Prorogue No More?

Prorogation of jurisdiction might not sound like a terribly sexy topic for a blog post, but the decision of the Court of Justice of the European Union in Case C-436/13 E v B (1 October 2014) is rather important for family lawyers with an international element to their practices.

 

Proro-what?

 

I guess the first question many readers might have is: what is prorogation?

 

This all relates to the question of when a court has jurisdiction (power) to deal with a case when there is an international aspect to the matter. In children cases, the normal test is simple: the court that has jurisdiction is the court of the country in which the child is "habitually resident". Prorogation is about an alternative basis for jurisdiction, and we use it to refer to the courts of one country gaining (or retaining) jurisdiction in a dispute where another country's courts would otherwise be dealing with the case.

 

Its application in international child law comes from Article 12 of Council Regulation (EC) 2201/2003, commonly known as the Brussels II Revised Regulation, the relevant parts of which read:

 

"Article 12

Prorogation of jurisdiction

 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility ... where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."

So there are a number of elements here which determine when a court of one country has jurisdiction outside the normal rule that jurisdiction comes with habitual residence:

1. the child has a substantial connection with the country, e.g. by being a national of that country or by one parent living there;
2. the parties to the proceedings (usually the parents) accept the jurisdiction expressly or in an unequivocal manner;
3. their acceptance is 'at the time the court is seised' (meaning when the court proceedings start); and
4. it is in the child's best interests.

The second of those limbs was considered in passing by the Supreme Court in a case called Re I [2009] UKSC 10. In that case, Lady Hale suggested that is was likely that the second limb would mean either that the parties accepted the court's jurisdiction at the time the case started, or that they had previously expressly indicated that they would accept it (para 35). However, that issue did not matter in Re I, and anyway it is a question of European law and so only the Court of Justice of the EU can determine it authoritatively.

 

And that brings us to E v B.

The facts


The case arose from a preliminary reference from the English Court of Appeal. In short, the parties had lived in Spain where their child, S, was born in 2006. Legal proceedings took place there, the effect of which was (in the old English terms) that the mother had residence and the father contact. This position was reached following an agreement in July 2010, which was incorporated into a court judgment in Spain in October 2010.

 

The mother presumably then moved to England, though that minor detail appears not to be mentioned in the CJEU judgment, since in December 2010 the mother applied to the English court for orders which would reduce the amount of contact that the father had. In January 2011, the father responded by seeing orders in the English court to enforce the existing Spanish orders. At the subsequent hearing in December 2011, the mother "acknowledged that ... she had prorogued the jurisdiction of the [Spanish court] under Article 12(3) of [Regulation (EC) 2201/2003]" (para 21). The October 2010 order was therefore enforced in the English court.

 

The mother then brought proceedings in Spain, seeking to transfer jurisdiction to England. The Spanish court ruled that there were no live proceedings in that court, and therefore that there was nothing to transfer. In June 2012, the mother applied again to the English court, and this time the High Court Judge determined that the English court did indeed have jurisdiction to hear her application. The father appealed, and the Court of Appeal made the preliminary reference to the CJEU.


The decision


The CJEU held that the question of whether a court had jurisdiction had to be answered (a) in relation to the specific proceedings in question (para 40), and (b) at the time the court is seised, i.e. "when the document instituting the proceedings is lodged with the court" (para 38). (Also, regardless of that, "jurisdiction ... must be determined, above all, in the best interests of the child" (para 45).)


The upshot of that is:

"that a prorogation of jurisdiction ... is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end ... following the final conclusion of the proceedings from which the prorogation of jurisdiction derives" (para 49)

In other words, the parties can agree that an existing case shall remain with the courts in country X even if the child moves and becomes habitually resident in country Y; or the parties can agree, at the moment that new proceedings are proposed, that they will accept that country X will deal with it even though the child is habitually resident in country Y; but, crucially, the parties cannot agree in advance that they will accept jurisdiction in country X for potential future proceedings.


Why does that matter?


Well, on the basis of the Supreme Court's comments in Re I, it has become common in relocation cases for the parents to agree that, when the child relocates abroad, the English courts will retain jurisdiction for some period of time (up to two years is common). The upshot of E v B is that those agreements are entirely worthless.


The parties can agree that ongoing proceedings will remain in England, but as soon as those proceedings end - which they usually do as soon as the relocation order is formally made - then prorogation is no longer effective. If there are future proceedings needed (which are fresh proceedings - you cannot usually revise old proceedings once they finish), the parties can then agree to accept the English courts as having jurisdiction - but the parent who remained in England after the relocation cannot rely on an earlier agreement, no matter how clearly stated, as the basis of jurisdiction later.


For those involved in relocation disputes, whether as lawyers or as parents, this decision is of high importance.

Thanks to Janet Broadley of Bindmans Solicitors

 for bringing this judgment to my attention.