“(i) Is the applicant a parent to the children, or any of them? (ii) Does this court have jurisdiction to make child arrangements orders and/or other orders regarding the children's welfare? (iii) Should any such jurisdiction be exercised?”
“1. The judge erred in deciding that the applicant is not a parent of the younger children, and, in particular, the judge wrongly interpreted and wrongly applied the provisions of s 42 of the HFEA 2008 to the facts of the case; 2. The judge erred in deciding that the “question of making the order” (as sought by the applicant in her application for Child Arrangements Orders) is not properly considered to have “arise[n] in connection with [...] civil partnership proceedings” and so misinterpreted ss 2(1)(b)(i) and 2A(1) of the FLA 1986 and wrongly applied those provisions to the facts of the case; and 3. The judge further erred in his interpretation of ss 2(1)(b)(i) and 2A(1) of the FLA 1986 in that he wrongly declined to accept or to recognise that the children’s prior relationship with the applicant, their and her right to respect for family life and to the enjoyment of that right without discrimination, and the absence of any other forum to determine the children’s welfare issues required him to read down or otherwise interpret the provisions of ss 2(1)(b)(i) and 2A(1) of the FLA 1986 in such a way that the courts of England and Wales were able to entertain jurisdiction in relation to the dispute as to the children’s welfare.”
“72. The first witness I heard was the applicant. She appeared to me to have a relaxed and laid back personality, but is clearly articulate and intelligent. She spoke well and her answers were clear and generally supportive of her case. However, she was keen to impress on me that she considered herself the children’s mother and that they were her sons. Understandably she wanted to accentuate her involvement with the children’s conception and birth but she had to candidly admit that a lot of the available documentation did not assist her case. In places her answers were significantly lacking in detail. It became clear to me that she was not the organiser and even the decision-maker in the children’s lives. She was not able to provide a lot of detail about either the fertility treatment the respondent undertook or the management of the children’s lives. This ranged from day to day organisation to major decisions about where they would live or be educated. I appreciate that often she was being asked questions about events some 8 years or even 14 years ago, but I was left with the impression that she was not as heavily involved as she would have me believe. I suspect that was because she is now desperate to resume a relationship with the children and understandably wanted me to know how important her role in their conception and lives had been. I accept in part the criticism made of her by Ms Renton that when she explained matters which didn’t quite fit with her narrative, she tended to fall back on reliance on latent homophobia… which did not really ring true. That said, I do not think that in cross examination she knowingly told me anything that she knew was false. 73. She told me that she and the respondent had made a joint decision as a couple to have children. She very much wanted children and was herself part of a large sibling group. She denied that she had played no role in the conception process or in the selection of a suitable sperm donor. She was able to give vivid evidence about her presence of the birth of the elder children and how happy she had felt. I accept she would have wanted to be at the birth of some of the younger children had her father’s terminal illness not intervened. I have no doubt that she loves the children and provided them with good quality care. 74. The respondent gave evidence next. She too was clearly intelligent and articulate but appeared to be more driven than the applicant. I think that she was the more powerful personality of the couple and was the one likely to make the major decisions both about their relationship and the children’s upbringing. Her evidence to me was generally more precise and factually detailed than that of the applicant’s. However, mirroring the applicant, she was keen to downplay and understate the involvement of the applicant in the children’s lives in a way which did not always ring true. I suspect she is very keen to ensure that the applicant is not able now to interfere with her own care of the children and the management of their lives. To adopt the phrase used by Mr Tyler, I think she did at times indulge in ‘case-building’ in the way she pushed her own narrative to enlist the support of others, including Witness 6 who gave evidence to me and the lawyer presently attached to the fertility clinic. However, I do not accept Mr Tyler’s submission that such ‘case-building’ damaged, still less destroyed, her own credibility.”
“100. As her written evidence makes clear, the applicant initially thought she had signed documents for the fertility clinic giving her consent to the respondent’s fertility treatment. I am satisfied that she did not. I consider it far-fetched to find that the fertility centre would have purposely destroyed or suppressed such documents. I am also satisfied that the respondent is the sole owner of the biological material generated by the fertility treatment and, so far as the clinic was concerned, all decision making was carried out by her. 101. The fall-back position of the applicant is, as I understand it, that the law of the state in the US where Clinic F is based did not require a formal consent from her for the treatment to proceed. The same can also be said of section 42 of the HFEA. 102. All that the documents contain is what are, in my judgment, passing references to the applicant as the partner of the patient which seems to be as part of the respondent’s social circumstances and do not show that consent was required from her or given. 103. I did not find the applicant’s evidence about her role in the process, at the time of each treatment, particularly convincing. She said she was fully involved. However, she showed, in my judgment, a remarkable lack of basic knowledge of the fertility process undertaken by the respondent for any of the children’s conceptions. In her statement she confused IUI (intrauterine insemination) with IUD (intrauterine device – a type of contraception). In her oral evidence she was not able convincingly to explain her error. In addition, she was unaware which of the children had been conceived by IUI and which by IVF (invitro fertilisation). This has a significant impact on how the sperm and eggs are harvested, used and stored and how embryos were created and stored. The respondent explained in great detail, and which I accept, how that after her miscarriage she was compelled to re-consider the type of conception she would attempt for the younger children because of the potential shortage of sperm. She specifically wanted children who were all genetically full siblings and who therefore had the same sperm donor. A’s sperm donor was no longer donating by the time of the miscarriage which I accept worried the respondent, as IUI uses far more vials of sperm than IVF and generally is accepted to have a lower success rate than IVF. While the applicant was aware of the miscarriage, she appears to have no knowledge of its impact on the respondent’s fertility planning, which I found surprising. 104. The applicant described how she assisted the respondent in the selection of the sperm donor by looking at lots of photographs which each potential sperm donor had provided of themselves as a baby. The applicant’s only vivid evidence of the process was her description of the beautiful eyes the selected donor had as a baby. The respondent told me the selected donor had astigmatism and was short sighted. I doubt whether either would have been apparent from the baby photographs. The respondent told me, and I accept, that for her the far more important factors was the educational profile and whether or not the donor had genetic conditions which would affect the children. The applicant knew, rather vaguely, that the sperm donor was of mixed heritage with some Italian ancestry, while the respondent was able to tell me each ingredient of his racial make-up together with the facts that he was the Head of Pharmacology at his employer’s firm and was allergic to penicillin. Generally, the respondent’s evidence contained all the detail I would expect from somebody heavily involved and invested in the fertility process to have known. 105. Neither party’s evidence suggests any evidence of any discussion as to which of them would be genetic or gestational mother. While the applicant asserted she wanted children, there was never any suggestion by either party that any consideration was given to the applicant becoming a genetic or gestational mother.”
“Conclusion on consent issue 131. I have found the issue of consent to be finely balanced. This is partly because of the way section 42 of the HFEA is drafted. Given that the pre-condition of the fact of the parties’ civil partnership at the relevant time is fulfilled, there is a statutory presumption which can only be displaced by the proof of a negative: that there was no consent to the conception. Although in this case the burden of displacing the presumption rests on the respondent, in other cases it could be on ‘W’ to displace the burden if, for example, she did not want to be a parent. It is also apparent that the mere fact of the parties being in a civil partnership at the relevant date is not by itself, a sufficient reason for her to become a parent. 132. It seems to me that there are, at least 3 possibilities contemplated by section 42: i) There is clear evidence that ‘W’ (the applicant in this case), has expressly consented to the fertility treatment, perhaps by signing documents, and so the presumption of consent does not operate; ii) There is clear evidence that ‘W’ has positively objected to the treatment, perhaps because the parties had separated but remained in a civil partnership; iii) Either W or the mother (as the case may be) has produced some material which displaces the presumption and successfully proves the absence of W’s consent. 133. In my judgment there is no evidence that the applicant has either positively objected to the treatment of the younger children (born on or after6 April 2009 ) or that she has clearly consented to the treatment. To use the language of Sir James Munby P, there is evidence that the applicant did not consent: the respondent says at no time did the applicant consent which I find credible. I am not entitled to use the presumption as a ‘makeweight’. Although I am not directly concerned with the issue of consent to the treatment in respect of A, it is relevant to what happened for the conception of the younger children. 134. Having carefully considered and weighed all of the evidence, I conclude that there was no ‘deliberate exercise of choice’ by the applicant but only an awareness or acquiescence of the decision taken by the respondent. My primary reasons are as follows: i) I accept the respondent’s evidence that the applicant did not fully participate in the whole process. ii) I do not accept the applicant’s account of her involvement. I found it vague and lacking in detail. iii) There is no record or mention of her in the fertility records of her having consented although I do not accept that the consent can only be proved by some formalised document, pro-forma or otherwise: there is therefore no question of the absence of a written document conclusively proving that the applicant did not consent. iv) I am satisfied that the respondent was quite determined to proceed with the treatment regardless and without reference to the views of the applicant. v) The presence of the applicant at the birth of the eldest children and the presence of her name was a consequence of their relationship and nothing more. vi) Had the applicant consented, she would have been registered as a parent on the children’s birth certificates. vii) It is common ground that by the time of the treatment for the younger children, the applicant had had an affair with another woman of which the respondent was aware and, for separate reasons the applicant had spent time away. viii) Prior to the children’s removal… there was never any question that the applicant needed to consent, or would be entitled to object, to the children moving…, or to stay there once she returned to England. Conclusion on ‘child of the family’ issue 135. … 136. In my judgment all the children are to be treated as a “child of the family” within the matrimonial jurisdiction in the FLA 1986. My primary reasons are: i) The parties entered a parental responsibility agreement for A. I do not accept this was merely to make arrangements for his care if the respondent died prematurely. ii) While she may not have been a mother or parent, I accept the applicant’s evidence that shows that the applicant, the respondent and the children were a family. The applicant effectively played the role of a step-parent. Her role was different to that of a best friend. iii) The children were given the applicant’s surname and other names significant to her. iv) I accept the respondent’s evidence that the applicant provided emotional support to the respondent and gave care to the children; but I reject her attempt her to portray this as merely transactional in return of board and keep. v) The video of the children’s baptism in 2014 shows a family event involving the applicant and respondent and all the children as a family. vi) The respondent would not have agreed the extensive arrangements for the children to spend time with the applicant had she not been a significant person in their lives. vii) The respondent would not have written the letter to the applicant’s employer in October 2015 if the applicant had not been part of the children’s family.”
“42 Woman in civil partnership or marriage to a woman at time of treatment (1) If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be). (2) This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1).”
“I was not involved in any discussions that Y and X had about their plans … I did not give my consent to be treated as a legal parent to any child born as a result of treatment. I was aware that it was Y and X’s intention to be the parents, equally, of any child born … and I had no intention of being a legal parent to their child … I fully support X’s application to be treated as a legal parent to the twins, she is their biological mother.”
“The law as to the onus of proof is now set out insection 26 of the Family Law Reform Act 1969 as follows: "Any presumption of law as to the legitimacy or illegitimacy of any person may in any civil proceedings be rebutted by evidence which shows that it is more probable than not that that person is illegitimate or legitimate, as the case may be, and it shall not be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption." That means that the presumption of legitimacy now merely determines the onus of proof. Once evidence has been led it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counterbalance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the court is unable to reach a decision on it. I cannot recollect ever having seen or heard of a case of any kind where the court could not reach a decision on the evidence before it.”
“28. … It is not, however, a matter of endorsement by the husband of his consent. The question whether the husband consented is a matter of fact which may be ascertained independently of the views of those involved in the process. On the clear evidence provided in the consent forms Mr A plainly did not consent to the sperm of a named or anonymous donor being mixed with his wife's eggs. This was clearly an embryo created without the consent of Mr and Mrs A.”
“42. First, the appellant stressed the need for certainty and clarity, a point which had carried the day before Hedley J. But important though legal certainty is, it is even more important that the very significant legal relationship of parenthood should not be based on a fiction (especially if the fiction involves a measure of deception by the mother). Infertility treatment may be very protracted and a general rule of "once together, always together" (absent express withdrawal of his acknowledgment by the male partner, or review by the clinic) could produce some very undesirable and unjust consequences.”
“34. Applying s 28 to the present case, Mr PJ, the estranged husband, will be treated as M's father 'unless it is shown that he did not consent to the placing in [his wife] of the embryo or the sperm and eggs or to her insemination (as the case may be)'. It has therefore been necessary for this court to investigate the issue of whether or not Mr PJ consented to these arrangements. 35. Mr PJ is now based in Spain and has failed to engage in the process of providing information to the court and the process of investigating the question of consent has therefore been protracted. 36. Mrs J's account was that Mr PJ was aware of her general intention to act as a surrogate mother and had no objection to her doing so. He was not aware of the actual surrogacy procedure that led to M's conception at the time and therefore was not in a position either to consent or not consent to the particular arrangement. 37. In the absence of any communication from Mr PJ, despite a number of requests for him to respond, and on the basis of Mrs J's evidence, at an earlier hearing I made a declaration to the effect that Mr PJ did not consent to his wife's insemination. Pursuant to s 28, the effect of that declaration was that the common law position applied and Mr G is to be treated for all purposes as M's father.”
“39. The court has not heard argument on the point and has not been expressly referred to the relevant HFEA guidelines. The submissions made by COTS on this issue, which were made at a hearing following my earlier declaration that Mr PJ did not consent, do not require determination in this case. It is however right to record that this court does not necessarily agree with the analysis suggested by COTS. Whilst the processes used at the COTS Information Meeting and at the IVF clinic may produce a situation where there is clear evidence of consent being given (where that is the case), the absence of such clear evidence does not, in my view, mean that 'it is shown that he did not consent' [HFEA 1990, s 28(2)]. The term 'consent' in s 28 is not defined in the 1990 Act and is therefore not confined to the narrow meaning argued for by COTS (express written consent given in accordance with clinic procedures and HFEA guidelines). Furthermore, in the present case the actual conception was not achieved at the IVF clinic, but as a result of a process in Mrs J's home. The wording of s 28(2) requires the court to be satisfied ('it is shown') that the husband 'did not consent'. It is therefore, in my view, necessary for the court to look more widely than simply ascertaining whether or not the husband signed a form at the clinic.”
“25. I find that Mr H acquiesced in the AI that took place at the first meeting but that it has been shown that he did not consent. His failure to vocalize his objection or to have taken active steps to prevent the AI could only amount to consent if they were the outward signs of an inward consent. They cannot convert something short of consent into consent within the meaning of s.35 HFEA. Nor does the reverse burden of proof dilute the meaning of consent itself. Insofar as this is in any way hard on Mr F, who could for a short while at the beginning have been forgiven for believing that he was going to be meeting a united couple, it should be borne in mind that he made no effort whatever to find out what Mr H actually thought when they very briefly met. Moreover, by the time of the second meeting in April 2010, Mr F was well aware that Mr H was against AI and he was certainly against NI in any circumstances. 26. I do not accept the argument on behalf of Mr F that it must be proved not only that there was an absence of consent but also that the absence of consent had been communicated to all those affected. This is not what the statute says and it would not be possible for absence of consent to be communicated to 'all those affected' in many situations, including most obviously a situation in which the husband did not even know that the wife had embarked on AI. 27. Nor do I accept the argument on behalf of Mr F that the HFEA is an exclusive code governing parentage in all cases, so that if Mr H is ruled out as a parent because he did not consent to AI, the child will have no father. The statute only governs situations that fall within its footprint: the situation described would fall outwith the footprint, and the common law would continue to apply. As a result Mr F would be the legal parent.”
“Has it been shown on the balance of probabilities that the spouse or civil partner did not consent to the assisted reproduction that was undertaken?”
“Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.”
“where the Hague Convention does not provide jurisdiction, the courts of England and Wales are free to apply the jurisdictional alternatives provided by the FLA 1986: that is the plain wording of Part 1, particularly sections 2 and 2A.”
“ii) There needs to be some connection between the issues raised in the application and the divorce proceedings that goes beyond the mere fact that the divorce proceeded in this jurisdiction. The connection may exist due to one or more factors such as proximity in time, an overlap in the relevant facts or subject-matter, a causal link, or some other matter. However, there is no necessary condition and the sufficiency of any factors to establish a connection will be a question of fact and degree.”
“144. … Applying this approach, I do not find any ‘matter’ which connects the applications before me and the civil partnership proceedings other than the fact that they both involve the same parties, the same children of the family and are before the courts of the same jurisdiction. There was no application or even a dispute over the children in or at the time of those proceedings. There is no temporal connection. These proceedings are brought because after 3 years of agreed child arrangements, the parties have, for whatever reason, fallen out and can no longer agree as to what arrangements for contact should now be made. I have not speculated as to those reasons but they were not present at the time of the dissolution. In other words, I am satisfied the applications now before the court have not been made because the civil partnership has been dissolved.”
“96. In summary, … it seems to me that the simple approach to be applied to sections 2 and 2A of the FLA 1986 is that they give the court jurisdiction when the parties in the matrimonial proceedings are or were “the parents of the child concerned”; that the matrimonial proceedings are taking place or did take place in England and Wales (and concluded other than by dismissal); and that one or other or both of the parents seek a section 1(1)(a) order.”
“(2) The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.”
“42 Orders for custody and education of children in cases of divorce, etc., and for custody in cases of neglect (1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of eighteen— (a) in any proceedings for divorce, nullity of marriage or judicial separation, before or on granting a decree or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute); (b) where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal; and in any case in which the court has power by virtue of this subsection to make an order in respect of a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.”
“(5) Where a court— (a) has jurisdiction to make a custody order undersection 42(1) of the Matrimonial Act 1973 in or in connection with proceedings for divorce, nullity of marriage or judicial separation, but (b) considers that it would be more appropriate for matters relating to the custody of the child to be determined outside England and Wales, the court may by order direct that, while the order under this subsection is in force, no custody order under section 42(1) with respect to the child shall be made by any court in or in connection with those proceedings.”
“It should be noted that the power of an English court to waive custody jurisdiction is not limited to the case where the court considers that it would be more appropriate for the custody issue to be determined in Scotland or Northern Ireland, but also extends to determination in another country.”
“Jurisdiction in cases other than divorce, etc. (1) A court in England and Wales shall not have jurisdiction to make a custody order within section 1(1)(a) of this Act, other than one undersection 42(1) of the Matrimonial Causes Act 1973 , unless the condition in section 3 of this Act is satisfied.”
“(b) the Council Regulation does not apply but– (i) the question of making the order arises in or in connection with matrimonial proceedings and the condition in section 2A of this Act is satisfied ..”
“2 Jurisdiction: general. (1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless— (a) it has jurisdiction under the Hague Convention, or (b) the Hague Convention does not apply but— (i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or (ii) the condition in section 3 of this Act is satisfied”
“2A Jurisdiction in or in connection with matrimonial proceedings or civil partnership proceedings. (1) The condition referred to in section 2(1) of this Act is that the proceedings are proceedings in respect of the marriage or civil partnership of the parents of the child concerned and— (a) the proceedings— (i) are proceedings for divorce or nullity of marriage, or dissolution or annulment of a civil partnership, and (ii) are continuing; (b) the proceedings— (i) are proceedings for judicial separation or legal separation of civil partners, (ii) are continuing, and the jurisdiction of the court is not excluded by subsection (2) below.”
“(4) Any reference in this Part to proceedings in respect of the marriage or civil partnership of the parents of a child shall, in relation to a child who, although not a child of both parties to the marriage or civil partnership, is a child of the family of those parties, be construed as a reference to proceedings in respect of that marriage or civil partnership; and for this purpose “child of the family”— (a) if the proceedings are in England and Wales, means any child who has been treated by both parties as a child of their family, except a child who is placed with those parties as foster parents by a local authority or a voluntary organisation …” (a) if the proceedings are in England and Wales, means any child who has been treated by both parties as a child of their family, except a child who is placed with those parties as foster parents by a local authority or a voluntary organisation …”
“The legislation [12] Jurisdiction in cases concerning children is governed by two pieces of legislation.The Family Law Act 1986 (the 1986 Act) resulted from recommendations of the Law Commission and Scottish Law Commission: Family Law: Custody of Children – Jurisdiction and Enforcement within the United Kingdom (1984, Law Com No 138, Scot Law Com No 91). Its principal purpose was to provide a uniform scheme for jurisdiction, recognition and enforcement of custody and related orders as between the three different jurisdictions within the United Kingdom. But the jurisdictional rules also apply as between England and Wales (and the other jurisdictions in the United Kingdom) and other countries.”
“3.10 In framing jurisdictional rules for the purposes of our scheme we have set ourselves the following main objectives- (i) The rules should be uniform throughout the United Kingdom, and should be of general application and not confined to “United Kingdom cases”.”
“the great majority would be sufficiently covered by the making of orders on the divorce basis or the habitual residence basis that we have proposed. In other words, we do not think that an emergency jurisdiction is required for the case where the child is neither present nor habitually resident in a part of the United Kingdom, nor the child of a marriage the subject of divorce, etc. proceedings in any part of the United Kingdom. The kind of case excluded by our proposal would be where a British child was in one of the Gulf States and not habitually resident in any part of the United Kingdom and his parents were not parties to divorce, etc. proceedings in any part of the United Kingdom. In that kind of case we do not think that the intervention of a court in any part of the United Kingdom would ever be likely to be appropriate, whether in cases of emergency or not.”
“77. As to the reasoning behind the jurisdiction continuing, the 1985 Report explained why a court's jurisdiction to make Part I orders should continue throughout a child's minority after there had been matrimonial proceedings. It first noted, at [4.7], its recommendation, which had been “generally approved”, that a UK court with divorce jurisdiction should also have child jurisdiction. The 1985 Report then continued: “4.8 The practical application of this general principle raises a problem as to when, for the purpose of custody jurisdiction, proceedings for divorce, nullity or judicial separation should be regarded as coming to an end. The effect of existing law in all three United Kingdom countries is that once the court is duly seised of the matrimonial dispute, it retains jurisdiction to deal with questions relating to custody of and access to the children. This jurisdiction is retained however long ago the divorce was granted, however distant the connection of the child with the country in which the divorce took place, and however close and long-standing the child's connection with some other part of the United Kingdom. The question we have to answer is whether, for the purposes of our scheme, the jurisdiction of the divorce court to make custody orders should continue so long as the child is within the appropriate age limit, i.e. 18 in England and Wales and Northern Ireland and 16 in Scotland. 4.9 We have reached the conclusion that a court dealing with divorce, nullity or judicial separation proceedings should remain entitled to exercise custody jurisdiction until the child attains the appropriate age, even where the child or his parents are or have become habitually resident elsewhere in the United Kingdom. Our main reason for reaching this conclusion is the impossibility of devising any general rule to the contrary effect which would not sometimes operate against the interests of the child's welfare or against those of the parents. 4.10 Nevertheless, we recognise that in some cases it will be advantageous for issues as to custody and access to be determined by a court in a United Kingdom country other than that in which the proceedings for dissolution of the marriage are brought, and we make recommendations for this purpose later in this Part of the report.” 78. The reference, in [4.8], to the court retaining jurisdiction under the then existing legislation was, in relation to England and Wales, a reference to section 42(1) of the MCA 1973.”
“[39] Article 5 is based on the supposition that the child has his or her habitual residence in a Contracting State. In the contrary case, Article 5 is not applicable and the authorities of the Contracting States have jurisdiction under the Convention only on the basis of provisions other than this one (Art. 11 and 12). But nothing prevents these authorities from finding themselves to have jurisdiction, outside of the Convention, on the basis of the rules of private international law of the State to which they belong." Although this refers only to article 5, it clearly applies more generally to the jurisdictional provisions of the 1996 Convention. Again, as referred to above, Lady Hale came to the same conclusion in respect of BIIa when she said in A v A, at [30]: “… there is nothing in the various attributions of jurisdiction in Chapter II to limit these to cases in which the rival jurisdiction is another member state. Article 3 merely asserts that in matters relating to divorce, legal separation or marriage annulment “jurisdiction shall lie with the courts of the member state” in relation to which the various bases of jurisdiction listed there apply. Article 8 similarly asserts that the courts of a member state “shall have jurisdiction in matters of parental responsibility …”
“It will be noted that, if Brussels II Revised applies, it governs the situation. If some other EU country (excluding Denmark for this purpose) has jurisdiction under the Regulation, then this country does not. But if Brussels II Revised applies and gives this country jurisdiction, it will give jurisdiction even though the residual jurisdictional rules contained in the 1986 Act would not. Only if Brussels II Revised does not apply at all will the residual rules in the 1986 Act come into play.”
“It is clear that the Law Commissions did not intend to change this broad ground of jurisdiction nor to limit it, principally for the reason given in [4.9], namely “the impossibility of devising any general rule to the contrary effect which would not sometimes operate against the interests of the child's welfare or against those of the parents”