EUPillar MCL, CL MML v TL v ML, AL (by their Guardians) [2006] EWHC 2385 (Fam)

Summary

The proceedings were commenced in relation to an interim order for a supervised contact. The order was made by the English court on the 20th July 2006. Enforcement had to be sought in Austria because, on 28th July 2005, the mother was given leave to permanently relocate to Austria. The child acquired a habitual residence in Austria. The English court, however maintained its exclusive jurisdiction to deal with the matters of parental responsibility. In this context, 29th September 2006, Mr Justice Mostyn stated: “26 [...] on the facts of this case, Austria would have acquired by November 2005 exclusive jurisdiction to deal with all matters of parental responsibility unless a valid prorogation of jurisdiction in favour of this court had been made under Article 12. That such a prorogation has been made there can be no doubt by the express and unequivocal terms of the agreement recorded in the order of 28 July 2005. Moreover, given the habitual residence of the father here and the mother's participation in the proceedings up to the hearing on 9 December 2005 this court has jurisdiction under Article 12(3) as well.” [26] [2006] EWHC 2385 Fam. In September 2006, the Austrian court, on the ground of Article 20, made an order which had the effect of overthrowing the contact order made by the English court on 20th July. On 29th September, the English judge held: “53 With equal respect I have to say that Judge Felhab's adoption of the conclusion of the reports was precipitate and has resulted in great unfairness. Moreover I do not think that an order that has the effect of overthrowing the very substance of my 20 July 2006 order is a legitimate use of the Article 20 procedure. It does not safeguard the status quo — it has the directly opposite effect. The requirement of urgency was not demonstrated. The mother could so easily have obtained these reports a long time ago and have made an emergency application to this court for variation of my order. It was only because she delayed in obtaining them that she was able spuriously to put up a case of urgency. 54 The result of Judge Felhab's order has been that the primary jurisdiction of this Court has been usurped. As I said at the beginning of this judgment the reaction of the Austrian judiciary to the fresh order that I propose to make will demonstrate whether the provisions of Chapter II of Brussels IIr are effective or whether they are written in water.” [2006] EWHC 2385 (Fam) [53-54] Six weeks later, on 9th November 2006, Mr Justice Mostyn made a final order, stating: “22 What I therefore propose to do is to make a final order for contact which is in these terms: (1) that the mother do afford the father reasonable, unsupervised contact in England, Greece or Austria, to include holiday contact. (2) Because I have not been able to determine what the extent of that reasonable, unsupervised contact should be or when it should commence, I leave it to the Austrian courts under Article 48 to make the necessary arrangements, including the necessary forensic and psychiatric assessments for that determination, but I expect those courts to respect the judgment that I have given, which is that in principle this father is entitled to, and these children's interests demand, reasonable unsupervised contact.” [2006] EWHC 3631 (Fam) [22].