I (A Child)

Prorogation of jurisdiction under Brussels II Revised is exceptional. It requires unequivocal acceptance by all parties to the proceedings, assessed when the court is seised, and must be in the child’s best interests. Participation in earlier proceedings, consent to contact arrangements, or a qualified acceptance will not necessarily suffice. The court remains seised throughout the proceedings, so a guardian joined later may resist prorogation. The child’s habitual residence ordinarily determines the primary jurisdiction. Nationality, domicile and passing presence should not ordinarily displace that principle. A party seeking prorogation should raise it at trial and provide evidence addressing acceptance and the child’s best interests.

The mother appealed against HHJ Barnett’s decision on preliminary issues arising from applications concerning contact with her nine-year-old son. The child had moved from England to Pakistan in 2004 and had since lived there with his paternal family. The judge held that the child was neither habitually resident nor present in England on the relevant application dates. He rejected the submission that the applications concerned variation of extant section 8 orders. He nevertheless concluded that, if jurisdiction existed, England would be the forum conveniens.

On appeal, the mother advanced a new argument that Brussels II Revised could apply globally in limited circumstances through prorogation under Article 12(3) and Article 12(4). The central questions were whether all parties had unequivocally accepted jurisdiction and whether its exercise was in the child’s best interests.

1. Appeal dismissed. The Court of Appeal upheld HHJ Barnett’s conclusion that the English court lacked jurisdiction on the grounds argued below.
2. Prorogation under Article 12(3) of Brussels II Revised is exceptional. It requires express or otherwise unequivocal acceptance of jurisdiction by all parties when the court is seised, and the exercise of jurisdiction must be in the child’s best interests. The court is seised throughout the continuance of the proceedings. A guardian joined at a later stage therefore remains a party whose acceptance is required and may obstruct prorogation.
3. The father’s conduct did not amount, individually or cumulatively, to unequivocal acceptance. The earlier consent arrangement, Hedley J’s order, the father’s qualified position statement, his undertaking and his later application were explained by contact arrangements, welfare concerns and the perceived unenforceability of English orders. His prompt challenge when jurisdiction was questioned reinforced that conclusion.
4. The child had lived in a Pakistani environment for more than half his life. Welfare decisions were therefore, as a matter of ordinary assumption, more appropriately dealt with by the courts of that region. The Regulation’s primary emphasis is on the jurisdiction of the child’s habitual residence.
5. The court did not accept that Article 12(4) clearly created a general global jurisdiction. However, it was unnecessary to decide the point solely on that basis, because the requirements of unequivocal acceptance and the child’s best interests were not established. A claim to prorogation should be made at trial and supported by evidence on both matters.
6. Lord Justice Scott Baker and Lord Justice Sullivan agreed with Lord Justice Thorpe. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 965: appeal dismissed.
• High Court of Justice, Family Division — HHJ Barnett held that the English court had no jurisdiction because the child was neither habitually resident nor present in England on the relevant dates. He rejected the proposed section 8 variation route and additionally concluded that, if jurisdiction existed, England would be the forum conveniens.