Minor - Mirror orders - Malaysian court regulating rights of contact of child - Whether English court has jurisdiction to make orders

W v W (minor) (mirror order): Court of Appeal, Civil Division: 17 June 2011

The father was English and the mother Columbian. They married in 1994 and their only child (the child) was born in 2002.

Although the child had British citizenship, derived from his father, he had lived all his life in Malaysia.

Following custody proceedings in Malaysia, the final order of the Malaysian court provided that the right of custody, care and control for the child would be awarded to the father.

There was no direct contact after January 2008 owing to the parents’ bitter and conflicted relationship.

The father contemplated a visit to the UK.

He accordingly made an application for a mirror order in confirmation of the order for custody made by the Malaysian court.

The judge granted the order, but required service upon the mother forthwith and granted permission to either party to apply to vary the order.

The mother then made an application for a residence/contact-variation of order.

The father challenged the jurisdiction of the court.

The mother contended that the English Court had jurisdiction by virtue of article 12(3) of Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (the Regulation) on the basis of the father’s application for a mirror order and the judge’s subsequent order granting that application.

The case was transferred to the High Court.

The judge declared that he had jurisdiction pursuant to the Regulation.

He ordered the father to file a statement setting out his proposals for contact in the UK. The father appealed.

He submitted that article 12(3) of the Regulation had not been engaged because he had not accepted the jurisdiction expressly or otherwise in an unequivocal manner.

The appeal would be allowed.

One of the imperatives of international family law was to ensure that there was only one jurisdiction, among a number of possible candidates, to exercise discretionary power at any one time.

Obviously, comity demanded resolute restraint to avoid conflict between states.

That was the realistic aim of conventions and regulations in that field.

Another realistic aim was to provide protective measures to safeguard children in transit from one jurisdiction to another, or to ensure their return at the conclusion of a planned visit.

Protective measures took the form of undertakings, mirror orders and safe harbour orders.

A litigant who sought a mirror order was manifestly not accepting the jurisdiction of the ancillary state to do any more than to reiterate the provisions of the primary jurisdiction.

For the purposes of article 12(3), ‘jurisdiction’ had to mean primary jurisdiction to exercise judgment and to issue orders according to the paramount welfare discretion.

An application for a mirror order, by definition, could not supplant the primary jurisdiction (see [64]-[66] of the judgment).

In the circumstances of the case, the judge had been wrong to lay claim to primary, or even shared jurisdiction, to exercise discretionary powers to manage future contact, still less to entertain an application by the mother for a residence order.

Essentially, any such jurisdiction could only be the consequence of either the habitual residence or the presence of the child within the jurisdiction (see [46] of the judgment).

F v F [1989] FCR 232 considered.

James Turner QC and Edward Devereux for the father; Charles Hyde QC and Morgan Sirikanda for the mother.