PIL instrument(s)

Case number and/or case name

SH v MM, RM [2011] EWHC 3314 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

13 December 2011

Appeal history

CJEU's case law cited by the court

Summary

The proceedings were in respect of a child, FH, who was born in September 2010. The English court dealt with applications for parental responsibility, contact and a Prohibited Steps Order. The applicant claimed that he was the biological father of FH. The first defendant was Mrs MM who was the child’s mother. The second defendant was Mr RM who, being Mrs MM’s husband, had been named on the child’s birth certificate. The DNA test result were yet to be produced. A Prohibited Steps Order was served to the mother on 15th June 2011. On 18th June 2011, the mother traveled to Belfast with a friend, GP. A few days later GP traveled with the child to Italy. The English court held that the removal was unlawful, and concluded that it had jurisdiction to hear and determine the claims. Mr Justice Hedley held: “14 [...] The English court was (as I have held) entitled to make the PSO . The effect of the PSO (once validly served as I have held it was) was to restrict the mother's exercise of parental responsibility and in particular to deprive her during the currency of the Order of the right to determine the question of whether the child should live outside the jurisdiction. Thus when she removed the child she had at that time no right to do so as that particular exercise of her parental responsibility had been lawfully restricted by the PSO . Accordingly her removal was wrongful and thus pursuant to Article 10 the child remains for the purposes of B(II)R habitually resident in this jurisdiction and thus subject to the jurisdiction of the English court. In my judgment this analysis will also hold good on the assumption that B(II)R does not apply to this case by reason of the operation of Article 1(3)(a) . Accordingly the Court may now deal with the outstanding applications. [...] 17 The provisions of Article 10 remind me that I should order the return of the child in order to maintain jurisdiction. The Italian courts will then be bound to enforce that order. I am at present minded to do that. However, I am sympathetic to staying that order pending the outcome of DNA testing if satisfied that there would be compliance in Italy with such an order. That return order would, however, not be appropriate unless the applicant were granted the requisite permission under Sectio of the 1989 Act.” [14 and 17]