International family law

It’s a small world, after all

Re M & L (Children) [2016] EWHC 2535 (Fam): a brief summary

Introduction

Planet Earth is a shrinking place. People from every corner of the globe can live, work, study and, ultimately, fall in love with one another. With social media, access to travel and a globalised economy, that shows no signs of slowing down.

And nor should it. That cultural and national borders are decreasingly stopping people from falling in love and starting families together is something to celebrate.

However, sadly, where there are international families, there might also be international family law disputes. As previously covered in this blog, it is not uncommon for parents to apply to the courts to relocate internationally with their children following a relationship breakdown. Equally, there might also be the risk of child abduction.

And in such cases, families can end up split across borders. This presents a dilemma: which country’s court should assist with the dispute?

Well, there is EU legislation to help with this. But what about when a country is not a member of the EU? (or indeed what will happen post-Brexit?!)

This month, the High Court handed down judgment in such a case: Re M & L (Children) [2016] EWHC 2535 (Fam).

This was the first reported judgment in which the English Court has considered which of two jurisdiction’s courts should deal with children litigation under a non-EU international treaty. Namely, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (hereafter, thankfully, referred to as “the 1996 Hague Convention”).

Background

After complicated proceedings in the English Court concluded in early 2015, two brothers, aged 10 and 8, lived with separate parents. The younger son (L) had relocated to Norway with their mother whilst the older son (M) remained in England with their father.

In February 2016, the mother issued proceedings in Norway in relation to the contact arrangements for L.

In response to the Norwegian proceedings, the father asked the English Court to request to the Norwegian Court that it can assume or exercise its jurisdiction over the child currently residing in Norway. Norway being a non-EU state, this was dealt with under Articles 8 and 9 of the 1996 Hague Convention.

The 1996 Hague Convention

Under Article 5, the state in which the child is habitually resident, usually where they spend most of their time, will have jurisdiction to take measures directed to the protection of the child, including care arrangement issues.

However, under Article 8, if a contracting state believes another contracting state would be better placed to deal with the issue, it can, in certain circumstances, ask that that state adopts the case. This can happen when there are the parents’ divorce proceedings in another contracting state or the child is a national, owns property in or has a substantial connection with that state.

Equally, under Article 9, if a contracting state believes that they would be better placed to make a decision in the child’s best interests, it can request to adopt the proceedings accordingly.

The Decision

In considering whether to request jurisdiction from the Norwegian Court, Mr Justice Baker addressed the following questions:

• Is the authority to make a request available under Article 9 available? and
• Is the English Court better placed to assess L’s best interests?

Issue (1) was dealt with swiftly. L is both a British national and substantially connected to this country. He lived here until 2015 and his brother and father continue to do so.

Whether or not the English Court would be better placed to assess L’s best interests was more difficult. England and Norway are two countries with equally competent legal systems. The decision came down to the following:

It was the English Court considering issues regarding M – the mother had not asked the Norwegian Courts to do so. Such issues included M’s contact with L. To proceed with litigation regarding L in Norway risks contradicting orders. It is manifestly in L’s best interests to have his care arrangements considered directly alongside his brother’s.

The English and Norwegian Courts would now proceed to exchange views on the issue and seek an agreement to transfer the proceedings to England.

Conclusion

The 1996 Hague Convention and its EU equivalent exist to ensure that, notwithstanding the borders between countries, decisions about children’s welfare are always dealt with in the most appropriate manner and by the most appropriate court.