T v T

Jurisdiction over parental-responsibility issues may remain in the courts of a Member State despite the children’s habitual residence in another Member State where the requirements of Article 12(3) of Council Regulation EC Number 2201/2003 are met. Express and unequivocal acceptance by all parties is relevant, but jurisdiction must also be in the children’s best interests. Habitual residence is a powerful consideration, but it is not necessarily determinative. The court must assess the practical circumstances, including existing litigation, available welfare evidence, connections with each jurisdiction and the scope of the issues. Under Article 15, transfer is exceptional and depends on whether another Member State is better placed to hear the case and whether transfer serves the children’s best interests.

The father sought a substantial reconsideration of contact and initially appeared to seek the children’s return from Ireland to England. The children had moved to Ireland pursuant to a 2008 order made in Children Act proceedings, which regulated residence and contact. A 2010 consent order varied those arrangements.

The children had been habitually resident in Ireland for about four years. The mother had nevertheless expressly and unequivocally accepted the jurisdiction of the English courts in the current proceedings and in 2010. The Deputy District Judge raised jurisdiction for determination by a High Court judge. The central issue was whether the English courts had, and should exercise, jurisdiction under Articles 12(3) and 15 of Council Regulation EC Number 2201/2003.

1. Article 12(3). The children were habitually resident in Ireland, so Article 8 did not itself confer general jurisdiction on the English courts. The temporary jurisdiction under Article 9(1) was no longer relevant. Article 12(3) nevertheless provided an independent basis where the children had a substantial connection with England, jurisdiction had been expressly or otherwise unequivocally accepted by all parties when the court was seised, and jurisdiction was in the children’s best interests. The father had parental responsibility, remained habitually resident in England and the children were nationals of England. The mother had accepted the English jurisdiction unequivocally.
2. Assessment of the children’s interests. Habitual residence in Ireland was a powerful feature and had been carefully considered. It was not treated as automatically determinative. Relevant practical matters included the litigation already underway in England, the absence of proceedings in Ireland, the narrow issues remaining, the availability of the judge and CAFCASS officer previously involved, and the practical advantages of continuing in England.
3. Article 15. Ireland had a particular connection with the children, including through habitual residence. However, the existence of such a connection did not require transfer. On the facts, the English court was already seised, the issues were limited, and the existing evidence and judicial familiarity favoured continuation in England.
4. On the balance of the relevant considerations, the litigation was permitted to continue in England notwithstanding the children’s habitual residence in Ireland.