Family Law Hub

Brussels II Revised

Latest updates

  • The father sought an order requiring the return of his daughter to the Czech Republic pursuant to the 1980 Hague Convention. After moving out, the mother had told him that they were living in the Czech Republic, and he had then discovered from her sister that they were actually living in England. Divorce proceedings had been initiated but not completed. The mother acted in person, with the help of a non-professional translator. Her belief was that the child would be subject to anti-Roma racism if returned to the Czech Republic. The court was required to determine: (a) whether the child was habitually resident in the Czech Republic prior to her removal to England in 2018, so as to engage the powers and obligations conferred by the 1980 Convention; and (b) if the 1980 Convention was engaged, whether the mother, who opposed the return of the child to the Czech Republic, could establish that such a return would give rise to a situation described in article 13(b) of the 1980 Convention. HHJ Hillier found that the daughter was habitually resident in the Czech Republic. No risks raised by the mother in respect of article 13(b) reached a level of seriousness as to be anywhere near to "grave". HHJ Hillier's discretion as to whether to return the child had not been engaged by a potential defence under article 13(b), but even if it had been, she would have exercised her discretion firmly in respect of return so that the child would be placed in the Czech Republic whilst her future welfare was determined. Judgment, 07/07/2020, free
  • The daughter and both parents were British citizens. The mother had returned to England with the daughter, telling the father that it was for a short break. The father sought the daughter's summary return to Lanzarote in Spain, where he lived. The mother opposed the application on the grounds that the child objected to returning to Lanzarote, and that there was a grave risk that a return would, as per Article 13(b) of the 1980 Hague Convention, cause physical or psychological harm or otherwise place the child in an intolerable situation. The CAFCASS Officer told the court that the child was very firm in her view that she would not wish to return to Lanzarote without her mother. Mr David Rees QC found that the child was objecting in Hague Convention terms to the return, and he was satisfied that he should exercise the discretion not to return her. Also, if the child returned alone, the father would not be in a position to both support her financially and provide care for her, and thus the objection under Article 13(b) was also made out. The application was dismissed and the child would remain in England and Wales. Judgment, 17/03/2020, free
  • A father's application under the Hague Convention and Brussels II Revised for the summary return of his four-year-old daughter to Spain. The mother argued that the father had acquiesced to the removal and that the child would be at grave risk upon returning, due to the alleged domestic violence which had precipated the move to England. The parents were both British citizens who had moved to Spain as children. To Lieven J it seemed obvious from the father's texts that he fully understood that it was the mother's intention to stay in England with the child, and at no stage did he suggest he was seeking for the daughter to live permanently in Spain. This was a case such as those described in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, where "the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children". As to grave risk, Lieven J held that it would be totally irresponsible to return a young child in circumstances where there were very serious and credible allegations of domestic violence against the father, including that he assaulted the mother when she was pregnant. To do so would put the daughter in an intolerable situation and present a grave risk to her of significant psychological harm. The father's application was rejected. Judgment, 09/03/2020, 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 parents were British and Jordanian nationals, who married in Jordan in 2010 and moved to England in 2011. The mother applied for a declaration that their six-year-old son was habitually resident here, and for an order prohibiting the father from removing the boy from the care of the mother or from this jurisdiction, and from making further applications regarding the child in Jordan. The father argued that the Kingdom of Jordan was the appropriate legal forum for determination of the welfare issues. MacDonald J was wholly satisfied that the child was habitually resident in the jurisdiction of England and Wales, where he had been born and had lived for all but sixteen months. It was therefore the natural and appropriate forum for the welfare issues to be determined. Judgment, 03/01/2020, free

Latest know-how

  • In a tweet: Wife fails to establish divorce jurisdiction in England and Wales. Case note, 16/10/2019, members only
  • In a tweet: Article 19 BIIR: court best placed to decide which court is first seised should determine the issue. Case note, 02/10/2019, members only
  • Florence Jones, Pupil, 1 Hare Court, writes a case summary of Pierburg v Pierburg [2019] EWFC 24. Case note, 26/04/2019, members only
  • In brief: A preliminary ruling from the ECJ determined that in order to establish habitual residence under Article 8 BIIR, a child must be physically present in the member state. The circumstances of the child being physically present elsewhere are irrelevant. This was a referral from the English High Court where the father ("F") had allegedly coerced the mother ("M") into remaining in Bangladesh with the child, potentially in breach of their ECHR rights. Case note, 17/12/2018, members only
  • In a tweet: Habitual residence at time court is seised is key to jurisdiction, not where child will be living Case note, 12/01/2017, members only

Latest training

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item