Wednesday, July 30, 2008

Bush v Bush: Brussels II and all that

The thorny and increasingly important issue of jurisdiction went before the Court of Appeal earlier this month in Bush v Bush [2008] EWCA Civ 865.

The Facts:
The parties were married in London in April 1988 and went to live in Tanzania in 1991 or 1992. Three children, now aged 14, 11 and 9, were born in England and are British citizens, although they have never been resident in the UK. Between 2002 and 2003 the family lived in Marbella, Spain. In August 2003 the mother and the children returned to live in Tanzania before returning to Spain in September 2006. The parents were living separately by February 2007, and the two older children now live with the father. The youngest child is based with the mother, but spends an 'appreciable amount of time' with the father. In July 2007 the mother commenced divorce proceedings in England, on the basis that both parties were domiciled here. It appears that in her Statement of Arrangements she indicated that she wanted to relocate the children in England. The father indicated in his Acknowledgement that he was unsure if the mother was domiciled in England, but did not dispute it. In August 2007 the father began court proceedings in Marbella, for care and custody, maintenance and an order that the children should not be removed from Spain. The mother applied for a stay of the Spanish proceedings, on the basis that a related action was in progress in the courts of England and Wales. The stay was granted by the Spanish court in February 2008. The mother then began proceedings in this country for residence orders and the father sought a declaration under Article 17 of the Brussels II bis Regulation that the English courts have no jurisdiction over the case. The application was dismissed by Mrs Justice Pauffley on 15 April 2008. The father appealed.

The decision: At first sight, the ruling of Mrs Justice Pauffley seems quite reasonable. There were already divorce proceedings continuing in the English court, the father had not disputed the issue of domicile, and the Spanish court had put a stay on the Spanish proceedings. However, their Lordships in the Court of Appeal disagreed. In his leading judgment Lord Justice Thorpe stated:

"I would unhesitatingly conclude that the Marbella court was the more appropriate court having regard to the best interests of the children. First an application to relocate is properly determined by the court of the child's habitual residence which is being asked to sanction the relocation rather than the court of the jurisdiction to which the primary carer seeks to move. I can understand that the mother might think that she would be more likely to persuade a London judge of the benefits of the move to English residence and education but the Spanish judge should take that decision having at her reach all the evidence as to the well settled history and as to the children's achievements in their current environment. It would in my opinion create a most unhelpful precedent if a court exercising divorce jurisdiction, exceptionally and transiently seised with jurisdiction in matters relating to parental responsibility, were to issue an order permitting a parent to leave the jurisdiction of the child's habitual residence without any involvement of the courts of the children's long settled residence."

Technically, the point was that Article 12(1) (b) of the Brussels II bis Regulation speaks of the jurisdiction being "accepted expressly or otherwise in an unequivocal manner … at the time the court is seised", and the court first seised in any matter relating to parental responsibility was the court in Marbella, when the father issued his application there.

Commentary: I agree entirely with their Lordships. These children lived in Spain - that is their home, and that therefore is where any decision as to arrangements for them should be made. It is true that one can argue that the English court became seised of the matter when the divorce proceedings were issued but, as Lord Justice Thorpe pointed out, the English court was only "transiently seised" with jurisdiction in matters relating to parental responsibility as an adjunct to the divorce proceedings - the real jurisdiction in that area lay with the Spanish court.

For a summary of Brussels II bis, see this article by David Hodson.

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