Summary
The proceedings were concerned with a mother’s application, requesting the English court to make an application under Article 15(2)(c) of Brussels IIa.
The parties were married in 1999. The mother and father were both English. The child was born in May 2002 in the Netherlands where the parents worked till 2003.
The mother and child moved to England in 2003. The father joined them in 2005.
In November 2005, the whole family moved to Scotland where they stayed till July 2007.
In August 2007, they went back to the Netherlands. The child started attending the American school there.
On 14th May, both parties started legal proceedings.
The mother commenced divorce proceedings in England, relying on their common English domicile.
The father sought provisional measures in the Netherlands, applying to get rights of care over their child, exclusive use of the former matrimonial home and maintenance.
On 15th May 2008, the mother applied for a residence order in England. This gave rise to a jurisdictional dispute as to which court had jurisdiction over the divorce and child care proceedings. It was agreed that the divorce should proceed in England, and the decree nisi rendered on 6th October 2008.
As for the ancillary relief proceedings, the Hague Court rendered a judgment on 19th June 2008, dismissing the mother’s application for a transfer of proceedings to England under Article 15(1).
In support of her application before the English court, the mother alleged that the circumstances have changed. The English court dismissed the mother’s application. Mr Justice Munby held:
“44 [...] What has to be shown, as it seems to me, is that the circumstances now are such as so entirely to change the aspect of the case as to make it highly probable that the court seised of the case will, despite having already refused an application under Article 15, now come to a different decision and relinquish the case to the court which has made the request under Article 15(2)(c). In my judgment it must be shown that the change in circumstances is likely to be decisive.
[…]
46 In my judgment, and despite everything put so clearly and cogently before me by Ms Segal, the contrary case put by Mr Glaser is really unanswerable. In relation to two of the alleged changes in circumstances he has demonstrated convincingly, and by reference to the Hague court's own reasoning, that they are no such thing. And in relation to the third matter – the alleged change in H's circumstances – he has provided convincing arguments, with which I agree, as to why, even if the mother is correct, these are matters to be ventilated before the Hague court, as the court seised of the proceedings, and not matters which justify re-visiting Article 15. […]
47 In my judgment, and even putting the mother's case at its highest, it falls far short of meeting the stringent test which she must meet if she is to justify this court requesting the Hague court to re-visit its decision under Article 15. The changes in the circumstances upon which she relies come nowhere near entirely changing the aspect of the case, and the prospect that the Hague court, if requested to reconsider the matter by this court, would come to any decision different from that which it reached on 19 June 2008 is, in my judgment, small – very small. So the mother fails by a large margin to satisfy the relevant test. I go further. Even if it were enough for the mother to establish that she has a reasonable prospect of persuading the Hague court to that course – and that, I repeat, is not the test – she would not, in my judgment, be able to meet even that much less stringent test.
48 The remaining question is whether I am justified in the circumstances in dismissing the mother's application summarily. In my judgment I am, and the mother will suffer no injustice if I do”. [44-48]