MCL & Ors v TI & Ors

Where children move lawfully to another Member State under a valid court order, a later failure to comply with contact arrangements does not retrospectively invalidate the move or prevent habitual residence from changing. A court with jurisdiction under Article 12 of Brussels IIr retains exclusive jurisdiction over the substance of parental-responsibility proceedings. A second-state court may use Article 20 only in a genuinely urgent case to preserve the factual or legal position pending action by the court with substantive jurisdiction. It must not use provisional measures to overturn or substantially alter that court’s order. A duly certified access order must be recognised and summarily enforced without review of its substance, and anticipatory enforcement may be available where a history of default would otherwise make enforcement ineffective.

The father sought further contact arrangements for his children, who had relocated from England to Austria with the mother pursuant to a consent order. That order recorded an agreement prorogating jurisdiction in favour of the English court under Article 12 of Brussels IIr. The father argued that the relocation had been procured by fraud and that the children had therefore remained habitually resident in England. He also challenged an Austrian order made under Article 20 which suspended the English contact order on the basis of psychiatric reports obtained without the father’s participation. The central issues were whether the alleged fraud invalidated the change of habitual residence, the extent of the English court’s continuing jurisdiction, and the proper limits of Article 20.

1. The court rejected the father’s fraud argument. The mother’s later defiance of the contact order could not retrospectively taint the earlier consent order. The evidence did not establish that, when permission to relocate was given, she had never intended to comply with the limited supervised contact then contemplated.

2. Habitual residence is principally factual for children. A lawful move followed by exclusive residence in the destination State for 13 months could not be treated as leaving the children habitually resident in England merely because the mother may have harboured destructive thoughts about future contact. The English court nevertheless retained exclusive jurisdiction under Articles 12 and 19, because the parties had expressly and unequivocally accepted that jurisdiction and the arrangement was in the children’s superior interests.

3. Under Article 20, provisional measures are permissible only in genuine urgency, to preserve a factual or legal situation in the second State and safeguard rights being litigated before the court with substantive jurisdiction. The provision is not jurisdiction-conferring and cannot legitimately be used to seize or usurp the primary court’s jurisdiction. The Austrian suspension, which effectively overturned the English contact order, was therefore an illegitimate use of Article 20. The court relied on the explanation in Wermuth v Wermuth No 2 [2003] 1 FLR 1029.

4. A certified access order is to be recognised and summarily enforced under Articles 21, 26, 28 and 41 of Brussels IIr, without a review of its substance. Where there is a history of default, anticipatory enforcement may be appropriate to ensure that the children are delivered for contact before the opportunity is lost.

5. The court made a carefully controlled contact order, requiring assessment by the guardian and child psychiatrist before contact and permitting them to curtail or end contact if it appeared contrary to the children’s best interests. It declared that the English court had jurisdiction, that both parents had parental responsibility, and that the father posed no safety threat requiring supervised contact. The court directed that the judgment and order be sent to the relevant Austrian liaison judges to promote judicial cooperation.