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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A v B [2011] EWHC 2752 (Fam) (01 November 2011) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2011/2752.html Cite as: [2011] EWHC 2752 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B
e f o r e :
____________________
A |
Applicant |
|
- and - |
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![]() | Respondent |
____________________
by
Bindmans)
for the Applicant
Christopher Butterfield
(instructed
by
William
Bache
& Co) for the Respondent
Hearing dates: 12th October 2011
____________________
VERSION
OF HANDED DOWN JUDGMENT
Crown Copyright ©
Sir Nicholas Wall P:
The case in summary
"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action arebrought
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before
the courts of different Member states, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established."
"Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court……."
(1) dismissed the father's interim application for joint custody;
(2) dismissed his application for the mother'sbreaches
of contact to
be
the subject of a fine; and
(3) decided that the father should have no contact with M.
The applications by
the father
before
the court
The father's case
(a) proper disclosure of all relevant material from Sweden;
(b) the joinder of M as a party;
(c) a section 37 Children Act 1989 investigation tobe
directed;
(d) disclosure of the Northumberland County Council records to him (and not just to his legal representatives);
(e) insofar as it is needed, a finding of fact hearing about any disputed matters;
(f) international collaborationbetween
the respective social services departments (to include sharing of documents) and, if necessary, international judicial collaboration through the office of the Head of International Family Law, Lord Justice Thorpe; and
(g) such interim contact as any children's Guardian may direct.
The mother's case
"In my opinion the courts of this jurisdiction shouldbe
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very
slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less."
And further, in Mercredi v
Chaffe [2011] 2 FLR 515 at 527:
"…. as a matter of comity and the collaboration of courts within the European Union the London judge had an obligation to support the proper conclusions of the French court or, at the least, not to enter into a litigation strategy to undermine the order…
[67] One the one hand it canbe
said that the general rule must
be
that jurisdiction is established in the State of the habitual residence of the child at the time the court is seised. Once seised that court retains jurisdiction even if the child changes habitual residence during the course of the proceedings. This is the principle of petuatio fori. It is a practical rule to prevent one party from aborting proceedings
by
a tactical move during their course. Thus it can
be
argued that the issue of Children Act proceedings fixed jurisdiction in London until the termination of the proceedings."
Other authority
Discussion and conclusion