EC v BM
[2023] EWHC 3237 (Fam)
Mother v Father & Ors
1 November 2023
[2023] EWHC 2728 (Fam)
High Court
A mom tried to take her kids back to France, but a judge said no, because the kids are now doing well and are settled in England. The judge also said English courts can decide things about the kids, not French courts.
Key Facts
- •Application for summary return of two children (X, almost 14, and Y, 11) to France under the Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention) was dismissed.
- •Subsequent application for declarations that the children are habitually resident in England and Wales and that English courts have primary jurisdiction.
- •Dispute between mother (applicant) and father (respondent) regarding declarations.
- •Mother initially opposed declarations, later changed position, then opposed again.
- •Children, through their guardian, supported the declarations.
- •Children lived in England since August 2022 following their removal from France.
- •Mother sought adjournment due to illness and lack of legal aid.
- •Court of Appeal judgment in Re London Borough of Hackney v P (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 handed down during proceedings.
Legal Principles
Habitual residence is a question of fact, requiring a global analysis of all relevant circumstances, including the child's degree of integration into a social and family environment.
A v A (Children: Habitual Residence) [2013] UKSC 60; Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75; Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) [2014] UKSC 1; Re AR v RN (Habitual Residence) [2015] UKSC 35; Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4; Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659; FB v MG [2022] EWHC 2677 (Fam)
Jurisdiction in child abduction cases is primarily determined by the child's habitual residence immediately before the removal or retention, subject to exceptions under Article 7 of the 1996 Hague Convention.
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children; 1980 Hague Convention on the Civil Aspects of International Child Abduction
The court has jurisdiction to grant declaratory relief even if no other remedy is sought.
K v L (Child Abduction: Declaration) [2012] EWHC 1234 (Fam); Section 19 of the Senior Courts Act 1981; Re P H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206
Outcomes
Declarations that X and Y are habitually resident in England and Wales and that English courts have jurisdiction to determine their welfare, including custody, access, and parental responsibility issues were granted.
The children's strong integration into their lives in England, the dismissal of the return order, and the mother's acquiescence (for X) or the passage of over a year since the mother knew of their whereabouts (for Y) led to the conclusion that England and Wales were their habitual residence. The court found it had jurisdiction under both the 1980 and 1996 Hague Conventions.
Mother's application for adjournment was refused.
The matter was deemed pressing, and delay was contrary to the children's welfare interests. The applicant had legal representation and had filed a witness statement.