SW v CW

A mirror order is an ancillary or auxiliary order that precisely reflects the order of the court with primary jurisdiction. It does not invite the ancillary court to reconsider the merits, apply a welfare discretion, or assume control of future parental-responsibility disputes. An application for a mirror order therefore does not amount to express or unequivocal acceptance of the ancillary court’s primary jurisdiction under Article 12(3)(b) of the Council Regulation (EC) No 2201/2003. Service of the order, or a right to apply to vary it, cannot create that acceptance. Substantive variation remains a matter for the primary court. Courts should also consider whether any proposed order will be practically beneficial and enforceable, since competing jurisdiction may undermine comity and the child’s interests.

The father and mother had a child who had lived habitually in Malaysia. A Malaysian Sharia court made orders giving the father custody, care and control and granting the mother contact at reasonable times. The father later applied in England for a mirror order, principally to satisfy a passport requirement. Moylan J made an order reflecting the Malaysian order and permitted either party to apply to vary it.

The mother subsequently sought defined residence and contact orders in England. She relied on Article 12(3) of the Council Regulation (EC) No 2201/2003, contending that the father’s English application and acceptance of Moylan J’s order constituted acceptance of English jurisdiction. HHJ Barnett held that England had jurisdiction. The central issue on appeal was whether the mirror order conferred or evidenced primary jurisdiction to determine future parental-responsibility disputes.

The appeal was allowed and the order of HHJ Barnett was set aside. Thorpe LJ gave the leading judgment. Rimer LJ and Stanley Burnton LJ agreed with the result and the essential reasoning.

1. A mirror order is ancillary or auxiliary to the order of the court with primary jurisdiction. It precisely reflects the foreign order and supports its enforcement. It does not require the ancillary court to investigate the merits, apply its own welfare discretion, modify the foreign order, or assume responsibility for future disputes. This analysis, drawn from Re P (A Child: Mirror Order) [2000] 1 FLR 435, was adopted as fundamental to the appeal. Earlier examples, including F v F (minors) (custody: Foreign Order) [1989] Fam 1 and Re HB [1998] 1 FLR 422, were consistent with that classification.
2. Under Article 12(3)(b) of the Council Regulation (EC) No 2201/2003, acceptance of jurisdiction must concern the court’s primary power to decide disputed parental-responsibility matters. The father had sought only a mirror order and had not accepted England as the lead jurisdiction. His service of Moylan J’s order, which was required by that order, was not express or unequivocal acceptance.
3. The order’s heading and provision allowing an application to vary did not alter its substance. The mother’s request for a defined contact order was a new freestanding application, not a variation of the undefined mirror order. The relevant provisions of the Family Law Act 1986 therefore required jurisdiction under Article 12(3), which was absent. Stanley LJ rejected the argument that the court could have jurisdiction to vary an order which it lacked jurisdiction to make.
4. Rimer LJ added that, although there was a question about the jurisdictional basis of Moylan J’s order, an order of a court of unlimited jurisdiction remains valid unless and until set aside: Isaacs v Robertson [1985] AC 97. Its continuing validity did not establish that it had been made under Article 12(3).
5. Thorpe LJ additionally concluded that creating competing jurisdiction was unlikely to be in the child’s best interests and offered a practical cross-check: whether the proposed order would benefit the child and have a realistic prospect of enforcement. The anticipated Article 24 jurisdiction under the 1996 Child Protection Convention did not affect the result.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 703, the father’s appeal was allowed and HHJ Barnett’s order was set aside.
2. High Court, Family Division: On 28 October 2010, HHJ Kevin Barnett held that the court had jurisdiction under Article 12(3) of the Council Regulation (EC) No 2201/2003, directed the father to file proposals for contact in England, and listed a review hearing.