Summary
The proceedings were concerned with a child who was born in August 2003.
The parties married in England in January 2005. They were both British nationals. They separated in 2010 or 2011. The parties had been living together in Belgium. It is said they divorced in Belgium.
The mother and the child came to live in England in March 2011.
In October 2011, the father made an application for a summary return of the child to Belgium. On the ground of Article 13(a), the application was dismissed by Mr Justice Hedley.
On 29th November 2011, the father made an application, seeking a residence order.
On 31st January 2012, the father initiated proceedings in Belgium, seeking the return of the child to Belgium on the ground of Article 11(7).
On 14th March 2011, the Belgium court ordered the return of the child to Belgium.
The English court refused to enforce the Belgian order in England. Mr Justice Moylan held:
“75 Accordingly, I do not propose immediately to enforce the orders made by the Belgian court as sought by Mr Gupta on behalf of the father. In my judgment, this court has jurisdiction on the grounds I have indicated and should continue to exercise its jurisdiction to make welfare based decisions in respect of the child, B.” [75]
Mr Justice Moylan made also a supplementary judgments, addressing events which occurred after 22nd March, stating that:
90 For the reasons given in my earlier judgment, the English court appears to me to be the court first seised under Brussels II Revised. In my view, the approach identified in Purrucker is of general application. As the Belgian court's decision does not contain “material which unquestionably demonstrates the substantive jurisdiction of” that court ( Purrucker (No 1) [75]) and as it does not engage in any analysis of whether the English court is the court first seised, I sought to engage in communications for the purposes referred to in Purrucker (No 2) at [81]. As these communications have not clarified these matters and having regard to the child's interests, I acceded to the submissions made on behalf of all parties (including the child), save for the father, that I should confirm my provisional judgment.
91 Regrettably, and no doubt as an exceptional step, when the court first seised concludes that it has jurisdiction under Brussels II Revised, judgments given by the courts of a Member State second seised do not have “any effect on the judgment which has to be delivered” by the court first seised: Mercredi v Chaffe [70]. The fact that a court, which considers that it has jurisdiction in priority to the courts of another Member State, gives a judgment which might conflict with a judgment given in that other Member State is an inevitable consequence of the decisions of the CJEU in Mercredi and Purrucker and, I might add, the structure of the Regulation.
92 Accordingly, given that this court has had jurisdiction since at least 25th November 2011, pursuant to Article 8(1) , or alternatively since at least 8th December 2011, pursuant to Article 12(3) , and given that the child is located here and the subject of continuing proceedings directed towards determining what orders should be made in accordance with the child's best interests, I have declined to enforce the order of the Belgian court.” 90-92]