‘There are no ongoing proceedings regarding the minor M in Stockholm District Court. For this reason there is no basis for an examination of the issue of transfer of jurisdiction to a court in another state in accordance with Article 15 of the Brussels II Regulation. Therefore the request is rejected’
‘Does the Swedish Court consider that there is a current Swedish jurisdiction in respect of the child under Article 8 of BIIR? Miss B, M’s mother, asserts that M is ‘habitually resident’ in Sweden, the other parties reserving their position.’
‘There is at this point in time, as far as we know, no case concerning Miss B and/or M pending in a Swedish court. Swedish jurisdiction is only tried once a case is opened. ‘Jurisdiction’ in the abstract, without an open case, cannot be tried or transferred. Therefore this question cannot at this point be answered in any greater detail. However, based on the information presented, it is highly likely that the Swedish court would consider that there is no current jurisdiction.’
‘If the answer to question 1 above is ‘no’, does the Swedish court consider that the English court has a substantive jurisdiction outside that conferred by Article 20 of BIIR?’
‘As there is no case concerning Miss B pending in the Swedish court, this is not a matter that the Swedish court has an opinion on. However, based on the information presented, it seems highly likely that the English court has a substantive jurisdiction outside that conferred by Art 20 of Brussels IIR. If [t]he English court finds itself competent the Swedish court with certainly, as there is no case going on here, accept that.’
‘44 I am, however, confident that those who drafted Brussels II Revised intended it to protect a vulnerable child in M’s predicament. It cannot have been within their contemplation that such a child enter a jurisdictional limbo, where, in effect, no court has any responsibility for making decisions as to her future welfare, and with all of the unfortunate consequences that I have attempted to analyse then ensuing. It cannot have been intended that this child, in need of protection now and in the future, would be, to use Mr Setright QC’s terminology, “juridically becalmed”. So, in turning to the alternative course, I conclude that I am entitled to approach the interpretation of Article 14 in a broad and purposive fashion. 45 Whilst I do appreciate that these are the opinions of the European Network Judge, not a court in [Sweden] directly seized of any case concerning M, I am satisfied of the following propositions: (1) It is highly probable that the [Swedish] courts do not consider that they have any current jurisdiction; (2) If there was any jurisdiction to transfer, [Sweden] would agree to transfer it; (3) They, the [Swedish] courts, are content that this court continues to deal with this case. 46 So, trying to address M’s predicament in a realistic, pragmatic and common sense fashion, and interpreting the Regulation purposively, I am persuaded, not without hesitation, that the [Swedish] courts have, indeed, declined Article 8 jurisdiction. Thus, no court of a Member State has jurisdiction pursuant to Articles 8 to 18, and, accordingly, I should determine jurisdiction in accordance with the law of England and Wales. There is, put very simply, no court with any competing claim to jurisdiction. 47 Miss Scriven QC argues that for me to do so ‘drives a coach and horses’ through the Regulation on the basis that it amounts to giving the courts of England and Wales jurisdiction in a care case by the simple presence of a child unless there are extant proceedings in another member state. I do not accept that analysis. On the contrary, it is only in circumstances where the court of the Member State where the child is habitually resident, having been given full information about the English proceedings, and following proactive judicial liaison, chooses not to exercise any active jurisdiction that this court can properly assume responsibility. That seems to me to be an entirely appropriate operation of the principles of comity and judicial co-operation underlying the Regulation, and avoids the stalemate which would inevitably ensue if this court did not accede to the request to assume jurisdiction.’
“i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents. ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions. iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question. iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention. v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child. vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.”
‘The second communication function consists of direct judicial communications with regard to specific cases, the objective of such communications being to address any lack of information that the competent judge has about the situation and legal implications in the State of the habitual residence of the child. In this context, members of the Network may be involved in facilitating arrangements for the prompt and safe return of the child, including the establishment of urgent and/or provisional measures of protection and the provision of information about custody or access issues or possible measures for addressing domestic violence or abuse allegations. The Principles for Judicial Communications will provide transparency, certainty and predictability to such communications for both judges involved as well as for the parties and their representatives. Such Principles are meant to ensure that direct judicial communications are carried out in a way which respects the legal requirements in the respective jurisdictions and the fundamental principle of judicial independence in carrying out Network functions.’