Summary
The proceedings were in respect of a child who was born in France in October 2004.
On 23rd June 2011, an application for residence order was made by the mother.
The parties met in France in 1999. They had lived together for a short period in England before they settled in France in June 2001.
It was agreed for the mother and the child to go to England in June 2009. By Christmas 2009, the mother had decided that she did not wish to return to France.
The father and the mother tried to settle in England, where family started living together in December 2010.
However, the marriage broke down in April 2011.
The father filed a divorce petition in France on 28th April 2011, seeking for the child’s usual residence to be fixed in France.
The mother sought adjournment of the French process, and initiated the English proceedings. The father challenged the jurisdiction of the English courts, and made a request for stay of the English proceedings.
On 28th July 2012, the French court made an order, fixing the child’s residence in France. The English court refused to stay its proceedings.
“32 In this case, an order was made requiring the mother to deliver up to the father her daughter, a child who, save for contact, had never been away from her mother, and who thereafter was to have only visiting rights until a final hearing at some unknown time in the future. It is hard to see how the mother's decision to appeal that interim order for a transfer of residence within the time limits prescribed by the French court could lead this court to a conclusion that she had accepted unequivocally the French court's jurisdiction particularly given that she had initiated proceedings in the English courts.
33 If I am wrong in reaching that conclusion, I am nevertheless clear in my mind that the best interests of S are met by any welfare hearing and of any consideration by a court of the appropriate exercise of parental responsibility being conducted in this country. S has lived here since 2009. It is her home. She attends English school and lives within the maternal extended family. Here enquiries can best be made as to her welfare and circumstances. The issues raised by her father as to the suitability of the estate where she lives are potentially serious and can be best investigated by the English courts with the assistance of CAFCASS rather than long distance from France.
34 The court has therefore come full circle. The starting point is that the court of habitual residence should decide issues of parental responsibility. Recital 12 emphasises that one reason for that presumption is proximity. In the present case, I can see nothing that would displace that presumption and everything to reinforce it, even if there had, (as in Butt ,) been an unequivocal agreement to France assuming jurisdiction.
35 In all the circumstances, I find that S is habitually resident in the United Kingdom. I decline to invoke Recital 12(1)(b) in order to stay the proceedings as it is in S's superior interests in relation to her future care and welfare that the court of habitual residence should be the court to determine all future issues of parental responsibility.[32-35]