MCL & Ors v TI & Ors

Where a court has jurisdiction over parental responsibility under Brussels IIR, it may make a final contact order even though the practical arrangements and assessments cannot yet be completed. A final judgment ends prorogued jurisdiction under Article 12(2)(b), but the order remains enforceable under Article 41 and the courts of the child’s habitual residence must assist with its practical implementation under Article 48.

A transfer of residence should not be ordered without adequate welfare material, including assessment of the proposed carer and, where appropriate, the children’s views. Personal shortcomings justify restricting contact only where they have a direct connection with the children’s welfare.

The proceedings concerned a father’s contact with two children habitually resident in Austria. Earlier orders for supervised contact and assessment had not been implemented because the mother remained in Austria and an Austrian court had suspended contact under Article 20 of Brussels IIR. The mother then declined to comply with a further order and remained in contempt.

The court considered three options: transferring residence to the father, transferring the contact proceedings to Austria under Article 15, or making a final contact order which would bring this court’s prorogued jurisdiction to an end. The central issue was how the father’s relationship with the children could be restored when interim contact orders were not being enforced.

1. Jurisdiction. Article 8 of Brussels IIR gave the court jurisdiction over all aspects of parental responsibility concerning children habitually resident in the relevant Member State when the court was seised of any aspect of parental responsibility. The court therefore had jurisdiction to make a residence order, although jurisdiction did not require that such an order be made.
2. Residence option. A change of residence was refused. The court lacked sufficient welfare material to justify such an exceptional step. The father’s fitness as primary carer had not been assessed and the children had not been interviewed. Expert evidence indicated that an immediate transfer could have grave consequences for the children.
3. Transfer option. The court declined to transfer the existing contact application to Austria under Article 15. That course would have rewarded non-compliance and would not provide the appropriate determination of the father’s substantive entitlement to contact.
4. Final contact order. Under Article 12(2)(b), the court’s prorogued jurisdiction would end upon final judgment. The court therefore ordered the mother to afford the father reasonable, unsupervised contact in England, Greece or Austria, including holiday contact. The precise extent and commencement of contact were left to the Austrian courts under Article 48, together with the necessary assessments and practical arrangements. Those courts were expected to respect the essential elements of the judgment, including the principle that the father was entitled to reasonable unsupervised contact.
5. The court requested that the Austrian court hold a preliminary hearing within six weeks to direct the required assessment and observation.

The judgment describes earlier interim contact, representation and related orders in the same proceedings, but no appeal to this court is stated.