L (A Child), Re

This is an appeal from a decision of Macur J in the Family Division on 24 April 2012: Re LSdC [2012] EWHC 983 (Fam). It raises important questions in relation to Council Regulation (EC) No 2201/2003, commonly referred to as Brussels II revised (“BIIR”), (Footnote: ¹) which have not previously been considered by the Court of Appeal.

We are concerned with a little boy, L, who was bom in this country on [a date in] 2011. His mother was born in this country, his father in Portugal. They met and formed a relationship - they have never married - when the father was working in Oxfordshire.

In June 2011, at a time when the relationship had already come under considerable strain, they all three moved to Portugal, where they lived with the father’s parents. The mother attempted to leave Portugal clandestinely with L on 14 November 2011 but this was prevented following police intervention.

On 23 November 2011 there was a meeting at the Aveiro offices of the Portuguese Commission for the Protection of Children and Juveniles (CPCJ) attended by the father, the mother, and their respective fathers. An agreement was arrived at between the father and the mother, subsequently ratified (homologated) by Assistant Scrivener Costa in the Aveiro Family and Minors Court on 7 December 2011.

The agreement was described (I quote from the translation; the original is in Portuguese) as an “Agreement on the Exercise of Parental Responsibilities.” The agreement is a short document of nine clauses occupying only two pages. Clauses A and B provide that the parents will “jointly exercise the parental responsibilities relating to issues of particular importance for the life of [L]”, except in cases of “clear emergency” where either parent can act alone, and that the “exercise of parental responsibilities on the day to day basis relating to current facts in the life of the Minor is to be met by the parent with whom he is”. Clauses C, D and E provide for what Macur J correctly described (para [5]) as arrangements for exactly equal shared care on a rotating two-monthly basis in England and Portugal to endure until L’s third birthday. L was to stay with his mother in England in December 2011 and January 2012 and then with his father in Portugal in February and March 2012. Clause F provides that “during the two months that each parent has the minor the other parent as well as the maternal or paternal grandparents will be able to visit the minor whenever they wish”. I need not refer to clauses G and H. Clause I provides that the agreement is to be in force until L is three years old “by which time both [parents] will proceed with the alterations that from then on will be better in harmony with the interests and needs of the minor.”

I must return to this point in due course but for the moment observe that, to adopt English legal terminology, clauses A and B relate to parental responsibility, clauses C, D and E provide for residence, and clause F provides for contact.

The Portuguese judge (again I quote from the translation), “having verified the necessary legal requirements and analysed the interests of the minor and with the favourable opinion of the Public Ministry”, decided to “homologate” the agreement and “order[ed] the parents to abide by its terms.” But he added this caveat:

On 18 December 2012 the mother and L came to this country. It is common ground that this was lawful and in accordance with the agreement. Thereafter the father at least treated the appropriate ‘hand over’ date as being the 18 ^th rather than the 1 ^st of the relevant month.

On 7 February 2012 the mother applied without notice to the Oxford County Court seeking a prohibited steps order and a residence order under the Children Act 1989. The District Judge granted interim relief the same day, including a prohibited steps order to remain in force until the next hearing preventing the father from removing L from the jurisdiction of England and Wales. On 22 February 2012 His Honour Judge Corrie transferred the proceedings to the High Court. His order recited that the father contested the jurisdiction of the English court. Each parent having undertaken not to remove L from the jurisdiction of England and Wales until further order, Judge Corrie discharged the prohibited steps order. On 2 March 2012 the father applied to enforce the Portuguese decision in accordance with BIER Article 41, relying on the Annex III certificate. He sought a stay of the English proceedings. It is to be noted that although in his application the father described the Portuguese order as relating to “rights of access”, and said that what he was seeking was what he called “contact”, his application made clear that the basis of his claim was the mother’s refusal to comply with clause C of the agreement in relation to February and March 2012. On 6 March 2012 Baron J gave directions, the father maintaining his objection to jurisdiction and the undertakings previously given being continued.

The proceedings were heard by Macur J on 26-27 March 2012. During the course of the hearing the father applied also to enforce the Portuguese decision in accordance with BIIR Article 21, relying for this purpose on the Annexe II certificate. On 24 April 2012 Macur J gave a reserved judgment. She dismissed the father’s applications. She held that the English court had jurisdiction. Being satisfied, as she said (para [48]), that it was prima facie in the best interests of L to conduct proceedings here, she stayed the Portuguese proceedings pursuant to BIIR article 20 and, with effect from the conclusion of any appeal against her order, lifted the stay of the English proceedings. She re-imposed the prohibited steps order, this time directed to both parents. Her order included provision for interim contact between the father and L in this country pending determination of any appeal or further order. In the event, we were told, the last contact occurred on 2 July 2012, after which the father returned to Portugal.

Macur J refused the father permission to appeal. He renewed his application to this court and on 2 July 2012 my Lord, Thorpe LJ, adjourned the application into court on notice with appeal to follow. In accordance with that direction the application came on for hearing before us on 7 August 2012. In the meantime, on 23 July 2012 the mother had filed a respondent’s notice.

Before turning to explain the basis of Macur J’s judgment and the father’s grounds of appeal it is convenient to set out the relevant provisions of BIIR.

I start by drawing attention to some of the Recitals to BIIR:

So far as material for present purposes the scope of BIIR is defined in Article 1

Chapter II of B II R deals with jurisdiction. Article 8.1 provides that:

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

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.”

I should refer also to Articles 13.1, 14, 17 and 20. Article 13.1 provides that:

Chapter III of BIIR deals with recognition and enforcement. Article 21.1 provides that:

Article 21 needs to be read in conjunction with Articles 23, 24 and 26. Article 23 so far as material provides that:

if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;

if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought; ...

on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;

if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought”.

Chapter III of BIIR provides separate procedures for the enforcement of orders relating to parental responsibility, dealt with in Section 2, and access, dealt with in Section 4.

In relation to the former, Article 28.1 provides that:

Section 4 applies in relation to the enforcement of access orders. Article 40 provides that:

Finally, I should refer to Article 47 which provides so far as material that:

Macur J dealt first with the father’s application pursuant to Article 41, next with his application pursuant to Article 21, and then with the question of whether the English court had jurisdiction.

In relation to the father’s application pursuant to Article 41, Macur J having observed (para [5]) that it was “patently correct” to described the agreement as an “Agreement on the Exercise of Parental Responsibilities”, then explained (paras [7]-[8]) why she was dismissing the father’s application:

In relation to the father’s application pursuant to Article 21, Macur J (who heard limited oral evidence from both parties on the issue of habitual residence and the circumstances relating to the making of the Portuguese order) had regard to what she called the background circumstances of the case, which she set out at some length. She made a number of findings adverse to the mother. In relation to what happened at the CPCJ on 23 November 2011 (paras [18]-[19]):

In relation to what happened at court on 7 December 2011 (paras [20]-[21]):

As against that, Macur J made this finding in favour of the mother (para [26]):

The mother relied upon Articles 23(a), (d) and (e) as grounds for non-recognition of the order. Macur J ruled against her in relation to Articles 23(d) and (e) but found in her favour on the basis of Article 23(a).

In relation to Article 23(a) the essence of the mother’s argument was that the agreed arrangements for the child were so contrary to his welfare having particular regard to his chronological age that recognition of the homologated order would be manifestly contrary to public policy taking into account the best interests of the child.

Macur J treated the decision of Holman J in Re S (Brussels II: Best Interests of Child) (No 1) [2003] EWHC 2115 (Fam), [2004] 1 FLR 571, as being the touch stone. From it she derived the principle (para [29]) that “the case where welfare considerations may be legitimately entertained without undermining the principle of Article 26 and so manifestly offend public policy will be extremely rare.” Allowing that “public policy” must encompass the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union or by the European Convention for the Protection of Human Rights and Fundamental Freedoms, she said that the speech of Baroness Hale and Lord Wilson in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144, para [18], makes clear that “if the court faithfully applies [the provisions of BIIR] that it too will be complying with Art 3 (1) of the UNCRC”. In these circumstances, she continued (para [30]), she could not accept the argument that these principles will impact in BIIR cases concerning recognition and enforcement, nor, she said, should it lead to a different reading of Re S.

In relation to Article 23(a), Macur J rejected much of the mother’s case (paras [31]- [33]):

But although the mother’s case based on Article 23(d) failed, in the final analysis her case based on Article 23(a) succeeded, for reasons which Macur J explained as follows (para [34]):

Having thus dismissed the father’s applications pursuant to BIIR, Macur J then turned to consider whether the English court had jurisdiction. Her starting point (para [39]) was, correctly, that L was habitually resident in Portugal at the time of the making of the order in December 2011 and that in any event the Portuguese court was rightly seized of the matter in accordance with Article 12.3. She was also satisfied beyond any doubt, she said (para [25]), that the mother resumed her previous habitual residence in England at the time of her return in December 2011. She set out her conclusion and reasoning as follows (paras [41]-[42]):

For the sake of completeness I should mention a number of other points considered by Macur J. She rejected the mother’s argument based on Article 23(e), saying (para [36]):

Her approach to Article 13 is not altogether clear. In one place (para [45]), she said that:

The father, in his grounds of appeal, challenged the decision on all three of the grounds on which Macur J had ruled against him: enforcement in accordance with Article 41; enforcement in accordance with Article 21 on the basis that Article 23(a) applied; and jurisdiction.

The mother, in her respondent’s notice, sought to uphold Macur J’s decision on various additional grounds which I can summarise as follows: enforcement in accordance with Article 41 should also be refused on the child welfare grounds that Macur J had rejected and on the basis that the prohibited steps order made by Macur J was an “irreconcilable judgment” within the meaning of Article 47.2; enforcement in accordance with Article 21 should also be refused for the same reasons, namely on the child welfare grounds that Macur J had rejected and on the basis that the prohibited steps order made by Macur J was an “irreconcilable judgment” within the meaning of Article 23(e).

Having read his skeleton argument and heard supplementary oral submissions from Mr Richard Harrison QC on behalf of the father we refused him permission to appeal in relation to the Article 41 issue: Re L [2012] EWCA Civ XXXX. We gave him permission to appeal on the other grounds and proceeded to hear the appeal.

At the end of the hearing we announced that we had decided to allow the appeal, for reasons which we would hand down in due course. This we now do.

It will be convenient to deal with the issues raised before us in the same order as they were dealt with by Macur J.

Given that we have already explained why we refused permission to appeal on this issue, I can deal with the matter briefly. Mr Harrison’s argument came down to this: that Macur J was bound by the Annexe III certificate and that in refusing to enforce the agreement in accordance with Article 41 she was impermissibly doing the very thing that the Court of Justice of the European Union has emphasised she must not do. In support of this he relied on the decisions of the CJEU in Re Rinau (Case C-195/08 PPU) [2008] 2 FLR 1495, Povse v Alpago (Case C-211/10) [2010] 2 FLR 1343, and Zarraga v Pelz (Case C-491/10 PPU) (2010) to the effect that the court of the Member State of enforcement cannot review or go behind the certificate issued by the court of the Member State of origin even if the judgment of the latter court is vitiated by a serious infringement of fundamental rights.

I do not of course question the jurisprudence of the CJEU. The fact, however, is that Macur J was quite plainly neither reviewing nor seeking to go behind the Article III certificate. The contrary is simply not arguable.

The agreement homologated by the Portuguese court fell into three parts: clauses A and B relate to “parental responsibility” within the meaning of Article 2.7; clauses C, D and E relate to “rights of custody” within the meaning of Article 2.9; clause F relates to “rights of access” within the meaning of Article 2.10. It follows that whereas clause F could in principle be enforced in accordance with Article 41, clauses C, D and E (which as I have already pointed out were the basis of the father’s application under Article 41) could be enforced only in accordance with Article 21. It follows that Macur J was plainly right to reject the father’s application.

I add two observations. First, there is nothing in BIIR or in the jurisprudence of the CJEU to prevent the judge who is faced with an application in accordance with Article 41 from examining the certified order in order to identify those parts of the order which do and those parts which do not relate to “rights of access” as defined in Article 2.10. Plainly the judge must do so, otherwise the BIIR scheme becomes unworkable in those cases where, as here (and the present case is far from unique) a single order relates both to “rights of access” and to “rights of custody”. Second, there is in the present case, as one might expect, no conflict between the Annexe III certificate issued by the Portuguese court and the agreement thus certified. The certificate does not assert that clause C relates to “rights of access”. It is only the father who, as we have seen, seeks impermissibly to characterise clause C in that way.

The scheme of this part of BIIR is very clear. Articles 26 and 31.3 provide that “Under no circumstances” may the judgment of the court of the Member State of origin “be reviewed as to its substance” by the court of the Member State of enforcement. Article 23(a) on the other hand prohibits recognition “if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child.”

Article 23(a), in my judgment, contains a very narrow exception and, consistently with the entire scheme of BIIR and with the underlying philosophy spelt out in Recital (21), sets the bar very high.

I can start with Bamberski v Krombach (Case C-7/98) [2001] Q.B. 709, where the CJEU had to consider Article 27(1) of the original Brussels Convention (“BI”), which provides: “A judgment shall not be recognised ... if such recognition is contrary to public policy in the state in which recognition is sought.” It will be noticed that this differs in two respects from Article 23(a) of BIIR: it does not contain the word “manifestly” which in BIIR appears immediately before the word “contrary”, nor, unsurprisingly given the subject matter of BI, does it contain the concluding words “taking into account the best interests of the child.”

Two short passages from the judgment of the CJEU suffice for present purposes. In the first (para [21], citations omitted) the court said:

In Re S (Brussels II: Recognition: Best Interests of Child) (No 1) [2003] EWHC 2115 (Fam), [2004] 1 FLR 571, Holman J had to consider Article 15(2)(a) of BIIR’s predecessor, commonly referred to as BII, (Footnote: ²) which was in the same terms as Article 23(a) of BIIR. The issue arose in that case because, as Holman J said (para [29]), he would not himself have made an order in the terms of the order recognition of which was being sought. Correctly, in my judgment, Holman J referred to the decision in Krombach, notwithstanding the differences in the language of the two provisions. He expressed himself as follows (para [32]):

Holman J’s approach has been followed by other first instance judges, most recently by Roderic Wood J in LAB v KB (Abduction: Brussels II Revised) [2009] EWHC 2243 (Fam), [2010] 2 FLR 1664, who however added this important gloss (para [32]):

Roderic Wood J also quoted with approval (para [34]) some observations of Singer J in W v W (Residence: Enforcement of Order) [2005] EWHC 1811 (Fam), [2005] All ER (D) 41 (Aug). First (para [40]) that:

I respectfully endorse the passages which I have quoted from Holman J’s judgment in Re S as correctly setting out the proper approach to be followed in cases where Article 23(a) is relied upon, subject only to the gloss, which I would also endorse, provided by Roderic Wood J in the passage I have quoted from his judgment in LAB. The test is stringent, the bar, as I have said, is set high. Singer J’s observations in W v W helpfully capture just how high.

It follows, in my judgment, that Macur J was right to follow the approach mapped out by Holman J just as she was right - indeed in my judgment plainly and obviously right - to find that the arguments based on L’s welfare did not suffice to bring the case within Article 23(a). Like Holman J in the earlier case, Macur J was faced with an application for enforcement of an order which she herself would not have made. And she explained why. But, as she properly held, she was unable to conclude that the situation was “so obviously and extremely abusive to qualify as the exceptional case.” She was plainly entitled to come to that view and in expressing herself as she did she was not, in my judgment, setting the bar too high. The simple fact, when all is said and done, is that this case, insofar as it is based on L’s welfare, falls far short of what is required to bring Article 23(a) into play.

If Macur J was accordingly right to reject that part of the mother’s case based upon considerations of L’s welfare, she was, in my judgment, wrong to find that the test in Article 23(a) was met by virtue of the mother’s mental or emotional state.

Although the circumstances said to being Article 23(a) into play have to be evaluated “taking into account the best interests of the child”, one can envisage circumstances in which Article 23(a) could apply if, for example, there had been a manifest failure to comply with some fundamental principle of procedure resulting in an egregiously unfair trial. In that sense there can in principle be an overlap between Article 23(a) on the one hand and Articles 23(b) and (d) on the other. So far so good. Let it also be assumed, as I am content to assume, that Macur J’s factual findings in relation to the mother as I have set them out above were securely founded in evidence she was entitled to accept.

None of that, however, begins to make good the proposition that Macur J was justified on the basis of those findings in concluding that the case fell within Article 23(a). With all respect to Macur J I simply fail to see how, in the circumstances as she has found them, it could be manifestly contrary to public policy to recognise the judgment of the Portuguese court. On the contrary, to take this course is, in truth, to embark, impermissibly and in breach of Article 26, upon a review as to its substance. Accepting, as I do, that manifest breaches of fundamental principles of procedural fairness can in principle engage Article 23(a), the fact is that this case, insofar as it is based on the mother’s complaints about the process in Portugal or on the state of her emotional and mental health, falls far short of what is required to bring Article 23(a) into play.

In my judgment, the father succeeds in his appeal in relation to Article 23(a).

Macur J’s judgment rejecting the mother’s case based on Article 23(d) has not been challenged before us. I need say no more than that she was, in my judgment, plainly entitled to decide as she did and for the reasons she gave.

Mr Marcus Scott-Manderson QC on behalf of the mother challenged Macur J’s rejection of the mother’s case based on Article 23(e). His challenge, with all respect to him, is little short of hopeless. The prohibited steps order put in place by Macur J, like the earlier prohibited steps order made by the District Judge, was part of a temporary regime put in place to ‘hold the ring’ on an interim basis pending final determination of the issues arising under BIIR. Such an interim measure is not an “irreconcilable” judgment within the meaning of either Article 23(e) or Article 47: see for example the decision of the CJEU in Povse v Alpago (Case C-211/10) [2010] 2 FLR 1343, para [79], to the effect that a provisional or interim order even if enforceable under the law of the Member State of enforcement cannot preclude enforcement of a certified judgment delivered previously by a court in the Member State of origin.

Mr Scott-Manderson seeks to escape from this view of Article 23(a), just as he submits that Holman J’s analysis in Re S needs to be modified, by mounting an ingenious if subtle argument which however, in common with Macur J, I have no hesitation in rejecting.

Mr Scott-Manderson takes as his starting point the principle, well established in the jurisprudence of the European Court of Human Rights, that a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development: see, for example, S c oz zari and Giunta v Italy (2000) 35 EHRR 12, [2000] 2 FLR 771, Gnahore v France (2002) 34 EHRR 967, Raban v Romania (2010) and Plaza v Poland (2011) and the recent discussion of this court in Re C (Direct Contact: Suspension) [2011] EWCA Civ 521 [2011] 2 FLR 912. He then seeks to build a bridge or connection between the Convention and BIIR, and between the jurisprudence of the ECtHR and the jurisprudence of the CJEU, by pointing to two things: first, the reference in Recital (33) to the “the principles of the Charter of Fundamental Rights of the European Union” and, second, the discussion by the CJEU in JMcB v LE (Case C-400/10) [2011] 1 FLR 548, paras [53], [60], of the inter-relationship between Article 8 of the Convention and its counterpart in Article 7 of the Charter, and its recognition of the need to construe Article 7 in accordance with the Article 8 jurisprudence of the ECtHR. He points in particular to what the CJEU said (para [60]) to the effect that the provisions of BIIR:

I accept, of course, what the CJEU has said, but I cannot with all respect to Mr Scott- Manderson accept that it takes him where he would have us go. Plainly, in deciding what order to make, the court of the Member State of origin must ensure that it complies with Article 8 of the Convention and Articles 7 and 24 of the Charter. But the duty of the court of the Member State of enforcement is to comply with BIIR, which is premised upon the principle of mutual trust referred to in Recital (21) and upon the assumption that the court of the Member State of origin will in all probability have complied with its duties under the Convention and the Charter; which provides very limited grounds for non-recognition; and which in Article 23(a) deliberately sets the bar very high. Procedure under BIIR is intended to be summary though never arbitrary or mechanical. As the Supreme Court said in In re E, para [18], BIIR has been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. To accept Mr Scott-Manderson’s argument would be to drive a coach and four through the BIIR procedure and go far to depriving Articles 26 and 31.3 of their intended effect. In my judgment, if the court of the Member State of enforcement faithfully applies the relevant provisions of BIIR in accordance with the established jurisprudence, there will be no breach of either the Charter or the Convention. The approach of Holman J in Re S requires no modification or adjustment of the kind suggested by Mr Scott-Manderson.

Before leaving this part of the case I add one final observation. Mr Harrison was not aware of, and Mr Scott-Manderson was not able to point us to, any decision, whether in this county or elsewhere, where an argument based on Article 23(a) has succeeded. This is unsurprising given what can be expected of any court operating within the BIIR system. The best that Mr Scott-Manderson could do was to take us to the very recent decision of the ECtHR in M and S v Italy and the United Kingdom (2012). In that case an order had been made in Italy and recognition in this country was sought in accordance with Article 21 of BIIR. The mother’s attempt to rely upon Article 23(a) was rejected both by the High Court and subsequently by this court. The mother’s subsequent application to the ECtHR claiming that the decisions of the English courts breached both her and the child’s rights under Article 8 of the Convention was rejected as manifestly ill-founded. This demonstrates that the decision under BIIR of a court of the Member State of enforcement is in principle amenable to challenge both in the CJEU and in the ECtHR but it hardly assists the mother in the present case.

In accordance with Article 8.1, whether or not the English court has jurisdiction depends upon whether L was “habitually resident” in England when the proceedings were commenced in the Oxford County Court on 7 February 2012. Macur J held that he was. In my judgment he was not; he was still habitually resident in Portugal.

In this country the question of what is meant by “habitual residence” for the purposes of BIIR first arose in the context not of Article 8 but of Article 3, which deals with jurisdiction in matters relating to divorce, legal separation or marriage annulment. At that time there had been no decision of the CJEU in relation to the meaning of “habitual residence” for the purposes of BIIR though there was an extensive jurisprudence of the CJEU analysing the meaning of habitual residence in a number of other EU contexts.

In relation to Article 3 the meaning of habitual residence has been considered in a line of authorities at first instance: L-K v K (No 2) [2006] EWHC 3280 (Fam), [2007] 2 FLR 729 (Singer J), Marinos v Marinos [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018 (Munby J), Munro v Munro [2007] EWHC 3315 (Fam), [2008] 1 FLR 1613 (Bennett J), Z v Z (Divorce: Jurisdiction) [2009] EWHC 2626 (Fam), [2010] 1 FLR 694 (Ryder J), and V v V (Divorce: Jurisdiction) [2011] EWHC 1190 (Fam), [2011] 2 FLR 778 (Peter Jackson J).

So far as material for present purposes these authorities demonstrate two things: first, that ‘habitual residence’ has an autonomous meaning in EU law, and that its meaning in EU law is not the same as its meaning in our domestic law; second, that, in distinction to our domestic law (contrast Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72), at any given time a person can have only one habitual residence for the purposes of BIIR. Those two propositions have never been doubted. They are in my judgment good law and, moreover, just as applicable in relation to Article 8 as in relation to Article 3.

The CJEU first had to consider the meaning of “habitual residence” in the context of Article 8 in Re A (Area of Freedom, Security and Justice) (Case C-523/07) [2009] 2 FLR 1. It laid down three important principles. First (para [36]) that:

Given the circumstances of the present case, it is interesting to note the CJEU’s comment (para [41]) that:

What the CJEU had said in Re A was reiterated by it in Mercredi v Chaffe (Case C- 497/10) [2011] 1 FLR 1293. Having observed (para [44]) that it “follows from the use of the adjective ‘habitual’ that the residence must have a certain permanence or regularity,” the CJEU continued (paras [47], [49]-[51], citations omitted):

The CJEU added (paras [53]-[54]):

Disputes about habitual residence can arise in many different factual contexts. Sometimes the issue may arise, as in Mercredi, in the context of a re-location from one Member State to another. Sometimes, as in Marinos, the issue may arise because someone has a house in more than one Member State. It is not difficult to imagine other cases which if more extreme are not altogether fanciful. What of the mega-rich ‘citizen of the world’ ceaselessly on the move between the houses he owns in a number of different countries, the houses of his friends in various countries and the most luxurious hotels in various fashionable resorts around the globe. And what of the perpetual nomad who, having cut his previous ties, has spent the last ten years pedalling his bicycle around the world or sailing his yacht across the oceans.

For present purposes there is no need to pursue these speculations, but I should look briefly at two authorities to which Mr Harrison directed our attention. Neither, I should add, relates to BIIR. The first is the decision of Douglas Brown J in Re V (Abduction: Habitual Residence) [1995] 2 FLR 992, where a married couple lived during the tourist season in a villa in Corfu and over the winter in a house in London. It was argued by the mother that there was concurrent habitual residence in both this country and Greece; by the father that there was either a single habitual residence (on the facts in Corfu) or, alternatively, an alternating, or consecutive, habitual residence changing twice a year. Douglas Brown J found for the mother, saying (page 1002):

The other case is Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, where the family had houses in both Nigeria and London. For present purposes the only relevance of the case is the comment that my Lord, Thorpe LJ, made (para [32]) about Re V:

In the present case, given the principle that at any given time a person can have only one habitual residence for the purposes of BIIR, there are only three possibilities: first, as the father contends, that L remains habitually resident in Portugal; second, as the mother contends and as Macur J found, that L’s habitual residence alternates between Portugal and England on a two-monthly cycle; third, as the mother contends in the alternative, that L’s habitual residence cannot be established, with the consequence that the English court has jurisdiction in accordance with Article 13.

This last alternative can be rejected at the outset. The facts here are far removed from the kind of case in which Article 13 might apply. It will be an exceptional case in which Article 13 applies: see Re A para [43] and Mercredi para [57]. This case if unusual does not come within the exceptional category in which Article 13 might apply. The choice therefore lies between the first two alternatives.

The starting point is that down to the time when L left Portugal with his mother on 18 December 2011 he was undoubtedly habitually resident in Portugal. So much, indeed, was accepted by Mr Scott-Manderson. What is equally clear is that thereafter his parents, both of whom it is important to note have parental responsibility for him, were habitually resident in different countries: his mother in England and his father in Portugal. So in this case the habitual residence of the parents at the relevant date - 7 February 2012 -provides no assistance in determining where L was habitually resident.

Given that L was habitually resident in Portugal on 18 December 2011, and given that his mother’s subsequent acquisition of an English habitual residence is really neither here nor there, the question seems to me to reduce itself to this: Having regard to the principles laid down by the CJEU in Re A and in Mercredi, did L’s arrival in this country in accordance with clause C of the agreement for the purpose of living here with his mother for two months have the effect of changing his habitual residence? In my judgment, and with all respect to Macur J who took a different view, the answer can only be No.

What the CJEU jurisprudence establishes is that “physical presence” is not enough. The child’s residence must have a “certain permanence or regularity”, it must as a general rule “have a certain duration which reflects an adequate degree of permanence”, it must “reflect some degree of integration in a social and family environment”, rather than being “temporary or intermittent”. In my judgment L’s presence - residence - in England on a constantly revolving two-monthly cycle lacks the necessary degree of permanence. The cycle, if regular, nonetheless provides for presence - residence - which on each occasion is only temporary and intermittent. That is enough to decide the point but I should add that the alternative view, although it commended itself to Macur J, would have practical consequences hardly conducive to the smooth working of BIIR in the manner contemplated by its architects.

In V v V (Divorce: Jurisdiction) [2011] EWHC 1190 (Fam), [2011] 2 FLR 778, a case under Article 3, Peter Jackson J was pressed with the argument that although it is possible to have more than one residence between which one alternates, one cannot have more than one residence simultaneously. Commenting on this he said (para [52]):

In my judgment the father’s appeal on this point must be allowed.

It follows, in my judgment, that the father’s appeal must be allowed on both of the grounds for which we gave him permission to appeal. The Portuguese order should be recognised in accordance with Article 21. L remains habitually resident in Portugal. The English court does not have jurisdiction. In accordance with BIIR it is the Portuguese court alone that has jurisdiction.

I agree.

I have had the advantage of reading in draft the judgment of my Lord, Munby LJ, and I am in complete agreement with his reasoning.

At first sight this appears to be a complex appeal but in reality there are but two points. First, was the judge entitled on the evidence to find that:-

As to the first point my Lord’s judgment demonstrates that the conclusion is unsustainable on the evidence. I would only add that the absence of any reported case known to the specialist bar briefed on this appeal, in which recognition of an apparently valid judgment has been refused on the grounds of public policy, is a fair indication of the exceptional nature of such a finding. The arrangement agreed between the mother’s family and the father’s family had at least the merit of consensus. It was not only approved by the Judge but it resulted from the intervention and support of local child protection services. To label a Portuguese order with such foundations contrary to the public policy of this jurisdiction would be to disregard the over-arching objectives of the Regulation expressed in its first two Recitals. Particularly is that so when the order in question was not a judicial determination but only a judicial endorsement of a mediated agreement.

The judge’s conclusion on the second issue, the issue of habitual residence, is unsound both theoretically and practically. Chaos would result were the responsibility to take welfare decisions in relation to the child to switch from one jurisdiction to another every 56 days.

The scheme of the Regulation for jurisdiction in cases of parental responsibility is clearly constructed: Article 8 provides the general rule and Articles 9-15 provide for exceptional circumstances. The judge rightly held that L was habitually resident in Portugal preceding and at the date of the order of 7 December 2011. The arrangement made between the parties did not envisage or result in a transfer of jurisdiction to England. Plainly if the order of 7 December 2011 did not stand the test of usage, or if the parents were in dispute as to the detail of its implementation, the Portuguese court was the proper court to determine such issues.

The judge’s claimed jurisdiction under Article 13 equally fails to give proper weight to the general rule. Cases in which a child’s habitual residence cannot be established will be rare. Furthermore the exercise of a presence jurisdiction would create the same problem as the judge’s first choice of oscillating jurisdictions.

It would have been better had the legal issues been addressed and decided without oral evidence. I have no doubt that the judge felt an understandable sympathy for the mother. An indication of that is given by her conclusion that it was in the child’s best interests to conduct proceedings here. However that is not the test and the introduction of such a discretion would jeopardise the scheme of the Regulation. As I look at this case without that influence I would say that this mother threw over the agreed arrangements only 7 weeks after their commencement. If she repented of her agreement or if she conceived that in practice it was inconsistent with the welfare of the child, then as a matter of principle her obligation was to apply to the Portuguese Court. The issue of competing proceedings in this jurisdiction was plainly strategic and that strategy has succeeded to the extent that it has gained her 6 months of respite.