Mirror Orders

W v W (Minor) (Mirror Order) [2011] EWCA CIV 703

The case concerns the nature of the Mirror order, the jurisdiction of the High court to make one, and the consequential effect of one.

Where a parent has a final Order affecting children abroad, and wishes to visit England/ Wales, a wise precaution is a Mirror Order obtained in England/Wales.
This is an Order to confirm the regime laid down by the foreign court Order during on a visit to the UK.

A parent however must take care that the child does not become habitually resident in England and Wales, which could then give the other parent the chance to open up dual jurisdiction, and challenge the foreign Order’s application in England/ Wales.

This was the issue in this case. The mother attempted to demonstrate that because the father had applied for a Mirror Order, he was conceding jurisdiction by virtue of European law concerning jurisdiction in matrimonial matters and in matters of parental responsibility.

The Court of Appeal overruled the High Court Judge upholding the father’s position that rule 12(3) of Council Regulation (EC) 2201/2003 had not been engaged because he had not accepted jurisdiction merely by applying for a Mirror Order.
The Mirror Order was to uphold a foreign judgment, not to give jurisdiction in English/Welsh court.

The judgment is helpful in focusing on the need to avoid the child remaining in England and Wales for a period which could amount to habitual residence. The court did not rule on what that might be but clearly a brief visit or holiday of perhaps a month would not amount to habitual residence or presence.

Practitioners should bear in mind that the visit might become longer than planned unintentionally (illness, weather (volcanic ash?)) and to advise accordingly.

The grey area unresolved issue is the length of time that the child can safely remain in England/Wales without thereby granting jurisdiction.

A thought out and well worded letter to the other party prior to visiting England/Wales setting out the plans and specifically saying that jurisdiction is not to be granted if for any reason the visit was extended for a reason beyond the parent’s control is a good starting.

Another wise tactic is to include the foreign court Order, as specific provision saying that if the order is mirrored in foreign country, it is not intended to grants jurisdiction to that country.

Further in the application in England/Wales, it should be specifically stated that nothing in the application is designed or deemed to grant a jurisdiction to England/Wales.
There is still no clear jurisdiction to make a Mirror order, if the child is not physically present in England/Wales.

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