Tuesday, December 01, 2009

Re: I (A Child)

I have received the following press release from Dawson Cornwall:

Re: I (A Child)

Supreme Court Decision

Reunite International Child Abduction Centre and the Centre for Family Law and Practice, London Metropolitan University were granted leave to appear as interveners and were represented pro bono by the barristers Henry Setright QC and Teertha Gupta of 4 Paper Buildings instructed by Anne-Marie Hutchinson OBE of Dawson Cornwell in Re: I (a child).

The appeal was considered by the UK Supreme Court on 12 and 13 October 2009 and judgment was handed down this morning 1 December 2009. It is the first family law case to be considered in the Supreme court and the first occasion on which the highest court in the land has had an opportunity to consider the Council Regulation (EC) No: 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility, which is more commonly known as Brussels II revised.

The judgment means that parents may choose to litigate about the children in the courts of England & Wales, notwithstanding the fact that their children are habitually resident elsewhere in the world outside the EU, provided that they can satisfy the tests laid down in Article 12.

Lady Hale:

“We have had the benefit of an intervention from Reunite, an organisation with great knowledge and experience in the field of international child abduction, and represented by lawyers who also have knowledge and experience of how these things work on the ground.”

“The UK-Pakistan Judicial Protocol on Children Matters is not an international agreement between States. It is an understanding first reached in January 2003 between the then President of the Family Division of the High Court in England and Wales and the then Chief Justice of the Supreme Court of Pakistan, supplemented in September 2003 by guidelines for judicial co-operation to which Judges from the Court of Session in Scotland and the High Court in Northern Ireland were also party. It was agreed that “in normal circumstances the welfare of a child is best determined by the courts of the country of the child’s habitual/ordinary residence” (para 1). Hence, if a child is wrongfully removed from his country of ordinary residence, the courts of the country to which he is taken should not ordinarily exercise jurisdiction save for the purpose of sending the child back (para 2). The same should apply if a child is brought from one country to the other for the purposes of contact, and is then wrongfully retained (para 3). This very largely reflects the principal provisions of the Hague Convention on Child Abduction.

Neither of the two substantive paragraphs is directly applicable to this case. There has been no abduction or wrongful retention. We are concerned only with a very limited exception, in far from “normal” circumstances, to the general statement in paragraph 1. The two can, as Mr Setright pointed out, complement one another. The courts in Pakistan might welcome the fact that the courts in England had investigated the situation here and put in place safeguards which would enable the child to visit his mother and other members of his family in this country in safety. The Protocol would operate to secure his prompt return to Pakistan after any such visit. Alternatively, the court in this country might, after beginning its investigation, conclude that, had this been a case within the EU, it would have been appropriate to invoke the procedure in article 15 of Brussels II Revised, for requesting the courts of another Member State which is “better placed to hear the case” to assume jurisdiction. The Protocol, with the associated Guidelines for judicial co-operation, provides the ideal vehicle for achieving this outside the EU. In the view of Reunite, therefore, far from undermining the Protocol, article 12 can work harmoniously with it.”

“In this case there are two reasons to conclude that the exercise of jurisdiction in this country would be in the child’s interests. The first is the presumption in article 12.4. Although expressed as a “deeming” provision, no-one suggests that this is irrebuttable. But it makes sense. If the child is habitually resident in a country outside the EU which, like Pakistan, is not a party to the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, then even if the EU country in question is a party to that Convention, there would be no provision for recognition and enforcement of one another’s orders. If, therefore, the parties have accepted the jurisdiction of an EU State, it makes sense for that State to determine the issue. The difficulty or otherwise of holding the proceedings in the third State in question are obviously relevant. It is not suggested that it would be impossible to hold these proceedings in Pakistan, but while neither party has had difficulty with the proceedings here, the mother would certainly face difficulties litigating in Pakistan.”

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