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Date:1 DEC 2009

(Supreme Court; Lord Hope, DPSC, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke; 1 December 2009)

The English mother of Indian origin met and married the Pakistani father in Pakistan. The couple lived together in England, which was where the child was born. When the child was discovered to have fractures to the shoulder, elbow and forearm, care proceedings were initiated. Although, at the fact-finding hearing, the father was identified as the perpetrator, evidence subsequently emerged leading the court to find that in fact the mother was the perpetrator. An expert prepared a report on the ability of the father and his family to care for the child in Pakistan; the possibility that the father might leave the children in Pakistan with the paternal grandparents was examined. On the basis of the favourable report, a residence order was made in the father's favour, with a regime of supervised contact with the mother and a 12-month supervision order to the local authority. The father then obtained leave to remove the child permanently from the jurisdiction, giving an undertaking that he would return to the jurisdiction if ordered to do so. In the interim the court made an order for supervised visiting contact and weekly telephone contact prior to relocation. The child then went to live with his paternal grandparents and aunt in Pakistan. Contact with the mother continued after the relocation for about a year, but, following an argument during supervised contact at the mother's home in England, the mother applied to enforce contact. This led to a conciliation hearing at which the parents agreed weekly telephone contact in Pakistan, plus daily telephone contact in England and defined arrangements for face-to-face contact in England. The mother then made a second application, seeking to vary contact to permit unsupervised contact. The judge held that there was no jurisdiction to entertain the mother's applications, principally because the child was neither habitually resident nor physically present in England and Wales. The mother appealed, arguing, as a fresh point, that Brussels II Revised had a global application in some circumstances, in that the provisions as to pro rogation could apply to a non-EU state, such as Pakistan. The Court of Appeal dismissed the appeal, concluding that although it was impossible to find within the language of the Regulation any clear definition as to whether the provisions affecting third states were confined to European states or extended beyond Europe, it would be very surprising if Brussels II (Revised) had been intended to have any impact at all on relationships between EU member states and non-member states. The Court concluded that the attempt to demonstrate pro rogation by unequivocal acceptance by all the parties to the proceedings was, in any event, hopeless, as nothing the father had done within the English jurisdiction amounted to unequivocal acceptance.

The Supreme Court allowed the mother's appeal. Brussels II (Revised), Art 12 could apply to a child who was habitually resident outside the European Union. Nothing within either Art 12.1 or Art 12.3 limited jurisdiction to children resident in the European Union. The term 'third State' in the Regulation made sense only if it referred to a state outside the EU. The question then arose whether the parties had 'opted in' to the English jurisdiction, under the Art 12 rights of prorogation. The child had a substantial connection with England, given that both parties were habitually resident in the UK and the child was a British national. Whatever interpretation was placed on Art 12.3, both before and after the proceedings were begun the father had accepted the jurisdiction of the English courts, expressly and otherwise, in an unequivocal manner. An issue was identified concerning the interpretation of Art 12.3, as to whether it meant 'the jurisdiction of the courts was accepted when the proceedings began by all those who were then parties' or 'the jurisdiction of the court has been accepted at any time after the proceedings have begun by all those who were parties when they began', but it was not necessary to reach a final view on the correct interpretation in this case. Finally, it was in the child's best interests that the assessment of any risks associated with contact should be made by the English court, given the difficulties that the mother would have in litigating in Pakistan and given that the contact in question would take place in England. There was not necessarily any conflict between this ruling and the Pakistan Protocol concerning abduction, and in any event an agreement between the judiciaries of one EU member state and a non-member state could not affect the proper interpretation of the Brussels II Revised Regulation.