The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. Contact was re-established, but the child was now habitually resident in Pakistan. It was now asked whether the court had any remaining jurisdiction to make orders about the child under the 1986 Act, incorporating Brussels II revised, and was it possible for the parties by agreement to give the court that jurisdiction. Pakistan had neither signed nor ratified the Convention.
Held: The mother’s appeal was allowed. The court had jurisdiction to make orders in respect of the child.
Nothing in the Regulations limited jurisdiction to children habitually resident in the EU. The time of seisin is fixed when the document initiating the proceedings is lodged with the court or, if it has to be served before lodging, is received by the authority responsible for service, although in each case the court may not actually be seised if the applicant does not take the steps required to inform either the respondent or the court.
The parties had each displayed unequivocal acceptance of the jurisdiction, and should not be allowed to withdraw it. Furthermore it had been decided that it was in the best interests of the child that the UK court should continue to deal with the issue.
Lord Clarke said: ‘As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement.’
Orse: Re I (A Child) (Contact Application: Jurisdiction)
Lord Hope, Deputy President, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke
[2009] UKSC 10, UKSC 2009/0075, [2010] 1 All ER 445, [2009] 3 WLR 1299, [2010] 1 FCR 200, [2010] 1 AC 319, [2010] Fam Law 237, [2010] 1 FLR 361
Bailii, SC, SC Summ
Council Regulation (EC) No 2201/2003, Children Act 1989, Family Law Act 1986 2, Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
England and Wales
Citing:
Cited – Bush v Bush CA 24-Jul-2008
The court accepted jurisdiction over a child habitually resident abroad with the written consent of both parties. . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited by:
Cited – Thum v Thum FC 21-Oct-2016
No abuse of process in service error
The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – In Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Lists of cited by and citing cases may be incomplete.
Children, European
Updated: 09 November 2021; Ref: scu.381642