BIIR: Articles 16 and 19: Court First Seised

Re G (A Child) [2014] EWCA Civ 680 The key issue in the case was whether an order for temporary leave to remove a child (made on an application for temporary leave to remove) was a final order so as to conclude proceedings in England with the result that a later application (within the time-span of the temporary leave) in the courts of another EU Member State would result in that court being first seised for the purposes of Article 19 of BIIR. The Court of Appeal decision that such an order concluded the proceedings in England so that there was no ‘lis pendens’ or pending suit in England is a triumph of logic and Europeanism. Whilst this decision on Article 19 does not obviously dove-tail with other recent decisions on other Articles of BIIR which have recently been considered by the English or European Courts the overall approach is wholly consistent with the gradual divesting of Anglo-centric interpretations and tests and the adoption of a European approach. In the “Trilogy’ of UK Supreme Court cases we saw the jettisoning of the long –established and firmly rooted ‘Ex parte Shah’ test for the evaluation of habitual residence in favour of the CJEU approach in Mercredi-v-Chaffe. In Re E in January 2014 we saw the President trenchantly reminding judges and practitioners of both the need to clearly deal with jurisdictional issues but also firmly rejecting any suggestion that the English approach to social work or judicial process was inherently superior to others. All systems are created equal in eyes of EU law. The Court of Appeal rejected the argument (based in large measure on the English concept that orders relating to children are never final) that an order giving temporary leave to remove meant that the English court remained seised of proceedings during the period for which leave to remove was given. The Court of Appeal noted that whilst orders relating to children were not final in the substantive sense that they could not be varied where circumstances required, they were final in the procedural sense that they finally determined that application. Such an interpretation was consistent with the scheme of BIIR which accepted that jurisdiction would shift when there was a change in the child’s habitual residence. To have adopted the Appellant’s contention would have run counter to the fact-based assessment of habitual residence and created an obstacle to the way BIIR was intended to operate. The decision is significant in 2 ways. Firstly it marks another step along the path to a real acceptance of the spirit as well as the letter of BIIR. Secondly the Court of Appeal highlight the fundamental and much mis-understood distinction between jurisdiction and seisin. Much of the Appellant’s argument was in truth an assertion that the English court had retained jurisdiction (based on the child remaining habitually resident during the temporary relocation), rather than an assertion that the court had remained seised of proceedings. The Court of Appeal made very clear that whilst a court might have jurisdiction, it was the job of the court first seised to consider its own jurisdiction and if it concluded another court had jurisdiction, it was obliged to declare that and stay its own proceedings in favour of the court with jurisdiction (Articles 17 and 19 BIIR). Equally if a court was second seised, even though it might be clear that it had jurisdiction, it was obliged under Article 19 to stay its own proceedings until the court first seised determined its own jurisdiction. Mutual trust amongst Member States are key to the proper operation of the Regulation. They are enshrined in Recitals 2 and 21 to the Regulation. This means trusting the courts of other Member States to operate the Regulation according to both the spirit and letter. Without such trust and respect the Regulation could not operate as intended. That in 2014 we are coming to a true appreciation of how BIIR impacts upon the day to day business of families, lawyers and courts shows what a slow-burn EU law is. Slowly the English and European Courts are exploring not only the main darker recesses of BIIR but also the main structures. In the sense that such exploration is highlighting some of the difficulties in interpretation and creating a body of case-law that is harder to keep abreast of (particularly if it originates from the CJEU) it is becoming a more difficult area. However light is being shed and it is undoubtedly becoming easier to see how BIIR operates in practise and to understand (if you know where to look) what the real meaning of various Articles is. The decision highlights the real practical implications of temporary leave to remove decisions and the impact that has on jurisdiction and seisin of a court. Can jurisdiction be retained on such applications? Can proceedings remain live? Both are very uncertain. If you want to attempt to retain ‘live’ proceedings any order will have to be very clearly a provisional order to be reviewed on the return of the child – probably with a hearing date set. Even that might not be enough if it is really only a device to maintain pending proceedings despite a change in habitual residence and a shift in jurisdiction. The CJEU heard the case of E-v-B on 15th May 2014 in which the ability of the parties to permanently prorogue jurisdiction was considered. Declarations that habitual residence will endure whilst the child lives abroad are almost certainly untenable following the “Trilogy” of Supreme Court cases. Very careful consideration needs to be given to the wording of temporary leave to remove orders if the parties wish to retain jurisdiction in England and to prevent a court in another EU Member State (or 1996 Hague Convention Contracting State) becoming first seised of an application over a child.