(Court of Appeal, Tomlinson, Ryder, King LJJ, 16 December 2016)
Jurisdiction – Private law children – Brussels IIA – Child arrangements order – Child living in Corfu – Appeal – Whether the court had jurisdiction to make a contact order
The appeal from a decision holding that the court did not have jurisdiction to make a contact order was allowed.
The mother and father lived in Corfu where the, now 9-year-old, child was born. When the marriage broke down the mother and child returned to England to live with the maternal aunt and the father remained in Corfu, although the father and child maintained regular contact.
In 2009 the mother died following an aneurysm. The father travelled to the UK to care for the child but a dispute ensued with the maternal family about her long-term care. The maternal aunt believed it was in her best interests to live with her in the UK while the father sought the child’s return to Corfu.
The aunt’s applications for a child arrangements order for her to live with her and for a prohibited steps order preventing her removal to Corfu were dismissed. The judge concluded that it was in the child’s best interests to relocate to Corfu to live with the father. Although he found that it was also in her best interests to retain contact with the maternal family he held that there was no jurisdiction to make a contact order in respect of a child living in Corfu. Future contact arrangements were recorded as an intention in the recitals to the order.
The aunt was granted permission to appeal but prior to the hearing an agreement was reached with the father in respect of contact with the maternal family. It fell to be determined whether the court had jurisdiction to make a contact order to ensure clarity in the event of proceedings taking place in Corfu.
The appeal was allowed. At the time the order was made the child was habitually resident in the UK for the purposes of BIIA. The terms of Art 8 were clear and unequivocal, regardless of when the court first became seised of the matter, it was undeniably seised on the day judgment was given. The judge below had been wrong in concluding that he could not make a contact order when the child was to live in Corfu.