A v B (jurisdiction : Brussels II)

Where Brussels II Revised applies to an application concerning parental responsibility, the court cannot invoke the residual jurisdiction in section 2(1)(b) of the Family Law Act 1986. The statutory gateway requires that neither the Council Regulation nor the Hague Convention applies. It is insufficient that the court lacks jurisdiction under the applicable European instrument. Residual jurisdiction arises only where Brussels II Revised does not apply at all. Article 12 jurisdiction also requires clear evidence of the relevant consent; absent such consent, jurisdiction cannot be founded under article 12(1) or article 12(3).

The applicant mother applied for a section 8 order concerning the parties’ child, who had lived all her life in Dubai and had never been habitually resident in England and Wales. The respondent father had issued divorce proceedings in England and Wales. The mother initially relied on article 12(1) and article 12(3) of Brussels II Revised, but accepted that there was no clear evidence of the father’s consent to jurisdiction. She then relied on the residual jurisdiction in sections 2(1)(b) and 2A of the Family Law Act 1986. The central issue was whether that residual jurisdiction could be considered where Brussels II Revised applied but did not confer jurisdiction.

1. The court determined that it had no jurisdiction to entertain the mother’s section 8 application. The child had never been habitually resident in England and Wales, and the mother accepted that article 12(1) and article 12(3) of Brussels II Revised could not found jurisdiction without clear evidence of the father’s consent.
2. Section 2(1) of the Family Law Act 1986 permits a section 1(1)(a) order where the court has jurisdiction under the Council Regulation or Hague Convention. Alternatively, it permits consideration of residual jurisdiction only where neither instrument applies. The statutory wording is not satisfied merely because Brussels II Revised does not confer jurisdiction in the particular case.
3. Relying on the reasoning of Baroness Hale in Re I [2009] UKSC10, the judge held that Brussels II Revised governs where it applies. If it gives another EU country jurisdiction, England and Wales does not acquire jurisdiction through the residual provisions of the 1986 Act. The residual rules become available only where Brussels II Revised does not apply at all.
4. Because Brussels II Revised applied to the jurisdictional question, the opening condition in section 2(1)(b) was not met. The court was therefore not entitled to revert to sections 2(1)(b) and 2A. The application could not proceed in this jurisdiction.