M & L (Children), Re

Under article 9 of the 1996 Hague Convention, a court may request authorisation to exercise jurisdiction where the child has the required connection with the requesting state and that court is better placed to assess the child’s best interests. In deciding whether it is better placed, courts should avoid chauvinistic comparisons between otherwise competent legal systems. Differences in procedure, language, evidence and prior involvement may be relevant, but will not necessarily be decisive. A powerful consideration is whether separate proceedings risk inconsistent decisions about siblings or the same welfare issue. Where one court is already determining matters concerning one sibling, and a single tribunal is manifestly better placed to decide interlocking contact issues, the court may properly request authorisation to assume jurisdiction.

The father lived in England with M, while the mother lived in Norway with L. Earlier English orders governed the children’s residence and contact. The mother later began proceedings in Norway concerning L’s contact, while proceedings concerning M continued in England.

The father sought a request under article 9 of the 1996 Hague Convention authorising the English court to exercise jurisdiction over L’s contact proceedings. The mother opposed the request and argued that the Norwegian court was better placed. The central issue was whether the English court was better placed to assess L’s best interests and determine contact with his father and brother.

1. Availability of the power. The court held that article 9 was available. L was a UK national and had a substantial connection with the United Kingdom, having lived there until 2015 and continuing to have his father and brother there.
2. Comparative assessment. The English and Norwegian courts were equally competent in general terms. Neither legal system should be preferred through a chauvinistic value judgment. Relevant differences included the children’s history and culture, each court’s prior knowledge, available professional evidence, language, representation and the practical handling of documents and witnesses. Those matters were broadly balanced.
3. Best interests and consistency. The decisive consideration was that L’s contact with his father and M was closely connected with the English proceedings concerning M. It was manifestly in L’s best interests for decisions about contact to be taken by the court deciding M’s contact. Continuing parallel proceedings created a real risk of inconsistent orders about the same issue.
4. Conclusion and procedure. Since the mother had not asked the English court to request Norway to assume jurisdiction concerning M, the only practical means of having all contact issues determined by one tribunal was to transfer the Norwegian proceedings concerning L to England. The judge therefore proposed to submit a request to the Norwegian court for authorisation to exercise jurisdiction. He intended first to contact the International Family Justice Office and noted that articles 8 and 9 permitted an exchange of views between the courts.