Mr Justice Munby:
I have before me an interesting and seemingly novel point in relation to
Article 15 of Council Regulation (EC) no 2210/2203 (Brussels II bis).
The background
The mother and the father, as I shall refer to them, are both English. They
married in 1999. From then until August 2003 they both worked in the
Netherlands, where their only child, a son, H, was born in May 2002. In
August 2003 the mother's employment took her to London, where she
moved with H. The father remained in the Netherlands until February
2005 when he joined the mother and H in this country. From November
2005 until July 2007 the family lived and worked in Scotland. In August
2007 they moved to the Netherlands and H started at the American
School there.
By early 2008 the marriage was in serious difficulties.
The proceedings
Coincidentally, on 14 May 2008 both the mother and the father started
proceedings. The mother issued a divorce petition in the Principal Registry
(FD08D02235) based on the English domicile of both parties. (At that
time both parties were still living in the Netherlands (see below) and, as
the father would have it, habitually resident there. In these circumstances
he characterises the mother's issue of a petition in this country as 'forum
shopping', presumably, he says, with a view to her achieving a more
favourable financial settlement.) The father, for his part, applied to the
District Court of the Hague for 'provisional measures', seeking the care of
H, the exclusive use of the former matrimonial home in the Netherlands
and maintenance for both himself and H. An important element of the
father's case was that he did not consider it to be in H's interest to move
yet again, which would, he said, involve H moving to another school and
leaving behind his new friends. The following day, 15 May 2008, and
whilst unaware of the father's application in the Netherlands, the mother
applied to the Principal Registry for a residence order (FD08P00949).
Since then the parents have been disputing which court(s) should have
jurisdiction, in particular in relation to the divorce and H. I need not go
into all the details. In the upshot, the father conceded in a letter from his
solicitors dated 10 September 2008 that the divorce should proceed in
this jurisdiction. Decree nisi was pronounced by the District Judge on 6
October 2008. The ancillary relief proceedings continue; the mother had
issued her Form A on 4 July 2008 and the FDR is fixed for 3 December
2008.
The proceedings in relation to H in the Hague court came on for hearing
on 5 June 2008, both parties being legally represented. Judgment was
given on 19 June 2008. The mother sought, but failed, to persuade
the Hague court to make an order under Article 15(1). The father was
given temporary care of H and exclusive entitlement to use the former
matrimonial home.
The parties finally separated on 27 June 2008; previously they had both
been living, in tense conditions, in the former matrimonial home. The
mother subsequently returned to this country on 1 August 2008. The
father and H continue to live in the Netherlands.
On 11 July 2008 the District Judge made an order giving the mother leave
to withdraw her application for a residence order. However, on 24 October
2008 the mother applied again for residence or, in the alternative, a
defined contact order. In her Form C1 the mother indicated that she was
also seeking, by way of "preliminary application", "for the English court
to make an application under Article 15(2)(c) of [Brussels II bis] to the
[Hague court] to transfer the proceedings concerning H to the High Court
in London given the particular connection H has to England and given also
the divorce and financial proceedings already ongoing in England."
It is that preliminary application which came on before me for hearing on
27 November 2008.
The listing was in accordance with the joint request of the parties,
set out in a letter dated 6 November 2008, signed by both firms of
solicitors, asking the court to list the matter "for a 30 minutes directions
appointment in relation to jurisdiction". On 13 November 2008 the
mother's solicitor appeared before the District Judge of the day who, upon
production of the letter, listed the matter for "a directions hearing" before
a High Court Judge with a time estimate of 30 minutes.
As early as 28 October 2008 the father's solicitors had written to the
mother's solicitors asserting that the application was "entirely without
merit" and inviting her to withdraw it. I am told that, in the course of
a conversation between counsel on 24 November 2008, Mr Michael
Glaser, who appeared before me on behalf of the father, told Ms Sharon
Segal, who appeared on behalf of the mother, that he would be seeking
a final determination and summary dismissal of the application at the
forthcoming hearing. The stance of the father's solicitors was reinforced
by a letter the next day, 25 November 2008, putting her solicitors on
notice that they would be seeking costs against the mother in relation to
the hearing two days later and serving on them a statement of costs.
In the event the hearing on 27 November 2008 lasted for longer than the
30 minutes allowed by the District Judge. The Associate's 'blue' records
the hearing as having lasted from 11.33 to 12.52. At the end of the
hearing I reserved judgment.
Article 15
Article 15 of Brussels II bis provides, so far as material, as follows:
"Transfer to a court better placed to hear the case 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 …; or
request a court of another Member State to assume jurisdiction …
2 Paragraph 1 shall apply:
upon application from a party; or
of the court's own motion; or
upon application from a court of another Member State with which the
child has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion or by application of a court of
another Member State must be accepted by at least one of the parties.
3 The child shall be considered to have a particular connection to a
Member State as mentioned in paragraph 1, if that Member State:
has become the habitual residence of the child after the court referred to
in paragraph 1 was seised; or
is the former habitual residence of the child; or
is the place of the child's nationality; or
is the habitual residence of a holder of parental responsibility; or
is the place where property of the child is located and the case concerns
measures for the protection of the child relating to the administration,
conservation or disposal of this property."
Ms Segal and Mr Glaser helpfully referred me to a recent authority on
Article 15, the decision of Mr Jonathan Baker QC, sitting as Deputy Judge
of the Division, in Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741. But
that, as they correctly observe, does not bear directly on the point with
which I am concerned. Neither Ms Segal nor Mr Glaser was able to direct
me to any relevant authority on the present point – apparently there is
none – nor were they aware of any previous case in which the present
point had arisen.
The decision of the Hague court in relation to Article 15
I have been supplied with an agreed translation of the decision of the
Hague court handed down in writing on 19 June 2008.
The court set out the background circumstances and rehearsed the
parties' arguments in some detail. It then turned to consider a preliminary
point the mother had taken challenging the jurisdiction of the court. The
court held that it had jurisdiction in accordance with Article 8 of
Brussels
II bis because H was habitually resident in the Netherlands. It added that
"The question of whether and when divorce proceedings will be instituted
in the Netherlands does not alter this."
The court then turned to consider the mother's application under Article
15. The part of its decision which deals with the Article 15 point is short
and can usefully be set out in full: "The wife has requested that the case
be referred to the English court pursuant to Article 15 of the Brussels
II bis regulation. Article 15 of the Brussels II bis regulation determines
that courts in a member state that are competent to decide on a case in
substantive proceedings, shall, by way of an exception and where they
feel that it would be easier for a court in another member state with
which the child has a special tie to hear the case or a specific part thereof,
be able to defer hearing of the case or a specific part of said case, in the
interest of the child, and invite the parties to address an application to
this end to the court in the said other member state, in accordance with
Paragraph 4.
In the present case, the court sees no reason to make the exception
indicated in Article 15(1) of the Brussels II bis regulation. Although his
British nationality means that the minor has a special tie with England,
the court is not of the opinion that it would be easier for the English court
to hear the case, in the interests of the child, since the minor has his
place of residence in the Netherlands."
It is not for me to question either the decision or the reasoning of my
brother Judge in the Hague. We both sit as judges, albeit in our respective
national jurisdictions, seeking faithfully to implement, in the interests of
the families before us, as also in the common interest of all the peoples
of the European Union, the principles set out in Brussels II bis. Principle
and judicial comity alike require that I should give full faith and credit to
the decision of the Hague court. I have no hesitation in doing so here. If I
may say so with respect, its decision on the Article 15 point in the present
case is eminently understandable; indeed, I strongly suspect that, had
our respective roles been reversed, I would myself have come to precisely
the same conclusion on the materials available on 19 June 2008.
The mother's case
How then does the mother put her case?
Ms Segal does not seek to go behind the decision of the Hague court. Her
submission is short and simple. There have, she says, been material and
significant changes in the circumstances since the Hague court reached its
decision on 19 June 2008 so that it would, she submits, be appropriate for
the English court to make an application to the Hague court as provided
for in Article 15(2)(c) in order to enable the Hague court to reconsider the
Article 15 issue.
Ms Segal accordingly invites me to direct the filing of short witness
statements by both parties dealing with what she says are the relevant
matters (the circumstances in which the family ended up in the
Netherlands, the connection H has with each country and the discussions
the parties have had about the future, for example, and in particular, in
relation to H's future schooling); the filing of detailed skeleton arguments;
and the listing of a substantive hearing to determine, as she puts it, the
correct forum or the appropriate jurisdiction for the determination of the
matter. Such a hearing, she says, would not necessarily involve the court
hearing any oral evidence and would last no more than a day, perhaps
only half a day.
The father's case
For his part, and as foreshadowed in his conversation with Ms Segal on
24 November 2008, Mr Glaser submits that the mother's application has
no reasonable prospect of success – there has, he says, been no material
change in the circumstances since the Hague court reached its decision on
19 June 2008 and there is no other conceivable basis for re-opening the
issue; that the application is an abuse of the process; and that it should
be summarily dismissed. In the latter connection he refers me to cases
such as Re B (Minors) (Contact) [1994] 2 FLR 1 and B v B (Unmeritorious
Applications) [1999] 1 FLR 505: see the discussion in the Family Court
Practice 2008 at pages 2090-1.
The mother's response to this is that she should not be denied the
opportunity to set out her case more fully, both in a witness statement
and in a more detailed skeleton argument.
The issue
In these circumstances the issue is whether, as Mr Glaser submits, I
should summarily dismiss the mother's application or whether, as Ms
Segal submits, I should treat it as requiring further investigation and give
appropriate directions accordingly.
The mother's case in detail
Ms Segal submits that the case falls within Article 15(3). H, she says,
has, within the meaning of Article 15(1) "a particular connection" with
the United Kingdom on each of the grounds set out in Articles 15(3)(b)-
(d): the United Kingdom was H's habitual residence from August 2003 to
July 2007 (albeit that, within the United Kingdom, his habitual residence
from August 2005 to July 2007 may have been in Scotland rather than
England); the United Kingdom is the place of H's nationality; and the
United Kingdom is now again the mother's habitual residence.
Moreover, she says, the English court would be "better placed to hear
the case" within the meaning of Article 15(1), given what she says is the
substantial connection that both parties have with the United Kingdom
(both sets of grandparents live in England), the fact that neither of the
parents speaks much Dutch and the fact that H speaks almost no Dutch,
and given also that the divorce and ancillary relief proceedings are now
taking place (by agreement of both parties) in the English court – so
that the present bifurcation of the proceedings means that the parties
are each having to instruct two different sets of lawyers and incur what
she suggests are unnecessary costs, including the cost of translators. In
this connection Ms Segal also sought to deploy a number of arguments
familiar from the forum (non) conveniens jurisprudence as to the relative
ease and difficulty of the parties litigating in the one jurisdiction or the
other.
Finally, Ms Segal says that it is, within the meaning of Article 15(1), "in
the best interests of the child" that the matter should proceed in the
English court rather than the Hague court.
So far as concerns the justification for re-visiting a decision already
taken by the Hague court, Ms Segal submits that there have been three
material and significant changes in the circumstances since the Hague
court reached its decision on 19 June 2008:
First, the mother returned to this country on 1 August 2008 and has since
re-acquired an English habitual residence.
Secondly, the father on 10 September 2008 conceded that the divorce
should proceed in this jurisdiction. Decree nisi was pronounced on
6 October 2008 and the ancillary relief proceedings are ongoing. In
her Form C1 issued on 24 October 2008 the mother asserts that the
continuation of the order made by the Hague court "was dependent on
the issue of divorce proceedings in the Netherlands."
Thirdly, H's circumstances, she says, have changed or are about to
change inasmuch as H's continuation at the American school is now, she
suggests, in doubt given what she reports is the father's unwillingness or
inability to fund the school fees (evidenced, she says, by directions he has
sought in the ancillary relief proceedings). The consequence, she fears,
is that if he remains in the Netherlands H will have to go to a Dutch (and
therefore Dutch-speaking) school.
The father's case in detail
Mr Glaser's starting point is that the mother's application under Article
15 was considered by the Hague court – the proper court to consider
the matter – and rejected following a hearing at which both parties
were represented. He points out that the Hague court is still seised of
the matter and that H remains habitually resident in the Netherlands
and attends school there. If, as the mother asserts, there have been
difficulties in relation to her contact with H, this is not, he says, a
justification for re-opening the Article 15 issue; on the contrary, any
difficulties should be considered by the Hague court as the court properly
seised of the issue.
So far as concerns the alleged changes in circumstances, Mr Glaser's
response to the mother's case is dismissive. He says that there has been
no change in circumstances, and certainly no change in circumstances
meriting any reconsideration of the Article 15 issue:
First, and so far as concerns the mother's relocation to this country, he
points out that this was a matter which the Hague court had very much in
mind when coming to its decision. Indeed, its decision sets out that "The
wife … intends to move back to England with effect from 1 August 2008."
And, as he points out, the Hague court based its decision primarily on the
fact that H was living, as he still does, in the Netherlands. So the mother's
change of habitual residence is not, he says, a relevant or substantive
change of circumstance.
Secondly, and so far as concerns the fact that the divorce and ancillary
relief proceedings are now ongoing in this country, he points out that, as
can be seen from the passage in its decision which I have already quoted,
the Hague court addressed its mind to the implications of the divorce
proceeding otherwise than in the Netherlands. So, he says, it is simply
wrong for the mother to assert that the continuation of the order made by
the Hague court "was dependent on the issue of divorce proceedings in
the Netherlands."
Thirdly, and so far as concerns H's education, he says that, even if what
the mother says is factually correct (and this is not accepted), the issue
is one properly to be ventilated in the Hague court – as the court still
seised with the proceedings relating to H – and not one which can justify
re-opening the Article 15 issue. After all, he says, a dispute about a
child's schooling does not of itself necessarily raise any issue about the
child's residence. Using English terms of art, an issue as to schooling is
usually resolved by a specific issue order, not by a residence order. In the
circumstances of this case, the resolution of any issue about H's schooling
is not of itself, he says, going to determine whether H continues to live in
the Netherlands with his father or in this country with his mother – and
even if this were to turn out to be critical in that connection that is not, of
itself, he says, any reason for taking away from the court currently seised
of jurisdiction in the matter – the Hague court – the responsibility of
determining the issue. And the mere existence of such a dispute cannot,
he says, justify re-opening the Article 15 issue, with which, in truth, it
has no meaningful connection. The key point is that H remains in and
habitually resident in the Netherlands. That fact gave the Hague court
jurisdiction in accordance with Article 8 and, to repeat, underpinned its
decision as recently as 19 June 2008 to refuse the mother's application
under Article 15.
Mr Glaser also comments that the mother chose to withdraw her original
residence application on 11 July 2008 – while the divorce proceedings
were on foot and after the Hague court had given its decision on 19
June 2008. Why, he asks rhetorically, did the mother not at that stage
make the application which she is now, belatedly, pursuing under
Article 15(2)(c)? In fact he goes further: he says that it is an abuse of
the process for the mother to seek to revive an application which she
withdrew as recently as July 2008. And, he says, the court cannot and
should not permit what are essentially the same proceedings to continue
simultaneously in two jurisdictions, least of all in the face of Article 17 of
Brussels II bis.
Finally, and for good measure, Mr Glaser submits that to accede to
the mother's approach would serve only to delay the litigation in
circumstances where there is, he suggests, little reason to think that
the Hague court would in fact come to any different decision on the
Article 15 issue. As he points out, if I go down the route which Ms Segal
invites me to travel, there will first have to be a hearing in this court
to determine whether it should accede to the mother's request that it
makes an application to the Hague court under Article 15(2)(c); there
will then, if that application is successful, have to be a further hearing
at which the Hague court will have to decide whether or not to accede
to the English court's request; and only then would this court, if the
Hague court decided to accede to its request, be able to give directions
with a view to the substantive hearing of the mother's applications for
residence or contact. Such delay, he says, cannot be in H's interests.
And, he asks rhetorically, all for what? With, as it seems to me, a degree
of understatement, Mr Glaser suggests that it is far from clear that the
Hague court would in fact accede to any request from this court; after all,
as he points out, H remains in the Netherlands and, as we have seen, the
main reason why the Hague court decided as it did on 19 June 2008 was
precisely that H "has his place of residence in the Netherlands."
Responding to Ms Segal's more general submissions that England is
the forum conveniens – an issue which, I emphasise, is not, as such,
before me – Mr Glaser identifies a number of reasons why, as he would
have it, the Netherlands remains the forum conveniens and why, in his
submission, the Hague court on a practical basis is far better suited
than this court to hear the proceedings. More pertinently, perhaps, he
speculates as to why it is that the mother wishes the proceedings in
relation to H to be heard here rather than in the Netherlands. Does she
consider the English court to be more favourable to mothers? Does she
consider that the Hague court has made a wrong decision (in which
case, as he points out, her remedy is to appeal)? Is it because if the
proceedings were in this country it would be easier for her? None of these
reasons, whatever their intrinsic merit, is of itself, he submits, a reason
for transfer, given the framework of Article 15.
In conclusion, he submits that for all these reasons I should dismiss the
mother's application here and now. It is, he says, bound to fail. And it
would, he says, be a waste of court time and the court's resources to
allow it to continue to a further hearing – with the attendant cost to both
parties.
Discussion
A number of things about Article 15 are quite clear.
In the first place, the only court which can make the substantive decision
under Article 15(1) is the court "having jurisdiction as to the substance
of the matter" – in this case the Hague court. That, as the Deputy Judge
observed in Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741 at para
[70], is crystal clear from the terms of Article 15 itself. It follows from
this that the role of the English court is limited. All it can do is make an
application to the Hague court under Article 15(2)(c). It is then for the
Hague court to decide whether or not to exercise its powers under Article
15(1). Save in respect of its limited powers under Article 48 (as to which
see Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741), the English court
will only be able to exercise substantive jurisdiction if either the Hague
court exercises its power under Article 15(1)(a) to invite the parties to put
the matter before the English court or it exercises its power under Article
15(1)(b) to refer the matter itself to the English court.
Secondly, as Article 15(1) makes clear there are three questions to be
considered by the court – here the Hague court – in deciding whether to
exercise its powers under Article 15(1):
First, it must determine whether the child has, within the meaning of
Article 15(3), "a particular connection" with the relevant other member
State – here, the United Kingdom. Given the various matters set out in
Article 15(3) as bearing on this question, this is, in essence, a simple
question of fact. For example, is the other Member State the former
habitual residence of the child (see Article 15(3)(b)) or the place of the
child's nationality (see Article 15(3)(c))?
Secondly, it must determine whether the court of that other Member State
"would be better placed to hear the case, or a specific part thereof". This
involves an exercise in evaluation, to be undertaken in the light of all the
circumstances of the particular case.
Thirdly, it must determine if a transfer to the other court "is in the best
interests of the child." This again involves an evaluation undertaken in the
light of all the circumstances of the particular child.
At the risk of repetition I emphasise that what I have described as the
process of evaluation under Article 15(1) is one that Brussels II bis
confides to the court having jurisdiction – here the Hague court – and not
to the other court. It is not for this court to evaluate in this context which
court is "better placed" to deal with the matter or what is "in the best
interests of the child" (or, indeed, to determine the factual issues arising
under Article 15(3)). Those are questions for the Hague court, not for this
court.
Given the use in Article 15(1) of the word "may" rather than the
mandatory "shall", the court must exercise its discretion in deciding
whether or not to direct a transfer. That said, the ambit of the discretion
is likely to be limited in most cases, for the court cannot direct a transfer
– see the use in Article 15(1) of the words "if" and "and" – unless all
three conditions are met while, on the other hand, since the discretion
is exercisable only if the court has satisfied itself both that the other
court is "better placed" to deal with the case than it is and that it is in the
best interests of the child to transfer the case, it is not easy to envisage
circumstances where, those two conditions having been met, it would
nonetheless be appropriate not to transfer the case.
It is, as it seems to me, against this background that one has to consider
the circumstances in which the court of another Member State – here
the English court – can properly exercise its power under Article 15(2)
(c) to make an application to the court – here the Hague court – having
jurisdiction (the topic which was considered in Re S-R (Jurisdiction:
Contact) [2008] 2 FLR 1741). More particularly, it is against this
background that one has to consider the circumstances in which, in a
case such as this, the court of another Member State – here the English
court – can properly exercise its power under Article 15(2)(c) to make
an application to the court – here the Hague court – having jurisdiction
where, as here, the court with jurisdiction has already addressed the
Article 15 issue, albeit, as here, on an application made by one of the
parties under Article 15(2)(a) (a topic which was not considered in Re S-R
(Jurisdiction: Contact) [2008] 2 FLR 1741).
Ms Segal submits that there is nothing in Article 15 to prevent the English
court acting under Article 15(2)(c), nor to prevent the Hague court again
considering the matter under Article 15(1), merely because the Hague
court has already considered the earlier application made by the mother
under Article 15(2)(a). I agree with this as an abstract proposition, whilst
emphasising that the circumstances in which it would be proper for the
English court to take this step in a case where the foreign court has
already ruled on the Article 15 issue are likely to be very few and far
between.
As Mr Glaser rightly says, although res judicata does not strictly apply
in proceedings relating to children, the parties cannot re-litigate issues
at will. I agree. In particular, I do not think that the English court can
properly exercise its powers under Article 15(2)(c) in a case where the
foreign court has already considered the issue under Article 15 unless
good cause – very good cause – is shown for taking what will, almost
inevitably, be an unusual and often exceptional step.
The mere fact that the English court may disagree with the decision of
the foreign court, the mere fact that, had roles been reversed, the English
court might or even would have reached a different decision, surely
cannot be enough. After all, as I have pointed out, Article 15 confers the
power to make the substantive decision under Article 15(1) on the court
"having jurisdiction as to the substance of the matter" – in this case the
Hague court – and the other court – here the English court – must not
arrogate to itself a function properly within the exclusive jurisdiction of
the foreign court. On the contrary, the duty of the English court under the
scheme of Brussels II bis is loyally to follow the ruling of the foreign court
and not to assert jurisdiction when jurisdiction is vested in the foreign
court: see Article 17.
I need not consider what other circumstances might justify an application
such as that being made here, for in the present case Ms Segal has firmly
nailed her colours to the mast in making clear that it is alleged changes in
the circumstances that, alone, she relies upon as justifying the mother's
application.
The question thus reduces itself to this: what changes of circumstance
are, in principle, capable of justifying what, as I have said, will, almost
inevitably, be an unusual and often exceptional step?
In my judgment, proper regard for the requirements of Brussels II bis and
a proper adherence to the essential philosophy underlying it, requires that
the test to be met is a stringent one. After all, too ready a willingness on
the part of the court to accede to an application such as the one currently
before me can only be destructive of the system enshrined in Brussels II
bis and lead to the protracted and costly battles over jurisdiction which it
is the very purpose of Brussels II bis to avoid.
It is not, in my judgment, enough to demonstrate that the changed
circumstances might persuade the foreign court to relinquish jurisdiction
under Article 15. What has to be shown, as it seems to me, is that the
circumstances now are such as so entirely to change the aspect of the
case as to make it highly probable that the court seised of the case will,
despite having already refused an application under Article 15, now come
to a different decision and relinquish the case to the court which has
made the request under Article 15(2)(c). In my judgment it must be
shown that the change in circumstances is likely to be decisive.
I return to the mother's application.
In my judgment, and despite everything put so clearly and cogently
before me by Ms Segal, the contrary case put by Mr Glaser is really
unanswerable. In relation to two of the alleged changes in circumstances
he has demonstrated convincingly, and by reference to the Hague court's
own reasoning, that they are no such thing. And in relation to the third
matter – the alleged change in H's circumstances – he has provided
convincing arguments, with which I agree, as to why, even if the mother
is correct, these are matters to be ventilated before the Hague court,
as the court seised of the proceedings, and not matters which justify
re-visiting Article 15. In substance I agree with and accept Mr Glaser's
arguments.
In my judgment, and even putting the mother's case at its highest, it falls
far short of meeting the stringent test which she must meet if she is to
justify this court requesting the Hague court to re-visit its decision under
Article 15. The changes in the circumstances upon which she relies come
nowhere near entirely changing the aspect of the case, and the prospect
that the Hague court, if requested to reconsider the matter by this court,
would come to any decision different from that which it reached on 19
June 2008 is, in my judgment, small – very small. So the mother fails by
a large margin to satisfy the relevant test. I go further. Even if it were
enough for the mother to establish that she has a reasonable prospect of
persuading the Hague court to that course – and that, I repeat, is not the
test – she would not, in my judgment, be able to meet even that much
less stringent test.
The remaining question is whether I am justified in the circumstances in
dismissing the mother's application summarily. In my judgment I am, and
the mother will suffer no injustice if I do.
Ms Segal very fairly accepts that she was on notice that Mr Glaser would
be seeking summary dismissal. The parties were not, in the event,
confined to the 30 minutes envisaged by the District Judge and Ms
Segal had, I am satisfied, more than adequate time to elaborate her
submissions. The fact is that the argument on both sides was, to all
intents and purposes, just as detailed as it would have been if I had
adjourned matters for the further hearing envisaged by Ms Segal. And Ms
Segal was not able to suggest that, were the mother given an opportunity
to file evidence, she would be in a position to canvass, except perhaps
in slightly more detail, any matters going beyond those which she has
in fact put before me. There was, for example, no suggestion that the
opportunity to file evidence would lead to the identification of any other
changes in circumstances then those relied upon by Ms Segal.
What purpose would thus have been served by adjourning the matter? In
my judgment, none. This is not a case in which Ms Segal's submissions
disclosed matters, whether of fact or of law, which required further
exploration or which suggested that the mother, if given more time, would
be able to mount a more compelling case. On the contrary, I am satisfied
that Ms Segal was able to say everything of substance that the mother,
even if given more time, would have been able to say at an adjourned
hearing.
The simple fact, in my judgment, is that the mother's application,
attractively though it was put by Ms Segal, is devoid of any arguable
merit sufficient to justify adjourning the matter for a further hearing on
evidence. It is properly a case where the court can exercise its powers
of summary dismissal. It is a case where the court should exercise that
power, for otherwise the court would, in my judgment, be failing in its
duty under Brussels II bis. A certain robustness of approach is called for
in cases such as this if the court is to avoid becoming complicit in the
subverting – whether intentional or otherwise – of the Brussels II bis
regime.
Conclusion
For all these reasons I agree with Mr Glaser that the mother's application
should be summarily dismissed. And it would seem to follow from this
that I should not merely dismiss the mother's "preliminary application"
but also dismiss or at least stay her substantive applications for residence
or contact: see Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741 at para
[72]. These are all matters which, until the Hague court determines
otherwise (and I am not to be taken as suggesting or even hinting that it
should), are properly matters for determination by the Hague court and
not by this court.
I will ask counsel to draft an appropriate order.