I (A Child), Re

Factual and Procedural Background

The Child, born in July 2000, is a citizen of Member State A but has lived in a Third State outside the European Union since December 2004. Following non-accidental injuries discovered in 2001, public-law care proceedings were initiated. In May 2003 the court ordered that the Child reside with Respondent (the father) and have supervised contact with Appellant (the mother). Respondent later obtained permission (with an undertaking to comply with future English court orders) to relocate the Child to the Third State.

On 31 October 2007 Appellant, acting in person, commenced private-law proceedings in the Family Division seeking contact and ancillary relief. Both parties, initially unrepresented, attended directions and conciliation hearings, resulting in a consent order regulating contact. Further applications and directions ensued, culminating in an order by Judge Hedley on 17 June 2008 requiring Respondent to bring the Child to Member State A for contact in 2009.

By March 2009 both parties had legal representation. Respondent’s counsel formally stated that he “accepted the Court’s jurisdiction”, although Respondent simultaneously applied to set aside the order requiring the Child’s return. Judge Black questioned jurisdiction, and on 28 May 2009 a Deputy High Court Judge held that no jurisdiction existed under domestic statute. Appellant appealed, newly relying on Article 12 of Council Regulation 2201/2003 (“Brussels II Revised”). The Court of Appeal dismissed the appeal, but the Supreme Court granted permission and now addresses the jurisdictional issue.

Legal Issues Presented

1. Whether the prorogation provisions in Article 12 of Brussels II Revised can confer jurisdiction on a Member State when the child concerned is habitually resident in a non-EU (“third”) State.
2. If so, whether the statutory requirements of Article 12(3) are satisfied on the facts of this case—namely:
   • a substantial connection with the Member State;
   • unequivocal acceptance of jurisdiction by all parties at the time the court is seised; and
   • whether exercising jurisdiction is in the Child’s best interests, taking account of Article 12(4).

Arguments of the Parties

Appellant’s Arguments

• Article 12 applies even where a child is habitually resident outside the EU.
• Both parents have unequivocally accepted the jurisdiction—especially through Respondent’s undertaking in 2004 and subsequent litigation conduct.
• Jurisdiction is in the Child’s best interests because both parents live in Member State A and practical contact arrangements must be supervised there.

Respondent’s Arguments

• The courts of Member State A lack jurisdiction because the Child is habitually resident in a Third State.
• Any earlier participation did not amount to the acceptance required by Article 12(3)(b).
• Were jurisdiction found, the court should nevertheless decline to exercise it on forum non conveniens grounds in favour of the Third State.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Scope of Article 12. The Court (per Judge Hale) held that nothing in Articles 12.1 or 12.3 confines prorogation to children resident within the EU. Linguistic analysis, academic commentary, and Article 12(4)’s reference to proceedings in a “third State” confirm that interpretation.

2. Meaning of “third State”. Comparing Article 61 and various EU documents, the Court concluded that “third State” denotes any non-Member State, thereby covering the Child’s current country of residence.

3. Substantial connection. Article 12(3)(a) was satisfied: both parents are habitually resident in Member State A and the Child is a national of that State.

4. Unequivocal acceptance. Respondent’s 2004 undertaking to return the Child, his participation in all post-2007 hearings, and the explicit statement filed by Attorney Baker in March 2009 amounted to express and unequivocal acceptance. The Court held this sufficed under any possible interpretation of the phrase “at the time the court is seised.”

5. Best interests of the Child. Two considerations supported jurisdiction in Member State A: (i) Article 12(4) presumption favouring EU jurisdiction where the Third State is not a party to the 1996 Hague Convention; (ii) the guardian’s view that courts in Member State A are better placed to evaluate and safeguard contact arrangements, given that both parents reside there.

6. Relationship with the UK–Third State Judicial Protocol. While acknowledging concerns that assuming jurisdiction might undermine an existing bilateral judicial protocol, the Court found the Regulation’s mandatory effect could not be displaced by a non-binding judicial understanding. Moreover, Article 12 prorogation could complement, rather than conflict with, the protocol’s mechanisms.

Holding and Implications

APPEAL ALLOWED. The Supreme Court declared that the courts of Member State A possess jurisdiction over matters of parental responsibility concerning the Child pursuant to Article 12(3) of Brussels II Revised.

Immediate effect: the High Court may hear and determine the contact dispute. Broader implications: the judgment confirms that parties may prorogue jurisdiction under Article 12 even where a child is habitually resident in a non-EU country, provided the statutory criteria and the child’s best interests are met. While the Court flagged potential uncertainties over the timing of acceptance, it left open the possibility of a future reference to the Court of Justice of the European Union for definitive guidance.