Family Court (England and Wales), sitting at Oxford

Family Court (England and Wales), sitting at Oxford

United Kingdom - England and Wales

6 August 2024

The Father v The Mother

[2024] EWFC 423

First instance

• Article 5
• Article 8

Not provided

Children Act 1989

Not provided

The case concerned a ten-week-old child born in England to a French mother and an English father. Following the breakdown of the parents’ relationship, the father obtained a prohibited steps order preventing the mother from removing the child from England and Wales. The mother argued that both she and the child were habitually resident in France and that the English courts lacked jurisdiction under the 1996 Hague Convention. The court examined the concept of habitual residence under Article 5, including domestic authorities and the CJEU decision in UD v XB. It found that physical presence in a State is required before habitual residence can be established there and rejected the argument that the child could be habitually resident in France despite never having been present there. The court therefore held that the child was habitually resident in England and that the English courts had jurisdiction. However, after considering the welfare issues and the mother’s strong connections with France, the court discharged the prohibited steps order and invited the French courts to accept a transfer of jurisdiction under Article 8 on the basis that France had a substantial connection with the child and was better placed to determine future welfare matters.

The English court held that it had jurisdiction under Article 5 of the 1996 Hague Convention because the child, although only ten weeks old, was habitually resident in England at the commencement of the proceedings. The court found that physical presence in a State is a necessary prerequisite for habitual residence and that a newborn child could not acquire habitual residence in a country in which he had never been present. However, having determined the welfare issues before it and discharged a prohibited steps order preventing the child’s removal to France, the court concluded that the requirements of Article 8 were satisfied and invited the French courts to accept a transfer of jurisdiction, considering that France had a substantial connection with the child and was better placed to determine future welfare issues.