Family Division
Published November 2, 2007
In re A HA v MB (Brussels II revised: article 11(7) application)
Before Mr Justice Singer
Judgment August 24, 2007

An order made on an application for contact in England under section 8 of the Children Act 1989 was not a judgment requiring the return of the child from outside the jurisdiction.

Mr Justice Singer so held in a reserved judgment in the Family Division, hearing the application of the father, HA, for an order that A, his child, should reside with him and that MB, the mother of A, should return A to England forthwith for that purpose.

Mr Marcus Scott-Manderson, QC and Mr David Williams for the father; Mr Michael Nicholls, QC and Mrs Marie-Claire Sparrow for the mother; Miss Kate Branigan, QC for A.

MR JUSTICE SINGER said that the father sought an examination of A’s custody under article 11(7) of Council Regulation (EC) No 2201/2003 (Brussels II) (OJ 2003 L338/1) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. A section 8 application appeared to be inappropriate in such a case and some specific procedure should be set in place.

There was a procedural limbo which existed in relation to an application for the return of a child from a member state where a nonreturn order had been made under article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. There were no provisions specifically relating to such an application within the extant Family Proceedings Rules (SI 1991 No 1247).

His Lordship set out, with the approval of Sir Mark Potter, President, the practice to be adopted pending the entry into force of new Family Procedure Rules, probably in October 2008.

It was desirable that cases where a parent sought an order for return here after an earlier article 13 Hague nonreturn order made abroad should be transferred to the Family Division in London for hearing before a judge of that division.

Where article 11(7) applied, the parties would have three months after they had been notified of the information received by the court or central authority here pursuant to article 11(6) to make submissions to the court, in accordance with national law, so that the court could examine the question of the custody of the child.

If the parties and their advisers applied using Children Act forms and procedures then, pending the new rules, they should mark all forms and other documents lodged in connection with the application: “In the Matter of the Children Act 1989 and/or In the Matter of an application pursuant to article 11(7) of the Brussels II revised regulation for the return of the child[ren] from [the member state in question].”

Judges and court staff would therefore immediately be alerted to the nature of the case and its international dimensions.

All such applications should as a matter of practice be made by way of originating summons issued out of the High Court in London and specifically headed as set out above.

The appropriate procedure in such a case, where the home parent wished to pursue an application for a return order in, or as an adjunct to domestic proceedings already in train, was that application should be made in existing proceedings and to the issuing court seeking directions in the light of the order made in the member state and when declining in reliance upon article 13 of the Hague Convention on Child Abduction to order the return of the child[ren] to England and Wales.

Unless the subsisting application was already before the Family Division in London, similar steps promptly to transfer it there should be taken, and the case should be listed for directions before a judge of the Family Division as a matter of priority: see ([2007] EWHC 2016 (Fam) paragraphs 132-143).

Solicitors: Gillian Radford & Co, North Kensington; Pritchard Joyce & Hinds, Beckenham; CAFCASS Legal.

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