On 1st October 2014 the Court of Justice of the European Union handed down their decision on this Preliminary Reference from the Court of Appeal of England and Wales. The questions posed by the Court of Appeal were
(1) Where
there has been a prorogation of the jurisdiction of a court of a Member State
in relation to matters of parental responsibility pursuant to Article 12(3)
of [Regulation No 2201/2003], does that prorogation of jurisdiction only continue
until there has been a final judgment in those proceedings or does it continue even
after the making of a final judgment?
(2) Does Article 15
of [Regulation No 2201/2003] allow the courts of a Member State to
transfer a jurisdiction in circumstances where there are no current proceedings
concerning the child?’
The CJEU did not answer the second question. The answer to the first question is
Jurisdiction
in matters of parental responsibility which has been prorogued, under Article 12(3)
of Council Regulation (EC) No 2201/2003 of 27 November 2003
concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility, repealing
Regulation (EC) No 1347/2000, in favour of a court of a Member State
before which proceedings have been brought by mutual agreement by the holders
of parental responsibility ceases following a final judgment in those proceedings.
So prorogation can only occur in relation to a particular application and ends when those proceedings conclude. In reaching this conclusion the CJEU made the following points
(a) in considering issues of jurisdiction we must look at the situation at the time the court is 'seised'; which means when the document institutin the proceedings is lodged. [#38]
(b) the parties consent under Article 12(3) must be assessed at the time the court is seised. [#39] {the inference in the paragraph is that the consent is given contemporaneous with seising and in relation that application; rather than an advance and general consent. There is a potential tension with the approach of the Supreme Court in Re I [2010] 1 FLR 361 which considered advance consent.}
(c) that under Articles 8 and 12(3) jurisdiction must be established in relation to each specific case which implies it does not continue after the proceedings end [#40]
(d) Jurisdiction must be determined in the light of the best interests of the child, which is usually linked to habitual residence/proximity [#44/5] but under Article 12(3) may be different.
(e) It could not be assumed that prorogation would be in the child's best interests after proceedings conclude and the best interests of the child must be reviewed in each specific case of whether the prorogation sought is consistent with those best interests.
(f) Thus prorogation can only take place for a specific case and ends with the conclusion of that case.
As will be readily apparent this creates a significant difficulty in seeking to retain jurisdiction. Most obviously this might be sought in temporary leave to remove cases (not holidays but sabbaticals/extended work placements etc).
The practise of asserting that habitual residence will be retained during such sabbaticals is not consistent with the Supreme Court Trilogy of cases on habitual residence [See 'The Supreme Court trilogy: a new habitual residence rises! David Williams QC International Family Law June 2014 83]
The approach of the CJEU would also seem to prevent the parties stating that they provide their unequivocal consent to the English jurisdiction determining any future application concerning the child because the consent has to be at the time the court is seised of a specific case. Whilst it could be argued that an advance and general consent incorporates (unless withdrawn prior to the issue of specific procedings) consent to anything at any time this does not sit easily with the CJEU 'specific case' approach.
Furthermore the parties could not determine that it would be in the child's best interests to prorogue. That also has to be looked at on a specific case basis.
Within the EU this may not seem to be a problem - although not all courts operate to the same procedural, legal or cultural expectations - it will still act as a brake on temporary relocations.
In respect of moves to non-EU states it presents a considerably greater problem. The UKSC Trilogy cases confirm that the jurisdictional provisions of BIIR apply in relation to the establishment of jurisdiciton in England even if the competing jurisdiction is non-EU. So the English court always has to apply BIIR to assessing it's own jurisdiction. That means that even in a 3 year relocation to Dubai the court could not - acting consistently with E-v-B - accept an order which purported to prorogue generally and indefinitely to England.
The only way around such problems would seem to be by not making a final order on the application and thus retaining jurisdiction as a result of the proceedings not being finally concluded. There is a problem with this on temporary relocation cases though because the decision in Re G (A Child) [2014] EWCA Civ 680 (see Blogpost on 29.7.14) confirms that an order granting temporary leave to remove is a final order so as to conclude those proceedings.
One could circumvent this by issuing a CAO application, making an interim CAO order with a review on return or earlier application but this is in many cases will just be artifice for the purposes of retaining jurisdiciton rather than a real reflection of the need for an interim order in the child's welfare interests.
At present there seems no obvious solution. All ideas welcome.
David Williams QC
[NB I appeared on behalf of the Appellant Father together with Michael Gration of 4PB]
