B v B

Where children and both parents are habitually resident outside England, an English court may relinquish jurisdiction over welfare issues where its order and reasons clearly identify the foreign court as the appropriate forum. Under Article 12(3) of Council Regulation (EC) 2201/2003, the court must also consider the children’s best interests. It is inappropriate to determine welfare issues in England where the children have long lived abroad and are unlikely to return. A mirror order does not confer discretionary welfare jurisdiction on the English court.

The parties’ two children had lived in Dubai since 2007. English orders had provided for their care and required steps to secure recognition in Dubai. In March 2011, the English court recorded the parties’ agreement to file or register those orders with the Dubai court, and the judge stated that issues concerning the children were best determined there.

The mother subsequently issued proceedings in Dubai and obtained judgment. The father then issued two applications in England seeking, among other relief, retention of exclusive English jurisdiction. The issues were whether the March 2011 order had relinquished English jurisdiction and, alternatively, whether jurisdiction should be exercised under Article 12(3) of Council Regulation (EC) 2201/2003.

1. Applications dismissed. The court declined to exercise jurisdiction over both applications.
2. The order made on 14 March 2011 relinquished jurisdiction to Dubai. The relevant factors were the provisions for filing or registering the orders there, the express anticipation of Dubai proceedings, the judge’s observations that children’s issues should be litigated in Dubai, the father’s withdrawal of his Children Act application, and the subsequent translation and lodging of the orders.
3. Re W (Jurisdiction: Mirror Order) [2011] EWCA Civ 703 was distinguishable. A mirror order does not supplant the primary foreign jurisdiction or confer discretionary welfare jurisdiction on the English court.
4. Alternatively, Article 12(3) of Council Regulation (EC) 2201/2003 required consideration of the children’s best interests. Although the children were British nationals, neither they nor either parent was present or habitually resident in England. It would be artificial and contrary to their welfare for England to determine issues concerning children who had long lived in Dubai.
5. The parties had also failed to comply with the bundle Practice Direction. The court endorsed the warning in In Re X & Y (Bundles) [2008] EWHC 2058 (Fam) that procedural defaults may attract consequences.

First-instance decision. No earlier appellate decision is stated in the judgment.