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BRUSSELS II REVISED: Re S (Jurisdiction: Prorogation) [2013] EWHC 647 (Fam)

Date:5 APR 2013
Law Reporter

(Family Division, Cobb J, 25 March 2013)

The 7-year-old boy was currently living in England with the British mother following his removal by the mother from Spain, where the family had lived. The Spanish father maintained the removal was wrongful and initiated applications in the Spanish court for residence of the child.

An agreement was drafted and signed by both parties which provided for guardianship and custody of the child in favour of the mother living in England and contact with the father. The agreement was silent as to the retention of jurisdiction of any particular country. The agreement was approved and adopted by the Spanish court and the proceedings were brought to an end.

At that point the mother believed the English court retained jurisdiction due to the child's habitual residence in this jurisdiction and had made an application to the High Court when the father retained the child in Spain. In submitting to the Spanish court for the purposes of the agreement the mother was proroguing that jurisdiction pursuant to Art 12(3) of BIIR.

Thereafter the mother issued proceedings in England for residence, a variation of the contact arrangements agreed by the Spanish court and a specific issue order. The father sought enforcement of the Spanish order. The court enforced the order and the mother made it clear that she was intending to apply for a transfer of proceedings from the Spanish court pursuant to Art 15 of BIIR.

The mother's application in Spain for a declaration that the Spanish court no longer had jurisdiction resulted in a ruling that as a final judgment had been delivered, there was no order pending before the court and, therefore, no reason to declare a lack of jurisdiction.

The judge concluded that the prorogation of the Spanish court under Art 12(3) by the mother came to an end with the making of a final order. There was no residual jurisdiction in Spain. There were no current proceedings in Spain to transfer to this jurisdiction. The courts of England and Wales could properly assume jurisdiction to determine issues in relation to the child pursuant to Art 8 of BIIR.