High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

1 November 2023

A Mother v A Father and Others

[2023] EWHC 2728 (Fam)

First instance

• Article 7
• Article 50

• Article 1
• Article 5
• Article 11

Child Abduction and Custody Act 1985, Senior Courts Act 1981, Children Act 1989, Family Procedure Rules

Not provided

Proceedings following the dismissal of a mother's 1980 Hague Convention application for the return of two children to France. The children subsequently sought declarations that they were habitually resident in England and Wales and that the English courts had jurisdiction over matters of parental responsibility. Applying the 1996 Hague Convention, the court held that the relevant date for assessing habitual residence and Article 7 jurisdiction was the date on which the declaration proceedings were commenced, namely 22 August 2023, rather than the later hearing date. Both children had by then acquired habitual residence in England and Wales. In relation to X, the mother's prior acquiescence in the wrongful removal satisfied Article 7(1)(a), with the result that France had lost its retained jurisdiction. In relation to Y, the court held that Article 7(1)(b) was satisfied: Y had been resident in England for at least one year after the mother knew of his whereabouts, was settled in his environment, and no return application remained pending. The court also considered Article 50 of the 1996 Convention and Article 16 of the 1980 Convention in determining the relationship between the two instruments. It declared that the English courts had jurisdiction to determine all issues relating to the children's welfare, custody, access and parental responsibility.

The court held that both children were habitually resident in England and Wales by 22 August 2023 and remained so at the date of hearing. It further held that the English courts had jurisdiction to determine all substantive welfare matters, including custody, access and wider questions of parental responsibility. In relation to X, the mother's acquiescence in the wrongful removal, together with X's acquisition of habitual residence in England and Wales, satisfied Article 7(1)(a). In relation to Y, the court held that the conditions in Article 7(1)(b) were satisfied: he had acquired habitual residence in England and Wales, had lived there for more than one year after the mother knew of his whereabouts, no return application remained pending, and he was settled in his new environment. The court accordingly made declarations as to habitual residence and jurisdiction.