
Bellamy QC, by which stage the father was represented.
23. In his position statement it is true that at two points the father
expressly accepted the jurisdiction of the court, that is, in paragraphs 4
and 28 of the position statement. However, it is necessary to read those
paragraphs in their context, and both acceptances are advanced on the
basis that a) the father has no objection to contact providing it is properly
controlled, and b) that the child's residence in Pakistan makes any orders
in this jurisdiction unenforceable and therefore almost academic.
24. Mr Baker endeavours to place reliance on the undertaking that the
father gave to Mr Bellamy to apply for the release from the order of
Hedley J, and finally to the application which he filed to give effect to the
undertaking, supported as it was by a written statement.
25. Neither his fourth or fifth events strike me as individually of much
significance. In the evidence in support the father made it perfectly plain
that he was seeking release from the order of Hedley J on a variety of
welfare grounds, including the fact that to bring Qadeer to this country
would upset the stability of his family life in Pakistan; further, that Qadeer
was resolutely opposed to coming; and thirdly, that any exposure of his
son to contact in this jurisdiction would at the same time expose him to
the risk of manipulation.
26. Whether judged individually or cumulatively, I am quite unpersuaded
that anything that the father has done within this jurisdiction amounts
to unequivocal acceptance. The moment the opportunity to challenge
jurisdiction was flagged up by Black J he was quick to reverse his previous
acceptances.
27. Another major difficulty for Mr Baker is that the unequivocal
acceptance must be of all the parties to the proceedings. His only reliance
on conduct on the part of the Guardian is to say that the Guardian
participated fully in the hearing before Mr Bellamy. He has also flirted
with the submission that because the Guardian was only joined at a
comparatively late stage of the proceedings, unequivocal acceptance is
unnecessary since the review is limited to "the time the court is seised".
28. That final submission seems to me to be quite unmeritorious. The
court is seised throughout the continuance of the proceedings. The fact
that the Guardian is not joined until a comparatively late stage is not
to deprive the Guardian of the opportunity to obstruct pro-rogation,
particularly since the Guardian above all is charged with the responsibility
of safeguarding the best interests of the child.
29. For all those reasons it seems to me plain that the attempt to
demonstrate pro-rogation by unequivocal acceptance by all the parties to
the proceedings is hopeless. This jurisdiction by pro-rogation is essentially
exceptional. The whole thrust and construction of the Regulation is upon
the basis that the primary jurisdiction, shall be the jurisdiction of the
child's habitual residence. I draw attention to Article 19(2) which states:
"Where proceedings relating to parental responsibility relating to the same
child and involving the same cause of action are brought before courts of
different Member States, the court second seised shall of its own motion
stay its proceedings until such time as the jurisdiction of the court first
seised is established"
30. So there is no doubt at all that the emphasis of the Regulation,
supported to the full by the recital, is to this effect. That is precisely the
point made by Lawrence Collins LJ in his judgment in the case of Bush v
Bush [2008] EWCA 865, where he said:
"53. It is plain that Article 12(1) (b) of the Brussels II bis Regulation
(Council Regulation (EC) 2201/2003), when it speaks of the jurisdiction
being 'accepted expressly or otherwise in an unequivocal manner … at
the time the court is seised,' is not simply referring to a mere submission
in matrimonial proceedings equivalent to what would be an entry of
appearance under the Brussels I Regulation (Council Regulation (EC)
44/2001), Article 24. First, it is clear that it does not refer to acceptance
of the jurisdiction in relation to matrimonial proceedings alone. It
must refer to jurisdiction in matters of parental responsibility. Second,
the emphasis is on the acceptance of jurisdiction 'expressly' or 'in an
unequivocal manner.' This must mean that acceptance of jurisdiction of
a court other than that of the child's habitual residence is not lightly to
be inferred, and that the paradigm case will be actual agreement by the
parents at the time the matrimonial proceedings are instituted."
Although the Lord Justice was addressing specifically Article 12(1)(b) of
the Regulation, all that he says is of equal application to Article 12(3).
31. So it is at this second fence that Mr Baker most plainly fails. In
relation to the best interests of the child, it would be difficult to argue pro-
rogation on that ground either. The reality is that Qadeer has been a child
in a Pakistani environment for more than half his life, and any decisions as
to his welfare are at first blush, and as a matter of ordinary assumption,
better dealt with by the courts of that region.
32. So for all those reasons I am in no doubt at all that this challenge
to the careful judgment of HHJ Barnett fails. It is difficult to see how Mr
Baker could have crafted success to the advantage of his client, even had
I a different view of the merits of his argument. None of the ground was
laid for this submission below. There has been no evidence filed on any
quarter as to unequivocal acceptance. There has been no evidence filed as
to the best interests of the child. Obviously if a jurisdictional pro-rogation
is to be claimed, it must be claimed in the court of trial and it must be
supported by essential evidence.
33. My last word is to emphasise that pro-rogation is a dangerous road
to go. In the huge majority of cases, the future evolution of any global
accordance of international family law depends upon the readiness of
states to recognise that, save in exceptional circumstances, the habitual
residence of the child dictates which state holds the primary jurisdiction.
Nationality, domicile or passing presence should not ordinarily divert from
that clearly principled approach.
34. In our very considerable dealings with Pakistan, we are highly
dependent upon the upholding of the protocol which was signed by
the senior judiciary of the two jurisdictions in January 2003. We have
approximately a million British nationals of Pakistani origin in this
jurisdiction. Conflicted cases between this jurisdiction and Pakistan pass
through my office at the rate of approximately one a fortnight. In the vast
majority of cases we are appealing to the judges of Pakistan to recognise
that welfare decisions belong to and are the responsibility of the courts of
the child's habitual residence. I stress that although the protocol is largely
directed to cases of wrongful removal or retention, the principle stated in
the first paragraph is of general application:
"In normal circumstances the welfare of a child is best determined by the
courts of the country of the child's habitual/ordinary residence."
We can hardly expect the judges of Pakistan to honour the protocol
beyond the immediate territory of abduction if we lay exorbitant claims to
jurisdiction in relation to children who are essentially Pakistani.
35. In any consideration of general policy, it is obvious to me that HHJ
Barnett reached the right conclusion in determining the jurisdiction as he
did, and I would have been dismayed had it been necessary to set aside
his very sensible conclusion.
36. I would dismiss this appeal.
Lord Justice Scott Baker:
37. I agree
Lord Justice Sullivan:
38. I also agree
Order: Appeal dismissed