K v E
[2023] EWHC 2890 (Fam)
B v N (No 2) (Art 7 and Transfer of Jurisdiction)
16 January 2024
[2024] EWHC 17 (Fam)
High Court
A dad took his son from England to Germany. The mum wanted the son back. The court decided that Germany is the better place to decide what's best for the son because he's lived there for a while and wants to stay. The English court will wait for Germany to make a decision.
Key Facts
- •X, a 9-year-old boy, was wrongfully removed from the UK to Germany by his father (B) in August 2022.
- •The mother (N) appealed the initial UK court order granting the father's application for X's return to Germany under the 1980 Hague Convention.
- •The Court of Appeal remitted the case back to the Family Division.
- •The mother subsequently brought proceedings in Germany under the 1980 Hague Convention, which were dismissed because X wished to remain in Germany.
- •The father applied to withdraw his 1980 Hague Convention application in the UK and the mother sought orders under the Children Act 1989.
- •The dispute centered on which court (UK or German) had jurisdiction to determine X's welfare.
- •X expressed a strong preference to remain in Germany.
Legal Principles
Jurisdiction under the 1996 Hague Convention (Articles 5, 6, 7, 8)
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Retention of jurisdiction in wrongful removal cases (Article 7)
1996 Hague Convention
Transfer of jurisdiction (Article 8)
1996 Hague Convention
Lis pendens (Article 13)
1996 Hague Convention
Children Act 1989, Part II
Children Act 1989
Best interests of the child
Inherent jurisdiction of the High Court and underlying principle of the 1996 Hague Convention
Vienna Convention on the Law of Treaties 1969
Vienna Convention on the Law of Treaties
Outcomes
The UK court dismissed the father's application under the 1980 Hague Convention.
Both parties agreed there was no utility in continuing the proceedings.
The UK court requested that the German court assume jurisdiction.
The German court was deemed better placed to assess X's best interests due to X's strong connection to Germany, his expressed wishes, and the easier access to relevant information and professionals in Germany.
The UK proceedings under Part II of the Children Act 1989 were stayed, pending the German court's decision.
To avoid duplication and allow the German court to handle the matter efficiently.
The UK return order was stayed, pending the German court's decision.
Consistent with the transfer of jurisdiction to Germany.