The proceedings related to a child born 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, having learnt of the child’s departure, the father made an application by telephone to the duty High Court judge, 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 English judicial authorities considered themselves to be seised for the purposes of Article 16 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) on 12 October at the latest.
On 28 October the mother brought proceedings in R?union for sole parental responsibility. On 18 December 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.
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 the following questions:
“(1) Please clarify the appropriate test for determining the habitual residence of a child for the purpose of:
– Article 8 of … Regulation [No] 2201/2003;
– Article 10 of … Regulation [No] 2201/2003.
(2) Is a court an “institution or other body” to which rights of custody can be attributed for the purposes of the provisions of … Regulation [No] 2201/2003?
(3) Does Article 10 have a continuing application after the courts of the requested Member State have rejected an application for the return of the child under [the 1980 Hague Convention] on the basis that Articles 3 and 5 are not made out?
In particular, how should a conflict between a determination of the requested State that the requirements of Articles 3 and 5 of [the 1980 Hague Convention] are not met and a determination of the requesting State that the requirements of Articles 3 and 5 are met, be resolved? “
