Summary
The proceedings were in respect of a child, F. These public care proceedings were initiated by the local authority.
The mother was born in Zimbabwe. The father was born in the U.S.A. The father and the child arrived in the UK in November 2012.
The care proceedings were initiated by the LA in December 2012.
The central question was whether the child was habitually resident in England. However, the issue was not addressed head on by Coleridge J who rendered an order in March 2013.
An appeal was allowed, and the case was remitted back to the High Court for the issue of jurisdiction to be addressed by a different judge. Sir James Munby held:
“17 In my judgment Mr Williams succeeds on his first and third grounds of appeal. I can put the points very shortly. Coleridge J did not address the critical question as subsequently identified in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 ; he did not adequately explain why he had concluded that F was habitually resident here, and insofar as he did his explanation does not pass muster in the light of A v A ; and he decided the point, knowing that the father was challenging the jurisdiction, at a hearing where the father was not present and when no notice had been given to him that the question of jurisdiction was going to be raised.
18 That suffices to decide the appeal. The matter will have to go back for re-hearing before another judge. It will be for that judge to decide whether or not F was habitually resident here when the court was first seised (and, strictly speaking, though I imagine little will turn on a mere seven days, to decide whether the relevant date for this purpose is when the emergency protection order proceedings began or when the care proceedings began – at that time, though no longer, these were separate proceedings). If the judge decides that F was habitually resident here at the relevant date then so be it. If on the other hand the judge decides that F was not habitually resident here at the relevant date then further questions will arise: as to whether the English court has some other basis for exercising a substantive jurisdiction (as opposed to a limited jurisdiction confined to urgent provisional measures) and whether, even if it has, it should invite another court to assume jurisdiction. These are difficult issues where, as in the case of the United States of America, the relevant foreign country is a party neither to BIIR nor to the 1996 Hague Convention . Although we heard most interesting submissions on these points, we must, I think, sternly resist the temptation to express even the most tentative views. Accordingly, I say no more on matters which are better left for decision as and when they actually arise, whether in this or in some future case.” [17-18]
The case was remitted to the English High Court.
On 30 July 2014, Mr Justice Peter Jackson held:
“57 I find that on the relevant date (21 December 2012) the English court had jurisdiction in these care proceedings by virtue of Article 13 BIIR on the basis that at that date (to use the words of the Regulation) her habitual residence cannot be determined – in other words, she was not habitually resident anywhere.” [57] - [2014] EWFC 26.