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A v B (jurisdiction - Brussels II) [2016] EWHC 2982 (Fam)

Short judgment of Keehan J interpreting the provisions of the court’s residual jurisdiction to hear a Children Act application under s.2(1)(b) of the Family Law Act 1986.

Background
The court was concerned with the welfare of the child of the parties, C, aged 2. The mother was a British national. The father was a dual Spanish/British national. C was born in Dubai and remained there, as did both of the parents. She had never been habitually resident in this jurisdiction.

The father issued a divorce petition in this jurisdiction in May 2016 on the basis of domicile. He told the court he had done so in order to achieve finality, having been advised that the mother would likely have a claim under Part III of the MFPA 1984 after any proceedings in Dubai.

Shortly after acknowledging service of the divorce petition, the mother issued an application in the English court under the Children Act 1989, in the main seeking an order that C would live with her in this jurisdiction. The father opposed the application and argued that the court did not have jurisdiction to entertain it.

Judgment
It had originally been submitted on behalf of the mother that the court had jurisdiction on the basis of either the provisions of article 12(1) or (3) of Brussels II Revised (i.e. those relating to prorogation of jurisdiction). However, noting that the father did not and had not expressly accepted the English court's jurisdiction, it was plain that those provisions could not apply.

Therefore, the only argument remaining open to the mother was to argue the court should consider the residual jurisdiction provided by s.2(1)(b) and 2A of the Family Law Act 1986. The judge set out the provisions of those sections, the important words being that s.2(1)(b) would only operate where, "neither the Council Regulation nor the Hague Convention applies".

On behalf of the mother it was argued that these words should be interpreted to mean: where the court does not have jurisdiction under Brussels II Revised or the Hague Convention, then the residual provisions could be considered. Mr Justice Keehan disagreed; that was not the wording of the Act. The word was "applies". It was accepted by both parties that Brussels II revised did 'apply', but unfortunately for the mother it did not apply such as to give the court jurisdiction. Therefore, finding support for his conclusion in the speech of Baroness Hale in Re I [2009] UKSC 10 (at para. 14-15), the judge did not have jurisdiction to consider the mother's application.

Summary by Thomas Dance, barrister, 1 King's Bench Walk
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Neutral Citation Number: [2016] EWHC 2982 (Fam)
Case No: ZC16P00875

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/08/2016


Before :

The Honourable Mr Justice Keehan

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Between :

A
 Applicant
- and - 
B Respondent
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Ms K. Tompkins (instructed by James Berry & Associates) for the Applicant
Ms R. Amiraftabi
(instructed by Expatriate Law) for the Respondent

Hearing dates: 16 August 2016
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Judgment Approved
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mr Justice Keehan:
1. In this matter, I am concerned with one child, 'C', who was born on 2nd December 2014.  She is the daughter of the applicant mother, 'A' and the respondent father, 'B'.  The mother made an application for a s.8 order in this jurisdiction on 12th July 2016.  Prior to that, the father had issued a divorce petition in this jurisdiction on 26th May of this year to which the mother served an acknowledgement of service on 18th July.

2. An issue arises as to whether this court has jurisdiction to entertain the s.8 application in respect of the child.  It had originally been submitted on behalf of the mother that the court had jurisdiction on the basis of either the provisions of art.12(1) of Brussels II Revised or of art.12(3).

3. At the start of the hearing this morning, Miss Tompkins on behalf of the mother quite rightly conceded that in the absence of clear evidence of the father's consent to the jurisdiction of the court, the provisions of art.12, be it art.12(1) or 12(3), did not apply and jurisdiction could not be founded under those provisions.  It is therefore submitted on behalf of the mother that the court may then have taken into account and consider the residual jurisdiction provided by s.2(1)(b) and 2A of the Family Law Act 1986.  That is resisted on behalf of the father who in terms submits that since the provisions of Brussels II Revised apply to the mother's application for a s.8 order, the court is not entitled to then go on to consider issues of residual jurisdiction as provided by s.2(1)(b) and 2A of the 1986 Act.

4. The mother is a British national and father holds dual Spanish and British nationality.  C was born in Dubai where both the parents have been working.  She has lived the whole of her life in Dubai.  She has never been habitually resident in this jurisdiction.  That is the part and parcel of the mother's s.8 application that she seeks for C to come and live with her in this jurisdiction.  That is resisted by the father.

5. It was explained on behalf of the father that the reason why he issued the divorce proceedings in this jurisdiction is because he wanted finality in relation to matters of financial relief between the two parents.  If he had issued divorce proceedings in Dubai, it would have been open to the mother to make a part 3 application for a consideration of financial remedies in this jurisdiction.  I therefore understand and accept why the father sought to issue divorce proceedings in this jurisdiction and the jurisdictional basis was that both parents are domiciled in this jurisdiction.

6. The principal provision that I need to consider is the wording of s.2(1) which reads as follows:

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

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

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

(i)  the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or 
  
(ii)  the condition in section 3 of this Act is satisfied".

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

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

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

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

9. I note that Baroness Hale in the case of Re I [2009] UKSC10 at para.14 and 15, said this:

"The 'Council Regulation' is Brussels II Revised.  The s.1(1)(a) order includes a 'section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order'.  Section 2A need not concern us as there are no ... matrimonial proceedings between the parties, nor were any orders made in connection with them.  Section 3 gives jurisdiction on the basis that the child is either habitually resident in England and Wales on the date of the application or (if there was no application) of the order, or was present here on that date and not habitually resident in another part of the United Kingdom. 

It will be noted that, if Brussels II Revised applies, it governs the situation.  If some other EU country (excluding Denmark for this purpose) has jurisdiction under the Regulation, then this country does not.  But if Brussels II Revised applies and gives this country jurisdiction, it will give jurisdiction even though the residual jurisdictional rules contained in the 1986 Act would not.  Only if Brussels II Revised does not apply at all will the residual rules in the 1986 Act come into play".

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