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.

Britain and the EU - A Pointless Debate

The British Prime Minister, David Cameron, declared in the Sunday Telegraph this week that we need to be 'absolutely clear about what we really want, what we now have and the best way of getting what is best for Britain' regarding our relationship with the European Union. By nightfall, the predictable fallout from this newspaper article was in full flow. Euro-sceptic Conservative backbench MPs were saying that it didn't go far enough; pro-Europeans were saying that it was a distraction when the Euro crisis was still in full swing.

In practical terms, this debate is simply pointless. While it is true that there is, since the Lisbon Treaty in 2009, technically a mechanism in place to allow a Member State to leave the EU, in practical terms that isn't an option. The economic and political consequences of even attempting to do so would be extraordinary.

Britain's trade relations within the EU are central to British economic wellbeing (as evidenced by the current effects of the Euro crisis on the British economy, at least in the government's explanation of our own lacklustre economic performance). The unpredictable consequences for the British economy -- unpredictable, but inevitably negative in the short to medium term -- would likely cause prolonged chaos in the international financial markets, both for the UK and everyone else. The Pound, currently seen as a relative safe haven for international investors in a time of global financial crisis, would plummet as investors fled. No amount of confident rhetoric from the government would convince the world's markets that a single nation could extricate itself from something as politically, legally and financially complex as the EU and do well in anything less than a decade.

Leaving the economic turmoil aside, the legal implications of an EU withdrawal are hard to overstate. Almost every aspect of domestic law is influenced by EU law to some extent. Some of those effects come directly from Brussels by virtue of EU Regulations which are part of our law in the same way as an Act of Parliament from Westminster. Others are indirect, affecting the ways in which domestic law is interpreted and understood because of the influence of EU law and the rulings of the Court of the European Union.

There would also be huge international legal consequences. Vast swathes of international law, both to do with Britain's relationship with other countries (and the EU itself, of course, which is not going to go away just because Britain leaves it) and to do with business and personal relationships involving an international element, are currently determined by EU law. To give just one example from my area of research, child maintenance and contact arrangements for families whose members move within the 27 EU countries are all governed by EU law in the guise of the Brussels II revised Regulation. Withdrawing from the EU would mean that that legal mechanism for allowing the enforcement of maintenance and contact arrangements would disappear.

And then there are the political consequences. When Britain joined the EU, along with Denmark and Ireland, in 1973, there were only 6 existing Member States, and even so the economic and political reasons for joining were compelling. Now, with 26 other Members and numerous candidate countries wanting to join, the political exclusion that would flow from a departure from the EU would be immense.

The idea that Britain would retain any meaningful influence in European politics in the wake of our departure from the EU is laughable, while our relations with countries beyond the EU would likely be weakened by our new-found international isolation. We would no longer benefit from the international might of the EU, negotiating on behalf of 27 countries, and would instead be struggling to make our lone voice heard on the international stage. The elevated view of Britain's importance in the international community held by Britons is, some will be surprised to find, not generally shared by people in other countries.

In short, regardless of whether you love the EU or hate it, the consequences of leaving now are so great that they would outweigh even the most optimistic benefits promised by the most optimistic Euro-sceptic for decades to come. Given that, there is no realistic prospect of Britain leaving the EU, and it weakens Britain's position internationally to have a Prime Minister pandering to the isolationist right wing of his party by even discussing the possibility.