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International Children Law Update: August 2012

Jacqueline Renton of 4 Paper Buildings, reviews the latest key decisions in international children law.

Jacqueline Renton, Barrister, 4 Paper Buildings

In this review, I shall focus on the following areas:-

1) Hague Convention 1980 proceedings

(a) Article 13(a) consent;
(b) Article 13(b) harm – In the matter of Re S.

2) The international dimension of care proceedings;

3) Jurisdiction in the context of Brussels II Revised Regulation 2003;

4) Jurisdiction outside of Brussels II Revised Regulation 2003.

1) Hague Convention 1980 proceedings
(a) Article 13(a) consent
In A v T [2011] EWHC 3882 (Fam), Mr Justice Baker refused to order the return of two children (aged 4 ½ and 2) to Sweden. The Respondent Mother removed the children to England in June 2011 with the consent of F for a temporary period of time. At the end of July 2011, the Mother decided she wanted to remain in England with the children on a permanent basis. The Applicant Father sought the return of the children to Sweden under Hague Convention 1980 / Brussels II Revised Regulation 2003 on the basis that he had not agreed to the children remaining permanently in England when the M left with the children in June 2011. The Mother defended the proceedings on the basis of an article 13(a) consent and article 13(a) acquiescence defence.

Mr Justice Baker concluded that:

• The Father had given his clear and unequivocal consent to permanent removal of the children in 2006 – the parties had entered into an agreement (effectively a pre-nuptial agreement) which stated that if the parties had children, the Father would not oppose the Mother leaving Sweden with the children on a permanent (or temporary) basis. This consent had never been withdraw and had been reaffirmed on a number of occasions. Even though the Father had only consented to a temporary removal of the children in June 2011, the Mother could still rely on the Father's earlier consents which were consents to the Mother removing the children permanently to England.

• Mr Justice Baker did not accept that in every case where there is a consensual, temporary removal such a removal automatically suspends an earlier consent to a permanent removal. Re L (Abduction (Future Consent) [2008] 1 FLR 914 and Re P-J (Abduction) [2009] 2 FLR 1051 were considered.

• The Father had not acquiesced in the children's retention – there was clear documentary evidence to indicate that the Father was not accepting the children's retention in England.

• The discretion should be exercised in favour of a non-return. In considering the issue of discretion, the Learned Judge had particular regard to the parties' agreement, despite this being a case of 'hot pursuit' involving young children who were Swedish nationals.

(b) Article 13(b) harm
The Supreme Court decision of In the matter of S (A Child) [2012] UKSC 10 is the key decision (together with Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 on the English court's interpretation of the article 13(b) harm defence in Hague Convention 1980 proceedings.

The case concerns a child (aged 2) who was born in Australia. The Respondent Mother removed the child to this jurisdiction without the Applicant Father's consent. The Father sought the return of the child to Australia under the Hague Convention 1980. The Mother defended the proceedings on the basis of an article 13(b) harm defence - she made allegations against the Father of drugs and alcohol misuse.

Mr Justice Charles held at first instance (and this was not interfered with at any appellate level) that a number of the Mother's serious allegations were either admitted by the Father or could not sensible be denied; there was a prima facia case that the Mother was victim of serious abuse at the hands of the Father. The Mother had obtained an Apprehended Violence Order (the equivalent of a non-molestation order in English law) from the Australian court before removing the child to England.

The Mother produced evidence from her Australian GP (whom she saw before removing the child) which stated that her depression would easily recur in a stressful situation and that her health would suffer greatly if she was required to return to Australia. She also produced evidence from her Australian psychologist (who she saw for extensive psychotherapy before removing the child) who stated that if she returned to Australia her fear of the Father's mental state and impulsive actions, together with the stress of isolation in Australia from her family, would be likely to cause clinical depression which could then diminish her secure attachment to her child. Further, she would be in a constant state of hyper vigilance which would trigger her anxiety due to the Father's impulsive and dangerous behaviour. A jointly instructed psychologist (Dr Kampers) was appointed in the Hague proceedings who concluded that the Mother had a history of anxiety and depression, and that if she was returned to Australia it would be likely to create a significant and severe psychiatric and psychological impact on the Mother. The Mother would suffer from further acute stress and post-traumatic stress as she would come into contact with the Father who was her source of stress. Regarding protective measures if a return were to be ordered, Dr Kampers stated that this would include treatment for the Father, but her evidence could have been clearer on the protective measures that would have been put in place if a return was ordered.

The Supreme Court allowed the Mother's appeal (thus reinstating the decision of Mr Justice Charles at first instance), and thus refused to order the return of the child to Australia. The Supreme Court made clear that:

• A Respondent's (abducting parent's) anxieties about a return could be subjective, albeit that a court will look very critically at an assertion of intense anxieties not based upon objective risk. It does not matter whether the Respondent's subjective anxiety is reasonable or not, albeit the extent to which there will be good cause for the Respondent to be anxious on an objective basis will be relevant to the court's assessment of the Respondent's mental health if a return is ordered. In this case, the Court of Appeal was wrong to conclude that Charles J's assessment of M's defence was merely based on her subjective perception of risk, when in fact her anxiety was based on objective reality.

• Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758– delivered only 9 months before by the Supreme Court - was not a "restatement of the law" in respect of the law surrounding an article 13(b) harm defence, but was "primarily an exercise in the removal from it of disfiguring excrescence."

• The recent case from the European court of Human Rights – X v Latvia (Application No.27853/09) does not change the way in which the English court should approach article 13(b) defences. This reiterates the point made by the Supreme Court in Re E [2011] about the European Court of Human Rights case of Neulinger and Shuruk v Switzerland (Application no. 41615/07).  Readers should note that X v Latvia has now been appealed to the Grand Chamber of the European Court of Human Rights.

2) The International Dimension of Care Proceedings
In HSE Ireland v SF (A Minor) [2012] EWHC 1640 (Fam), the Health Service Executive (HSE) in Ireland (the statutory body responsible for taking children into care in the Republic of Ireland) applied to the Irish courts for an order permitting SF's detention in a special care unit. However, an appropriate unit for SF could not be found in Ireland but was found in England. The Irish High Court ordered that SF be placed into the appropriate unit in England, with regular reviews in the Irish court. HSE applied for recognition and enforcement of the order in the English High Court and, pending the making of such orders, the placement of SF in the unit under article 20 of BIIR. The HSE made it clear that article 20 of BIIR should be utilised as this was an urgent application.

Mr Justice Baker held that:

• An Interim order that placed SF into unit in England could be made under article 20 of BIIR pending recognition and enforcement of Irish High Court order under BIIR. The ECJ case law regarding article 20 of BIIR was reviewed and applied – Re A (Area of Freedom, Security and Justice) (C-523/07) [2009] and Deticek v Sgueglia (C-403/09)

• A placement which promotes the welfare of a child should not be postponed until the completion of the recognition and enforcement process under BIIR (procedure to be followed for recognition and enforcement is under FPR Part 31).

• The ECJ's remarks in HSE for Ireland v SC were a clear implicit approval of the use of article 20 of BIIR in cases such as this. In HSE for Ireland v SC (C-92/12 PPU) (26th April 2012), Chapter III and article 56 of BIIR were considered. A PPU referral was made to ECJ in respect of various issues. The ECJ made clear that a judgment which provides for the detention of a child for a specified person in a member state in an institution providing therapeutic and educational care falls within the scope of BIIR (this was the type of unit to which SF and SC would attend). Further, the ECJ made clear that a declaration of enforceability in respect of such a placement should be processed expeditiously and appeals against any such placement decision should not have a suspensive effect. In passing, the ECJ also referred to the fact that article 20 of BIIR could be used pending the completion of the recognition and enforcement process.

• Consideration will need to be given to amending Part 31 of FPR 2012 in light of HSE for Ireland v SC. Until this is done, article 20 should be used.

AB (A Child) [2012] EWCA Civ 978 was a case concerning a child who was the subject of care proceedings. The child's Mother was Lithuania but had been living lawfully in England since 2010. The Local Authority in England obtained an EPO in respect of the child as a result of receiving a concerned communication from the Lithuanian authority responsible for child welfare. Since the time of the EPO, the child remained in foster care. The county court judge transferred the case to the High court as it was believed that the Lithuanian authorities might seek the child's return to Lithuanian for placement. Mr Justice Hedley remitted the case back to the county court on the following basis:

• International care cases of this kind are becoming increasingly common.

• The Lithuanian government has been actively involved in these proceedings and are content for this court to determine whether or not the child can be returned to the Mother. If the child is not to be returned to the Mother, then they wish for the child to be placed with someone in Lithuania. The Lithuanian authorities are entitled to place the child in Lithuania under article 56 of Brussels II Revised Regulation 2003. The English authorities do not have an obligation to make enquiries into the provisions / arrangements to be made by the Lithuanian authorities as there is mutual respect between countries. The English authorities should accept the assertion that the Lithuanian authorities can place the child, unless there is manifestly evidence to the contrary. Such comity is seen, by way of comparison, in article 11(4) of Brussels II Revised Regulation 2003.

• The Mother's request for her Mother to be assessed should be transferred to the Lithuanian authorities.

• If an article 56 request is not made, then normal enquiries about placements will be made in England.

The Court of Appeal then considered the case, in particular the application of article 56(1) and 56(2) of Brussels II Revised Regulation 2003, and made clear that:

• Articles 56(1) and 56(2) do not give a member state an entitlement to call for the placement of a child within its jurisdiction Nor do they eliminate / obstruct the domestic courts' ordinary obligation to make its own judgement of where the child's best interests lie. The sole purpose and effect of articles 56(1) and 56(2) are to require a court which is considering placing a child in institutional / foster care in another member state to consult any authority responsible for child placements in that member state and to not then decide on any such placement without the authority's consent. In short, it is to prevent the child being sent into a transnational void.

• The meaning of article 56(2) is explained in the ECJ case of Health Service Executive v SC and AC (C-92 / 12 PPU, 26 April 2012).

3) Jurisdiction in the context of Brussels II Revised Regulation 2003
In SJ v JJ [2012] EWHC 931 (Fam), Mr Justice Baker considered the second and final part of the Father's application for the return of his child to Poland, pursuant to articles 11(6)-(8) of Brussels II Revised Regulation 2003. The full background to the case can be found in Mr Justice Baker's earlier judgment given in September 2011 – see SJ and another vv JJ and another [2011] EWHC 3450 (Fam). In brief, the child was born in England. The Father was from Kazakhstan and the Respondent Mother was Polish. The Mother retained the child in Poland after a court ordered a holiday in Poland without the Father's consent. The Father obtained an order for the child to be returned from the English court in wardship proceedings (an Annex II certificate under Brussels II Revised Regulation 2003 was attached to the order.) The Father then sought return of child to England under Hague Convention 1980 / Brussels II Revised Regulation 2003. The Polish Court at first instance ordered the child's return and rejected the Mother's article 13(b) harm defence under the Hague Convention 1980. However, on appeal the return order was overturned on the basis that the Mother's article 13(b) harm defence had been established. The Father then applied under articles 11 (6)-(8) of Brussels II Revised Regulation 2003 (Mr Justice Baker in fact determined that the jurisdictional foundation of the Father's application was in fact article 10 of Brussels II Revised Regulation 2003) for the return of the child in the English High Court. In the earlier judgment, Mr Justice Baker refused to order the return of the child (aged 2 at this time) to England. However, Mr Justice Baker determined that it was not appropriate for a final order relating to custody to be made at that stage – he wanted to be satisfied that contact between the Father and child would take place, and would be supported by the Mother before a final order was made. By the time of this hearing in March 2012 (6 months since the earlier hearing), contact had taken place in Poland but not in England. Both parents blamed each other for the contact not taking place in England. The Guardian recommended that the proceedings were further adjourned with contact in England being ordered in the interim. The Father supported the Guardian's recommendation. The Mother opposed the Guardian's recommendation and sought a final order at this stage.

Mr Justice Baker held that:

• The Guardian's recommendation should be rejected. Accordingly, a final custody order was made in favour of the Mother with the meaning of article 10(b)(iv) of Brussels II Revised Regulation 2003. A final access / contact order was made in respect of the Father's contact with the child.

• Any future issues of welfare would have to be determined in the Polish court, on the basis that the child was habitually resident in Poland, pursuant to article 8 of Brussels II Revised Regulation 2003 and both parents had not opted to prorogue the English jurisdiction, pursuant to article 12(3) of Brussels II Revised Regulation 2003.

LSdC (A Child) [2012] EWHC 983 (Fam) is a decision of Mrs Justice Macur in respect of an application by a Father for the registration, recognition and enforcement of a Portuguese court order, pursuant to Brussels II Revised Regulation 2003, and consequent orders for the stay of proceedings in England on the basis that enforcement is granted and the Portuguese court retains a substantive welfare jurisdiction over the child. The Father sought primarily to enforce the contact order, pursuant to article 41 of Brussels II Revised Regulation 2003, an Annex III certificate having been issued by the Portuguese court. In the alternative, the Father sought to enforce the contact order, pursuant to articles 21 – 39 of Brussels II Revised Regulation 2003, an Annex II certificate having been issued at a later date than the Annex III certificate by the Portuguese court.

The Mother resisted enforcement on the basis of articles 23(a), (d) and (e) and stated that the correct enforcement procedure in any event was under articles 21 – 39 of Brussels II Revised Regulation 2003.

The Portuguese court order provided for the parents to have equal shared care of the child, the child to rotate every 2 months between England and Portugal until the child's third birthday.

By way of background, the parties met and formed a relationship in England Their relationship was turbulent. The Father then decided to return to Portugal to reside and work. Before the Father returned to Portugal, the parents spoke of reconciliation on or about 5th July 2011 following a period of separation. After many discussions, the Mother agreed to accompany the Father to Portugal with the child. The parents and child lived in Portugal for about 6 months. Mrs Justice Macur found that when the Mother agreed to accompany him back to Portugal with the child, it was intended that she would establish for herself and the child a home in Portugal with the Father. This was not intended to be a return to Portugal for a trial visit (as had been stated by the Mother.) By November 2011, the Mother clearly wished to return to England with the child. A distressing scene took place at the airport and the child was not permitted to leave Portugal. The Mother then returned to the family home and the maternal grand-mother called the British Embassy. The Commission for the protection of Child and Juveniles ("CPCJ") also became involved. The maternal grandfather flew to Portugal to support the Mother and he, together with the paternal grandfather was involved in subsequent meetings with the parents and CPCJ. The outcome of the meetings was the shared care arrangement outlined above. Mrs Justice Macur held that the Mother understood the proposals and agreed to the division of care set out in the agreement; she was not coerced into the agreement. 

The agreement was then embodied into a court order. Mrs Justice Macur did not take issue with this procedure (save in so far as she felt an Annex III certificate should not have been issued.)

Mrs Justice Macur found that the Mother was not capable at the time that she entered the arrangement to have already formulated in her mind an intention to breach the agreement. However, at the same time, the Mother was very 'down' in Portugal and was prescribed anti-anxiety drugs. The Father and paternal grandmother sought medical attention for the Mother.

On 18th December 2011, the Mother and child returned to England. This was a lawful removal, in accordance with the agreement that had been made and then ratified by the Portuguese court. The Learned Judge stated that this was a return to the child's and Mother's previous state of habitual residence.

On 7th February 2012, the Mother applied to the English court to vary the agreement. The Learned Judge found that the Mother had not intended to make this application before leaving Portugal. The Father then cross-applied for registration, recognition and enforcement of the Portuguese court.

Mrs Justice Macur held that:

• The Father could not seek to enforce the order, pursuant to article 41 of Brussels II Revised Regulation 2003. The judgment of the Portuguese court is not a judgment on rights of access, but a judgment in respect of parental responsibility. Accordingly, the Father can only seek to enforce the order pursuant to articles 21 – 39 of Brussels II Revised Regulation 2003. With regard to the Father's enforcement application pursuant to articles 21 – 39 of Brussels II Revised Regulation 2003, the Learned Judge held as follows:-

• The Mother's ground of recognition under article 23(a) was dismissed. Whilst the Learned Judge considered that she would not have made the agreement at first instance as she would not have considered it to be in the child's best interests to become a shuttlecock during his early and crucial age of emotional development, it cannot be said that the order is "manifestly contrary to public policy" taking into account the best interests of the child. The test to be applied under article 23(a) is set out in Re S (Brussels II: Best Interests of Child) (No.1) [2004] 1 FLR 571. Further, the definition of "public policy" encompasses fundamental rights guaranteed by the European Charter of Human Rights and The Charter of Fundamental Rights of the European Union. These principles do not impact on recognition and enforcement cases under BIIR.

• The Mother's ground of recognition under article 23(d) was also dismissed. The Mother was given "an opportunity to be heard" despite the linguistic difficulties she encountered within the Portuguese system.

• It was observed in passing that the child was not given an opportunity to be heard in Portugal, in violation of the fundamental principles of procedure in this jurisdiction. Too much emphasis was placed on the adults' consensus. If the Mother did appear to be a negligent mother' – as had been suggested by CPCJ – then a shared care arrangement could not be said to be in the child's best interests. This feature in of itself is sufficient to establish a ground of non-recognition under article 23(a).

• The child was habitually resident when the Portuguese order was made. The Portuguese courts were also seised under article 12(3) of Brussels II Revised Regulation 2003. The proceedings in Portugal have been concluded – there is no continuing jurisdiction in Portugal.

• The effect of the agreement seems to have been that the parents agreed to the child's habitual residence constantly shifting between England and Portugal. There is nothing in the Portuguese order that states (or even suggests) that the Portuguese court should retain a substantive welfare jurisdiction over the child.

• The English court has jurisdiction to deal with the Mother's applications at least by virtue of article 13 of Brussels II Revised Regulation 2003 (presence jurisdiction). It is in the child's best interests prima facie for the proceedings to be concluded in England.

• In the alternative to the English court having jurisdiction under article 13, an article 15 transfer application should be made to the Portuguese court The child has a particular connection with England.

Accordingly, the stay of the Mother's residence order application is to be lifted, from such time as to the Father may enter a notice of permission to appeal or concision of an appeal if permission is granted, whichever is the later. Pending an appeal, and pursuant to article 20 of Brussels II Revised Regulation 2003, the Portuguese order was stayed and the Father was prevented from removing the child from England until further order of the court (save for agreed contact.)

This case has now been appealed and the Mother lost on appeal. Full analysis of the appeal judgment will be posted in the next update.

In VC v GC [2012] EWHC 1246 (Fam), Mrs Justice Eleanor King considered an application by a Father for the stay of an application by the Mother for a residence order in respect of their child. The Father's stay application was based upon his contention that the appropriate jurisdiction to determine welfare issues in respect of the child was France not England.

The facts were that the parties met whilst on holiday in France in 1999. They lived together in England before moving to France until June 2011. The child was born in France on 15th October 2004. The Mother and child came to England on 14th June 2009 – this move was lawful as it was with the consent of the Father albeit the Father stated that it was only intended that the child would spend one academic year in England to become bilingual. The agreement had come into effect as a result of the maternal grandmother being diagnosed with cancer. By December 2009, the Mother had decided she intended to stay in England permanently with the child. The Mother and child visited the Father in France during Christmas for 1 week and retuned thereafter to England. The Father then came to visit the Mother and child in England for 1 week in Easter 2010. The child then went for a visit in Summer 2012 to France. At the end of summer 2010 (August), the Father retuned to England to be with the Mother. The Father was clear that this was a permanent move; he knew that the Mother did not want to return to France. In Christmas 2010, the parties and child went on a visit to France. The marriage broke down in April 2011. On 28th April 2011, the Father filed for Divorce in the French court. The Mother was then summoned to a hearing on 19th July 2011 in France. In the Father's petition, he stated that the parties had been separated since June 2009 and did not record that the child was living with the Mother in England. The Father requested that the child reside with him, with contact to the Mother. In April 2011, the child spent 2 weeks in France with the father and the Father then returned the child to England. From that time up to the time of these proceedings, the child remained in England. As of 28th April 2011, the child had lived in England since June 2009, some 22 months, all with the agreement of the Father. On 16th June 2011, the Mother sought an adjournment of the French proceedings and on 23rd June 2011 she filed an application for a Residence Order. On 24th June 2011, the Mother was granted a Residence Order in respect of the child. On 7th July 2011, the Father made clear that he contested the English court's jurisdiction. The directions hearing in England on 15th July 2011 was then adjourned and a pathways appointment was vacated. On 19th July 2011, the French proceedings were listed for a conciliation appointment – the Mother did not engage with these proceedings.

The Father then filed an application contesting jurisdiction in the English court and on that date an interim Residence Order was granted to the Mother. On 28th July 2011, a further pathways appointment was listed and a further hearing was conducted in France. The French judge made a decision of 'non-conciliation and ordered that the child reside with the Father (the equivalent of an Interim Residence Order.) The court did not accede to the Mother's adjournment application. The Father informed the French court that the child had always lived in France. On 5th October 2011, the English court listed another hearing on 24th October 2011. On 14th October 2011, the French High Court heard the Mother's appeal against the residence order and that appeal was dismissed. On 24th October 2011, these proceedings were transferred to the High Court. On 26th October 2011, Mr Justice Moylan gave directions, and there were then two further directions hearings.

At the start of the final hearing before Mrs Justice Eleanor King, the Father conceded that the child was habitually resident in England. However, he stated that the court should nonetheless apply the exception to be found within article 12(1b) and accordingly stay the proceedings so that the French court could resume its welfare jurisdiction. Article 12(1b) states that where there is an application for divorce / legal separation / marriage annulment the courts dealing with that application shall have jurisdiction in relation to matters of parental responsibility if that jurisdiction has been expressly accepted in an unequivocal manner by the parents / spouses / holders of parental responsibility at the time the court is seised, and it is in the superior interests of the child for the court to be seised.

Mrs Justice Eleanor King concluded that:

• The starting point is that the court of habitual residence is best suited to determine issues of parental responsibility. This is clear from recital 12 of Brussels II Revised Regulation 2003 – one of the reasons for this presumption is proximity.

• The acceptance of the French court has to be unequivocal – the Mother did not unequivocally accept the French jurisdiction. She started proceedings in England, seeking a residence order to ensure that the child returned to her for summer contact. The Mother's appeal was not a jurisdictional prorogation. The Learned Judge, in coming to this decision, considered the law on article 12 prorogation – see Re I (A Child) (Contact Applications – Jurisdiction) [2009]  UKSC 10 (the Supreme Court did not decide on the interpretation of "at the time the court is seised" under article 12(3b) and article 12(1b)) and Butt v Butt [2010] EWHC 1989).

• Even if the court was wrong about jurisdictional prorogation / acceptance of the jurisdiction by the Mother, the best interests of the child would be met by a welfare hearing being conducted in England. The child had lived in England since 2009. She attends an English school and lives with the maternal extended family. Enquires could most easily be made in England regarding the child's welfare and circumstances. The Father's concerns about the child's home can most easily be inveighed by CAFCAS in England, rather than long distance from France.

The case of Re C [2012] EWHC 907 (Fam) were proceedings involving a child (aged 8). The Father sought the return of child to Belgium under Hague Convention 1980 / Brussels II Revised Regulation 2003. Mr Justice Hedley refused to order the return of the child on the basis that the Father had consented (article 13(a) consent defence established.) At the conclusion of the proceedings, the Learned Judge made a declaration that the child was habitually resident in England. The Father then made an application to the English court for residence. A section 7 report was then ordered to be prepared by the Local Authority who concluded that care proceedings should be issued. The child then went to live with maternal grandparents. The Father agreed to the placement with maternal grandparents. The Father then started proceedings in Belgium against the decision of the Learned Judge in the Hague proceedings. Mr Justice Hedley then made an ICO, refused the Father's application to withdraw his residence application and reaffirmed his habitual residence declaration. The Belgium court in Mons then made a determination – namely, that it had jurisdiction to deal with matters regarding the child, that custody should be given to the Father and that the child should be returned immediately to the Father in Belgium. The Belgium court was critical of the Learned Judge's finding that the Father had given his consent to a permanent removal of the child to England.

The issue before Mr Justice Moylan was how to respond to the Belgium court's decision. Mr Justice Moylan approached the case as follows:

• He made a provisional judgment and sent that to the Liaison Network Judge in Belgium in the hope that dialogue could commence between the 2 judges to resolve the jurisdictional conflict. The provisional judgment stated:

o The English court has jurisdiction in light of the habitual residence declaration. It is wrong to go behind that declaration. The judgment and order has never been appealed.

o The English court also has jurisdiction under article 12(3) of BIIR. The Father has prorogued English court's jurisdiction in light of his residence application.

o The English court is first seised. If the court second seised makes an order (the Belgium court), the court first seised is not obliged to recognise or enforce the said order. See: Mercredi v Chaffee (Case C/947/10)  and scheme set out under articles 16 – 19 of BIIR.

o Clarification is sought from Belgium court as to whether child was heard (unclear point in certificate issued by Belgium court under article 42 of Brussels II Revised Regulation 2003.)

o Accordingly, orders of Belgium court will not be enforced under Brussels II Revised Regulation 2003. The English court shall continue to exercise jurisdiction to make welfare based decisions regarding child.

Subsequent to provisional judgment being delivered, communication took place between the 2 judges but they were not substantive communications. An opportunity for communication between judges was appropriate for the reasons set down in ECJ decision of: Purrucker v Valles Perez (No 1) [2012] 1 FLR 903 and Purrucker v Valles Perez (No 2) [2012] 1 FLR 925.

At a later hearing, the provisional judgment was confirmed as a final judgment. Accordingly, Mr Justice Moylan refused to enforce the order of the Belgium court.

4) Jurisdiction outside of Brussels II Revised Regulation 2003.
Re N (A Child) [2012] EWCA Civ 1086
 concerned a child (aged 5). The child's Father was born in Lebanon and had Lebanese and British citizenship. The Father had a substantial connection with England. The Mother was a Thai national. The parties formed a relationship in 2005 and spent time in various jurisdictions until September 2009 when the parties and child came to England. In April 2010, the Father abducted the child to Lebanon. On 18th August 2011, the Mother made an application before the English High Court stating that the child was habitually resident in Lebanon at the time of the removal.  Mr Justice Roderic Wood held that the child had been habitually resident in England before the removal in April 2010 but that subsequently the child became habitually resident in Lebanon as a result of the Father's and child's physical presence in Lebanon, together with the fact that the Mother had gone to Lebanon and the parties had reconciled. Accordingly, on 18th August 2011 the child was habitually resident in Lebanon and thus the English court did not have any jurisdiction over the child.

The Mother appealed that decision arguing that: (a) the court retained a jurisdiction on the basis that the child is a British subject (irrespective of habitual residence or the physical presence of the child) and (b) a number of factual matters had arisen since the decision which meant that a number of the factual matters that formed the basis of the landscape before Mr Justice Roderic Wood were either erroneous or had radical changed.

The Court of Appeal held that:

• It would be wrong to say that there would never be a case which would allow the inherent jurisdiction to be used on the basis of a child being a British subject – a parens patriae jurisdiction. The parameters of the inherent jurisdiction are not definitively set down. However, the jurisdiction should only be used in cases which are at the very extreme end of the spectrum. The jurisdiction should not be used in this case – this case did not fall into the extreme end of the spectrum. The authorities of Al Habtoor v Fotheringham [2001] EWCA Civ 186 and Re B; RB v FB and MA [2008] EWHC 1436 (Fam) were considered. In Al Habtoor v Fotheringham the Court of Appeal acknowledged the possibility of the parens patriae jurisdiction being used but stated that it should be used with extreme circumspection in relation to a child physically present in another jurisdiction. In Re B; RB v FB and MA [2008], Mrs Justice Hogg utilised the parens patriae jurisdiction so as to make order protecting a 15 year old from being forced into marriage – the child was a British national but had never entered England. Mrs Justice Hogg stated that each case turns on its own circumstances; in this case the circumstances were sufficiently dire and exceptional for orders to be made.

• The factual matters that arose since the judgment of Mr Justice Roderic Wood did not need to be considered as they did not alter the character of the case.

Accordingly, the appeal was dismissed.