Summary
The parties were married in London in April 1988. In 1991, parties went to live and work in Tanzania. They had three children who were all born in England. During the period 2002 and 2003, the family was living in Spain. In August 2003, the mother and the children went back to Tanzania where they remained till 2006 when they all returned to Spain. As a result, all of them were habitually resident in Spain.
In February 2007, the parents separated. In July 2007, the mother commenced the English divorce proceedings on the ground that both parents were domiciled in England. The father acknowledged the service, noting that he was unsure whether the English court had jurisdiction, but no jurisdictional challenge was made.
On 3rd August 2007, the father began parental responsibility proceedings in Spain. The Spanish proceedings were stayed on mother’s request. The father appealed.
On 22nd February 2008, the mother started parental responsibility proceedings in England in respect to the children.
The father made an application under Article 17 of Brussels IIa that the English court had no jurisdiction.
His application was dismissed by the English High Court.
An appeal was made before the Court of Appeal. The latter appeal was allowed.
Lord Justice Thorpe held:
“33 The court first seised in any matter relating to parental responsibility was the court of first instance in Marbella which on 3rd August 2007 received the father's “Application for Care and Custody, Maintenance and an order that the Children should not be taken out of the country without prior authorisation in writing from this court.”
34 The first application to the London court in any matter relating to parental responsibility did not come until the 22nd of February 2008 when the mother filed what should have been a Form C2 but which was erroneously Form C1.” [33-34]
Lord Justice Lawrence Collins stated:
“53 It is plain that Article 12(1) (b) of the Brussels II bis Regulation ( Council Regulation (EC) 2201/2003 ), when it speaks of the jurisdiction being “accepted expressly or otherwise in an unequivocal manner … at the time the court is seised,” is not simply referring to a mere submission in matrimonial proceedings equivalent to what would be an entry of appearance under the Brussels I Regulation ( Council Regulation (EC) 44/2001 ), Article 24 . First, it is clear that it does not refer to acceptance of the jurisdiction in relation to matrimonial proceedings alone. It must refer to jurisdiction in matters of parental responsibility. Second, the emphasis is on the acceptance of jurisdiction “expressly” or “in an unequivocal manner.” This must mean that acceptance of jurisdiction of a court other than that of the child's habitual residence is not lightly to be inferred, and that the paradigm case will be actual agreement by the parents at the time the matrimonial proceedings are instituted.” [53]