S (A Child), Re

Jurisdiction prorogued under Article 12(3) of Council Regulation (EC) No.2201/2003 is linked to the proceedings for which the parties accepted jurisdiction. It endures until the final judgment in those proceedings, but does not continue for the child’s minority or indefinitely after the proceedings end. Article 15 provides a mechanism for transferring a specific live case, not territorial jurisdiction in the abstract. Once the prorogued proceedings have concluded and no fresh proceedings exist, there is nothing to transfer. The court of the child’s habitual residence may then assume jurisdiction under Article 8.

The application concerned the jurisdiction of the English and Spanish courts over a child who had moved from Spain to England. The parents had signed an agreement, approved and adopted by the Spanish court on 20 October 2010, after the mother accepted Spanish jurisdiction under Article 12(3) of Council Regulation (EC) No.2201/2003. The Spanish proceedings then ended.

Subsequent English proceedings were stayed while the mother sought clarification or transfer from Spain. The Spanish court declined to declare that it lacked jurisdiction, but stated that the proceedings had been filed and that there was no other pending family case. The central questions were whether the Spanish prorogation survived the final order, whether an Article 15 transfer was required, and whether England could assume jurisdiction under Article 8.

Determination. The prorogation of Spanish jurisdiction ended when the Spanish proceedings concluded with the final order of 20 October 2010. Spain retained no residual jurisdiction, no Article 15 transfer was required, and the English court could assume jurisdiction under Article 8 of Council Regulation (EC) No.2201/2003.

1. Article 12(3) requires unequivocal acceptance of jurisdiction at the time the court is seised. That language links the acceptance to the particular proceedings. The scheme of Article 12, including Article 12(2), supports the conclusion that prorogation lasts only for the life of the proceedings and ends when the judgment becomes final.

2. The court relied on Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10 and AP v TD (Relocation: Retention of Jurisdiction) [2010] EWHC 2040 (Fam) in explaining that prorogued jurisdiction cannot be terminated unilaterally by another court or by withdrawal of consent during the relevant proceedings. Those authorities did not require jurisdiction to survive after final judgment.

3. Article 15 concerns the transfer of a specific current case or part of a case. It does not transfer, or provide a mechanism for transferring, general territorial jurisdiction where no proceedings are pending. Since the Spanish proceedings had ended, there was nothing to transfer.

4. The child had become habitually resident in England by at least 21 July 2010. Applying the habitual-residence principles in Mercredi-v-Chaffe Case C-497/10 PPU (22.12.10), the English court was the accessible and appropriate court for future parental-responsibility decisions.

5. For completeness, an Article 15 request would have been distinguishable from AB v JLB (Brussels II Revised: Article 15) [2008] EWHC 2965, because the Spanish ruling was not a merits determination against transfer. The proceedings were listed urgently for directions so that welfare-based decisions could be made.