Mercredi v. Chaffe [2011] EWCA Civ. 272

INCADAT legal file Hague parental abduction

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The proceedings related to a child born in England in August 2009 to a French mother from the overseas d?partement of the island of R?union and a British father. The parents were not married and separated a week after the birth. On 7 October 2009 the mother took the child to R?union. At that time the father did not have rights of custody in respect of the child under English law.
On Friday 9 October 2009, having learnt of the child’s departure, the father made an application by telephone to the duty High Court judge in England, who immediately made a location order. On 12 October the father filed applications, inter alia, for parental responsibility, shared residence and access. That day the High Court made an order requiring the mother to return the child to England; the mother did not have notice of the application and therefore was neither present nor represented.
The Court of Justice of the European Union (CJEU) subsequently considered that the English judicial authorities found themselves to be seised for the purposes of Article 16 of Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) on 12 October 2009 at the latest. On 28 October 2009 the mother brought proceedings in R?union for sole parental responsibility.
On 18 December 2009 the father brought return proceedings in R?union for the return of the child under the 1980 Hague Convention. On 15 March 2010 that application was dismissed on the basis that he did not have rights of custody.
The father’s English proceedings came to trial in April 2010. On 15 April the High Court held that: it had become seised when the father telephoned the duty judge; from that time, it had rights of custody in respect of the child; the father also acquired such rights, orders having been made in his favour; and the child was still habitually resident in England at the time the court and the father acquired custodial rights.
The father subsequently missed the time limit to appeal against the dismissal of his Convention return application. On 23 June 2010 the mother was awarded sole parental responsibility in the R?union proceedings. On 12 July 2010 the mother filed an appeal against the decisions of the High Court. On 8 October 2010 the Court of Appeal made an order requesting a preliminary ruling from the CJEU on several questions. This was under the fast track PPU (proc?dure pr?judicielle d’urgence) mechanism.
The CJEU held that:
“1. The concept of “habitual residence”, for the purposes of Articles 8 and 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment.
To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State.
It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case. If the application of the above mentioned tests were, in the case in the main proceedings, to lead to the conclusion that the child’s habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child’s presence, under Article 13 of the Regulation.
2. Judgments of a court of a Member State which refuse to order the prompt return of a child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to the jurisdiction of a court of another Member State and which concern parental responsibility for that child have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State. ”
In the light of the preliminary ruling the Court of Appeal determined the mother’s appeal.