A v L

Under Brussels II, jurisdiction conferred on the courts of the Member State dealing with divorce and related parental responsibility ceases when the relevant judgment becomes final. Later applications to enforce the terms of that judgment do not suspend or revive the original jurisdiction. The same applies to a later application seeking a materially different residence arrangement. An order permitting a child’s permanent removal to another Member State strongly indicates finality. Once the original jurisdiction has ceased, the courts of the child’s new Member State may assume jurisdiction, subject to the Regulation’s other requirements.

The parties’ marriage was dissolved by a Spanish court, which permitted the mother to move with their child to England and made contact orders. The father’s appeal against that decision was dismissed in Spain in June 2002. He subsequently sought enforcement of the contact order and later applied in Spain for a change of the child’s residence to himself.

The mother applied in England for contact and residence orders. The central issue was whether the Spanish courts retained jurisdiction under Council Regulation (EC) No. 1347/2000, known as Brussels II, because enforcement and later residence proceedings remained pending there.

1. Jurisdiction. The Spanish courts had jurisdiction under Articles 1 to 3 of Brussels II when the divorce and parental responsibility orders were made. The unsuccessful appeal made the Spanish judgment final in June 2002.
2. Effect of subsequent proceedings. On the proper construction of Article 3(3), later applications to enforce the terms of a final order do not alter its status as a final judgment. Treating finality as dependent on whether further enforcement applications were made would create uncertain and effectively continuing jurisdiction. A later application of a radically different nature, seeking to change the child’s residence, likewise did not affect the finality of the earlier judgment.
3. Permanent removal. The order permitting the child’s permanent removal to England had an especially strong element of finality. The judge was supported in that conclusion by Re G (Children) [2003] EWCA Civ 1607, although the relevant observations in that case were not essential to its decision and were treated as persuasive authority only.
4. Disposition. The jurisdiction of the Spanish courts had ceased, and the courts of England and Wales had jurisdiction on the mother’s second application. The monthly travel provision in the Spanish contact order was suspended pending a further hearing. The father remained able to seek enforcement of the June 2001 order in England or make other applications under the Children Act 1989.