Family Law Hub

Jurisdiction

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  • The court had two questions to consider. Was the 12-year-old son habitually resident in the jurisdiction of England and Wales? If so, should the court grant the mother's application for an order under its inherent jurisdiction requiring the son to be returned from the jurisdiction of Pakistan? The father contended that the son was now habitually resident in Pakistan, where he was attending a private school. A report from the Cafcass Family Court Adviser detailed the son's understanding of the circumstances by which he came to be in Pakistan, including that he and his parents had discussed him attending school in Pakistan prior to his mother taking him there in October 2020, and that he had understood he would be staying there for a significant period of time. MacDonald J decided that the boy had demonstrated a degree of integration in a social and family environment in Pakistan sufficient to ground the conclusion that he was habitually resident there. For example, the boy had settled into his new school and clearly saw that education as his gateway to personal success. Accordingly, this court did not have jurisdiction, and the mother's application was dismissed. Judgment, 30/07/2021, free
  • Two young people of Spanish nationality, aged 17 and 14, applied to the court for declarations in respect of their status with a view to taking further proceedings to regularise their legal status. After being detained in France over the 2020 summer holidays as a result of applications made to the Spanish courts by the father, they were currently unable to travel outside of the jurisdiction of England and Wales for fear of their detention or retention, and the possible arrest of their mother. The applicants invited the court to consider making final orders that they would live with their mother, and they sought a new child arrangements order. Russell J DBE unhesitatingly accepted the submission that the facts of this case were exceptional, and it fell within s 9(7) of the Children Act 1989, so an order was required in respect of the older child despite her age. The circumstances of the case required an order reflecting the situation in real terms and releasing the applicants (and their mother) from any legal obligations to spend time with the father. There was no doubt that the children were habitually resident in this jurisdiction and that this court had jurisdiction over matters relating to parental responsibility for them. Judgment, 27/07/2021, free
  • The mother, a Sudanese national with indefinite leave to remain in the UK, applied under the inherent jurisdiction of the High Court for the children to be made wards of court and for an order mandating the return of the children to the jurisdiction of England and Wales from the jurisdiction of Sudan. That application was resisted by the father, a British citizen born in Sudan. In 2017 the mother and children had travelled to Sudan, for reasons that were disputed between the parties, and the mother alleged that the children's passports had been taken from her and not returned. A 2021 passport order had required the father to deliver up the passports of the children to the Tipstaff, as well as his own. The issues for the court to determine at this final hearing were whether this was an appropriate case for the court to exercise its residual parens patriae jurisdiction; if so, whether the children should be made wards of court and a return order granted under the inherent jurisdiction; and whether the passport order should continue or be discharged. In MacDonald J's view, it was not appropriate for the court to exercise its residual parens patriae jurisdiction. The children were habitually resident in Sudan, which was the convenient forum for determination of welfare issues, and the evidence demonstrated no sufficiently compelling reason that the children required the protection of this court. The mother's application was dismissed, and the passport order was discharged. Judgment, 12/07/2021, free
  • The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, 29/04/2021, free
  • A hearing that had been listed for consideration of issues of contact between the father and the children, "subject to a review of the English court's position in the event that the Russian court accepts jurisdiction". There had since been a hearing of several days' duration before a court in Russia, which had clearly decided that it had jurisdiction to make substantive orders in relation to the children, that the children were habitually resident in Russia (notwithstanding that they were attending schools during term time in England), and that the children should reside with their mother at a place of their mother's choosing. In Holman J's view, he was obliged to "abstain" from exercising further jurisdiction over any matters which clearly fell within the territory of the Russian proceedings and judgment, though he noted that the father was appealing the previous order of the Family Court. With those appeals in mind, he declined to make an order permitting the mother's solicitors to release the passports: the mother had frankly said that if she were able to return with the children to Russia she would keep them there and not permit them to travel again to England until she was quite confident that she would not be "ensnared" by further legal proceedings. Judgment, 19/04/2021, free

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