Summary
The proceedings were in respect of a child. Both parents originate from Pakistan. The mother was a German citizen. The parties married in Germany in 2005. They separated in 2006.
The mother came to England in July 2006, giving birth to their child in England.
The court had to consider whether the English court had jurisdiction in parental proceedings for a child who had had left England in September 2009. The removal of the child had been preceded by a residence order, holding that “on or after 1 February 2009 the mother had permission permanently to remove [the child] from England and Wales in order to reside in Germany.” [6]
The case was complex because the immigration status of the father in England was somewhat “shaky or tenuous”. [30].
On 27th June 2010, the English court held that it had no jurisdiction, and the German court should hear and determine the case. Mr Justice Holman held:
“30 This court was first seised long ago and its jurisdiction was indeed accepted, expressly or otherwise, in an unequivocal manner by both the parents. It is necessary, however, before I continue to exert any jurisdiction in reliance on Article 12.3, to consider whether it is in the best interests of S still to do so. On behalf of the father, Ms. Gifford submits that it is in the continuing best interests of S that I should exert jurisdiction and “confirm” and continue the order of Her Honour Judge Hughes “as a final order”, because these proceedings are on foot here, and the father is able to obtain public funding here, but is not able or may not be able to obtain public funding in Germany. Further, he is present in England and Wales at the moment on immigration bail, but his status here is so shaky or tenuous at the moment that if he were to travel to Germany in order to participate in proceedings or in contact there, he would not gain readmission here. I understand those arguments from the perspective of the father.
31 On the other hand, the fact is that this child has now been habitually resident in Germany for about 10 months, which is a significant period of time in the lifetime of a young boy still only aged about three-and-three-quarters. I know very little about his circumstances in Germany. In the near future it seems idle to make any order as to contact here since, as recent events have demonstrated, the father is not in a position to put the mother in cleared funds so as to enable the contact to take place. […]
32 The patent reality about the present case is that when Judge Hughes reached her decision back in October 2008 to permit the mother to relocate with the child to Germany, and when the mother actually did so, future responsibility for this child clearly shifted from the courts of England and Wales to the courts of Germany. As I have already remarked, the contact order that was made by Her Honour Judge Hughes was expressly confined to the calendar year 2009 and did not even purport to be an order of longer term duration.
33 So I cannot see that it is in the best interests of this child that this court, at a distance, should assert some continuing authority over him. Rather, it is patently in his best interests that all future issues as to contact are considered and resolved in the court in Germany which is already seised of this matter. It does not seem to me that Article 15 of the regulation is directly in point in the present case but, even if it was, I would unhesitatingly conclude that Germany is the Member State with which this child “has a particular connection”. [...] Germany has become the habitual residence of the child, Germany is the place of the child's nationality, and Germany is the habitual residence of a holder of parental responsibility, namely the mother. If Article 15 was in point, I would unhesitatingly conclude that the courts of Germany “would be better placed to hear the case” and that that “is in the best interests of the child”.” [30-33]