EC v BM
[2023] EWHC 3237 (Fam)
C v D (Jurisdiction Based on Nationality)
26 April 2023
[2023] EWHC 1251 (Fam)
High Court
A dad and mom are fighting over their daughter in two countries' courts. The UK court said it can't get involved because the daughter lives in the US and the US courts are dealing with it, even though the dad says the US courts aren't fair. The judge told both parents to stop fighting so much and focus on their daughter.
Key Facts
- •Father (C) and Mother (D) are involved in a long-running international child custody dispute concerning their daughter Y (born April 2013).
- •Y holds dual British and US citizenship and is habitually resident in the US.
- •The parties have litigated extensively in both US and UK courts for nearly 8 years.
- •In 2016, the UK court granted the mother permission to remove Y to the US.
- •The father alleges the mother has consistently breached child arrangement orders, preventing contact with Y.
- •The father applied to the UK court for various orders, including a return order under the Hague Convention, wardship, and a declaration concerning English proceedings.
- •The mother argues the UK court lacks jurisdiction as Y is habitually resident in the US.
Legal Principles
Jurisdiction to make orders under the inherent jurisdiction of the High Court regarding children.
Family Law Act 1986, s.1(1)(d) and s.2(3)
Jurisdiction based on habitual residence, presence in England and Wales, or child's UK nationality.
Family Law Act 1986, s.3
Jurisdiction based on child's nationality, exercised cautiously and only in exceptional circumstances where the child requires protection and is beyond judicial oversight.
Re A (Jurisdiction: Return of Child) [2014] AC 1; Re B (A Child) [2016] AC 606; In re P (GE) (An Infant) [1965] Ch 568
To demonstrate justice will not be done in a foreign court, there must be a real risk of incompetence, lack of independence, or corruption.
AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] 4 All ER 1027; The Abidin Daver [1984] AC 398
The court's inherent declaratory jurisdiction allows for declarations concerning rights, facts, or principles of law.
Salford CC v W and Ors [2021] 4 WLR 21 (Fam); Financial Services Authority v Rourke [2001] EWHC 704 (Ch)
The 1980 Hague Convention on the Civil Aspects of International Child Abduction does not apply where there has been no wrongful removal or retention of a child.
1980 Hague Convention, Article 3
Outcomes
Father's applications dismissed.
The Hague Convention is inapplicable. The court lacks jurisdiction based on habitual residence or presence. While the court retains jurisdiction based on Y's British nationality, the circumstances do not justify intervention given Y's habitual residence in the US, ongoing US proceedings, and the father's ability to pursue remedies in US courts. The evidence does not demonstrate a risk of injustice in the US courts sufficient to overcome the principle of comity.