Re A. and D. (Children) [2011] EWCA Civ 265

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The mother’s primary argument was that the President had failed to consider that the agreement for the children to go to Cameroon was in any event conditional upon their subsequent return in February 2009. The Court of Appeal, however, rejected the criticism of the President’s assessment. Thorpe L.J. noted:
“It may be difficult to define some specific point at which the twins ceased to be habitually resident in this country, for in a case such as this the loss of one habitual residence and the acquisition of another is the result of a process operating over time – here a period of almost 18 months – as events, some unforeseen, gradually unfold. But there is no need to be able to identify some specific point in time.”
Procedural Matters
Coleridge J. noted that the President had made an assessment of the facts which was neither based on the mother’s version of events nor the father’s. Coleridge J. held that such a course was always open to a trial judge provided he explained, by reference to the evidence how and why he had reached a conclusion different to that contended for by either side.
Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
The Court of Appeal permitted the mother to make a new argument, one not raised at trial. This was permissible because it related to jurisdiction, namely that the starting point for the existence of jurisdiction should have been the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).
Whilst this was accepted by the Court of Appeal, the Court rejected the submission that Article 12(3) of the Regulation had in fact been activated. The Court noted that Article 12 (prorogation) was not confined to cases where the parties were citizens of or resident in a Member State, nor was it confined to cases where the question of forum arose as between two Member States.
Article 12(3) required a triple condition to be satisfied: the child must have a substantial connection with the Member State in question; the parties must have accepted the jurisdiction in an unequivocal manner; and the jurisdiction must be in the best interests of the child.
The Court held that whilst the “substantial connection” requirement had been met, the actions of the father clearly did not amount to ‘unequivocal’ acceptance of the jurisdiction of the English courts.
Author of the summary: Peter McEleavy
Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)