AP v TD

Where parental-responsibility jurisdiction has been accepted under Article 12(3) of Brussels II Revised, a party cannot unilaterally withdraw that acceptance by commencing proceedings in another country. Acceptance of jurisdiction in relation to one aspect of parental responsibility is acceptance in relation to parental responsibility generally. The court must consider substantial connection, unequivocal acceptance and the child’s best interests, including forum considerations. The best-interests assessment is capable of changing as circumstances develop. Different aspects of parental responsibility may in principle be heard in different jurisdictions, although this may be undesirable. A foreign ex parte order does not necessarily justify staying English proceedings, particularly where the foreign court permits the English application to proceed.

The parties were English and the children had relocated permanently to Canada with the father’s consent. English orders provided for contact and recorded that future contact disputes would be resolved in England and Wales. The mother subsequently obtained an ex parte Canadian order reducing contact and relied on it to resist the father’s English application.

The father sought enforcement or restoration of contact and orders concerning residence and the children’s return. The mother accepted, at least initially, that England had jurisdiction over contact but argued that proceedings should be stayed and that Canada was the appropriate forum. The central issues were whether jurisdiction had been accepted under Article 12(3) of Brussels II Revised, whether that acceptance could be withdrawn, and which court should determine contact and residence issues.

1. Jurisdiction. The court had jurisdiction under section 8 of the Children Act 1989 pursuant to Article 12(3) of Brussels II Revised. The children had a substantial connection with England and Wales through their British nationality and their father’s habitual residence and parental responsibility.
2. Acceptance. The October and November 2008 orders were to be read together. They recorded the parents’ express and unequivocal acceptance that the English court would retain jurisdiction over contact. The mother’s agreement to return for hearings, the provisions concerning the children’s return if she could not care for them, and permission to apply concerning N’s care also supported implied acceptance of jurisdiction over residence and return. Acceptance could not be unilaterally withdrawn by issuing proceedings in Canada.
3. Scope. Parental responsibility was indivisible for this purpose. Acceptance of jurisdiction concerning contact was therefore acceptance concerning parental responsibility generally. This did not require the English court to exercise every aspect of that jurisdiction in England.
4. Best interests and forum. The child’s best interests under Article 12(3) involved forum considerations. Potential merits were irrelevant. The assessment was a rolling one. Contact required urgent determination in England because the parties and children were due to be present, the issue could be dealt with swiftly, and restarting proceedings in Canada would cause delay. The residence and return issues required fuller evidence about the children’s and both parents’ circumstances in Canada and England. The question whether those issues should later proceed in Canada or England was left for the Circuit Judge after the contact hearing.
5. Stay. The contact application was not stayed under section 5 of the Family Law Act 1986. The Canadian order had been made ex parte, and the amended order expressly permitted the father to apply to the English court. No formal residence application had yet been made, so it was premature to stay that issue.
6. The listing before HH Judge Newton was confirmed. The parties could file further evidence, including an independent social-worker’s report, and the Circuit Judge was directed to determine any further jurisdictional issue or give directions for its determination.