Bush v Bush [2008] EWCA Civ 865

[2008] EWCA Civ 865Case No B4/2008/0963
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MRS JUSTICE PAUFFLEY DBE
FD07D03333
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/07/2008
Before
LORD JUSTICE THORPELORD JUSTICE LAWRENCE COLLINSLORD JUSTICE RIMER
Between
MARK IAN BUSHAppellantNEENA BUSHRespondent
Mr M Nicholls QC (instructed by Farrer & Co Llp) for AppellantMr T Scott QC (instructed by Fisher Meredith Llp) for RespondentHearing Hearing dates: 9th July 2008
Judgment

Factual and Procedural Background

[1]The appellant father and the respondent mother were married in London in April 1988. In 1991 or 1992 they went to live and work in Tanzania.[2]All three children, James (aged 14), Edward (aged 11) and Thomas (aged 9) were born in England and are British citizens. They have never been resident in the UK but have retained a close link, returning for about a month each year.[3]Between 2002 and 2003 the family lived in Marbella, Spain. In August 2003 Mother and the Children returned to live in Tanzania before returning to Spain in September 2006.[4]By February 2007, Mother and Father were living separately, the eldest child, James, living with Father and the other two with Mother. In August 2007 the middle child, Edward, began living with Father where he has remained. The youngest child, Thomas, is based with Mother but spends an appreciable amount of time with Father.[5]In July 2007, Mother instituted divorce proceedings in England, on the basis that both parties were domiciled there. Father filed an Acknowledgment of Service on 31 July 2007 stating that he was unsure if Mother was domiciled in England, but not disputing it. It was not in dispute that both parties and the Children were habitually resident in Spain. Mother filed a Statement of Arrangements for the Children and Father in response filed his own statement.[6]On 3 August 2007, Father began proceedings in the Court of First Instance, Marbella, for care and custody, maintenance and an order that the Children should not be removed from Spain.[7]On 28 August 2007, District Judge Redgrave in the Principal Registry of the Family Division made an order for interim periodical payments, expressed to include provision for the benefit of the Children.[8]A stay of Father’s application in Spain, sought by Mother, was granted by Magistrate-Judge Monica Ponsaille on 12 February 2008 on the basis that a related action was in progress in the courts of England and Wales. Father is appealing this order.[9]On 22 February 2008, Mother began proceedings under the Children Act 1989 for residence orders, for contact with Father to be defined and an order for the return of the Children’s passports.[10]Father sought a declaration under Article 17 of the Brussels II bis Regulation that the English courts have no jurisdiction over the case which had been instituted by Mother in respect of the Children. The application was dismissed by Mrs Justice Pauffley on 15 April 2008 and permission to appeal was refused.

Decision Appealed

[11]The essential findings and conclusions in the judgment of Pauffley J, given on 15 April 2008 are as follows:- i) That the court was properly seised in relation to matters of parental responsibility. It was seised under the provisions of Article 12 (1) (b) of the Regulation which was to be widely construed. Thus it was enough to show that the father had consented to the court’s divorce jurisdiction and additionally to its jurisdiction in matters relating to parental responsibility. ii) That the stay upon Father’s application for custody ordered by Judge Ponsaille currently governed the question of jurisdiction and there was no legitimate opportunity afforded to a judge in England to examine the content of her adjudication and arrive at a contrary conclusion. iii) That given that there was no debate about jurisdiction in relation to divorce and maintenance being fixed in England, it would be nonsensical for jurisdiction over the children to lie elsewhere. iv) That it was mandatory, pursuant to section 41 of the 1973 Act, for the court to consider in divorce proceedings whether there were any children of the family and, if so, whether it should exercise any of its powers under the 1989 Act. v) That the Practice Guide for the application of the Regulation supported this analysis. vi) That even on a narrow interpretation of Article 12.1(b), such that the specific requirement would be unequivocal acceptance of jurisdiction in matters relating to parental responsibility, the father’s litigation conduct had been sufficient to satisfy the requirement, in that he had filed a Statement as to the Arrangements for the Children, when under no obligation to do so. vii) That Hedley J in C v C [2006] EWHC 3247 (Fam) had adopted a consistent approach to Article 12.1(b), finding, with reference to rules relating to petitions and statements of the arrangements to be made for the children, that those matters were sufficient to trigger the requirements of Article 12.1(b). viii) That the situation did not fall within the parameters of Article 15.3 and no order should be made in the court which would be perceived in Spain as a challenge to the decision made to stay Father’s application.

Submissions on the Appeal

[12]Mr Michael Nicholls QC for the Appellant Father emphasises that the scheme of the Regulation is to ensure that jurisdiction rests with the courts of the child’s habitual residence. Article 12 provides a limited opportunity for parents to elect for the jurisdiction of the court seised with their divorce proceedings. However there must be unequivocal consent from both parents to the exercise of jurisdiction specifically in relation to matters of parental responsibility and providing that that election is consistent with the best interests of the child. Thus, submits Mr Nicholls, the judge was wrong to adopt a wider construction of Article 12 and was equally wrong to conclude that on the alternative narrow construction the father had unequivocally accepted the courts jurisdiction by filing a statement of arrangements.[13]Mr Nicholls further submitted that the judge was plainly wrong to have regarded the order of Judge Ponsaille as conclusive of the issue of jurisdiction, and thus an order that comity required the judge to uphold. It was essentially an order establishing the jurisdiction of the Spanish Court but deferring its exercise pending the development of the related proceedings in London.[14]Mr Timothy Scott QC for the Respondent Mother relied heavily on the order of Judge Ponsaille which he submitted did effectively settle the English court as the court that was to determine all questions relating to parental responsibility. If Pauffley J had acceded to the father’s application, the children would have been left in limbo without either court addressing the important welfare issues.[15]Further Mr Scott submitted that Pauffley J had plainly been right to conclude that the father had unequivocally accepted the court’s jurisdiction. He had elected to file a statement of arrangement when under no obligation so to do and nowhere in his statement of arrangements did he suggest that the London court had no jurisdiction in matters relating to parental responsibility. Conclusions. Brussels II bis.[16]There can be no doubt that Mr Nicholls is correct in his analysis of the general scheme of the Regulation. I start with recital (12): - “The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.”[17]That policy statement is reflected in Section 2 sub-headed Parental Responsibility which is divided into Articles 8 – 15. The general rule is stated in Article 8 (1): - “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”[18]Article 8 (1) is subject only to the provisions of Articles 9, 10 and 12. Article 9 provides for continuing jurisdiction of the child’s former habitual residence after the lawful move of the child from one Member State to another. Article 10 provides for jurisdiction in cases of wrongful removal or retention of a child and Article 12 provides for prorogation of jurisdiction in certain defined circumstances. This appeal is concerned only with prorogation to a court determining an application for divorce, legal separation or annulment by virtue of Article 3. Article 12 (1) is the crucial provision of international family law for the purposes of the present appeal. It is in these terms: - “The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: - a) At least one of the spouses has parental responsibility in relation to the child; and b) The jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.”[19]Now Mr Scott had little alternative but to concede that the judge’s wider construction of Article 12 (1) is unsustainable. The court’s jurisdiction in relation to divorce, legal separation or annulment is rigidly fixed in the court first seised which excludes the concept of acceptance of that jurisdiction by the parties. Clearly “the jurisdiction of the courts” in the construction of Article 12 (1) (b) can only be jurisdiction in relation to matters of parental responsibility. Thus the key question in the appeal is whether Pauffley J was right to conclude that the father had accepted the jurisdiction of the London court in an unequivocal manner by filing the document which he did. To answer that question it is necessary to look in some detail at the domestic statutory provisions relating to statements of arrangements and to the facts relevant to the issue. The Matrimonial Causes Act 1973 and the Rules.[20]The obligation on the petitioner to file a statement of arrangements is to be found in Rule 2.2 of the Family Proceedings Rules 1991 which state: - “…the Petition shall be accompanied by a statement, signed by the petitioner personally and if practicable agreed with the respondent, containing the information required by Form M4…”[21]Form M4 is preceded by directions to the petitioner. Amongst those is to be found: - “Before you issue a petition for divorce try to reach agreement with your husband/wife over the proposals for the children’s future. There is space for him/her to sign at the end of this form if agreement is reached.”[22]In the directions to the respondent appear the following: - “The petitioner has completed Parts I, II and III of this form which will be sent to the Court at the same time that the divorce petition is filed. If you agree with the arrangements and proposals for the children you should sign Part IV of the form. If you do not agree with all or some of the arrangements or proposals you will be given the opportunity of saying so when the divorce petition is served on you.”[23]All those directions emphasise that the parties are expected to agree proposals for the children’s future before filing of the petition.[24]Another direction to the petitioner in the introductory section of Form M4 states: - “Please refer to the explanatory notes issued regarding the completion of the prayer of the petition if you are asking the court to make any order regarding the children.”[25]Divorce Petition Notes for Guidance (D8) include the following: - “Arrangements for Children If you consider that the court will need to• Determine where the child(ren) should live (a Residence Order),• Determine with whom the child(ren) should have (a Contact Order),• Make a Specific Issue Order,• Make a Prohibited Steps Order; you must apply for the order on Form C2. You may enclose the completed form with your petition or submit it later”• Determine where the child(ren) should live (a Residence Order),• Determine with whom the child(ren) should have (a Contact Order),• Make a Specific Issue Order,• Make a Prohibited Steps Order; You may enclose the completed form with your petition or submit it later”[26]As the directions to the respondent make plain the respondent has the opportunity rather than the obligation to make a rival statement of arrangements. This derives from FPR 2.38 which states: - (1) A respondent on whom there is served a statement in accordance with Rule 2.2 may, whether or not he agreed that statement, file in the court office a written statement of his views on the present and proposed arrangements for the children…”[27]It is against that background that we see that the mother signed the Form M4 on 5th July 2007. In her statement, having set out the children’s habitual residence in Spain and their schooling at the English International College in Marbella, she stated her intention to move back to the United Kingdom as soon as possible with all three children and to enter them in London schools.[28]The petition and this statement of arrangements were served on the father in Spain on the 11th July and on the 31st he filed an acknowledgement of service doubting but not disputing the court’s jurisdiction. He accepted the adultery alleged and offered to pay the costs of the suit. In relation to the statement of arrangements he made it plain that he did not accept the mother’s proposals. As Mr Scott emphasised that was a sufficient indication of his position. It was not incumbent upon him to file his own statement.[29]However he did so on the same day, essentially making plain that he did not agree to the relocation of the children. “They are habitually resident in Spain, they have never lived in England …the petitioner did not discuss such a change with the respondent.”[30]What then is the significance of the statements of arrangements? The answer is to be found in the provisions of Section 41 of the Matrimonial Causes Act 1973. Section 41 provides: - “(1) The court shall not make absolute a decree of divorce or annulity of marriage or grant a decree of judicial separation, unless the court, by order, has declared that it is satisfied –(a) that for the purposes of this section there are no children of the family for whom this section applies: or(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that – (i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or”[31]In the days when this provision came into force undefended divorces were heard in open court and counsel for the petitioner would lead evidence to enable the judge to determine whether or not to make the declaratory order. In more modern times the grant of a divorce is a paper exercise resulting in the issue of a certificate by a district judge who has satisfied himself that the petitioner’s paperwork is in order. Thus the only material before the district judge relevant to the declaration is likely to be the statement or statements of arrangements.[32]Thus the filing of statements of arrangements is an integral part of the procedure that must be followed before a marriage can be dissolved. It pertains to the exercise of the court’s jurisdiction to dissolve the marriage. It cannot be said that the court’s jurisdiction in any matter relating to parental responsibility is seised by the filing of the statements. The court is seised in that area by the issue of an application on Form C2, the application for an order relating to custody, contact, specific issue order or prohibited steps order.[33]The court first seised in any matter relating to parental responsibility was the court of first instance in Marbella which on 3rd August 2007 received the father’s “Application for Care and Custody, Maintenance and an order that the children should not be taken out of the country without prior authorisation in writing from this court.”[34]The first application to the London court in any matter relating to parental responsibility did not come until the 22nd of February 2008 when the mother filed what should have been a Form C2 but which was erroneously Form C1. Under paragraph 10 she stated: - “The wife wishes to be free to move back to England with her three children, but the father refuses to allow them to leave him, retains the children’s passports, and has been actively pursuing a policy of disaffection to get the children to stay with him. Only now that the Spanish court is no longer seised of the children can mother take action to regain the children and regularise the situation and arrange proper contact for them with father.”[35]Thus the mother confirms what would otherwise be inferred, namely that her application to this court was reactive to the order of Judge Ponsaille of the 12th February 2008. The Spanish Order.[36]The judgment of Judge Ponsaille first establishes the facts and then the relevant issues. It seems clear that the mother’s objective was to ensure that financial proceedings and proceedings relating to the children should both be heard in London. It seems that Judge Ponsaille had primary regard to the application in relation to maintenance since she founds her conclusions on Article 28 of Council Regulation 44/2001 and nowhere refers to Article 19 of Council Regulation 2201/2003. Thus Mr Scott submits that she arrived at the right conclusion in relation to issues relating to the children, but erroneously founded herself on the wrong Article. It seems that she was led into that error by the advocates and it does not seem to me to invalidate her conclusion which is thus expressed in the English translation: - “Therefore a stay of the proceedings is ordered, without prejudice to the provisions of the second section of Article 28 cited of the Regulation, that is, at the request of a party, it is appropriate to order a waiver in favour of the English court hearing the proceedings brought by Mrs Bush with number FD07D0333 in the HIGH COURT OF JUSTICE, CENTRAL REGISTRY OF THE FAMILY DIVISION, provided that it is competent to hear the related actions and that its law allows their joinder. Partly granting the relief sought by the respondent, as competence is not declined in favour of the English court, but a stay of the proceedings is ordered owing to relatedness of the actions, without prejudice to the fact that a waiver may be ordered in favour of the English court hearing the petition of Mrs Bush in the terms indicated.”[37]That citation is sufficient to show the true outcome in Spain. The Spanish Judge asserted jurisdiction but deferred to the London court on, I think, the erroneous understanding that the London court was seised of the issues relating to the children. Judge Ponsaille has not seemingly considered by what exceptional route the London court had acquired parental responsibility jurisdiction over three children habitually resident in Spain.[38]Of course Judge Ponsaille’s approach and conclusion may not be upheld on appeal. However in my judgment it is unnecessary to speculate as to or to await the outcome of the Spanish appeal. The effect of her order was only to hold the Spanish jurisdiction in reserve whilst deferring to London. Once London declares that it has no jurisdiction the Spanish stay dissolves and the jurisdiction held in reserve becomes the primary jurisdiction.[39]In my judgment Pauffley J wrongly concluded that the children would fall into jurisdictional limbo if she granted the father’s application. That would only be so if Judge Ponsaille had declined jurisdiction. Judge Ponsaille’s order properly understood does not oblige the London court to proceed, disregarding the provisions of the Regulation, out of comity or due respect for the Spanish order. The more convenient court.[40]After delivering judgment refusing the father’s application Pauffley J of her own motion requested argument as to whether she should transfer issues relating to the children to Marbella under the provisions under Article 15 of the Regulation. Article 15 is a novelty within European family law in that it provides: - “1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:(a) Stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or(b) Request a court of another Member State to assume jurisdiction in accordance with paragraph 5.”[41]Having heard argument, Pauffley J concluded that in all the circumstances Article 15 was not apt.[42]It is often thought that Article 15 is a unique provision, and so it is in the sense that it is available to the judge at any stage of the proceedings and either generally or in relation to a specific issue. However there is in my judgment a more modest introduction of the concept of the more convenient court to be found in Article 12 (1) (b) where the exceptional jurisdiction of the divorce court is not only dependent upon an express or unequivocal acceptance by the spouses but also upon it being “in the superior interests of the child.”[43]Both counsel agree, for very good reason, that there is no significance to be attached to the choice of the word “superior”. It is to be construed as though the reference, as in Article 12 (3) (b) were to the “best interests of the child”.[44]So how does the divorce court assume or refuse jurisdiction in any matter relating to parental responsibility having regard to the best interests of the child? In my judgment that requires consideration of which is the more appropriate court, the court of the child’s habitual residence or the court seised with the parental divorce. Any such proportionate judgment must have regard to all the familiar considerations that dictate the determination of a forum conveniens issue, namely the balance of fairness including convenience.[45]It was incumbent on Pauffley J to consider this aspect before assuming jurisdiction. She did not do so and both counsel accept that they led her into error by failing to address this consideration in their written submissions.[46]In my judgment this provides an additional ground for allowing the appeal.[47]When my lord, Lord Justice Lawrence Collins, asked counsel to explain why, in a case where money is short, the parties were so vigorously litigating to establish the jurisdiction to determine child issues the responses verged on the coy. However an examination of the statements of arrangements, and of the applications issued in Marbella and London, indicate that perhaps the principal parental dispute is as to whether the children should continue their life and education in Marbella or whether they should be brought for future residence and education in Barnes.[48]That being the issue I would unhesitatingly conclude that the Marbella court was the more appropriate court having regard to the best interests of the children. First an application to relocate is properly determined by the court of the child’s habitual residence which is being asked to sanction the relocation rather than the court of the jurisdiction to which the primary carer seeks to move. I can understand that the mother might think that she would be more likely to persuade a London judge of the benefits of the move to English residence and education but the Spanish judge should take that decision having at her reach all the evidence as to the well settled history and as to the children’s achievements in their current environment. It would in my opinion create a most unhelpful precedent if a court exercising divorce jurisdiction, exceptionally and transiently seised with jurisdiction in matters relating to parental responsibility, were to issue an order permitting a parent to leave the jurisdiction of the child’s habitual residence without any involvement of the courts of the children’s long settled residence.[49]This is yet another case that illustrates the potential of direct judicial communication and collaboration. Judge Ponsaille would surely have been assisted by direct communication with my office in order to understand, at least in outline, the true nature of the related proceedings to which she was invited to defer.[50]I add two footnotes for completeness. First I do not consider that the judgment of Hedley J in C v C supported the judge’s conclusion. In that case there had been years of contested litigation in relation to the children in this jurisdiction both before and after the divorce and the mother’s subsequent move to Spain with the children. Her application to transfer the proceedings to Spain was plainly tactical. Article 12 (3) as well as Article 12 (1) was engaged. Hedley J was plainly correct to refuse to relinquish jurisdiction on the facts of that case. He established no general principle.[51]Second I do not agree with Pauffley J that the Good Practice Guide at page 16 carries the emphasis she suggests. Having introduced Article 12 it illustrates its effect by postulating two situations, first divorce, (Article 12 (1)) then substantial connection (Article 12 (3)). The use of the words “the divorce court” is devoid of significant meaning and is only apt shorthand.[52]I agree that the appeal should be allowed.[53]It is plain that Article 12(1) (b) of the Brussels II bis Regulation (Council Regulation (EC) 2201/2003), when it speaks of the jurisdiction being “accepted expressly or otherwise in an unequivocal manner … at the time the court is seised,” is not simply referring to a mere submission in matrimonial proceedings equivalent to what would be an entry of appearance under the Brussels I Regulation (Council Regulation (EC) 44/2001), Article 24. First, it is clear that it does not refer to acceptance of the jurisdiction in relation to matrimonial proceedings alone. It must refer to jurisdiction in matters of parental responsibility. Second, the emphasis is on the acceptance of jurisdiction “expressly” or “in an unequivocal manner.” This must mean that acceptance of jurisdiction of a court other than that of the child’s habitual residence is not lightly to be inferred, and that the paradigm case will be actual agreement by the parents at the time the matrimonial proceedings are instituted.[54]Each of these propositions is supported, if support were needed, by recital (12) to the Brussels II bis Regulation, which states:
“The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.”
[55]I agree with both judgments.

Cited in 11 later judgments

and 2 more of the most senior