G (a child), Re

Under Council Regulation (EC) No 2201/2003, the court second seised of parental-responsibility proceedings concerning the same child and cause of action must stay its proceedings. That obligation depends on the sequence of seisin, not on whether the first court ultimately has jurisdiction. Whether earlier proceedings ended is fact-specific. An order may be final despite temporary removal, future obligations, possible variation or enforcement. The Regulation contains no general concept of continuing oversight that preserves jurisdiction. In an urgent case, a provisional protective order requiring the child to attend a foreign hearing may be made where that is an appropriate way to protect the child’s immediate interests.

The parents, both Italian, had lived in England and Italy with their child. In 2012, the mother obtained consent orders under Children Act 1989 permitting temporary removal to Qatar, requiring return to England, and regulating shared residence. After later disputes in Italy and the mother’s move with the child to Finland, she issued fresh English proceedings seeking permission to remain and remove the child to Finland. Mostyn J stayed those proceedings under Article 19(2) of Council Regulation (EC) No 2201/2003 and made an Article 20 order requiring return to Italy for an Italian hearing unless that court directed otherwise. The mother appealed, challenging both the stay and the scope of the return order. The central issues were whether the 2012 order had ended the English proceedings and whether the return order was permissible on the facts.

Both appeals were dismissed. The English proceedings remained stayed, and the order requiring the child’s return to Italy was upheld.

1. First seised and finality. Council Regulation (EC) No 2201/2003 had to be interpreted purposively and in accordance with EU law, rather than by a narrow domestic-law approach. Under Article 19(2), the court second seised must stay proceedings concerning the same child, parental responsibility and cause of action. That obligation depends on the sequence in which the courts were seised; the first court’s actual jurisdiction is addressed subsequently under Article 19(3).
2. Whether proceedings have ended is a fact-specific question, determined by examining the circumstances in which the relevant order was made and its precise terms. A child order may be final even though it regulates future events, may later be varied, or may be enforced. The absence of a further hearing date is a useful pointer towards finality. The 2012 consent order resolved all issues, provided for no review or follow-up hearing, and its obligations concerning return and future care were matters of compliance and enforcement separate from the original proceedings. Its temporary permission to remove the child did not prevent finality. A continuing-oversight concept would introduce a jurisdictional mechanism not contained in the Regulation and would undermine its proximity-based scheme.
3. Article 20 order. The challenge was confined to whether the return order was appropriate on the facts; the existence of jurisdiction and domestic power to make a provisional order was not disputed. Mostyn J had to protect the child’s immediate position on limited and unreliable information. He was entitled to require the child to attend the Italian hearing unless the Italian court directed that attendance was unnecessary. The order was directed to the child’s interests and to ensuring that the foreign hearing was effective, not to impermissible case management for a foreign court.
4. The stay was not a dismissal. If the Italian court ultimately determined that it was not first seised, the English proceedings could revive and the English court would then consider its jurisdiction under Article 8, including the child’s habitual residence when the English application was issued. If Italian jurisdiction were established, the English court would have to decline jurisdiction in favour of Italy.

• Court of Appeal (Civil Division): the appeals against the stay and the return to Italy order were dismissed: [2014] EWCA Civ 680.
• Principal Registry of the Family Division (Mostyn J): stayed the English proceedings under Article 19(2) of Council Regulation (EC) No 2201/2003 and ordered the mother to take the child to Italy under Article 20 unless the Italian court directed otherwise. No separate citation was stated.