I (A Child)

the child has a substantial connection with that Member State; and

the jurisdiction of the courts “has been expressly accepted or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised”, and the exercise of jurisdiction is in the best interests of the child.

On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of an EU Member State. Lady Hale reached this conclusion using ordinary principles of construction, concluding that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term “third State” in other parts of the Regulation (notably articles 12.4 and 61) means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU. [17] - [20] The Pakistan Protocol (referred to by the Court of Appeal), in which the judiciaries of Pakistan and England agreed it will generally be best for jurisdiction to be exercised in the country of the child’s habitual residence, was not directly applicable. In any event such an agreement between judges could not affect the proper interpretation of Brussels II Revised. [41] - [44]

On the second issue, the criteria under article 12.3 were clearly satisfied in this case. Firstly, under 12.3(a), the substantial connection was satisfied by the fact the child’s parents are habitually resident in the UK and they and the child are British citizens. [21]Secondly, jurisdiction had been expressly and unequivocally accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court. [33] - [34]Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non-EU States it will be in his best interests for jurisdiction to be exercised under this article. It was also relevant that the child’s guardian in the High Court considered that the child’s future was best decided in this country. [37] - [38]

The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings “at the time the court is seised”. Did this mean before, when or after the relevant proceedings were begun? It was also unclear whether these words describe the time at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required. The Justices do not express a concluded view as it was not necessary to do so in order to decide this appeal. In this case all the parties had given unequivocal acceptance both before and after the proceedings had begun. The diversity of views indicates that the interpretation is not acte clair and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice under articles 68 and 234 of the EC Treaty. (Lady Hale at [23] - [32]; Lord Collins at [51] - [64]; Lord Kerr at [66] - [74]; Lord Clarke at [75] - [92])