Allocation of jurisdiction – Consent - Habitual residence - Parental responsibility

Mark Ian Bush v Neena Bush: CA (Civ Div) (Lords Justice Thorpe, Lawrence Collins, Rimer): 24 July 2008

The appellant father (F) appealed against a decision that the English courts had jurisdiction over an action instituted by the respondent mother (M) in relation to matters of parental responsibility.

F and M, who had married in England and had three children, were habitually resident in Spain. They ­eventually separated. The eldest child and the middle child lived with F, and the youngest child with M. M instituted divorce proceedings in England on the basis that both parties were domiciled there. F filed an acknowledgment of service and a statement of ­arrangements for the children in response to M’s statement. F then began proceedings in the court of first instance in Spain for care and custody, maintenance and an order that the children should not be removed from Spain. A stay of F’s application was granted on the basis that a related action was in progress in the English courts. M ­subsequently commenced ­proceedings under the Children Act 1989 for residence orders, for contact with F to be defined and an order for the return of the children’s passports. F unsuccessfully sought a declaration under Council Regulation (EC) 2201/2003 that the English courts had no jurisdiction over the case.

The judge held that: the English court was properl­y seized under ­article 12(1)(b) of the regulations in relation to the ­matters of parental responsibility; that, given there was no debate about ­jurisdiction in relation to divorce and maintenance being fixed in England, it would be nonsensical for jurisdiction over the children to lie elsewhere; and that F had unequivocally accepted the English court’s jurisdiction by filing a statement of arrangements.

F submitted that the scheme of the regulation was to ensure that jurisdiction rested with the courts of the child’s habitual residence, that article 12 provided a limited opportunity for parents to elect for the jurisdiction of the court seized with their divorce proceedings, but there had to be unequivocal consent from both ­parents to the exercise of jurisdiction, specifically in relation to matters of parental responsibility. F argued that the judge was wrong to conclude that F had unequivocally accepted the courts’ jurisdiction by filing a statement of arrangements. F further argued that the judge was plainly wrong to have regarded the order staying F’s application in Spain as conclusive of the issue of jurisdiction.

Held: (1) F’s analysis of the scheme of the regulation was correct and the judge’s wide construction of article 12(1)(b) was unsustainable. The courts’ jurisdiction in relation to divorce, legal separation or annulment was rigidly fixed in the court first seized, which excluded the concept of acceptance of that jurisdiction by the parties. Clearly ‘the jurisdiction of the courts’ in the construction of article 12(1)(b) could only be jurisdiction in relation to matters of parental responsibility. Thus the key question was whether the judge was right to conclude that F had accepted the jurisdiction of the English court in an unequivocal manner by filing the document which he had done.

The filing of statements of arrangements was an integral part of the procedure that had to be followed before a marriage could be dissolved. It pertained to the exercise of the court’s jurisdiction to dissolve the marriage. It could not be said that the court’s jurisdiction in any matter relating to parental responsibility was seized by the filing of the statements. The court was seized in that area by the issue of an application on form C2, the application for an order relating to custody, contact, specific issue order or prohibited steps order. The court first seized in any matter relating to parental responsibility was the court of first instance in Spain that received F’s application for care and custody, maintenance and an order that the children should not be removed from Spain without prior authorisation in writing from that court. The first application to the English court in any matter relating to parental responsibility was made around ten days after F’s application was stayed. M should have filed form C2 but had erroneously filed form C1. In any event, M’s application was reactive to the order staying F’s application.

The judge had concluded wrongly that the children would fall into jurisdictional limbo if she granted F’s application for a declaration. That would only be so if the Spanish court had declined jurisdiction. The Spanish order properly understood did not oblige the English court to proceed, disregarding the provisions of the regulation, out of comity or due respect for the Spanish order.

(2) The exceptional jurisdiction of the divorce court was not only dependent on the express or unequivocal acceptance by the parents, but also upon it being in the interest of the child. The judge had erred by failing to consider whether the court of the child’s habitual residence or the court seized with the parental divorce was more appropriate, having regard to the best interest of the child and balance of fairness including convenience, before assuming jurisdiction in any matter relating to parental responsibility. That provided an additional ground for allowing the appeal. It appeared that the principal parental dispute was as to whether the children should continue their life and education in Spain. That being the issue, the Spanish court was the more appropriate court, ­having regard to the best interests of the children and their long settled ­residence there.

Appeal allowed.

M Nicholls QC (instructed by Farrer & Co LLP) for the appellant; T Scott QC (instructed by Fisher Meredith LLP) for the respondent.