Re M (BIIa Article 19: Court First Seised)

Under Family Procedure Rules 2010 rule 27.5(3), the conditions for setting aside an order after non-attendance are cumulative. Where the underlying case has a reasonable prospect of success, the court should usually adopt a fact-sensitive and non-rigorous approach to the question of good reason, particularly for a foreign litigant in person.

Under Brussels IIa, seisin ordinarily arises on lodging proceedings. It may continue while a refusal of jurisdiction is challenged, and the first-seised court’s domestic interpretation of its own proceedings deserves substantial weight. A Member State court must not review another Member State court’s jurisdiction or merits. A long-delayed summary return also requires reliable welfare information, not merely proof of wrongful removal.

The parents were Polish and Hungarian nationals. Their two children had lived mainly in England until the mother took them to Poland in May 2016 and later kept them there. Proceedings were issued in Poland on 2 June 2016 and in Brighton on 4 July 2016. The Polish court initially dismissed the mother’s application for want of jurisdiction, later restored it, and subsequently treated the Polish proceedings as continuing from 2 June.

Mostyn J held that the English court had exclusive jurisdiction and ordered the children’s return: [2017] EWFC 73. He later dismissed the mother’s application to set that decision aside and refixed the return date: [2018] EWFC 6. The mother appealed. The central issues were whether she had a good reason for non-attendance, whether the Polish court remained first seised under Brussels IIa, and whether summary return was justified.

1. Disposition. The unanimous Court of Appeal allowed the appeal, set aside the order of 30 January 2018, determined the underlying jurisdiction issue itself, and dismissed the father’s proceedings in Brighton. The Polish court had become and remained seised from 2 June 2016. The English courts therefore had to decline jurisdiction under Article 19(3) of Brussels IIa.
2. Setting aside for non-attendance. The hurdles in rule 27.5(3) of the Family Procedure Rules 2010 are cumulative. The judge nevertheless erred by treating the Evidence Regulation as irrelevant. The relevant question was whether it might have applied at the main hearing, when oral evidence from the mother was due to be taken. Her reliance on advice from the Polish authorities and lawyers was at least arguable. In an international family case involving a foreign litigant in person, the court should not adopt an unduly rigorous approach to good reason where there is a reasonable prospect of success. Rule 27.3 did not justify departing from the approach in Mohun-Smith.
3. Seisin and jurisdiction. Article 16 treats the court as seised when the initiating document is lodged, subject to the applicant’s failure to take steps required by domestic law to effect service. The Polish courts had held that their seisin continued uninterrupted, and that interpretation deserved very considerable, arguably decisive, weight. The fact that the application continued under the same file number supported that conclusion. Moore v Moore applied equally, and a fortiori, to a properly constituted set-aside application. There was no evidence that the mother had failed to take steps required for service.
4. Mutual trust and review. The judge’s assessment that the children were habitually resident in England, and his criticism of the Polish decisions, were integral to his reasoning. They therefore amounted to an impermissible review of jurisdiction and substance contrary to Articles 24 and 26. The Brussels regime requires practical comity between Member State courts.
5. Summary return. Even if England had jurisdiction, the order for immediate return into alternating parental care was unjustified after the children had been in Poland for about 18 months. A lengthy stay requires dependable information about the children’s welfare, including their connections with each country, the time spent there, disruption from removal, and their current circumstances. The Article 55 information mechanism should at least have been considered. Protective measures did not cure the lack of primary welfare information. Wrongful removal alone could not justify the order.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 1637, the appeal was allowed. The order refusing to set aside the return order was set aside, the Polish court was held to have remained first seised, and the Brighton proceedings were dismissed.
• Family Court: Mostyn J held that the English court had exclusive jurisdiction and ordered the children’s return in [2017] EWFC 73. He subsequently dismissed the mother’s set-aside application and refixed the return date in [2018] EWFC 6.