A short judgment handed down by the Court of Appeal last Friday dealt with the issue of the jurisdiction of the courts in England and Wales to make child arrangements orders for children who are to live abroad. Given the international nature of many families nowadays, the issue is of considerable importance.
The facts of the case, L (A Child), were tragic. They began with a holiday romance when the mother met the father on a visit to Corfu in 2005. Shortly after this the mother moved to live in Corfu with the father, where they were married in 2007. The child, ‘G’, was born in August 2007. Unfortunately, the marriage did not last and by January 2008 the mother and father had separated, the father remaining in Corfu and the mother and G living in a house in England. The parents were divorced in 2014.
Tragedy struck when in February 2016 the mother suffered an aneurysm and died. A dispute then arose between the father and the maternal aunt regarding the arrangements for G. The father wanted her to live with him in Corfu. The aunt, on the other hand, believed it to be in G’s best interests for her to remain in the UK, living with her, and she applied for a child arrangements order to that effect.
The dispute was determined by His Honour Judge Pearce at the Chester Family Court on 26 May 2016. He concluded that it would be in G’s best interests to live with the father in Corfu, but to continue to have contact with the aunt. Believing that he had no jurisdiction to make a child arrangements order regulating contact in respect of a child who was to live in Corfu, he dismissed the aunt’s application.
In July the father moved G to Corfu, where they continue to live together.
The aunt appealed. Initially her appeal was against the entire order, including the finding that it would be in G’s best interests to live with the father in Corfu and the dismissal of the child arrangements application. However, by the time the appeal reached the Court of Appeal she had agreed with the father that G would remain in Corfu and would have contact with her and the maternal family. Accordingly, the only part of the appeal that she wanted to proceed with was against the dismissal of her child arrangements application. The reason for proceeding with this part of the appeal was explained by Lady Justice King, who gave the leading judgment in the Court of Appeal:
“…to ensure that in the unlikely event of there ever being proceedings in the Corfu courts, those courts would understand that the judge had been in error in believing he had no power to make a contact order and that, had he not misunderstood the law in this respect, he would have made an order”
I’ll come back to why this could be important in just a moment.
Lady Justice King dealt with the appeal very quickly. The judge had fallen into error. The issue of jurisdiction is covered by the Brussels II regulation, which is a regulation of the European Commission setting out, amongst other things, rules determining which court (i.e. which member state) is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country. Article 8 of the regulation clearly states that the courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised of the matter (‘seised’ means when the court has taken ‘ownership’ of the case – for a fuller explanation of the term, see this post).
Here, G had been habitually resident throughout the proceedings, and clearly therefore the judge did have jurisdiction to make a child arrangements order, setting out the aunt’s contact with G. Accordingly, the appeal was allowed.
It is easy to see how the judge fell into error. Obviously, at the outset of the case the English court had jurisdiction to deal with the matter, as the child was habitually resident in this country. However, once the judge had decided that the child should live with her father in Corfu logic would suggest that the issue of the aunt’s contact thereafter should not be determined by an English child arrangements order. As we have seen, that is an error, and it could be important, as if there are ever to be proceedings relating to the aunt’s contact in the Corfu courts, then those courts need to know what the English court had to say about the matter.
Of course, Brussels II will no longer apply to the UK when we leave the European Union. However, it would appear that, one way or another, similar rules will apply post-Brexit, and therefore cases like this will continue to be decided in the same way. For more detail as to the effect of Brexit on the UK in terms of Brussels II, see this House of Commons Briefing Paper.
The full report of L (A Child) can be found here.