CONFLICT OF LAWS ? Jurisdiction under Council Regulation ? Orders with respect to children ? Mother seeking custody order in respect of child habitually resident in Pakistan ? Council Regulation allowing ?opt in? to jurisdiction of courts of member state not otherwise having jurisdiction ? Whether Regulation applicable to child habitually resident outside European Union ? Council Regulation (EC) No 2201/2003, art 12.3

SC: Lord Hope of Craighead DPSC, Baroness Hale of Richmond, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony JJSC: 1 Dec 2009

The right of parties in child contact proceedings to opt in to the jurisdiction of an EU country which would not otherwise have jurisdiction to determine the child?s future, contained in art 12.3 of Council Regulation (EC) No 2201/2003 on jurisdiction and enforcement in matrimonial and parental responsibility matters (?Brussels II Revised?), could apply when the child was habitually resident outside the European Union.
The Supreme Court so held in allowing an appeal by Y, the mother of a nine-year-old child, I, against the decision of the Court of Appeal (Thorpe, Scott Baker and Sullivan LJJ) [2009] EWCA Civ 965 upholding the decision of Judge Barnett, sitting as a judge of the High Court, that the court did not have jurisdiction to hear her application for contact with her son. Following his being injured and consequent care proceedings, the child had lived with his father, who in 2004 was given permission to send the child to live with relatives in Pakistan upon his undertaking to return him to the jurisdiction if ordered to do so by the court. In 2007 and 2008 the mother made applications under s 8 of the Children Act 1989 Act for contact, including the child being brought to the United Kingdom. By s 2(1) of the Family Law Act 1986 an English court could not make such an order unless it had jurisdiction under Brussels II Revised. Art 12.3 of Brussels II Revised gave the courts of a member state jurisdiction in relation to parental responsibility in proceedings other than divorce or separation (which fell within art 12.1) where: ?(a) the child has a substantial connection with that member state [because one parent] is habitually resident in that member state or the child is a national of that ... state?, and: ?(b) the jurisdiction of the courts had been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.?

LADY HALE said that there was nothing in art 12.3 of the Regulation, or in art 12.1, to limit the court?s jurisdiction to children who were resident within the European Union. The art 12.3 right of parties in child contact proceedings to opt in to the jurisdiction of a member state which would not otherwise have jurisdiction could apply when the child was habitually resident outside the European Union. There was a question as to the meaning of art 12.3(b) but regardless of whether it required acceptance of the jurisdiction at the time the court was seised, or acceptance at any time by those who had been parties at the time the court was seised, that criterion had been met since the father had unequivocally accepted jurisdiction both before and after the proceedings began. As there was a diversity of views on art 12.3(b) which indicated that the interpretation was not acte clair, it might have to be the subject of a reference to the Court of Justice of the European Union in another case. All other criteria under art 12.3 had been met, in particular it being in the child?s best interests that the assessment of any risks associated with contact be made by the English court, given that contact in England had been sought.
LORD COLLINS, agreeing, was attracted by approaching art 12.3(b) as treating the words ?at the time the court is seised? as qualifying the words ?all the parties to the proceedings? but agreed that a reference might be necessary.
LORD KERR delivered a judgment concurring with Lady Hale and Lord Collins and LORD HOPE agreed with them that the appeal be allowed.
LORD CLARKE agreed that the appeal be allowed but read art 12.3(b) as requiring acceptance of jurisdiction at the time the court was seised, while agreeing that the question fell for decision in another case.
Appearances: Jonathan Baker QC and Edward Devereux (instructed by Bindmans LLP) for the mother; Alison H Russell QC and Divya Bhatia (instructed by Mullinger Banks, Stratford) for the father; Judith Charlton (instructed by Edwards Duthie, Plaistow) for the child, by his guardian ad litem; Henry Setright QC and Teertha Gupta (instructed by Dawson Cornwell) for the Centre for Family Law and Practice and Reunite International Child Abduction Centre, intervening.
Reported by: C T Beresford, barrister.

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