NJ v JB

Where a child is habitually resident in England and Wales, the Family Court ordinarily has jurisdiction to determine a child arrangements application under Family Law Act 1986 and the 1996 Hague Convention.

For an anterior EU judgment, the former Member State retains jurisdiction under article 9 of Council Regulation (EC) No 2201/2003 only for the specified three-month period after a lawful move. Once that period expires, the English court may determine the application and may withhold recognition from any part of the earlier judgment that is irreconcilable with its own judgment. It must not review the earlier judgment’s substance.

The mother appealed against an order of HHJ Lloyd dismissing for want of jurisdiction her application to vary limited practical and financial aspects of a Bordeaux child arrangements judgment. The Bordeaux judgment, made on 1 July 2021 in proceedings commenced before the end of the Brexit transition period, provided for the child to live with the mother in Wales and have substantial holiday contact with the father in France.

The respondent conceded that the Family Court of England and Wales had exclusive jurisdiction. The issues were the effect of the Withdrawal Agreement and Council Regulation (EC) No 2201/2003, the operation of the three-month exception in article 9, and the court’s power to withhold recognition of irreconcilable parts of the Bordeaux judgment.

1. Appeal allowed. The order of 24 October 2022 was set aside, and the mother’s application was directed to be listed for a FHDRA.
2. Under article 67(2)(b) of the Withdrawal Agreement, Council Regulation (EC) No 2201/2003 continued to apply to recognition and enforcement of judgments given in proceedings instituted before 31 December 2020. The Bordeaux judgment was therefore an anterior EU judgment within the relevant provisions.
3. Article 21 required recognition without a special procedure, subject to the regulation’s provisions on non-recognition. Under articles 23(e) and 36, recognition or enforcement could be withheld wholly or partly where the anterior judgment was irreconcilable with a later judgment relating to parental responsibility given in England and Wales.
4. Article 26 prohibited review of the anterior judgment as to substance. The English court could identify and withhold recognition from conflicting terms, but could not reconsider the merits of the Bordeaux court’s decision. An article 21(3) issue did not require a formal application notice and could be determined within the child arrangements proceedings.
5. Section 2(1)(a) of the Family Law Act 1986, read with article 5(1) of the 1996 Hague Convention, gave jurisdiction to the court of the child’s habitual residence. The child was habitually resident in England and Wales.
6. Article 9 created an exception under which the Bordeaux court retained jurisdiction to modify access provisions for three months after the child’s lawful move. That period had expired. Article 10 did not preserve jurisdiction because the move to Wales had been authorised. The Bordeaux court therefore no longer had jurisdiction to entertain a new child arrangements application, while the Family Court of England and Wales was the only court able to do so.
7. The court criticised as disproportionate and impermissible Cafcass recommendations which would have required analysis of historical allegations considered in Bordeaux, since that course would involve an impermissible review of the substance of the Bordeaux judgment.

• High Court (Family Division): Appeal from the order of HHJ Lloyd dated 24 October 2022 allowed; the order was set aside and the application was directed to proceed.
• Family Court at Wrexham: The mother’s application to vary practical and financial aspects of the Bordeaux judgment was dismissed for want of jurisdiction.