Family Law Hub

Brussels II Revised

Latest updates

  • The Swiss father applied under Article 8 of the 1996 Hague Convention for jurisdiction to be transferred to Switzerland, where the two-year-old daughter currently lived with him. The application was opposed by the British mother and the guardian. It was agreed that the daughter had been abducted from England in June 2020, when the paternal grandparents had paid for a private jet to take the father and daughter to Switzerland. The mother had not seen the daughter in person since August 2020. Arbuthnot J found that the court could not transfer these proceedings under Brussels IIa, and Article 8 of the Hague Convention did not apply in a case of wrongful removal unless the conditions in Article 7(1)(a) or (b) had been met. In her judgment, the courts here were better placed to determine the daughter's best interests. Delay was also a significant factor: this was a very young child, and her living arrangements should be determined much sooner than Swiss proceedings would allow. If there was a discretion to transfer under Article 8, Arbuthnot J would not have exercised it. There was no alternative power to transfer under the Family Law Act, and if there were, she would have exercised her discretion to not transfer the proceedings. The question of contact would be decided separately. Judgment, 29/04/2021, free
  • The daughter was four years old. In 2017 the mother had been ordered to return her to England from Poland. In 2019 she had been given temporary permission to take the girl back to Poland. The purpose of this hearing was to determine whether or not the preconditions for removal had been met so that the temporary relocation would be made permanent, and, if so, to consider the time she would spend with each parent, her future schooling, and the father's concern that the terms of the final order should not be susceptible to unmeritorious variation or challenge by the mother before the Polish courts. Williams J was satisfied that the application of the paramount welfare of the child and the welfare checklist led inevitably to the conclusion that she should make her life in the medium to long term in Poland, being cared for jointly by her mother and father. He granted the mother's application for leave permanently to remove the child from the jurisdiction to live in Poland, and made an order that the child would live with her mother and father in the city they had settled in. A specific issue order was made in regard to the child attending an international primary school. Judgment, 30/03/2021, free
  • A fact-finding hearing to determine whether the courts of England and Wales had jurisdiction to determine welfare issues in relation to three children. The applicant was the mother of the three children, the respondent the father. Their precise history was disputed, but both parents had come to England as asylum seekers. The mother claimed to be from Yemen and the father claimed to be from Somalia, and they had three children. One was born in Sheffield, one in Yemen, and, after the family left the UK in 2008, the third was born in either Yemen or Saudi Arabia. Ms Sarah Morgan QC, sitting as a deputy High Court judge, came to the view that some of the evidence placed before her had been misleading and intended to mislead. The case had unusually difficult features, caused by the passage of time, and there was no agreement between the parties even as to that which she was being invited to consider and determine. She found that the family had left (and the mother had consented to the children's departure from) England and Wales in 2008 for the purposes of a holiday and not as a permanent relocation. Immediately before leaving, the family had been habitually resident in England and Wales. Neither before nor once they had left had the mother indicated consent to a relocation. Thus there had been a wrongful removal in that the mother had consented to a holiday but not to a relocation, and/or there had been a wrongful retention when the father failed to arrange their return to England and Wales at the conclusion of the holiday. She found that the court had jurisdiction in respect of the two older children, and although the third child had never lived in or even visited the United Kingdom, jurisdiction in respect of her existed by reason of the doctrine of Parens Patriae. The matter was listed for consequential directions in consultation with Williams J. Judgment, 20/03/2021, free
  • The mother contended that her three children, aged 14, 10 and 8, had been wrongfully retained in England. She applied, pursuant to the Hague Convention 1980, for their summary return to Poland and, pursuant to Brussels IIa, for the recognition and enforcement of an order made by the Polish District Court. The father opposed the return. The parents were Polish nationals, and the children had been born in the USA, before moving to Poland. The parents had separated after the father moved to England. During a holiday in England the children had complained of poor treatment by the mother, and the father had not returned them. Mr A. Verdan QC (sitting as a deputy High Court judge) found that the children's habitual residence had remained in Poland, but that the exception under Article 13(b) had been made out, the children being at risk of physical ill-treatment and unacceptable chastisement by the mother. He would not exercise his discretion to return the children to Poland pursuant to the Hague application. Considering the second application, he noted that he had not been made aware of any authority suggesting that the court, having refused a return via the Hague Convention, should at the same hearing enforce a return via Brussels IIa, and he declined to do so. He encouraged the parties to engage in mediation. Judgment, 03/03/2021, free
  • An appeal concerning the extent of the obligation upon the court in England and Wales to enforce a foreign order in relation to children. The two children, a girl aged 16 and a boy aged 13, had lived in England and Wales for most of their lives and had been habitually resident here for at least six years. The judgment under appeal concerned applications by their father to enforce orders of the Spanish court granting him custody, and an application by the mother, made when the English court had jurisdiction, for an order that the children would live with her. The English court had refused recognition of the Spanish orders on the basis that they were irreconcilable with its own order for the children to live with their mother. In the view of Peter Jackson LJ, the judge had been right to find that she had the power to make welfare orders on the basis that the children were habitually resident in England and Wales and that the Spanish court was no longer seised. She was also right to not accept the father's argument that the recognition and enforcement proceedings should take priority. He expressed some reservations about her approach to the welfare assessment, but was not persuaded that her ultimate decision was wrong, and any procedural irregularity, whether or not it was described as serious, had not led to injustice. Moylan and Phillips LJJ agreed. The appeal was dismissed. Judgment, 22/01/2021, free

Latest know-how

  • In a tweet: Wife fails to establish divorce jurisdiction in England and Wales. Case note, 16/10/2019, members only
  • In a tweet: Article 19 BIIR: court best placed to decide which court is first seised should determine the issue. Case note, 02/10/2019, members only
  • Florence Jones, Pupil, 1 Hare Court, writes a case summary of Pierburg v Pierburg [2019] EWFC 24. Case note, 26/04/2019, members only
  • In brief: A preliminary ruling from the ECJ determined that in order to establish habitual residence under Article 8 BIIR, a child must be physically present in the member state. The circumstances of the child being physically present elsewhere are irrelevant. This was a referral from the English High Court where the father ("F") had allegedly coerced the mother ("M") into remaining in Bangladesh with the child, potentially in breach of their ECHR rights. Case note, 17/12/2018, members only
  • In a tweet: Habitual residence at time court is seised is key to jurisdiction, not where child will be living Case note, 12/01/2017, members only

Latest training

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item