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Brussels II Revised

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  • The father appealed from an order determining that the proceedings concerning the parties' children were subject to the 1996 Hague Convention for the purposes of the lis pendens provisions in article 13. The father had commenced proceedings in England and Wales, while the mother had commenced proceedings in Russia. The father contended that the 1996 Hague Convention did not apply to the English proceedings because of the effect of article 61 of Council Regulation (EC) No 2201/2003 (Brussels IIa). His case was that the children were habitually resident in England and Wales when those proceedings commenced, and thus, as set out in article 61, Brussels IIa applied. He submitted that the judge had misinterpreted articles 61 and 62 of Brussels IIa. In Moylan LJ's view, the outcome was clear. If the children were habitually resident in England and Wales when the English proceedings commenced, Brussels IIa applied to them, including the jurisdiction provisions, and article 13 of the 1996 Hague Convention did not apply. Newey LJ and Baker LJ agreed. The appeal was allowed and the judge's determination was set aside. Judgment, 24/08/2021, free
  • An appeal was brought by a father, and separately by his three children, against the registration in 2020 of a Polish custody order from 2016, which had vested custody and care of the children with the mother in Poland. The children were currently in the care of their father and living in England. He had not returned them after a summer holiday visit in 2019. The mother had sought summary return in 2020, and the application had been refused, due to objections and risks relevant to Article 13 of the Hague Convention 1980. Cobb J allowed the appeal. He was satisfied that that the father and the children had made good their case for the court to not recognise the Polish custody order. The December 2016 order was irreconcilable with a later judgment relating to parental responsibility given in Poland in May 2021. Also, the judgment refusing summary return was "a later judgment relating to parental responsibility given in the Member State in which recognition is sought", per Article 23(e), which was irreconcilable with the December 2016 Order. If he were wrong on either of those points, he was satisfied that it would be contrary to public policy to recognise and enforce an order made in a Member State which was contrary to a finding of this court that an Article 13(b) 1980 Hague Convention exception had been made out. Accordingly, the order for registration was set aside. Judgment, 09/07/2021, 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
  • The daughter was four years old. In 2017 the mother had been ordered to return her to England from Poland. In 2019 she had been given temporary permission to take the girl back to Poland. The purpose of this hearing was to determine whether or not the preconditions for removal had been met so that the temporary relocation would be made permanent, and, if so, to consider the time she would spend with each parent, her future schooling, and the father's concern that the terms of the final order should not be susceptible to unmeritorious variation or challenge by the mother before the Polish courts. Williams J was satisfied that the application of the paramount welfare of the child and the welfare checklist led inevitably to the conclusion that she should make her life in the medium to long term in Poland, being cared for jointly by her mother and father. He granted the mother's application for leave permanently to remove the child from the jurisdiction to live in Poland, and made an order that the child would live with her mother and father in the city they had settled in. A specific issue order was made in regard to the child attending an international primary school. Judgment, 30/03/2021, free
  • A fact-finding hearing to determine whether the courts of England and Wales had jurisdiction to determine welfare issues in relation to three children. The applicant was the mother of the three children, the respondent the father. Their precise history was disputed, but both parents had come to England as asylum seekers. The mother claimed to be from Yemen and the father claimed to be from Somalia, and they had three children. One was born in Sheffield, one in Yemen, and, after the family left the UK in 2008, the third was born in either Yemen or Saudi Arabia. Ms Sarah Morgan QC, sitting as a deputy High Court judge, came to the view that some of the evidence placed before her had been misleading and intended to mislead. The case had unusually difficult features, caused by the passage of time, and there was no agreement between the parties even as to that which she was being invited to consider and determine. She found that the family had left (and the mother had consented to the children's departure from) England and Wales in 2008 for the purposes of a holiday and not as a permanent relocation. Immediately before leaving, the family had been habitually resident in England and Wales. Neither before nor once they had left had the mother indicated consent to a relocation. Thus there had been a wrongful removal in that the mother had consented to a holiday but not to a relocation, and/or there had been a wrongful retention when the father failed to arrange their return to England and Wales at the conclusion of the holiday. She found that the court had jurisdiction in respect of the two older children, and although the third child had never lived in or even visited the United Kingdom, jurisdiction in respect of her existed by reason of the doctrine of Parens Patriae. The matter was listed for consequential directions in consultation with Williams J. Judgment, 20/03/2021, 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

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