I (A Child)

Article 12 of Council Regulation (EC) No 2201/2003 may confer jurisdiction over parental responsibility even where the child is habitually resident outside the European Union. Article 12(3) requires a substantial connection with the Member State, unequivocal acceptance of jurisdiction by all relevant parties and a finding that the chosen forum is in the child’s best interests.

Seisin occurs at the fixed time defined by article 16. Later conduct may prove that jurisdiction had already been accepted at that time. The best-interests requirement concerns the appropriate forum, rather than the substantive welfare outcome. Article 12(4) creates a rebuttable presumption favouring jurisdiction where the child resides in a non-Member State which is not party to the 1996 Hague Convention.

The child was habitually resident in Pakistan. Both parents lived in England and the child was a British national. In 2007 the mother commenced proceedings in England concerning contact. The father participated, agreed to a contact order and later expressly accepted the court’s jurisdiction, before seeking to set aside an order requiring him to bring the child to England.

A deputy High Court judge held that jurisdiction was unavailable under the Family Law Act 1986. The Court of Appeal upheld that conclusion in [2009] EWCA Civ 965. On the mother’s appeal, the central questions were whether article 12 of Council Regulation (EC) No 2201/2003 applied to a child habitually resident outside the European Union and, if so, whether the requirements for prorogation of jurisdiction had been satisfied.

1. Disposition. The appeal was allowed unanimously. Lady Hale gave the leading judgment, and Lord Hope, Lord Collins, Lord Kerr and Lord Clarke agreed that the courts of England and Wales had jurisdiction.

2. Article 12 of Council Regulation (EC) No 2201/2003 is not confined to children resident within the European Union. Its language contains no such restriction. Article 12(4), read with article 61, confirms that a third State means a non-Member State. The Regulation can therefore confer jurisdiction where a child is habitually resident in Pakistan.

3. The requirements of article 12(3)(a) were satisfied. The child had a substantial connection with the United Kingdom because both parents were habitually resident there when the proceedings began and the child was a British national.

4. Under article 16, the court was seised at the fixed time when the initiating document was lodged, subject to the stated requirements concerning service. The relevant proceedings were the new contact proceedings commenced by the mother in 2007. Conduct after commencement could be considered as evidence of whether jurisdiction had been accepted at that earlier time.

   The father’s undertaking in 2004 to return the child when ordered constituted a binding prior acceptance of jurisdiction over both himself and the child. His subsequent participation, consent to orders, failure to object and express acceptance through counsel confirmed that position. His later recantation could not undo the unequivocal acceptance required by article 12(3)(b).

5. The Court did not finally determine whether article 12 also permits acceptance first given after seisin. Lady Hale favoured a construction accommodating both binding prior acceptance and unequivocal acceptance after proceedings began. Lord Collins considered a similar construction attractive but insufficiently clear without a possible European reference. Lord Kerr favoured reading the timing words as identifying the parties whose acceptance was required. Lord Clarke provisionally considered that acceptance must precede seisin, although later acceptance could support fresh proceedings. Those differences did not affect the result.

6. The best-interests requirement concerns whether the case should be determined in the chosen forum. It is distinct from deciding which substantive outcome best promotes the child’s welfare. Article 12(4) creates a rebuttable presumption favouring jurisdiction where the child resides in a non-Member State which is not party to the 1996 Hague Convention. The parents’ residence in England, the practical focus of the contact dispute and the guardian’s assessment supported jurisdiction. Enforcement difficulties did not displace that conclusion.

7. The UK-Pakistan Judicial Protocol could operate consistently with English jurisdiction, including by facilitating the child’s return after contact or judicial co-operation with Pakistan. In any event, a private understanding between judiciaries cannot alter the proper interpretation of an EU Regulation.

1. United Kingdom Supreme Court: In I (A Child) [2009] UKSC 10, allowed the mother’s appeal unanimously and declared that the courts of England and Wales had jurisdiction.
2. Court of Appeal: In [2009] EWCA Civ 965, upheld the conclusion that the English court lacked jurisdiction.
3. High Court: HHJ Barnett, sitting as a deputy High Court judge, held that jurisdiction was unavailable under the Family Law Act 1986. He would not otherwise have stayed the proceedings on forum non conveniens grounds.