The Supreme Court has unanimously decided that article 12 of Brussels II Revised applies to a child who is lawfully resident outside the European Union.
The judgment means that parents may choose to litigate about the children in the courts of England & Wales, notwithstanding the fact that their children are habitually resident elsewhere in the world outside the EU, provided that they can satisfy the tests laid down in Article 12.
The case concerned whether an English court had jurisdiction to determine the future level of contact between a child and his mother where the child does not habitually reside in an EU Member State. Under article 12.3 of Council Regulation (EC) No 2201/2003 ("Brussels II Revised") parties are able to opt in to the jurisdiction of an EU court which would not otherwise have jurisdiction to determine a child's future where:
(a) the child has a substantial connection with that Member State; and (b) the jurisdiction of the courts "has been expressly accepted or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised", and the exercise of jurisdiction is in the best interests of the child.
In this case the child had been resident in Pakistan since 2004, although both he and his divorced parents are British citizens and his parents live here. Both the High Court and the Court of Appeal held that an English court had no jurisdiction. The mother appealed to the Supreme Court who had two issues to decide: firstly, whether article 12 extended to cases where a child lived in a non-EU member state; and secondly, if it did, whether the parties in this case had accepted jurisdiction in accordance with the criteria set out in article 12.3(b).
On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of a an EU Member State.
Lady Hale concluded that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term "third State" in other parts of the Regulation means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU.
On the second issue, the criteria under article 12.3 were clearly satisfied in this case.
Firstly, under 12.3(a), the substantial connection was satisfied by the fact the child's parents are habitually resident in the UK and they and the child are British citizens. Secondly, jurisdiction had been accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court.
Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non-EU States it will be in his best interests for jurisdiction to be exercised under this article.
The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings "at the time the court is seised". The Justices could not decide if this meant before, when or after the relevant proceedings were begun. They were also uncertain whether these words describe thetime at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required.
The Justices did not reach a conclusion on this issue as it was not necessary to do so in order to decide this appeal. However, the diversity of views indicates that the interpretation is not clear and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice.