X v Y & Anor

Under Article 12.3 of Council Regulation (EC) 2201/2003, prorogation of jurisdiction requires a substantial connection, unequivocal acceptance by all parties when the court is seised, and the child’s best interests. Acceptance cannot later be withdrawn merely because circumstances change. A failed mirror-order undertaking does not invalidate prorogation where equivalent recognition and enforcement mechanisms remain available. The child’s habitual residence is important, but does not prevent retention of jurisdiction when the statutory criteria and welfare requirement are satisfied. Contact decisions must give particular weight to an older child’s wishes and feelings and to emotional risk. A restriction under section 91(14) of the Children Act 1989 remains an exceptional, proportionate measure, generally reserved for repeated unreasonable applications or clear evidence of serious welfare risk.

This was a review hearing in proceedings concerning Z, aged 13½. In 2012 Hedley J permitted Z’s father to relocate him permanently from England and Wales to Switzerland, retained the jurisdiction of the English courts, ordered indirect contact, and required mirror orders in Switzerland. Swiss law provided no mirror-order procedure, and recognition proceedings risked revealing the location of the Swiss court and thereby compromising confidentiality.

The father sought discharge from the mirror-order undertakings. The mother challenged the continuing English jurisdiction and sought transfer to Switzerland, direct contact, and later opposed an application under section 91(14) of the Children Act 1989. The central questions were whether jurisdiction had been validly prorogued and should remain so, what contact was in Z’s best interests, and whether further applications should require leave.

1. Jurisdiction. The court discharged the father’s second and third undertakings concerning mirror orders. Their absence was not decisive because the English order could be recognised and enforced in Switzerland by other means. The disclosure of the Swiss district court was also a cogent incentive to continued compliance.
2. Article 12.3 of Council Regulation (EC) 2201/2003 required three conditions: a substantial connection with England and Wales, unequivocal acceptance of English jurisdiction by all parties when the court was seised, and jurisdiction being in the child’s best interests. Those conditions had been satisfied in 2012. The mistaken assumption about mirror orders did not undermine the parties’ earlier acceptance or the welfare assessment.
3. The court retained jurisdiction. Z’s habitual residence in Switzerland did not prevent prorogation. His continuing connection with England and Wales, the court’s detailed knowledge of the history, and the risk that disclosure of the Swiss court’s location would expose or alarm Z made retention in his best interests. The mother’s acceptance of jurisdiction could not be withdrawn: Re I [2009] UKSC 10. The approach was also consistent with AP v TD (Relocation: Retention of Jurisdiction) [2010] EWHC 2040 Fam; [2011] 1 FLR 1851.
4. Contact. Applying section 8 of the Children Act 1989 and having regard to Article 8 of the ECHR, the court refused direct contact, including supervised, telephone and Skype contact. Z’s strongly expressed wishes, his age and understanding, and the continuing risk from the mother’s unpredictability outweighed the general desirability of a relationship with both parents. Indirect contact was reduced from twelve communications annually to four letters annually, although the mother later indicated that she intended to write only once more.
5. Section 91(14). The principles in Re P [1999] 2 FLR 573 were applied. A leave restriction is discretionary, intrusive, exceptional and proportionate to the harm avoided. It was refused because there was no history of repeated unreasonable applications and proceedings in Switzerland would be more harmful to Z. Any future application concerning Z was instead to be transferred immediately to the judge for case management.

The judgment was delivered on review of orders made in the same proceedings by Hedley J on 6 March 2012. It was a first-instance review decision, not an appeal. Bodey J had previously adjourned the review and directed the issues for determination.