B (A Child)

Under the Brussels II Revised Regulation, jurisdiction in parental-responsibility proceedings generally lies with the Member State where the child was habitually resident when the court was seised. That jurisdiction does not depend on extant proceedings in that State. Where another Member State has jurisdiction under Article 8, Article 14 cannot confer residual jurisdiction on England and Wales, and Article 17 requires the English court to declare its lack of jurisdiction of its own motion. Judicial-network communications may facilitate information exchange and practical co-operation, but cannot supply an authoritative determination of jurisdiction outside a proper judicial process. Article 20 remains available for urgent provisional or protective measures.

The mother and her five-year-old daughter had lived in Sweden, where the child was accepted to be habitually resident when an English local authority commenced care proceedings under Children Act 1989, section 31, on 12 September 2012. An English judge made an interim care order under the Brussels II Revised Regulation, Article 20, and later held that England and Wales had full jurisdiction under Article 14, relying in part on Swedish judicial-network responses suggesting that Sweden would not exercise jurisdiction.

The mother appealed. The central issues were whether Article 8 gave jurisdiction to Sweden despite the absence of live Swedish proceedings, whether the network communications could establish that Sweden had declined jurisdiction, and what jurisdiction remained in England and Wales.

Appeal allowed. The Court of Appeal set aside the High Court judge’s determination and substituted a declaration under the Brussels II Revised Regulation, Article 17, that the courts of England and Wales had no jurisdiction over the care proceedings commenced on 12 September 2012.

1. Judicial-network communications. The International Hague Network of Judges and the European Judicial Network facilitate the exchange of information and practical co-operation. They do not provide a mechanism for obtaining binding rulings on jurisdiction or status from a network judge, particularly where there are no proceedings in the requested State. The questions put to the Swedish network judge were therefore inappropriate. The expressions of opinion that it was highly likely that Sweden would not exercise jurisdiction could not establish that the Swedish courts had actually declined jurisdiction (paras 59–72).
2. Article 8. The reference to the time when the court is seised fixes the time at which jurisdiction is determined for the proceedings. Since the child was habitually resident in Sweden when the English court was seised, Article 8 conferred jurisdiction on Sweden, whether or not Swedish proceedings were then extant. This interpretation was consistent with Articles 9 and 10 and Recital 12 (paras 74–76).
3. Articles 14 and 17. Article 14 could not be used because Sweden had jurisdiction under Articles 8 to 13. Article 17 was mandatory: the English court was required to declare of its own motion that it had no jurisdiction. The subsequent passage of time and possible change in habitual residence could not cure the failure to determine jurisdiction at or near the commencement of the proceedings (paras 77–81).
4. Article 20 and orders. It was unnecessary to decide whether earlier interim measures complied with Article 20. The remaining English jurisdiction was limited to short-term holding arrangements facilitating an orderly conclusion of the proceedings. Existing interim orders, including the interim care order, were to remain in force until discharged or varied at the forthcoming High Court hearing (paras 82–85).

• Court of Appeal (Civil Division): allowed the appeal, set aside the High Court’s jurisdiction determination, and substituted a declaration under Article 17 that England and Wales had no jurisdiction in the care proceedings.
• High Court of Justice, Family Division: HHJ Lesley Newton held on 13 June 2013 that the English court had full jurisdiction, following an earlier interim care order and Article 15 transfer request.