IB v SB

Under Council Regulation (EC) No. 2201/2003, jurisdiction over parental responsibility generally follows the child’s habitual residence. The former state of habitual residence retains jurisdiction for only the limited three-month period specified by Article 9 after a lawful move, and only for modifying an existing access judgment. Thereafter, jurisdiction under Article 12.3 requires an unequivocal acceptance by all parties and must remain in the child’s best interests. Where the child has been habitually resident in another Member State for a significant period, that state is seised of proceedings, and practical circumstances make an English order uncertain or ineffective, it is not in the child’s best interests for the English court to retain concurrent authority. Continuing English proceedings should then be dismissed and existing contact orders discharged.

The parents, both originally from Pakistan, married in Germany and separated there. Their son was born in England in 2006. In 2008, the English court made a residence order in favour of the mother and permitted her to relocate permanently with the child to Germany, with contact arrangements specified for 2009.

The mother and child moved lawfully to Germany in September 2009, where the child acquired habitual residence. The German court was seised of proceedings concerning parental responsibility. Subsequent English hearings addressed whether the English court should confirm the earlier contact order as a final order or discharge it. The central issue was whether England and Wales retained jurisdiction, particularly under Articles 9 and 12.3 of Council Regulation (EC) No. 2201/2003.

1. Jurisdiction under Article 9. The child had moved lawfully from the United Kingdom to Germany and acquired a new habitual residence there. Article 9.1 therefore preserved the jurisdiction of the English courts only for three months after the move, and only to modify an access judgment made before the move. That period had expired by about mid-December 2009. Article 9.2 was not engaged because the father had not participated in the German proceedings without contesting jurisdiction.
2. Jurisdiction under Article 12.3. The child had a substantial connection with England because the father was assumed still to be habitually resident there. The parties had also unequivocally accepted the English court’s jurisdiction. The remaining requirement was that continued exercise of jurisdiction be in the child’s best interests.
3. It was not in the child’s best interests for the English court to retain continuing authority. The child had been habitually resident in Germany for about ten months, the German court was already seised, and future contact in England was unlikely to occur because the father could not satisfy the funding condition. His immigration position was also extremely tenuous, making an indefinite English order uncertain in practical effect. Responsibility for future decisions had shifted to Germany when the relocation occurred.
4. Article 15. Although not directly applicable, the judge stated that Germany had the particular connection, was better placed to hear the case, and would serve the child’s best interests.
5. All continuing English proceedings concerning the child were dismissed. The previous contact orders were discharged, and future contact issues were left to the German court.