C, Re

Under Brussels II Revised, a court first seised of substantive parental-responsibility proceedings may determine its jurisdiction and continue with welfare decisions where the child is habitually resident in that Member State or jurisdiction has been unequivocally accepted under Article 12(3). A later court in another Member State must stay its proceedings under the lis pendens provisions until the first court’s jurisdiction is established. A return judgment under Article 11(8) is enforceable only if made by a court having jurisdiction under the Regulation. Where the later judgment does not clearly demonstrate that jurisdiction, and communications between the courts do not resolve the issue, the first court may decline to enforce it.

The proceedings concerned an eight-year-old child who had moved from Belgium to England with her mother. The English court had previously refused the father’s application for summary return under the 1980 Hague Convention, finding that he had consented to the move, and had declared the child habitually resident in England and Wales.

The father then commenced residence and contact proceedings in England. While those proceedings remained pending, a Belgian court made an order under Article 11(7) and (8) of Brussels II Revised awarding custody to the father and requiring the child’s immediate return. The central issues were whether the English court had jurisdiction, which court was first seised, and whether the Belgian order and Article 42 certificate had to be recognised and enforced.

1. Jurisdiction. The English court had jurisdiction, at least from 25 November 2011, under Article 8(1), following the unappealed declaration that the child was habitually resident in England and Wales. It was wrong to go behind that declaration. Alternatively, Article 12(3) applied: the child had a substantial connection with England, the father had unequivocally accepted the English jurisdiction by applying for residence and contact, and it was in the child’s best interests for welfare decisions to be made there.
2. First seised. The English court was seised by 8 December 2011, when directions were given. That preceded the assumed date on which the Belgian court was seised, 31 January 2012. Under Article 19 and Mercredi v Chaffe C/947/10, [2011] 1 FLR 1293, the court second seised should not determine the substantive parental-responsibility dispute while the first court’s jurisdiction was pending determination.
3. Effect of the Belgian order. Article 11(8) permits a subsequent return judgment only from a court having jurisdiction under Brussels II Revised. The Belgian judgment did not contain material that unquestionably demonstrated its substantive jurisdiction and did not address the English court’s prior seisin. The approach in Purrucker v Valles Perez (No 1) [2012] 1 FLR 903 and Purrucker v Valles Perez (No 2) [2012] 1 FLR 925 supported judicial communication and clarification, but those communications did not resolve the jurisdictional difficulty.
4. Enforcement. Although a court generally may not review the substance of a judgment supported by an Article 42 certificate, enforcement presupposes jurisdiction under the Regulation. The court confirmed its provisional judgment as final and declined immediately to enforce the Belgian order. The English welfare proceedings were to continue.

This was a first-instance decision. The judgment records an earlier English Hague Convention decision by Hedley J on 25 November 2011, which refused summary return and declared the child habitually resident in England and Wales. The present court confirmed its provisional judgment as final on 16 May 2012.