Custody rights - application to enforce final order - status of order not altered by application so as to preclude jurisdiction

A (A Child) (Foreign Contact Order: Jurisdiction): FD (Mr Justice Sumner): 2 December 2003

The mother applied for residence and contact orders where a Spanish court, exercising jurisdiction in relation to divorce and parental responsibility proceedings, had made a final order in June 2001 giving, among other things, the mother permission to bring the eight-year-old child with her to live in England.

The father, whose appeal against that judgment had been rejected in June 2002, was seeking an amendment of the custody order and enforcement of the original contact order in the Spanish courts and where an application was made to enforce the terms of an order, that order was not a final order and that therefore the English court had no jurisdiction to hear the mother's applications.

Marcus Scott-Manderson (instructed by Dawson Cornwell) for the mother; Indira Ramsahoye (instructed by the Divorce and Family Law Practice, Birmingham) for the father.

Held, that the father's unsuccessful appeal in June 2002 had brought the Spanish proceedings to an end; that article 3(3) of Council Regulation EC1347/2000 on Jurisdiction and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses (Brussels II) provided that the member state that made the first order should retain jurisdiction only until such time as that first order, or a subsequent one, became a final judgment; and that, once a final order had been made in another jurisdiction that jurisdiction ended and applications to enforce the provisions of the order did not alter its status within the meaning of article 3.