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(Court of Appeal; Thorpe, Scott Baker and Sullivan LJJ; 21 July 2009)
The English mother of Indian origin met and married the Pakistani father in Pakistan. The couple lived together in England, which was where the child was born. When the child was discovered to have fractures to the shoulder, elbow and forearm, care proceedings were initiated. Although, at the fact-finding hearing, the father was identified as the perpetrator, evidence that subsequently emerged led the court to find that in fact the mother was the perpetrator.
An expert prepared a report on the ability of the father and his family to care for the child in Pakistan; the possibility that the father might leave the children in Pakistan with the paternal grandparents was examined. On the basis of the favourable report, a residence order was made in the father's favour, with a regime of supervised contact with the mother and a 12-month supervision order to the local authority.
As envisaged, the father then obtained leave to remove the child permanently from the jurisdiction, giving an undertaking that he would return to the jurisdiction if ordered to do so. In the interim the court made an order for supervised visiting contact and weekly telephone contact prior to relocation. The child then went to live with his paternal grandparents and aunt in Pakistan. Contact with the mother continued after the relocation for about a year, but, following an argument during supervised contact at the mother's home in England, the mother applied to enforce contact. This led to a conciliation hearing at which the parents agreed weekly telephone contact in Pakistan, plus daily telephone contact in England and defined arrangements for face-to-face contact in England. The mother then made a second application, seeking to vary contact to permit unsupervised contact.
The judge held that there was no jurisdiction to entertain the mother's applications, principally because the child was neither habitually resident nor physically present in England and Wales. He went on to say that the court should be extremely slow to allow the inherent jurisdiction to be used as a mechanism to avoid the statutory constraints upon its jurisdiction where the justification was the nationality of a child who, although once resident in England, had been living in Pakistan for over 4 years and that the fact that the parents were both resident in England made the case unusual, but not exceptional or extraordinary.
The mother appealed, arguing, as a fresh point, that Brussels II Revised had a global application in some circumstances, in that the provisions as to pro rogation could apply to a non-EU state, such as Pakistan.
The appeal was dismissed. The argument turned upon the meaning of the reference in Brussels II (Revised), Art 12(4) to a 'third state'. Although it was impossible to find within the language of the Regulation any clear definition as to whether the provisions affecting third states were confined to European states or extended beyond Europe, it would be very surprising if Brussels II (Revised) had been intended to have any impact at all on relationships between EU member states and non-member states. The Regulation had been intended simply for solution of EU jurisdictional problems, and it had been universally accepted as such among international family lawyers in this jurisdiction.
In any event, the attempt to demonstrate pro rogation by unequivocal acceptance by all the parties to the proceedings was hopeless; nothing the father had done within the English jurisdiction amounted to unequivocal acceptance. Jurisdiction by pro rogation was essentially exceptional, the thrust and construction of the Regulation was upon the basis that the primary jurisdiction should be the jurisdiction of habitual residence.
In relation to the best interests of the child the reality was that the child had been a child in a Pakistani environment for more than half his life, and any decisions as to his welfare were, as a matter of ordinary assumption, better dealt with by the courts of that region.
The court warned that pro rogation was a dangerous road to go down. In the huge majority of cases the future evolution of any global accordance of international family law depended upon the readiness of states to recognise that, save in exceptional circumstances, the habitual residence of the child dictated which state held the primary jurisdiction. Nationality, domicile or passing presence should not ordinarily divert from that clearly principled approach.