The case concerned a child born in London in 1999. After the parents’ separation in 2004, an English Court awarded them shared custody of the child. In February 2006, the mother took the child to Portugal without informing the father. In September, the British Central Authority sent an application for the child’s return.
In March 2007, the Portuguese police stated that it had located the child. The father sighted it at the address he had given to the authorities as early as September 2006. In June, the Public Prosecutor brought return proceedings. The case scheduled before the Porto Family Court was postponed to July 2007.
The father was not informed of that hearing, at the end of which the Court dismissed the return application on the grounds that the child was settled. Less than two weeks later, the British Central Authority asked its counterpart to appeal against that decision, and reiterated its request in August. In September 2007, the Court observed that no appeal had been entered.
In May 2007, the mother had made an application for her sister to obtain custody of the child. The British Central Authority approached the Portuguese Court directly, pointing out that the filing of a return application implied that all other proceedings should be held in abeyance. The proceedings, held in abeyance, resumed in September 2007.
The child’s aunt was awarded custody on a provisional basis, and the father had a right of access. The proceedings were still pending at the time of the ruling. On 1 October 2007, the father made an application in England for the child’s return on the basis of Article 11(7) of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).
On 15 August 2008, the High Court of Justice – Family Division (acting at first instance) declined jurisdiction to try the case on the grounds that Article 11(7) was not applicable as the Portuguese Court had not relied on Article 13 to dismiss the application, and the Portuguese authorities had jurisdiction to rule upon custody.
