Summary
The parental responsibility proceedings were in respect of a child, born on 11th August 2009.
The proceedings were first commenced on 9th October 2009.
The mother was a French national (Ireland La Reunion). The father was an English national.
On 7th October 2009, the mother and the child flew to La Reunion.
The question was whether the English court had jurisdiction over the parental responsibility proceedings. An important preliminary issue was where the child was habitual residing.
The High Court judge, MacFarlane J, held that the English court had jurisdiction. The High Court judgment was rendered in May 2010.
In July 2010, a notice of appeal was put forward by the mother.
The Court of Appeal made a reference for preliminary ruling to the CJEU.
The CJEU delivered its judgment in December 2010.
On 17th March 2011, the English Court of Appeal allowed the mother’s appeal, and held that the mother and the child were both habitually residing in France.
55 […] I accept Mr Scott-Manderson's submission that the judges below have consistently erred in almost instinctively approaching the present case as a case of child abduction. […]
[…]
83 […] The question therefore was where was Chloé habitually resident on that date? Manifestly the answer was not in England and Wales.
84 Furthermore under the lis alibi rule the probability was that the mother's application of 28th October in France seised the French court first. That probability could only be excluded by evidence that her application had not been properly served within the terms of Article 16.
85 My conclusion therefore is that McFarlane J was wrong in law to assert welfare jurisdiction expressed in immediate directions and the fixture of a further directions hearing on 9th June 2010.” [55 and 83-85]