I (a child) - [2009] UKSC 10

Michaelmas Term

[2009] UKSC 10

On appeal from: [2009] EWCA Civ 965

JUDGMENT

I (A Child)

before

Lord Hope, Deputy President

Lady Hale
Lord Collins
Lord Kerr
Lord Clarke

JUDGMENT GIVEN ON

1 December 2009

Heard on 12 and 13 October 2009

Appellant (MY) Respondent (WI)

Jonathan Baker QC

Alison H Russell QC

Edward Devereux Divya Bhatia

(Instructed by Bindmans

(Instructed by Mullinger

LLP) Banks Solicitors )
Interveners (Reunite International Child
Abduction Centre and the Centre for Family Law and

Respondent (QI) Practice)

Judith Charlton Henry Setright QC
Teertha Gupta

(Instructed by Edwards

(Instructed by Dawson

Duthie) Cornwell)

LADY HALE

1. The first and principal question before us is whether the parties’ right of “prorogation”, to “opt in” to the jurisdiction of an EU country which would not otherwise have jurisdiction to determine a child’s future, contained in article 12 of Council Regulation (EC) No 2201/2003 (“Brussels II Revised”), can apply to a child who is habitually resident outside the European Union. If the answer to that question is “yes”, then the second question is whether that is what has happened in this case. That depends both upon the interpretation of the criteria for opting in and upon an evaluation of what these parties did. The first question is a good deal easier to answer than the second.

The facts

2. The child in question was born on 27 July 2000 and is now aged nine. He was born in this country and is a British citizen. His mother originates from India but has lived in this country for many years. His father originates from Pakistan. Both are British citizens. They married in Pakistan on 28 October 1999 and later lived together in this country. They separated in September 2002 and divorced in 2003. As is common, no orders were made about the child in the course of the divorce proceedings.

3. In this case there were already care proceedings on foot about the child. He was taken to hospital on 1 November 2001 and found to have several fractures to his arms. The local authority began proceedings on 6 November 2001 and a “split” hearing was directed. At the fact-finding hearing in May 2002, District Judge Brasse found that the injuries were non-accidental and that the father had caused them. However, at the welfare hearing in December 2002, he reviewed that finding in the light of the new evidence which had emerged during the welfare inquiries and decided that the mother had been responsible. At the final hearing on 22 May 2003, he made an order that the child should live with his father and have supervised contact with his mother in accordance with an agreement made between the local authority and the mother. He also made a supervision order for 12 months. That concluded the care proceedings.

4. It is an automatic condition of all residence orders that the child is not to be taken out of the jurisdiction without either the written consent of every person who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading I (a child)

Details

AGLC: I (a child) [2009] UKSC 10
Case: [2009] UKSC 10
Decision Date

CaseChat Overview and Summary

In this case, the Supreme Court of the United Kingdom considered whether the English courts had jurisdiction to make contact orders in relation to a child who was habitually resident in Pakistan. The child was born in the UK, but his father took him to Pakistan in 2004. The child's mother applied to the English courts in 2007 seeking contact orders. The central legal issue was whether Article 12 of Council Regulation (EC) No 2201/2003 ("Brussels II Revised") could apply to a child who was habitually resident outside the European Union. The Court held that Article 12 could indeed apply to such a child. The Court also concluded that the English courts had jurisdiction in this case, as both parents had unequivocally accepted the jurisdiction of the English courts and it was in the child's best interests for the case to be heard in England. The Court noted that the interpretation of Article 12.3(b) was not clear, but this uncertainty did not affect the outcome of this case as both parties had accepted the jurisdiction of the English courts.

Orders