G (A child), Re

A parental-responsibility order is final for the purposes of Council Regulation (EC) No 2201/2003 where it conclusively determines the relief sought, even though it provides for future events or contains obligations yet to be performed. A finite permission to remove a child, coupled with an obligation to return the child, may therefore be final rather than provisional. Once jurisdiction has ended, a later court seised of related proceedings must apply the lis pendens provisions unless it is manifestly clear that the first proceedings could not found substantive jurisdiction. The court second seised may grant urgent protective measures under article 20, but should not determine the first court’s jurisdiction.

The parents were Italian nationals who had lived in England and had a young child, G. In September 2012 the Family Division made a consent order granting the mother temporary permission to remove G to Qatar until September 2013, requiring his return, and making shared residence arrangements.

The mother later sought permission to relocate G to Finland and argued that the English court remained seised of parental-responsibility matters. Proceedings had also been commenced in Italy, including applications concerning G’s return, residence and relocation. The central issues were whether the September 2012 order was final under Brussels II revised and whether the Italian or English court was first seised under articles 16 and 19(2).

1. Finality of the September 2012 order. The order finally disposed of the parents’ residence applications and the mother’s application for finite permission to remove G. A parental-responsibility judgment does not cease to be final merely because it regulates future conduct or contains executory obligations. The court followed the reasoning in Re A (Foreign Contact Order: Jurisdiction) [2003] EWHC 2911 (Fam); [2004] 1 FLR 641.
2. The reasoning in Povse v Alpago [2010] 2 FLR 1343 concerned an interim permission granted pending a final judgment in proceedings which plainly remained ongoing. It did not prevent the September 2012 order from being final, because the relief sought had been fully and conclusively granted. The principle of perpetuatio fori in Mercredi v Chaffe [2011] 2 FLR 515 likewise concerned changes occurring during extant proceedings and did not answer whether the proceedings had ended.
3. Lis pendens. Under article 19(2) of Brussels II revised, the court second seised must stay its proceedings until the first court’s jurisdiction is established. Article 16 determines when a court is seised. It was not manifestly clear that the Italian proceedings could not found substantive jurisdiction, particularly as the Italian court had been seised of the mother’s relocation application. The question whether the Italian court was first seised, including the effect of service under Italian law, had to be determined by the Italian court.
4. The English proceedings were therefore stayed until the Italian court determined whether it was first seised and, if so, whether it had jurisdiction. The anti-suit injunction was discharged. The court later made temporary protective orders under article 20 and refused permission to appeal. Applications to reconsider or explain a judgment should ordinarily be made only for plain error, great ambiguity or a change of circumstances.