Bush v Bush

Jurisdiction over parental responsibility ordinarily belongs to the courts of the child’s habitual residence. A divorce court acquires jurisdiction under Article 12(1) of the Brussels II bis Regulation only where its jurisdiction over parental responsibility is accepted expressly or otherwise unequivocally, and is in the child’s best interests.

Acceptance is not lightly inferred. Filing a statement about arrangements for children within divorce proceedings neither amounts to unequivocal acceptance nor seises the court of parental responsibility matters. The best-interests requirement also demands consideration of which court is more appropriate, applying considerations of fairness and convenience.

The parents and their three children were habitually resident in Spain. The mother commenced divorce proceedings in England and filed a statement proposing that the children move to England. The father disputed that proposal, filed his own statement and subsequently commenced custody proceedings in Marbella.

After the Spanish proceedings were stayed, the mother applied in England for orders concerning the children. Pauffley J dismissed the father’s application for a declaration that the English courts lacked jurisdiction. The father appealed.

The central questions were whether the father had unequivocally accepted English jurisdiction over parental responsibility under Article 12(1)(b) of the Brussels II bis Regulation, and whether such jurisdiction was in the children’s best interests.

1. The appeal was allowed unanimously. The general scheme of the Brussels II bis Regulation gives jurisdiction over parental responsibility to the courts of the child’s habitual residence. Prorogation to the court conducting divorce proceedings is exceptional.

2. Article 12(1)(b) requires express acceptance, or acceptance in an unequivocal manner, of jurisdiction specifically over parental responsibility. Acceptance of matrimonial jurisdiction does not suffice. Nor is acceptance lightly inferred; the paradigm case is actual parental agreement when the matrimonial proceedings are instituted.

3. The father’s statement concerning arrangements for the children did not constitute unequivocal acceptance. Under rule 2.2 and rule 2.38 of the Family Proceedings Rules 1991, such statements form part of the divorce procedure. Section 41 of the Matrimonial Causes Act 1973 requires the divorce court to consider the children’s welfare arrangements before making a decree absolute. Filing a statement does not seise the court of parental responsibility matters. Seisin in that field requires an application for an order concerning matters such as residence, contact, a specific issue or prohibited steps.

4. The Spanish court had been first seised of parental responsibility matters. Its order asserted jurisdiction but held its exercise in reserve while deferring to London on an erroneous understanding that the English court was already seised. Once the English court declared that it lacked jurisdiction, the Spanish stay would cease to prevent the reserved jurisdiction from becoming primary. Comity did not require the English court to disregard the Regulation.

5. The requirement that prorogation be in the child’s “superior interests” means the child’s best interests. It requires an assessment of which is the more appropriate court, applying familiar forum conveniens considerations, including fairness and convenience. The judge had not undertaken that assessment.

6. The Marbella court was plainly more appropriate. The proposed relocation should be determined by the courts of the children’s habitual and long-settled residence, which had access to the evidence concerning their history, education and present environment.

• Court of Appeal (Civil Division): Allowed the father’s appeal unanimously and held that the English court lacked jurisdiction over parental responsibility.
• High Court, Family Division: Pauffley J dismissed the father’s application under Article 17 of the Brussels II bis Regulation for a declaration that the English courts lacked jurisdiction.