PIL instrument(s)

Case number and/or case name

DR v MB [2014] EWHC 276 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

13 February 2014

Appeal history

CJEU's case law cited by the court

Summary

The proceedings were in respect of a 9-year old child, S. The parties to the proceedings were married, but they separated in 2009. They got divorced in March 2011. The father sought a residential order. The mother opposed his application, and challenged the jurisdiction of the English court. The habitual residence of the child was an important issue which had to be addressed. It should be noted that the mother was the primary carer for the child. In July 2010, the mother was granted a permission to permanently remove the child from England to Italy. The child acquired habitual residence in Italy. On 31st August 2013, the mother and the child arrived in England. The father claimed that the wife’s intention was to remain with the child in England indefinitely. However, on 14th September 2013, the mother purchased one-way tickets for herself and the child to go to Italy. By the end of October 2013, the mother and the child were both in Italy. Mrs Justice Parker made a declaration that, on 23rd September 2013, the child was habitually resident in England. The English judge declined to transfer the proceedings to Italy. Accordingly, the return of the child was ordered by the English High Court. An appeal was made by the mother. The appeal was allowed by the Court of Appeal. Lady Justice Black held: “47 […] I would allow the appeal and remit the matter for rehearing on the issue of habitual residence as soon as possible. The decision about habitual residence will determine whether jurisdiction is here or in Italy. I would urge the parties to think very carefully, however, about whether it would not in fact be better for S if her welfare were to be determined in the Italian courts. Italy is where S has lived for the majority of the last few years. M's mobility may be restricted by her illness and treatment and it is in Italy that she has somewhere to live and family support. As she is presently S's carer and as disruption to M may rebound upon S, there would be much to be said for the litigation taking place in Italy.” [47]