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S (A Child) [2013] EWHC 647 (Fam)

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  • In brief: Here we had a case involving a child ("S"), born to an English mother ("M") and a Spanish father ("F"). There were two sets of proceedings – one in Spain (brought by F) and one in England (brought by M). Following F's "threat" to retain S, M had obtained an order for S's return as well as various High Court declarations in her favour concerning S's habitual residence and the jurisdiction of the English courts. Despite those declarations, M subsequently submitted to the jurisdiction of the Spanish courts and entered into an agreement which provided she and S could live in England and F could have contact. The agreement was turned into a binding order by the Spanish courts thereby bringing F's proceedings to an end.  

    M then issued a further set of proceedings in England (for a residence order, a variation of the contact arrangements and a specific issue order) leading F to issue counter proceedings in both Spain and England to seek to enforce the terms of the Spanish order. The hearing went part heard and, after a gap of eight months, at the reconvened hearing, M accepted the terms of the Spanish order but said she was now looking for a simple transfer of the Spanish proceedings to England under Article 15 Brussels II Revised. However, when presented with M's application for a transfer, the Spanish courts stated that the proceedings had come to an end with the order that had been reached between the parties and therefore there were no existing proceedings and no reason to declare the lack of jurisdiction applied for.  

    The issues before Cobb J were: 

    • whether the Spanish court, having exercised jurisdiction (with M's agreement) in October 2010, continued to have jurisdiction notwithstanding the conclusion of the proceedings; 
    • if the Spanish court had continuing jurisdiction, whether the English court should request transfer to this jurisdiction and, if so, how, given the absence of any actual proceedings to transfer; and 
    • if the Spanish Court did not have continuing jurisdiction, whether the English court could and should exercise jurisdiction. 

    M's position was that her prorogation of the Spanish jurisdiction ended with the final Spanish order, that S was habitually resident in England and that the English courts should assume jurisdiction under Article 8 Brussels II Revised. Alternatively, if the Spanish jurisdiction did continue,  then the English court should seek a transfer under Article 15(2)(c). 

    F's position, perhaps obviously, was that M, having prorogued jurisdiction in the Spanish courts, the jurisdiction of the Spanish courts should hold sway.  

    In his judgment, Cobb J set out the inquiries that had been made of the Spanish courts so as to clarify and interpret its earlier ruling and order. The reply received had effectively said that there was "no room" for an "extension" of the Spanish jurisdiction and that even if jurisdiction had been retained, the judge would not have opposed transfer to England under Article 15.

    After a careful analysis of the applicable law (including the interplay between Articles 12 and 15 Brussels II Revised, Cobb J concluded that M's prorogation of jurisdiction had not endured beyond the final Spanish order. He highlighted that to hold prorogation open for the duration of a child's childhood would both discourage parents from submitting to a particular jurisdiction for a particular (or appropriate) purpose and might give rise to applications such as this (which were at best "cumbersome", at worst "not possible") being more common. He also determined that Article 15 transfers apply only to "live" proceedings (not to jurisdiction generally) as, in the absence of proceedings, there would be nothing to transfer.

    It was therefore held that there was no residual jurisdiction in Spain, that the English court did not need to seek a transfer under Article 15 and that the English court had jurisdiction under Article 8.


Published: 15/04/2013

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