PIL instrument(s)

Case number and/or case name

SP (Father) v EB (Mother), KP (Through her guardian Mr John Power) [2014] EWHC 3964 (Fam)

Details of the court

England and Wales, First Instance

Articles referred to by the court

Date of the judgement

26 November 2014

Appeal history

CJEU's case law cited by the court

Summary

The child abduction proceeding were in respect of a child, Kate. The applicant was her father. The respondents were Kate’s mother and Kate herself acting through her guardian. The parties are all nationals of Malta. Kate was born in Malta in September 2000. The mother and Kate arrived in England in June 2013. An application for a summary return was made shortly after by the father. The English High Court ordered the child’s return. An appeal was made on the ground that, in the course of a meeting between Parker J and Kate, the judge impermissibly gathered evidence on which she relied upon. On 1st May 2014, the appeal was allowed, and the matter was remitted for a re-trial in November 2014. On 26th November 2014, the father’s application for a summary return was dismissed by the English High Court. In this context, Mr Justice Moylan stated that: “14 […] Kate has now been here for 18 months. She is well and truly settled here and is literally and technically habitually resident here. Her guardian Mr Power considers it to be unthinkable that she should be forced to return to Malta for any prolonged period, or even for a short one.” [14] […] “27 […] the father's application is dismissed. The consequence of my finding that the Article 20 defence is established is that the father will not be able to obtain an order in Malta providing for a return under Article 11.8 of B2R, which order would be virtually unchallengeable here. Were he to obtain an order for return under Maltese domestic law (the Maltese Court being satisfied that it had jurisdiction under Article 10 ) then that order would be enforceable here subject only to the defences mentioned in Article 23 . The first available defence would be that “recognition [of the judgment] is manifestly contrary to the public policy of [England and Wales] taking into account the best interests of the child”. It is for another court on another day to decide whether the violation of Kate's family life which I have found would occur were she to be returned would satisfy that defence. All I would say is that it would seem to me to be a strong argument.” [27]