ED (A Child)

A parent’s undertaking to return a child removed from the jurisdiction may amount to an express and unequivocal acceptance that the court retains jurisdiction in matters of parental responsibility. The undertaking may be time-limited; it need not remain open-ended. Where the child has a substantial connection with the Member State, jurisdiction has been accepted by all parties, and exercising jurisdiction is in the child’s best interests, jurisdiction may arise under Article 12.3 of Council Regulation (EC) 2201/2003, even if the child has subsequently acquired habitual residence elsewhere. The court may determine jurisdiction without resolving alternative factual bases where one basis is conclusive.

The father applied in England for orders concerning parental responsibility and contact in respect of his young child. The mother took the child to Poland after undertaking to return her to England by a specified date. The English proceedings were later treated as withdrawn, although the father subsequently sought to revive them. The mother then indicated that she and the child intended to remain in Poland. Polish proceedings concerning the child and an application for summary return followed.

The father applied within the existing English proceedings for committal for breach of the undertaking and for orders under the Children Act 1989. The preliminary issue was whether the English court retained jurisdiction, including under Article 12.3 of Council Regulation (EC) 2201/2003.

1. Jurisdiction under Article 12.3. The court declared that it had jurisdiction to make orders for parental responsibility and a child arrangements order. The mother’s undertaking to return the child to England was the decisive basis for that conclusion.
2. The permission to remove the child temporarily was conditional upon the undertaking. Although the undertaking required return by a fixed date, rather than whenever requested by the court, that distinction did not affect its legal significance. An undertaking of this kind constitutes an express and unequivocal acceptance that the court retains jurisdiction in matters of parental responsibility until the undertaking is fulfilled or discharged.
3. The other requirements of Article 12.3 were satisfied. The father remained habitually resident in England, the child was an English national, and the child therefore had a substantial connection with England. It was also in the child’s best interests for the court to which the undertaking had been given to retain jurisdiction. The English court consequently had jurisdiction even if the child had ceased to be habitually resident in England by the date of the later application.
4. The court considered it unnecessary to determine the alternative arguments based on whether the original proceedings remained extant or whether the child retained habitual residence in England. Once jurisdiction was established under Article 12.3, those factual inquiries were unnecessary.
5. Consideration of a possible transfer to Poland under Article 15 was adjourned. Directions were made for evidence, an expert report concerning Polish law and procedure, the mother’s attendance, and a welfare check under Article 55.