Summary
The English court was dealing with an application for a summary return of children to Greece.
The application was quickly dismissed as it turned out that, after the court heard the Greek expert witnesses, the father had no custody rights. However, an issue arose as to whether English court had jurisdiction to make residence and contact orders. Mrs Justice Parker held:
“1 […] Advice has been taken from a Greek expert who has established that the father has no rights of custody in relation to these children. Therefore, the father now accepts that the originating summons must be dismissed.
2 The father lives in Greece. The mother is living in England with the children. The parties are both anxious that arrangements in respect of the residence of the children and contact should be made the subject of an English court order, and also that there should be other safeguards — by way of undertakings and declarations—in respect of the habitual residence of the children within the body of the order.
3 The question arises as to what is the jurisdiction of the court pursuant to Hague Convention proceedings, which are not family proceedings within the meaning of the Children Act 1989 , to make such orders. This is an issue which has previously concerned me in other cases. I raised this with counsel who suggested to me that the matter might be dealt with by way of recitals and agreements, although the father's representative in particular was concerned that this would not be effective for annex 2 and annex 3 certificates to issue pursuant to the Council Regulation and that the orders would not be enforceable. I think that she is right in that regard. I am told that this issue has recently come before other Judges of this Division and that Mrs. Justice Black has recently made an order for residence and contact pursuant to the inherent jurisdiction without the issue of proceedings. Mr. Justice Roderick Wood has recently directed that proceedings be brought pursuant to the Children Act 1989 under the Principal Registry, thus providing the foundation for a series of s.8 orders. He suggested that the way in which this matter might be dealt with at the Principal Registry is for the mother to file a statement along with her Children Act application, which would explain to the Principal Registry that it was intended that the order of the High Court — made essentially without notice, but by agreement of the parties — should come into effect without further formality.
4 I am quite clear in my mind that there needs to be a jurisdictional foundation for the court's order. Although once family proceedings within the meaning of the Children Act are in being, the court may make any order of its own motion but only a s.8 order pursuant to s.10 of the Children Act . I am quite satisfied that proceedings pursuant to the inherent jurisdiction of the court in relation to children are family proceedings within the meaning of the Children Act.” [1-4]