EUPillar In the Matter of H (A Child) [2012] EWCA Civ 913

Summary

The proceedings were concerned with a child who was born in January 2007. The parties separated in the spring of 2011 when the father left England for Malta. Following the separation, the mother had difficulties in 2011. The Social Care Department of Leeds City Council intervened. The father returned. It was agreed for him to become the primary carer for the child. The father and the child went to Malta. On December 21st Dec 2011, the father and the child came back to England, in order for the father to facilitate contact between the mother and the child. On 22nd December 2011, an application was made by the mother for a Prohibited Steps Order and a Residence Order. Proceedings were issued. There was a level of confusion as to the factual situation. On 12th March 2012, the English court held that it had jurisdiction, and an order was issued by Mr Justice Mostyn. An appeal was made. The father’s appeal was allowed, and Mr Justice Mostyn’s order was set aside by the Court of Appeal. It was noted that the English court should have had declared on his own motion that it had had no jurisdiction. Lord Justice Thorpe held: “17 [...] The provisions of Articles 10 and 17 of the Regulation Brussels II Revised show that in a case where there has been a wrongful retention in this jurisdiction the court must of its own motion decline to entertain an application which offends the primary responsibility of another European state. 18 Furthermore, it is absolutely plain that an abductor is prevented by the provisions of Article 10 from successfully asserting a change of habitual residence as a consequence of the wrongful retention. So it seems to me that we should set aside the order below in its entirety. We should dismiss the proceedings in the Leeds County Court which should never have been issued and which are fit for declaration of the court's own motion under Article 17. 19 We should nonetheless release to the Maltese court the judgment below and the judgment given today. The judgment below has an abiding validity in so far as it makes clear findings as to fact and credibility in relation to the conflict between the parents and the arrangements that they had voluntarily entered into for the future of their daughter and contained the judge's discretionary conclusion that the court in Sheffield was the more convenient court to decide welfare issues in the future. For what they are worth, those findings no doubt will be considered no doubt by the Maltese judge when an application is made for Article 15 transfer by the mother's Maltese lawyers. I can think of nothing else at this stage.” [17-19]