Re H (Children) (Custody Rights: Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 2014 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2014 |
Court of Appeal
Before Lord Justice Richards, Lady Justice Black and Lord Justice Vos
There was no longer a supposed "rule" that where two parents had parental responsibility for a child neither could unilaterally change the child's habitual residence. What was required was a factual inquiry tailored to the circumstances of an individual case.
Where the issue related to removal of children from the United Kingdom to a country outside the European Union, jurisdiction to determine an application for their return remained with the United Kingdom court.
The Court of Appeal so stated when dismissing the appeal of a father against a decision of Mr Justice Peter Jackson in the Family Division on September 2, 2013, to dismiss his application under the court's inherent jurisdiction to order the return of his children, who had been born in the UK and we re British citizens, from Bangladesh where they had lived with their mother since 2008. He argued that they had been wrongfully detained there.
Mr David Williams, QC and Ms Gina Allwood for the father; Ms Deirdre Fottrell, Ms Eleri Jones and Mr Mike Hinchliffe for the children's guardian; Mr James Roberts and Ms Jennifer Perrins for Reunite, intervening. The mother did not appear and was not represented.
LADY JUSTICE BLACK said that, having considered three recent Supreme Court cases, A v A (Children: Habitual Residence)TLRELR (The Times October 15, 2013; [2014] 1 AC 1), In re L (A Child) (Custody: Habitual Residence)WLR ([2013] 3 WLR 1597) and In r e LC (Children) (Custody: Habitual Residence)TLRWLR (The Times January 21, 2014; [2014] 2 WLR 124), there was a general disinclination to encumber the factual concept of habitual residence with supplementary rules and in particular to perpetuate the "rule" under consideration in the present cas e, provided that an approach could be found which prevented a parent undermining the Hague Convention on the Civil Aspects of International Child Abduction and the jurisdiction provisions of Council Regulation (EC) No 2201/2003 (the Brussels II Regulation).
Her Ladyship noted that the solution in A v A, that both Lord Hughes, at paragraph 78, and Baroness Hale of Richmond, at paragraph 40, had in mind and seemed to think tenable, involved treating the act of wrongful retention of the child as occurring at an earlier stage than might sometimes have bee n assumed, which was...
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