Jurisdiction over children

Bush v Bush [2008] EWCA Civ 865, [2008] ALL ER (D) 320 (Jul), NLJ 5 September p1507

The three children of the parties were born in England and held British citizenship, but they never resided in England. The family went to live in Spain, but the parties separated shortly thereafter with the two eldest children living with the father. The mother issued divorce proceedings in England based on the parties’ domicile. The father filed an acknowledgement of service and also filed his own statement of arrangements. It was agreed that the parties and the children were all habitually resident in Spain. The father filed an application in the Spanish court seeking an order that the children should not be removed from Spain. The mother obtained an order for maintenance pending suit at the Principal Registry in London. The mother also filed an application in England under the Children Act 1989 including an application for a residence order for the children. The father in England sought a declaration under art 17 of the Brussels II Regulation that the English courts had no jurisdiction over the mother’s application concerning the children. Article 8 provides that courts of a member state should have jurisdiction over a child who is habitually resident in that state at the time the court is seized. Article 12 provides an exception that a court exercising divorce jurisdiction may also have jurisdiction in relation to children where the jurisdiction of the court has been accepted expressly or otherwise in an unequivocal manner by a spouse. Was the filing of a statement of arrangement for the children by the father such an unequivocal acceptance of the English jurisdiction? The answer was, no. The court’s jurisdiction in relation to parental responsibility is not seised by the filing of a statement of arrangements, which is an integral part of the procedure to be followed in order to dissolve a marriage. The English court therefore had no jurisdiction over the children and it reverted to Spain. In addition, art 12 invokes the ‘superior interests’ of the child (the equivalent of the English ‘best interests of the child’) in assuming jurisdiction and on this basis too, the appropriate jurisdiction was Spain.