A v B

Where proceedings concerning parental responsibility for the same child and involving the same cause of action are already pending in one Member State, the court second seized must stay its proceedings under Article 19(2) of Council Regulation (EC) No 2201/2003. The first-seised court retains jurisdiction notwithstanding a subsequent change in the child’s habitual residence. Applications for parental responsibility and contact fall within the Regulation. Article 15 does not permit the second court to request a transfer to itself, and Article 20 does not provide an alternative basis for determining substantive jurisdiction. The second court may, however, make limited interim directions under Article 20 to support practical arrangements pending the first-seised court’s decision.

The father applied in England for orders concerning parental responsibility, contact and the welfare of his daughter, who had been born in Sweden and had remained the subject of proceedings before the Stockholm District Court. The mother and child came to England temporarily while the Swedish proceedings remained pending. The mother applied for a stay under Article 19(2) of Council Regulation (EC) No 2201/2003.

The father argued that applications for parental responsibility fell outside the relevant provisions of the Family Law Act 1986, that the child was no longer habitually resident in Sweden, and that England was the appropriate forum. The central issues were whether the English court had jurisdiction, whether the proceedings were subject to the lis pendens rule, and whether Articles 15 or 20 supplied an alternative basis for proceeding.

The English proceedings were stayed, with liberty to apply. The Swedish court remained seised of the merits and retained jurisdiction.

1. Article 19. The father’s applications for parental responsibility and contact were within the scope of Council Regulation (EC) No 2201/2003. The Stockholm District Court had lawfully taken jurisdiction after the child’s birth and remained the court first seized. Article 19(2) therefore required the English court, as the court second seized, to stay its proceedings. The mother’s subsequent movements and her earlier statement that she did not intend to return to Sweden did not displace that conclusion.
2. Article 15. The English court could not request the Swedish court to transfer the proceedings. Transfer was a matter for the Member State having jurisdiction as to the substance of the matter, namely Sweden.
3. Domestic jurisdiction. The only possible basis on which the English court might take jurisdiction was section 2(3)(b)(ii) of the Family Law Act 1986. The evidence fell well short of satisfying that provision.
4. Article 20. The court rejected the argument that Article 20 supplied jurisdiction to conduct a welfare enquiry or determine the substantive applications. It nevertheless exercised the limited power available under Article 20 to direct the mother to obtain orders from the Swedish court reflecting the undertakings she had offered. The parties were permitted to disclose the judgment and case documents in the Swedish proceedings, subject to the Swedish court deciding what use to make of them.
5. The proceedings were stayed on those terms, and both parties had liberty to apply regarding implementation and generally.