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:
“1 [...]What the CAFCASS officer and the judge overlooked is that Cyprus and the United Kingdom are of course member states of the European Union and both have, since 1 March 2005, been bound by the Regulation Brussels II Revised. That regulation provides for automatic enforcement of a contact order throughout the member states of Europe without the need for separate enforcement proceedings, providing that the order has been duly certified by the court of origin.
2 So it is plain to me that the objective for which the court, the CAFCASS officer and the parties strove was not only not achieved by the mechanism but was actually impeded by the mechanism of a shared residence order. It would plainly be in the interests of these children, and of course of their father, if the definition of the periods that they are to spend with him are expressed in the more usual form of a contact order rather than in this slightly unrealistic expression of a shared residence order.” [1-2]