Summary
The proceedings between the parties were about the contact arrangements between the mother and the child.
The father was an English national; the mother was Columbian. The child was habitually residing in Malaysia.
The marriage was dissolved with a decision of the Sharia Court in Kuala Lumpur, rendering ancillary orders in respect to custody and access aspects.
The child had only spent a limited period of time in England in 2005, when an interim residence order had been issued by the English court.
In August 2009, the mother made an application for a mirror order.
On 28th October 2010, the English High Court judge held that it had a jurisdiction to issue such an order under Article 12(3) of Brussels IIa.
The father filed a notice of appeal on 20th December 2010. The permission to appeal was granted in January 2011.
The Court of Appeal allowed the appeal, and set aside the order by Judge Bennett. In this context, Lord Justice Thorpe held:
“46 [...] I am in no doubt that he was wrong to lay claim to primary, or even shared, jurisdiction to exercise discretionary powers to manage future contact, still less to entertain an application by the mother for a residence order. Essentially any such jurisdiction could only be the consequence of either the habitual residence or the presence of [A] within the jurisdiction. One of the imperatives of international family law is to ensure that there is only one jurisdiction, amongst a number of possible candidates, to exercise discretionary power at any one time. Obviously comity demands resolute restraint to avoid conflict between States. That is the realistic aim of Conventions and Regulations in this field.” [46]