SJ & Anor v JJ & Anor

Where a court in the child’s state of habitual residence was seised before a foreign non-return order, it retains jurisdiction under Brussels II Revised unless the conditions in Article 10 are met. A domestic order is not a final judgment on custody merely because it addresses residence or return; it must be final rather than provisional. The court’s jurisdiction is a welfare jurisdiction. The court has the full range of powers available under domestic law, including power in an appropriate case to order the child’s summary return. The child’s welfare remains paramount, and the court must apply the welfare checklist. A final custody judgment should be deferred where further review is needed to ensure that contact with the absent parent is established and sustained.

The father applied for orders concerning his young child, who had been wrongfully retained by the mother in Poland. A Polish court ultimately refused summary return under the 1980 Hague Convention. Before that non-return order, however, the father had issued proceedings in England, obtained interim orders and pursued orders for residence, contact and return. The central issues were whether the English court retained jurisdiction under Brussels II Revised, whether it should order the child’s summary return, and whether it should make a final custody judgment or continue the proceedings pending review of contact arrangements.

1. Jurisdiction. The English court had been seised before the Polish non-return order. It therefore retained jurisdiction and was not subject to the mandatory obligation in Article 11(7) to close the case. The relevant Article 10 conditions had not all been met because the English order of 23 November 2009 was not a final custody judgment. Alternatively, jurisdiction continued through the father’s Article 11(7) application.
2. The meaning of judgment on custody adopted from Re A, HA and MB (Brussels II Revised: Article 11(7) Application) required a document containing the judge’s order. The further requirement, following Povse v Alpago, was that the judgment be final rather than provisional. The court’s jurisdiction therefore continued because no final custody order had been made.
3. Whether jurisdiction arose before the non-return order or through Article 11(7), the court exercised a welfare jurisdiction. The whole range of orders available under the Children Act 1989 was open to it. The child’s welfare was paramount and the welfare checklist applied. In an appropriate case the court could order summary return.
4. Applying the welfare checklist, summary return was contrary to the child’s best interests. The child was settled with the mother and maternal family in Poland, while return risked disrupting his security and relationships. His relationship with his father nevertheless required regular and meaningful contact. The court therefore refused summary return, made interim contact orders involving the father and paternal grandparents, and postponed a final custody judgment.
5. The proceedings were continued for review after the planned contact, with an addendum report from the Guardian. The order was to record that it was not a judgment on custody under Article 10(b)(iv), so the English court retained jurisdiction concerning parental responsibility.

First-instance decision. The judgment records earlier proceedings in the Exeter County Court, the High Court and Poland, but no appeal from those decisions to this court.