PIL instrument(s)

Case number and/or case name

In re I (A Child) (Contact Application: Jurisdiction) [2009] EWCA Civ 965

Details of the court

England and Wales, Second Instance

Articles referred to by the court

Date of the judgement

21 July 2009

Appeal history

CJEU's case law cited by the court

Summary

The contact application was made by the mother. The proceedings were in respect of a child who was born in 2000 in England. Following the parent’s divorce, it was established that the child changed his habitual residence from England to India. The divorced parents continued leaving in England. The question arose whether the English court had jurisdiction to make a contact order for a child that was living in a non-EU country. On 28th May 2009, HHJ Barnett, sitting as a High Court judge, held that Brussels IIa does not apply. On 21st July 2009, an appeal against the High Court was dismissed by the Court of Appeal. On 1st December 2009, the UK Supreme Court allowed the mother’s appeal, holding that the English court had jurisdiction under Article 12 of Brussels IIa. Baroness Hale held that Article 12 does apply to children habitually resident outside the EU, and stated: “35. In my view, the jurisdiction of the English courts has been accepted by the father, both expressly and otherwise in an unequivocal manner. This is so whatever interpretation is placed upon art.12.3 , but the diversity of views expressed by this court indicates that the interpretation is not acte clair and may have to be the subject of a reference to the European Court of Justice in another case. But I would favour an interpretation which catered both for a binding acceptance before the proceedings began and for an unequivocal acceptance once they had begun..” [35].