EUPillar DL v EL v Reunite International Child Abduction Centre, Centre for Family Law and Practice [2013] EWCA Civ 865

Summary

The proceedings were in relation to the parties’ only child. The child was born in Texas in 2006. The parties to the proceedings were both from Ghanaian origin. The father had a dual citizenship (USA and Ghana). The mother had an indefinite leave to remain in England. The family lived in the USA until 2008 when divorce proceedings commenced. In 2008, the mother moved with the child from the USA to England. An application for a summary return of the child to the USA was made by the father on 9th August 2012. There were related proceedings in the USA where a judgment was rendered, ordering the return of the child to the US. An important question, which the court had to address, was where the child was habitually residing. On 17th January 2013, the father’s application was refused by the High Court. On 16th July 2013, the High Court judgment was affirmed by the Court of Appeal. On 4th December 2013, the UK Supreme Court reversed the Court of Appeal judgment. Baroness Hale held: “18 The Convention does not define the concept of habitual residence and it is clear that not all the states parties would apply an identical test. However, member states of the European Union (apart from Denmark) are also parties to Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly known as the Brussels II Revised Regulation (“the Regulation”). This lays down a uniform jurisdictional scheme as between member states. This court held in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1, that the provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member state such as the United States. Hence for that purpose the courts of England and Wales should apply the concept of habitual residence as explained by the Court of Justice of the European Union (“CJEU”) in Proceedings brought by A (Case C-523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22. […] 27 Looked at from the point of view of the child, therefore, the judge was entitled to hold that he had become habitually resident in England and Wales by 29 August 2012. […] […] 36 The crucial factor, in my view, is that this is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. For as long as the Texan order remains in force, his mother is most unlikely to allow, let alone to encourage, him to spend his vacations in America with his father. […] […] 37 I would therefore allow this appeal and order the return of the child to San Antonio forthwith on the basis of the undertakings offered by his father. But should the mother choose not to avail herself of the opportunity to return with her son, the order for his return will stand.” [18, 27, 36-37]