Lord Justice Thorpe:
Factual and Procedural Background
The appellant father and the respondent mother were married in London
in April 1988. In 1991 or 1992 they went to live and work in Tanzania.
All three children, James (aged 14), Edward (aged 11) and Thomas (aged
9) were born in England and are British citizens. They have never been
resident in the UK but have retained a close link, returning for about a
month each year.
Between 2002 and 2003 the family lived in Marbella, Spain. In August
2003 Mother and the Children returned to live in Tanzania before
returning to Spain in September 2006.
By February 2007, Mother and Father were living separately, the eldest
child, James, living with Father and the other two with Mother. In August
2007 the middle child, Edward, began living with Father where he has
remained. The youngest child, Thomas, is based with Mother but spends
an appreciable amount of time with Father.
In July 2007, Mother instituted divorce proceedings in England, on
the basis that both parties were domiciled there. Father filed an
Acknowledgment of Service on 31 July 2007 stating that he was unsure
if Mother was domiciled in England, but not disputing it. It was not in
dispute that both parties and the Children were habitually resident in
Spain. Mother filed a Statement of Arrangements for the Children and
Father in response filed his own statement.
On 3 August 2007, Father began proceedings in the Court of First
Instance, Marbella, for care and custody, maintenance and an order that
the Children should not be removed from Spain.
On 28 August 2007, District Judge Redgrave in the Principal Registry
of the Family Division made an order for interim periodical payments,
expressed to include provision for the benefit of the Children.
A stay of Father's application in Spain, sought by Mother, was granted
by Magistrate-Judge Monica Ponsaille on 12 February 2008 on the basis
that a related action was in progress in the courts of England and Wales.
Father is appealing this order.
On 22 February 2008, Mother began proceedings under the Children Act
1989 for residence orders, for contact with Father to be defined and an
order for the return of the Children's passports.
Father sought a declaration under Article 17 of the Brussels II bis
Regulation that the English courts have no jurisdiction over the case which
had been instituted by Mother in respect of the Children. The application
was dismissed by Mrs Justice Pauffley on 15 April 2008 and permission to
appeal was refused.
Decision Appealed
The essential findings and conclusions in the judgment of Pauffley J, given
on 15 April 2008 are as follows: –
That the court was properly seised in relation to matters of parental
responsibility. It was seised under the provisions of Article 12 (1) (b) of
the Regulation which was to be widely construed. Thus it was enough to
show that the father had consented to the court's divorce jurisdiction and
additionally to its jurisdiction in matters relating to parental responsibility.
That the stay upon Father's application for custody ordered by Judge
Ponsaille currently governed the question of jurisdiction and there was
no legitimate opportunity afforded to a judge in England to examine the
content of her adjudication and arrive at a contrary conclusion.
That given that there was no debate about jurisdiction in relation to
divorce and maintenance being fixed in England, it would be nonsensical
for jurisdiction over the children to lie elsewhere.
That it was mandatory, pursuant to section 41 of the 1973 Act, for the
court to consider in divorce proceedings whether there were any children
of the family and, if so, whether it should exercise any of its powers under
the 1989 Act.
That the Practice Guide for the application of the Regulation supported
this analysis.
That even on a narrow interpretation of Article 12.1(b), such that the
specific requirement would be unequivocal acceptance of jurisdiction in
matters relating to parental responsibility, the father's litigation conduct
had been sufficient to satisfy the requirement, in that he had filed a
Statement as to the Arrangements for the Children, when under no
obligation to do so.
That Hedley J in C v C [2006] EWHC 3247 (Fam) had adopted a consistent
approach to Article 12.1(b), finding, with reference to rules relating to
petitions and statements of the arrangements to be made for the children,
that those matters were sufficient to trigger the requirements of Article
12.1(b).
That the situation did not fall within the parameters of Article 15.3 and no
order should be made in the court which would be perceived in Spain as a
challenge to the decision made to stay Father's application.
Submissions on the Appeal
Mr Michael Nicholls QC for the Appellant Father emphasises that the
scheme of the Regulation is to ensure that jurisdiction rests with the
courts of the child's habitual residence. Article 12 provides a limited
opportunity for parents to elect for the jurisdiction of the court seised with
their divorce proceedings. However there must be unequivocal consent
from both parents to the exercise of jurisdiction specifically in relation
to matters of parental responsibility and providing that that election is
consistent with the best interests of the child. Thus, submits Mr Nicholls,
the judge was wrong to adopt a wider construction of Article 12 and was
equally wrong to conclude that on the alternative narrow construction
the father had unequivocally accepted the courts jurisdiction by filing a
statement of arrangements.
Mr Nicholls further submitted that the judge was plainly wrong to have
regarded the order of Judge Ponsaille as conclusive of the issue of
jurisdiction, and thus an order that comity required the judge to uphold.
It was essentially an order establishing the jurisdiction of the Spanish
Court but deferring its exercise pending the development of the related
proceedings in London.
Mr Timothy Scott QC for the Respondent Mother relied heavily on the
order of Judge Ponsaille which he submitted did effectively settle the
English court as the court that was to determine all questions relating
to parental responsibility. If Pauffley J had acceded to the father's
application, the children would have been left in limbo without either court
addressing the important welfare issues.
Further Mr Scott submitted that Pauffley J had plainly been right
to conclude that the father had unequivocally accepted the court's
jurisdiction. He had elected to file a statement of arrangement
when under no obligation so to do and nowhere in his statement of
arrangements did he suggest that the London court had no jurisdiction in
matters relating to parental responsibility.
Conclusions.
Brussels II bis.
There can be no doubt that Mr Nicholls is correct in his analysis of the
general scheme of the Regulation. I start with recital (12): –
"The grounds of jurisdiction in matters of parental responsibility
established in the present Regulation are shaped in the light of the best
interests of the child, in particular on the criterion of proximity. This
means that jurisdiction should lie in the first place with the Member State
of the child's habitual residence, except for certain cases of a change in
the child's residence or pursuant to an agreement between the holders of
parental responsibility."
That policy statement is reflected in Section 2 sub-headed Parental
Responsibility which is divided into Articles 8 – 15. The general rule is
stated in Article 8 (1): –
"The courts of a Member State shall have jurisdiction in matters of
parental responsibility over a child who is habitually resident in that
Member State at the time the court is seised."
Article 8 (1) is subject only to the provisions of Articles 9, 10 and 12.
Article 9 provides for continuing jurisdiction of the child's former habitual
residence after the lawful move of the child from one Member State
to another. Article 10 provides for jurisdiction in cases of wrongful
removal or retention of a child and Article 12 provides for prorogation of
jurisdiction in certain defined circumstances. This appeal is concerned
only with prorogation to a court determining an application for divorce,
legal separation or annulment by virtue of Article 3. Article 12 (1) is the
crucial provision of international family law for the purposes of the present
appeal. It is in these terms: –
"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: –
At least one of the spouses has parental responsibility in relation to the
child; and
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."
Now Mr Scott had little alternative but to concede that the judge's wider
construction of Article 12 (1) is unsustainable. The court's jurisdiction
in relation to divorce, legal separation or annulment is rigidly fixed in
the court first seised which excludes the concept of acceptance of that
jurisdiction by the parties. Clearly "the jurisdiction of the courts" in the
construction of Article 12 (1) (b) can only be jurisdiction in relation to
matters of parental responsibility. Thus the key question in the appeal is
whether Pauffley J was right to conclude that the father had accepted the
jurisdiction of the London court in an unequivocal manner by filing the
document which he did. To answer that question it is necessary to look in
some detail at the domestic statutory provisions relating to statements of
arrangements and to the facts relevant to the issue.
The Matrimonial Causes Act 1973 and the Rules.
The obligation on the petitioner to file a statement of arrangements is to
be found in Rule 2.2 of the Family Proceedings Rules 1991 which state: –
"…the Petition shall be accompanied by a statement, signed by the
petitioner personally and if practicable agreed with the respondent,
containing the information required by Form M4…"
Form M4 is preceded by directions to the petitioner. Amongst those is to
be found: –
"Before you issue a petition for divorce try to reach agreement with your
husband/wife over the proposals for the children's future. There is space
for him/her to sign at the end of this form if agreement is reached."
In the directions to the respondent appear the following: –
"The petitioner has completed Parts I, II and III of this form which will be
sent to the Court at the same time that the divorce petition is filed.
If you agree with the arrangements and proposals for the children you
should sign Part IV of the form.
If you do not agree with all or some of the arrangements or proposals
you will be given the opportunity of saying so when the divorce petition is
served on you."
All those directions emphasise that the parties are expected to agree
proposals for the children's future before filing of the petition.
Another direction to the petitioner in the introductory section of Form M4
states: –
"Please refer to the explanatory notes issued regarding the completion of
the prayer of the petition if you are asking the court to make any order
regarding the children."
Divorce Petition Notes for Guidance (D8) include the following: –
"Arrangements for Children
If you consider that the court will need to
Determine where the child(ren) should live (a Residence Order),
Determine with whom the child(ren) should have (a Contact Order),
Make a Specific Issue Order,
Make a Prohibited Steps Order;
you must apply for the order on Form C2.
You may enclose the completed form with your petition or submit it later"
As the directions to the respondent make plain the respondent has the
opportunity rather than the obligation to make a rival statement of
arrangements. This derives from FPR 2.38 which states: –
A respondent on whom there is served a statement in accordance with
Rule 2.2 may, whether or not he agreed that statement, file in the court
office a written statement of his views on the present and proposed
arrangements for the children…"
It is against that background that we see that the mother signed the
Form M4 on 5th July 2007. In her statement, having set out the children's
habitual residence in Spain and their schooling at the English International
College in Marbella, she stated her intention to move back to the United
Kingdom as soon as possible with all three children and to enter them in
London schools.
The petition and this statement of arrangements were served on
the father in Spain on the 11th July and on the 31st he filed an
acknowledgement of service doubting but not disputing the court's
jurisdiction. He accepted the adultery alleged and offered to pay the costs
of the suit. In relation to the statement of arrangements he made it plain
that he did not accept the mother's proposals. As Mr Scott emphasised
that was a sufficient indication of his position. It was not incumbent upon
him to file his own statement.
However he did so on the same day, essentially making plain that he did
not agree to the relocation of the children. "They are habitually resident
in Spain, they have never lived in England …the petitioner did not discuss
such a change with the respondent."
What then is the significance of the statements of arrangements? The
answer is to be found in the provisions of Section 41 of the Matrimonial
Causes Act 1973. Section 41 provides: –
"(1) The court shall not make absolute a decree of divorce or annulity
of marriage or grant a decree of judicial separation, unless the court, by
order, has declared that it is satisfied –
that for the purposes of this section there are no children of the family for
whom this section applies: or
that the only children who are or may be children of the family to whom
this section applies are the children named in the order and that –
arrangements for the welfare of every child so named have been
made and are satisfactory or are the best that can be devised in the
circumstances; or"
In the days when this provision came into force undefended divorces were
heard in open court and counsel for the petitioner would lead evidence
to enable the judge to determine whether or not to make the declaratory
order. In more modern times the grant of a divorce is a paper exercise
resulting in the issue of a certificate by a district judge who has satisfied
himself that the petitioner's paperwork is in order. Thus the only material
before the district judge relevant to the declaration is likely to be the
statement or statements of arrangements.
Thus the filing of statements of arrangements is an integral part of the
procedure that must be followed before a marriage can be dissolved.
It pertains to the exercise of the court's jurisdiction to dissolve the
marriage. It cannot be said that the court's jurisdiction in any matter
relating to parental responsibility is seised by the filing of the statements.
The court is seised in that area by the issue of an application on Form
C2, the application for an order relating to custody, contact, specific issue
order or prohibited steps order.
The court first seised in any matter relating to parental responsibility was
the court of first instance in Marbella which on 3rd August 2007 received
the father's "Application for Care and Custody, Maintenance and an order
that the children should not be taken out of the country without prior
authorisation in writing from this court."
The first application to the London court in any matter relating to parental
responsibility did not come until the 22nd of February 2008 when the
mother filed what should have been a Form C2 but which was erroneously
Form C1. Under paragraph 10 she stated: –
"The wife wishes to be free to move back to England with her three
children, but the father refuses to allow them to leave him, retains
the children's passports, and has been actively pursuing a policy of
disaffection to get the children to stay with him. Only now that the
Spanish court is no longer seised of the children can mother take action
to regain the children and regularise the situation and arrange proper
contact for them with father."
Thus the mother confirms what would otherwise be inferred, namely that
her application to this court was reactive to the order of Judge Ponsaille of
the 12th February 2008.
The Spanish Order.
The judgment of Judge Ponsaille first establishes the facts and then the
relevant issues. It seems clear that the mother's objective was to ensure
that financial proceedings and proceedings relating to the children should
both be heard in London. It seems that Judge Ponsaille had primary
regard to the application in relation to maintenance since she founds her
conclusions on Article 28 of Council Regulation 44/2001 and nowhere
refers to Article 19 of Council Regulation 2201/2003. Thus Mr Scott
submits that she arrived at the right conclusion in relation to issues
relating to the children, but erroneously founded herself on the wrong
Article. It seems that she was led into that error by the advocates and it
does not seem to me to invalidate her conclusion which is thus expressed
in the English translation: –
"Therefore a stay of the proceedings is ordered, without prejudice to the
provisions of the second section of Article 28 cited of the Regulation, that
is, at the request of a party, it is appropriate to order a waiver in favour
of the English court hearing the proceedings brought by Mrs Bush with
number FD07D0333 in the HIGH COURT OF JUSTICE, CENTRAL REGISTRY
OF THE FAMILY DIVISION, provided that it is competent to hear the
related actions and that its law allows their joinder.
Partly granting the relief sought by the respondent, as competence is not
declined in favour of the English court, but a stay of the proceedings is
ordered owing to relatedness of the actions, without prejudice to the fact
that a waiver may be ordered in favour of the English court hearing the
petition of Mrs Bush in the terms indicated."
That citation is sufficient to show the true outcome in Spain. The Spanish
Judge asserted jurisdiction but deferred to the London court on, I
think, the erroneous understanding that the London court was seised
of the issues relating to the children. Judge Ponsaille has not seemingly
considered by what exceptional route the London court had acquired
parental responsibility jurisdiction over three children habitually resident
in Spain.
Of course Judge Ponsaille's approach and conclusion may not be upheld
on appeal. However in my judgment it is unnecessary to speculate as to
or to await the outcome of the Spanish appeal. The effect of her order
was only to hold the Spanish jurisdiction in reserve whilst deferring to
London. Once London declares that it has no jurisdiction the Spanish
stay dissolves and the jurisdiction held in reserve becomes the primary
jurisdiction.
In my judgment Pauffley J wrongly concluded that the children would fall
into jurisdictional limbo if she granted the father's application. That would
only be so if Judge Ponsaille had declined jurisdiction. Judge Ponsaille's
order properly understood does not oblige the London court to proceed,
disregarding the provisions of the Regulation, out of comity or due respect
for the Spanish order.
The more convenient court.
After delivering judgment refusing the father's application Pauffley J of her
own motion requested argument as to whether she should transfer issues
relating to the children to Marbella under the provisions under Article 15
of the Regulation. Article 15 is a novelty within European family law in
that it provides: –
"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:
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 in
accordance with paragraph 4; or
Request a court of another Member State to assume jurisdiction in
accordance with paragraph 5."
Having heard argument, Pauffley J concluded that in all the circumstances
Article 15 was not apt.
It is often thought that Article 15 is a unique provision, and so it is in the
sense that it is available to the judge at any stage of the proceedings
and either generally or in relation to a specific issue. However there is
in my judgment a more modest introduction of the concept of the more
convenient court to be found in Article 12 (1) (b) where the exceptional
jurisdiction of the divorce court is not only dependent upon an express
or unequivocal acceptance by the spouses but also upon it being "in the
superior interests of the child."
Both counsel agree, for very good reason, that there is no significance to
be attached to the choice of the word "superior". It is to be construed as
though the reference, as in Article 12 (3) (b) were to the "best interests
of the child".
So how does the divorce court assume or refuse jurisdiction in any matter
relating to parental responsibility having regard to the best interests
of the child? In my judgment that requires consideration of which is
the more appropriate court, the court of the child's habitual residence
or the court seised with the parental divorce. Any such proportionate
judgment must have regard to all the familiar considerations that dictate
the determination of a forum conveniens issue, namely the balance of
fairness including convenience.
It was incumbent on Pauffley J to consider this aspect before assuming
jurisdiction. She did not do so and both counsel accept that they led
her into error by failing to address this consideration in their written
submissions.
In my judgment this provides an additional ground for allowing the
appeal.
When my lord, Lord Justice Lawrence Collins, asked counsel to explain
why, in a case where money is short, the parties were so vigorously
litigating to establish the jurisdiction to determine child issues the
responses verged on the coy. However an examination of the statements
of arrangements, and of the applications issued in Marbella and London,
indicate that perhaps the principal parental dispute is as to whether the
children should continue their life and education in Marbella or whether
they should be brought for future residence and education in Barnes.
That being the issue I would unhesitatingly conclude that the Marbella
court was the more appropriate court having regard to the best interests
of the children. First an application to relocate is properly determined
by the court of the child's habitual residence which is being asked to
sanction the relocation rather than the court of the jurisdiction to which
the primary carer seeks to move. I can understand that the mother might
think that she would be more likely to persuade a London judge of the
benefits of the move to English residence and education but the Spanish
judge should take that decision having at her reach all the evidence
as to the well settled history and as to the children's achievements
in their current environment. It would in my opinion create a most
unhelpful precedent if a court exercising divorce jurisdiction, exceptionally
and transiently seised with jurisdiction in matters relating to parental
responsibility, were to issue an order permitting a parent to leave the
jurisdiction of the child's habitual residence without any involvement of
the courts of the children's long settled residence.
This is yet another case that illustrates the potential of direct judicial
communication and collaboration. Judge Ponsaille would surely have been
assisted by direct communication with my office in order to understand,
at least in outline, the true nature of the related proceedings to which she
was invited to defer.
I add two footnotes for completeness. First I do not consider that the
judgment of Hedley J in C v C supported the judge's conclusion. In that
case there had been years of contested litigation in relation to the children
in this jurisdiction both before and after the divorce and the mother's
subsequent move to Spain with the children. Her application to transfer
the proceedings to Spain was plainly tactical. Article 12 (3) as well as
Article 12 (1) was engaged. Hedley J was plainly correct to refuse to
relinquish jurisdiction on the facts of that case. He established no general
principle.
Second I do not agree with Pauffley J that the Good Practice Guide at
page 16 carries the emphasis she suggests. Having introduced Article
12 it illustrates its effect by postulating two situations, first divorce,
(Article 12 (1)) then substantial connection (Article 12 (3)). The use of
the words "the divorce court" is devoid of significant meaning and is only
apt shorthand.
Lord Justice Lawrence Collins:
I agree that the appeal should be allowed.
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.
Each of these propositions is supported, if support were needed, by recital
(12) to the Brussels II bis Regulation, which states:
"The grounds of jurisdiction in matters of parental responsibility
established in the present Regulation are shaped in the light of the best
interests of the child, in particular on the criterion of proximity. This
means that jurisdiction should lie in the first place with the Member State
of the child's habitual residence, except for certain cases of a change in
the child's residence or pursuant to an agreement between the holders of
parental responsibility."
Lord Justice Rimer:
I agree with both judgments.