R (A Child)

Under article 8 of the Regulation Brussels II Revised, where a child has remained in England well beyond the three-month period following arrival under a Portuguese consent order, any subsequent judicial intervention should take place in England, the child’s place of habitual residence. The court also emphasised that parents should comply loyally with agreed child-contact arrangements and keep the focus on the child’s welfare rather than expensive jurisdictional disputes.

The parents of M, a child of Russian and Portuguese parents, agreed arrangements before the Portuguese High Court in December 2005. The agreement provided for the mother’s primary care, parental consultation, liberal contact for the father, and M’s later residence in England. After the relationship broke down, proceedings were brought in England and orders were made by Mr Justice Roderic Wood on 7 February 2007, following judgments given on 31 January and 5 February.

The mother sought permission to appeal and a stay, principally raising jurisdictional arguments under the Regulation Brussels II Revised. The Court of Appeal considered whether article 8 governed the jurisdiction and how the existing order should be varied.

1. Outcome. Lord Justice Thorpe gave the principal judgment. Lord Justice Lawrence Collins and Mr Justice Munby agreed. The application for permission was granted and the appeal was allowed.

2. Jurisdiction. Article 8 of the Regulation Brussels II Revised governed the position. M had been in England for well beyond the three-month period following her arrival under the Portuguese consent order. Accordingly, any judicial intervention concerning her required consideration in London, her place of habitual residence.

3. Disposal. The court treated the dispute as substantially resolved by agreement. It varied the order made by Mr Justice Wood by retaining the penal-notice provisions, the recital concerning M’s trilingual upbringing, and the undertakings concerning the London home and contact. It struck out the first four paragraphs and paragraphs 6 to 9, and restructured the remaining provisions.

4. The varied order gave effect to the parties’ agreed contact arrangements for 2007. Contact for 2008 and subsequent years was to operate in accordance with the Portuguese court’s order of 16 December 2005, with applications to vary the amount of contact for those years being made to the English court.

5. The court expressed strong concern about the substantial legal costs incurred in the dispute. Lord Justice Thorpe stressed the need to refocus the matter on M’s welfare and to avoid further expensive litigation. Mr Justice Munby added that the mother was obliged to comply loyally with both courts’ orders and, more importantly, to implement the agreed arrangements in M’s best interests.

• Court of Appeal (Civil Division): permission granted and appeal allowed. The order was varied to give effect to the parties’ agreed contact arrangements and the Portuguese order for later years: [2007] EWCA Civ 355.
• High Court, Principal Registry of the Family Division: Mr Justice Roderic Wood made orders on 7 February 2007, with reasons given in judgments dated 31 January and 5 February 2007.