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EU Regulations and Children in English Family Law

Clare Renton, of 29 Bedford Row, reviews the operation of EU regulations affecting children and their interpretation in the English courts

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 Clare Renton, 29 Bedford Row

This is the first of a series of two articles on the subject of the impact of EU law on children caught in international disputes. The article will set out the relevant regulations and assess how the regulations are implemented in the courts through analysis of the case law. The second part will be published in August.
Brussels II: Original and revised versions
1. Regulation 1347/2000 was adopted in May 2000 and came into force on 1/3/01. It is in some respects modelled on Brussels I and indeed is presented as an extension of Brussels I to larger areas of family law.

2. Brussels II Revised (“BIIR”) – Council Regulation (EC) No. 2201/2003 – came into force on 1/3/05 in all Member States other than Denmark. It is also in force in all the subsequent accession states:  26 in all. The provisions of Brussels II relating to matrimonial proceedings remain unchanged, though the numbers of most Articles have changed. The principal changes relating to children are that:-

The number of cases will rise from a trickle to a flow over the next few years. Its impact on Hague Convention abduction cases is highly marked. It may be a folly to litigate in 2 jurisdictions, but in family disputes emotions run high and international children disputes are on the increase. The new regime is complex.

3. Habitual residence. The habitual residence of children remains seminal.  In L-K v K (No 2) [2006] EWHC 153 (Fam), [2007] 2 FLR 729 Singer J accepted that under BIIR the approach to habitual residence should be that which has evolved in the ECJ in benefits cases rather than the domestic English approach: presumably this would also apply to child abduction cases under BIIR (see below).

4. In Marinos v Marinos [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018 Munby J reviewed the European authorities in greater detail and came to the same conclusion as Singer J. S5(2) Domicile and Matrimonial Proceedings Act 1973 (as amended) makes BIIR the primary basis for establishing jurisdiction in all matrimonial suits. So in any suit where habitual residence is in issue it is now necessary to turn to EU law rather than the domestic English test.

5. The basis of the ECJ approach is summarised at #32 of the Borras Report. Habitual residence:-

“the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence.”

This has obvious similarities to the domestic English test based on residence with a ‘settled purpose’, which sounds similar to ‘fixed basis’.

6. However, there are a number of potentially significant differences:-

7. In most cases the application of the EU test would probably lead to the same result as the English domestic test. In some cases it will be somewhat easier to show a change of habitual residence under the EU test. In others it may be more difficult.

Children jurisdiction specifically
8. BIIR provisions relating to divorce jurisdiction are substantially the same as under Brussels II (subject to re-numbering) but the provisions relating to children are much wider. Section 2 of the Regulation (Articles 8 to 15) creates a scheme for jurisdiction in matters of parental responsibility which is much closer to the scheme for jurisdiction for divorce in Section 1 than was the case under Brussels II.  Change of name issues are e.g. excluded but parental responsibility will be construed liberally

9. The starting point is to confer jurisdiction on the courts of the Member State in which the child is habitually resident at the time the court is seised: Article 8.

10. By way of exception to Article 8, the courts of a Member State in which the child formerly resided retain SOLE jurisdiction for a period of three months after a lawful  move to another Member State, even if the child has become habitually resident in the new State during that period, for the purpose of modifying a contact order made in the original Member State; provided that ‘the holder of access rights’ (a) continues to be habitually resident in the original Member State; and (b) has not taken part in proceedings in the new Member State without contesting its jurisdiction. See Article 9.

11. Article 20 vests in the court in state B in urgent cases power to make orders to protect the child, even when another Court has primary jurisdiction. This was discussed and considered in Re ML v AL [2006] EWHC 2385 (Fam), 2007 1 FCR 475 and 496 per Mostyn QC sitting as a High Court Judge. (see below)

12. Article 10 deals with children who have been wrongfully removed or retained as between Member States. The courts of the Member State where a child was habitually resident before the removal or retention retain their jurisdiction until the child has acquired a habitual residence in another Member State and either:-

13. Where a child has been wrongfully removed or retained within the EU, the left behind parent now in many cases has a choice of remedies. Either (s)he can apply for an order under the Hague Convention in the country where the child is, or an application can be made in the previous Member State. If made, such an order will be enforceable in the new Member State. The availability of non means tested public funding for Plaintiffs in Hague Convention applications may be germane to the question of which to invoke

14. Article 12 confers to a limited extent the power to agree jurisdiction. If the courts of a Member State are exercising jurisdiction in relation to divorce (or separation or nullity),  Article 12(1) confers  jurisdiction in any matter relating to parental responsibility connected with those proceedings provided that (a) at least one of the spouses has parental responsibility in relation to the child; (b) both spouses have unequivocally accepted the jurisdiction of the courts of that State; (c)‘it is in the superior interest of the child’ that that court should exercise jurisdiction. Importantly welfare is a prerequisite to obtaining the court’s blessing:  

15. However, the jurisdiction conferred by Article 12(1) ceases (a) when the matrimonial proceedings have become final; or (b) if proceedings relating to a child are still continuing at the date of (a), when judgement in the children proceedings has become final; or (c) when the proceedings referred to in (a) and (b) have come to an end for another reason.

16. Independently of matrimonial proceedings, Article 12(3) provides in addition that the courts of a Member State shall have jurisdiction in relation to parental responsibility where (a) the child has a particular connection with that Member State (in particular if one of the parents is habitually resident there or the child is a national); and (b) all parties have accepted the jurisdiction of that court; and (c) it is in the best interests of the child.

17.  In  Re C v C 2006 AER (d) 278 Hedley J considered the jurisdictional effect of a consent order giving permission to a wife and children to relocate to Spain permanently with provision for contact and directed the mother to return the children to England if directed to do so. The dispute as to contact continued. The mother obtained a divorce in England and then sought to have her contact dispute heard in Spain. The father sought in England a declaration that the English courts had jurisdiction rather than the Spanish. By  this time the children had been in Spain for more than a year and so,  by Article 8,  habitual residence primarily governed that the dispute  should be heard in Spain unless Article 12 (prorogation) applied. (Article 9 which provides the 3 month continuing jurisdiction rule for access had ceased to apply.) The outcome turned upon the application of Article 12. Hedley J decided that the unresolved contact issue fell within Article 12(2)(b) i.e. that the children proceedings had not yet become final,  hence the English Court still  had jurisdiction. The father succeeded in that all the children spoke English and the parties could put their case well in England.  Hedley J stated that if Article 12 (1) or (3) are satisfied, the court should accept jurisdiction.

18.  In B v B Pauffley J adopted a similar approach  although the proceedings were well less advanced than in Re C. The Court of Appeal on 9th July  overturned the decision (without yet delivering full judgment) on  the ground that when an acknowledgment of service is filed by a party and an indication given that different child arrangements are proposed, this does not amount for the purposes of Article 12 to an unequivocal acceptance by  that party of  English  jurisdiction  of issues relating to  parental responsibility

19.   Re Ml and Al 2007 1FLR 475 illustrate how Article 12 can add to complexity. A mother was given leave by the English court to relocate to Austria under Article 12. The order gave limited interim contact and directions for the final determination in Austria. The mother and child moved to Austria and the habitual residence changed. The father argued that the change of habitual residence had not changed because the mother had obtained the order by fraud. The Judge rejected this. However because the parties had agreed under Article 12 that England would be the Court of primary jurisdiction, that underpinned the litigation rules. An order for contact was made in England for one occasion. The mother then went to the court in Austria and obtained an emergency order suspending contact relying on Article 20 which vests the court in urgent cases with power to make orders to protect the child, even when another Court has primary jurisdiction. The Judge deprecated the mother’s invocation of the emergency protective measure provisions in Article 20 in Austria rather than accept the English primary jurisdiction.

20. Article 13: Where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction. This also applies to children who are refugees or internationally displaced.

21. Article 14: Where no court has jurisdiction under Articles 8 to 13, jurisdiction shall be determined in each Member State by the laws of that state. This is a safety net so that at least one Member State will always have jurisdiction.

22. Article 15 provides that ‘by way of exception’ the courts of a Member State having jurisdiction may suggest a transfer of the case to another Member State if the child has a particular connection with that state and it would be in the best interests of the child. Article 15 (3) sets out the factors which would give rise to ‘a particular connection’.   

In Re EC (Child Abduction: Stayed Proceedings) [2007] 1 FLR 57 Charles J made an order under the Hague Convention for the return of a child to Hungary. However, in anticipation that the Hungarian court might make an order for transfer back to England under Article 15 he directed a CAFCASS Report. The Court of Appeal reversed this. Thorpe LJ said (#18) that he knew of no case in which Article 15 had been successfully invoked and that: “I suspect that as far as the civil law jurisdictions are concerned, it will be a truly exceptional case before they invoke Article 15.

23. Child Abduction. Article 11 contains provisions which have to be read in conjunction with the Hague Convention. Article 60 provides that BIIR is to have precedence over a number of multilateral Conventions including the Hague Convention. Now if there is a refusal to return a child to the State from which it has been wrongfully removed, it is the court in that State which has the last word as to return or non return, not the place where the child is.

24. Article 11(3) provides that ‘the most expeditious procedures available in national law’ shall be used. Save in exceptional circumstances judgement must be given no more than six weeks after the application is lodged. This, at present, is often regrettably not honoured for lack of judicial time.  Time for appeal will often be abridged  from the standard 3 weeks to 1 week

25. Article 11(4) provides that a Hague Article 13(b) defence cannot be upheld if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. In Hague cases protective measures will often be scrutinised: What accommodation for the returning child and carer abductor? What means of support? What cost and access to local courts? What personal protection for a returning abductor. Undertakings will usually have to be given by the plaintiff against the background that EU states must trust each other to operate the systems properly. (Vigreux v Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180). Whether this trust is well founded varies from state to state. An undertaking to co operate in resisting incarceration of the returning abductor by the local police  is normal

26. Article 11(6) – (7) provide a code which must be followed by a court which refuses to order the return of a child under Hague Article 13. The code is intended to promote cooperation between the Member State where the child is now living (and which has refused to order a return); and the Member State of former habitual residence.

27. Article 11 (8) provides that even if the courts in the country to which the child has been abducted refuse to order a return, a court having jurisdiction under the Regulation can nevertheless order a return and such order shall be enforceable. What was referred to earlier as a choice of remedies amounts in reality to two bites of the cherry for the left behind parent.

28. The interaction of Article 11 and the Hague Convention was considered by the Court of Appeal in Vigreux v Michel. The father had abducted the child from France to England and McFarlane J had declined to order a return on the basis of the child’s objections. The mother, who had been granted custody by the French court) appealed. Thorpe LJ was extremely critical of the eight month delay between the start of the English proceedings and the appeal. Although such delay is not uncommon in Hague cases, he treated it as a serious breach of Article 11(3). He stressed (with the prior approval of the President) that Article 11(3) must be taken literally. 

29. Two article 11(8) ‘second bite’ cases have now come before the courts. In Re A (custody decision after Maltese non-return order) [2007] 1 FLR 1923 Singer J ordered the return of a child from Malta after the Maltese court had upheld an article 13(b) defence. The case turns largely on the English court’s very different assessment of the evidence.  

30. In Re A, HA v MB (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam) the application was under Article 11(8) but gave rise to issues under articles 10 and 11(7). Singer J’s judgment is long and important for abduction practitioners, in that he gives practical guidance on what the court can do and how, upon an Article 11 application for return to state A. Singer J decided that it was wrong to treat a contact order made in the home state (England) as an order requiring a return order (to England if that is state A ) if any order is made under Article 11. “To elevate an order for contact into an order requiring return of the child to state A (in this case England ) would render the BIIR scheme unworkable." Before the coming into force of BIIR the position was that if a defendant won the Hague Convention case, the subsequent proceedings would almost certainly take place in this jurisdiction. That is no longer the case. The nationals of this jurisdiction are being placed in a position where they have to engage in sophisticated international litigation with no funds available to assist them.  

31. There is anecdotal evidence to suggest that Article  13b of the Hague Convention, particularly when in conjunction with children’s objections, is now being more easily satisfied in the English courts than before. (eg Klentzeris v Klentzeris [2007] EWCA Civ 533.)

32. It had been thought that the advent of BIIR make it more difficult to avoid a return than previously. However, this does not appear to be the case.

33. A proportion of Plaintiffs invoke the return mechanisms of the Hague Convention for what is, in reality, an EU contact dispute.  A proportion of case are susceptible to Mediation  

First past the post
34. Article 19(2) provides for proceedings relating to parental responsibility in identical terms to those which are set out in Article 19(1) in relation to matrimonial proceedings.  If two courts can accept jurisdiction, the court second seised will stay the proceedings unless there is, for example, a transfer to a court better placed. The “first past the post” system is in place for both  children and divorcing adults but subject to limitations and with scope for  protective  orders  under Article 20 (see Mostyn Qc in  Re ML v AL  [2006] EWHC 2385 (Fam), 2007 1 FCR 475

35. Recognition and enforcement, both under the fast track and the two stage process will be addressed  next  month.