(Family Division, Baker J, 14 October 2016)

Jurisdiction – Hague Convention 1996 – Non-EU State – Application for transfer of proceedings

The court held that contact proceedings in relation to both children should be transferred to the English court.

The Norwegian mother and English father had two children, aged 10 and 8. When the parents separated the mother sought to take both children to live in Norway. At a dispute resolution hearing the parents agreed that the mother could take the younger child to Norway while the older child would remain with the father in the UK and an agreed schedule of contact was drawn up. An order was made to that effect.

Contact did not take place according to the schedule and each parent blamed the other for that being the case. When the mother initiated proceedings in Norway in respect of the younger child the father applied under Art 15 of BIIR for a transfer of those proceedings to the English court. However, since Norway is not a member of the EU, the provisions of BIIR did not apply. An application was later made for transfer under Arts 8 and 9 of the Hague Convention 1996. The mother cross-applied for a transfer to Norway.

Due to the result of the EU referendum, it was possible that the provisions of BIIR would cease to apply and, therefore, that the 1996 Hague Convention would acquire greater prominence.

The court had jurisdiction to submit a request under Art 9 of the Hague Convention 1996 due to the child being a UK national and having a substantial connection with this country. Both the English and Norwegian courts were well placed to determine the issue of contact, however, it was manifestly in the younger child’s interests for a determination to be made by the same court as that engaged with determining the older child’s contact arrangements. Both sets of proceedings would be heard by the English court to ensure consistent orders. The International Family Justice Office would be contacted to facilitate the request to the Norwegian court.