Family Law Hub

Jurisdiction

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  • The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
  • In wardship proceedings, the mother alleged that she and the children (aged 8, 4 and 3) had been victims of transnational abandonment. This was denied by the father, whose case was that the parties had made a consensual decision to relocate as family to Pakistan. He contended that the courts of England and Wales did not have jurisdiction in respect of the children; alternatively, that they should not exercise any jurisdiction because welfare decisions could more conveniently be made in Pakistan. Circumstances meant that the case had to be adjourned, but Mr Richard Harrison QC, sitting as a deputy High Court judge, considered the situation as it stood to be one in which the children were likely to be suffering from emotional harm. It was not tolerable for them to continue to be separated from their parents. It was clear to him that the essence of the mother's case was likely to be correct. The removal of the children to Pakistan had been procured on the basis of a deception, and was thus in breach of the mother's rights of custody, and a wrongful removal for the purposes of Article 10 of Brussels IIa. Having been the primary carer throughout the children's lives, the mother was the person best placed to meet the children's emotional needs. He ordered their immediate return to this jurisdiction. Judgment, 25/09/2020, free
  • A four-year-old girl with British citizenship had been taken to Egypt, and the court had to determine whether she had been habitually resident in England and Wales before then and thus wrongfully removed, and, if she had not, whether the court had jurisdiction to order her summary return. The father contended that the removal was pursuant to the terms of an order made in Beirut. Both parents were Lebanese nationals, and both were currently in England, the child having been left with family members of the father. The mother had accused the father of domestic violence. MacDonald J was satisfied that the child had been habitually resident in this jurisdiction, and that the court retained jurisdiction under the inherent jurisdiction of the High Court. The daughter was a British citizen and both parents were here and intended to remain here, making this the appropriate forum for determining the welfare issues. Returning the daughter from Egypt would create the best chance of her resuming contact with her mother, and there was no one in Egypt with parental responsibility for her. She should be returned from Egypt. The existence of the Beirut order did not prevent this. Judgment, 17/03/2020, free
  • The children had repeatedly told their guardian, and through her the court, that they wanted to continue living with their mother in England. The Spanish court had ordered that they live with their father in Spain. Russell J DBE found that on any objective and neutral analysis both children were habitually resident in England. They were settled here and were fully integrated into their schools and social environment. There was no significant evidence contrary to such a finding, and jurisdiction was with and in this court. The mother's appeal against enforcement of the Spanish order was allowed. The children would live with her, and would have contact with the father, subject to him providing written permission for the renewal of the children's passports, and documentary evidence that the Spanish order had been discharged and all criminal complaints in Spain against the mother had been dropped. Judgment, 06/02/2020, free
  • The father appealed against the registration of an order made in Poland, which had required him to pay £300 a month maintenance. He had paid this amount up until the CMS had made a new determination. An application to enforce the original order had been made to the Polish courts, who declined jurisdiction. HHJ Moradifar found that by 2012 jurisdiction in relation to the child maintenance was in England and thus the CMS was the competent authority. The father's application against registration of the Polish order was allowed. Judgment, 27/01/2020, free

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