PIL instrument(s)

Case number and/or case name

Re SJ (a child) (Habitual Residence: Application to Set Aside) [2014] EWHC 58 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

22 January 2014

Appeal history

CJEU's case law cited by the court

Summary

The proceedings were in respect of a child, S, who was 9-year old. The parents were married, and shared parental responsibility for the child. The parties were British nationals. They separated in early 2011. The father agreed for the mother and child to move to Gibraltar in September 2011. In July or August 2012, they moved to Spain. The father made an application for residence order, seeking the return of the child to England. There were declarations made by the English court on 14th December 2012 and 7th February 2013, declaring that the child was habitually residing in England, and it was wrongfully retained in Spain. A Spanish court refused the father’s application for a summary return of the child to England. An application was made by the father to the English court, seeking the return of the child to England under Articles 11(6)-(8). The English judge considered that the child was not habitually resident in Spain. It was noted that “The declarations of Judge Nathan and Theis J stand. Appeal [wa]s the only route of challenge […]. The judge found that S had not ceased to be habitually resident in England and had not become habitually resident in Gibraltar.” [79] However, it was not clear from the Spanish judgment as to what the ground was for refusing the return. As a result, the English proceedings were to be adjourned with a view to seeking clarification from the Spanish judge. The English High Court judge went on to refuse a request under Article 15, holding that: “88 I can only transfer if a court of a member state, with which the child has a particular connection, “would be better placed” to hear the case, and where this is in the best interests of the child. 89 Mr Jarman submits that the Spanish court is the only court to have conducted a “properly constituted” enquiry into habitual residence. I reject that analysis. In an event the Spanish Court expressly considered that the English Court had jurisdiction and would exercise it. 90 The only connection which S has with Spain is that M has unilaterally removed her there without father's agreement. 91 It is not in her interests for proceedings to be transferred there: in what is to my mind a blatant case of forum shopping.” [88-91]