L (A Child)

Jurisdiction in matters of parental responsibility under Brussels II revised depends on the child’s habitual residence when the court is seised. Where that condition is satisfied, the court may make a child arrangements order regulating contact under section 8 of the Children Act 1989, even if the child is to live in another Member State. A later relocation does not retrospectively remove jurisdiction. An appellate court may correct the jurisdictional error despite changed circumstances and withdrawal of the merits challenge where clarification remains practically relevant.

The aunt applied for a child arrangements order that her niece should live with her in England and spend time with her father in Corfu. The father sought the child’s relocation to Corfu. His Honour Judge Pearce decided that the child’s best interests lay with her father but held that he lacked jurisdiction to regulate contact once she lived abroad. The aunt withdrew the merits grounds after the child moved to Corfu but pursued the jurisdictional ground. The central issue was whether the English court had jurisdiction under Article 8 of Brussels II revised to make a contact order.

1. Appeal allowed on Ground 1. The merits grounds were withdrawn. The Court of Appeal held that the first-instance judge had jurisdiction to make a child arrangements order regulating contact.
2. Article 8 of Council Regulation (EC) No 2201/2003 (Brussels II revised) confers jurisdiction in matters of parental responsibility where the child is habitually resident in the relevant Member State when the court is seised. The child was habitually resident in the UK throughout the proceedings and was still habitually resident there at every potentially relevant date.
3. Article 16 identifies when a court is seised, but its precise interpretation did not require determination because the result was the same whether the relevant date was the aunt’s application, the filing of the appellant’s notice, or the grant of permission to appeal.
4. Child arrangements are matters of parental responsibility. Under section 8 of the Children Act 1989, an order may regulate with whom a child lives and the time the child spends, or otherwise has contact, with another person. The fact that the child was to live in Corfu did not deprive the English court of jurisdiction that already existed under Article 8.
5. The court corrected the error notwithstanding the child’s subsequent move and the parties’ agreement on future contact, particularly because the clarification might assist in any future proceedings. The court expressed no view on the merits, which were left to the Cypriot courts if a future dispute arose.

1. Court of Appeal (Civil Division) — In [2016] EWCA Civ 1297, the appeal was allowed on the jurisdictional ground. The court held that the English court had jurisdiction to make a contact order.
2. Chester Civil and Family Justice Centre — His Honour Judge Pearce dismissed the aunt’s application on 26 May 2016, deciding that the child should live with her father in Corfu and that the court lacked jurisdiction to regulate contact after the move.