(Court of Appeal Thorpe; Lawrence Collins and Rimer LJJ; 24 July 2008)
The family of British citizens divided their time between Spain and Tanzania, but were habitually resident in Spain. The mother instituted divorce proceedings in England on the basis of domicile. A few week's later, the father began proceedings relating to children in Spain. Subsequently the English court made an order for interim periodical payments, expressed to include provision for the children. The mother obtained a stay of the father's Spanish proceedings concerning the child, on the basis that a related action was underway in England. The mother then instituted English proceedings under Children Act 1989 for residence orders, defined contact and an order for the return of the children's passports. The father sought a declaration under Brussels II Revised, Art 17, that the English courts had no jurisdiction.
It could not be said that the court's jurisdiction in any matter relating to parental responsibility was seised by the filing of statements of arrangements for the children. The court was seised in that area by the issue of an application on Form C2, application for an order relating to custody, contact, specific issue orders or prohibited steps order. The court first seised in any matter relating to parental responsibility was the Spanish court. In her order, the Spanish judge had asserted jurisdiction but deferred to the English court on the erroneous basis that the English court was seised of the issues relating to the children. There was no risk of jurisdictional limbo: once the English court had declared it had no jurisdiction, the Spanish stay would dissolve, and the jurisdiction held in reserve would become the primary jurisdiction. When a divorce court assumed or refused jurisdiction in any matter relating to parental responsibility, having regard to the best interests of the child, it was required to consider which was the more appropriate court, the court of the child's habitual residence, or the court seised with the parental divorce, having regard to the balance of fairness including convenience. The Spanish court was the more appropriate court.