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Family Division, Moylan J
Brussels II Revised - Enforcement - Conflicting opinions of English and Belgian court as to jurisdiction and whether a return order should be made - Lis pendens - Whether the English court was already seised of the matter when the Belgian court made a return order
22 March 2012
The father sought enforcement of an order of the Belgian court in relation to his 8-year-old child which granted him custody and ordered the child's return to the UK to live with him. The application was opposed by the local authority, the mother and the child, via her children's guardian. Both parents were UK nationals but during the latter part of the marriage the family lived in Belgium. When the parents separated the mother took the child to live in England but it was only 7 months later that the father asserted that her removal had been wrongful and brought proceedings in England under the Hague Convention on the Civil Aspect of International Child Abduction 1980. In those proceedings the judge rejected the mother's defences of the child's objection and grave risk of harm under Art 13(b). The judge instead focused on the issue of consent and refused to order summary return, declaring that the child was now habitually resident in England and Wales. The father then issued an application under the Children Act 1989 for a residence order claiming he had concerns for the child's welfare while she remained in the care of her mother. The local authority prepared a welfare report and subsequently issued an application for a care or supervision order and for an interim care order. The child moved to lived with her maternal grandparents and an interim care order was granted in favour of the local authority. The judge refused the father permission to withdraw his applications for residence and contact, by which time the father had filed documents in the Belgian court in response to the refusal to make a return order. The local authority notified the Belgian court that the father had filed applications in England and Wales, and therefore, accepted jurisdiction. The Belgian court nevertheless proceeded to deliver judgment which did not outline the basis for its jurisdiction but claimed the English court had fallen into error in not ordering the child's return. Pursuant to Art 11(7) of BIIR the court made a custody and return order with a penalty clause of €500 per day if the mother failed to comply. The judgment failed to address the fact that the child had been living with the maternal grandparents in England with the consent of the father, that he had issued applications in relation to the child and it was not clear whether the wishes of the child had been considered despite the fact that a certificate under Art 42(2)(a) had been issued.
Held - refusing to enforce the Belgian order -
(1) Pursuant to Purrucker v Valles Perez (Nos 1 and 2) this constituted a provisional judgment which would be provided to the offices of Thorpe LJ, the Head of International Family Justice in order for it to be delivered to the Liaison Network Judge for Belgium, to enable a dialogue to develop between the two jurisdictions to seek to ensure that the current, apparent, jurisdictional conflict could be consensually resolved. The right to reconsider the judgment was reserved in the light of such communications as there might be between this jurisdiction and the Belgian court and jurisdiction (see para ).
(2) The English court had, or appeared to have had, jurisdiction to determine matters in relation to the child since the father's Hague application was refused and the English judge determined that the child was now habitually resident here. That order was not appealed and it would be wrong for the court to now go behind that declaration. In addition the provisions of Art 12(3)(a) were satisfied. The father had unequivocally accepted the English court's jurisdiction in issuing applications for residence and contact. It was plain that the English judge considered it was in the child's best interests for welfare matters to be determined in this jurisdiction (see paras , ).
(3) According to the lis pendens provisions it was clear that the English court was first seised as proceedings were already underway in the English jurisdiction at the time the father filed documents with the Belgian court. Those proceedings were currently still pending in this jurisdiction (see paras -).
(4) Following judgment the Belgian judge declined the opportunity to engage in substantive communications but he did clarify that he had considered that the child had been given an opportunity to be heard as her wishes were outlined in a Cafcass report which had been made available to him. The provisional judgment was, therefore, confirmed 2 months later (see para -).
(5) In accordance with Mercredi v Chaffe when the court first seised concluded that it had jurisdiction under Brussels II Revised, judgments given by the courts of a Member State second seised did not have ‘any effect on the judgment which had to be delivered' by the court first seised. The fact that a court, which considered that it had jurisdiction in priority to the courts of another Member State, gave a judgment which conflicted with a judgment given in that other Member State was an inevitable consequence of the decisions of the CJEU in Mercredi and Purrucker and also the structure of the Regulation (see para ).
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