A (a child), Re

Under Council Regulation (EC) No 2201/2003, an English court seised before jurisdiction passes under article 10 retains power to determine parental-responsibility issues, including contact, even if it refuses to order the child’s return. A contact order requiring temporary visits is not a judgment requiring return under article 11(8). The distinction between rights of custody and rights of access must be maintained. A shared residence order cannot be used to convert limited contact into a return order, particularly where it would not reflect the child’s actual life. For Regulation purposes, a judgment is the written order issued by the court, rather than the judge’s reasons or an unissued draft. Applications following an overseas Hague article 13 non-return order should ordinarily be dealt with expeditiously by a High Court Family Division judge.

The father applied after a French court refused, under article 13(b) of the Hague Convention, to order the return of the child to England. The French decision triggered the procedure under article 11(6) and (7) of Brussels II Revised. The father’s English proceedings sought the child’s return, residence or shared residence, and contact. The mother and child opposed return and supported the child’s continued life in France.

The central issues were the scope of an article 11(7) custody examination, the continuing jurisdiction of the English court under article 10, whether contact or shared residence could amount to a judgment requiring return under article 11(8), and when a judgment is issued for Regulation purposes.

1. Jurisdiction and scope. The court held that England retained jurisdiction under article 10 because the father had not acquiesced, the relevant article 10(b) conditions had not been fulfilled, and he had validly seised the English court. The court could determine the substance of the parental-responsibility issues, including contact, even though jurisdiction would pass to France when a judgment on custody not entailing return was issued.
2. Meaning of custody and return. Brussels II Revised and the Hague Convention distinguish rights of custody from rights of access. Custody includes care of the child and determining the child’s place of residence. Access includes taking the child elsewhere for a limited period. An order requiring the child to visit the father in England temporarily was therefore an access order, not a judgment requiring the child’s return under article 11(8).
3. Shared residence. A shared residence order was legally available even though the parents lived in different countries. It was refused because it would not reflect the reality of the child’s life, would add nothing to the child’s welfare beyond a contact order, and might create further jurisdictional uncertainty. The child should remain living with the mother in France.
4. Welfare and contact. The court rejected overnight staying contact in the existing circumstances. It ordered supervised contact at a contact centre for at least one and a half hours on two successive days every sixth weekend, subject to the father meeting half the incidental costs, with a staged period of longer and partly unsupervised contact during an August visit. Weekly telephone contact was also supported.
5. Meaning of judgment. For Brussels II Revised purposes, a judgment is the written order containing the terms of the judge’s order and issued by the court. The court therefore remained seised until the relevant order was issued.
6. Procedure. Pending revised Family Proceedings Rules, applications following an overseas article 13 Hague non-return order should be transferred promptly to the Family Division in London and dealt with by a High Court judge.

First-instance decision. No appellate history was stated in the judgment.