(Court of Appeal, McFarlane, Gloster, Floyd LJJ, 13 November 2013)
When the mother and the 5-year-old child returned to the UK from Sweden, the local authority issued care proceedings during which all parties conceded that the child was habitually resident in Sweden. The mother submitted that the English court did not have jurisdiction save for making short-term provisional protective measures.
During proceedings the judge communicated with the European Judicial Network, asking as to the and taking into account the response from the Swedish judge, the judge held that the English court did have full jurisdiction under BIIR in relation to parental responsibility, child protection and welfare and, therefore, a final hearing was scheduled. The mother appealed on the jurisdictional issue.
In considering the Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, the questions that had been asked of the network judge were wholly inappropriate both as to substance and because had the Swedish court sought to give a binding reply it would have been in breach of the Art 6 rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 of the parties.
The responses that had been provided, in effect, amounted to the Swedish court declining jurisdiction. Courts in a Member State could only decline jurisdiction, or declare under Art 17 that they did not have jurisdiction, in the context of a proper judicial process, conducted within ongoing court proceedings in that State where that court was seised of the case relating to the particular child. Both the process and internal reasoning of the judge could not stand and had to be set aside. It fell to the Court of Appeal to determine the issue of jurisdiction afresh.
Art 8 of BIIR, read with the wording of Arts 9 and 10, contemplated that the court of the Member State of former habitual residence had jurisdiction irrespective of whether there were any extant proceedings before those courts. The fact that there were no proceedings before the Swedish court in this case did not mean that the Swedish court did not have jurisdiction under Arts 8-13 of BIIR when the English proceedings were commenced.
By virtue of Art 17 of BIIR the English court was required to make a declaration of no jurisdiction but had failed to do so. The fact that the child had now been in England for over a year and was possibly now habitually resident here was no justification for ignoring the requirement for a declaration.
The appeal was allowed and the judge's determination on jurisdiction was set aside. The Court of Appeal granted a declaration that the English court did not have jurisdiction with respect to the care proceedings concerning this child.