VC v GC

Under Brussels II Revised, jurisdiction in parental-responsibility matters ordinarily lies with the court of the child’s habitual residence, reflecting the importance of proximity. A court in another Member State may assume jurisdiction under Article 12(1)(b) only where jurisdiction has been accepted expressly or unequivocally by the holders of parental responsibility at the time the court is seised, and where that jurisdiction is in the child’s superior interests. Engagement with foreign proceedings, including an appeal against an interim residence order, does not necessarily amount to unequivocal acceptance. The superior-interests inquiry concerns the appropriate forum rather than the substantive welfare outcome.

The father sought a stay of the mother’s English application for a residence order concerning their daughter. He argued that the French courts had jurisdiction under Brussels II Revised because the mother had engaged with the French proceedings and appealed an interim order transferring residence to him. The mother had initiated proceedings in England and disputed that she had unequivocally accepted French jurisdiction. By the hearing, the father accepted that the child was habitually resident in England. The central issues were whether Article 12(1)(b) was satisfied and, if so, whether it was in the child’s superior interests for France rather than England to determine future parental-responsibility issues.

1. Application refused. The father’s application to stay the English proceedings was dismissed.
2. The court of the child’s habitual residence is the starting point for determining parental-responsibility issues. Recital 12 emphasises that this reflects the criterion of proximity. The father accepted that the child was habitually resident in England.
3. Article 12(1)(b) requires three cumulative matters: acceptance of the foreign court’s jurisdiction expressly or otherwise in an unequivocal manner by the holders of parental responsibility; acceptance at the time the court is seised; and that the foreign jurisdiction is in the superior interests of the child.
4. The authorities establish that acceptance need not be written and that subsequent conduct may illuminate the quality of acceptance at the relevant time. Nevertheless, acceptance must be unequivocal and is not lightly inferred.
5. The mother’s limited engagement with the French proceedings and her appeal against the interim transfer-of-residence order did not amount to unequivocal acceptance. She had also instituted English proceedings seeking a residence order.
6. Alternatively, even if there had been unequivocal acceptance, it was in the child’s superior interests for England to determine future care and parental-responsibility issues. The child had lived in England since 2009, attended school there and lived within the maternal extended family. Welfare inquiries, including the father’s concerns about the local environment, could best be undertaken in England with CAFCASS assistance.
7. The presumption favouring the court of habitual residence was therefore not displaced. The English proceedings were permitted to continue.