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

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

United Kingdom - England and Wales

9 May 2024

Re Y (referred to also as BT and WS (Applicants))

[2024] EWHC 1373 (Fam)

First instance

Article 5(1)

Article 32

Family Law Act 1986, Civil Jurisdiction and Judgments Act 1982, Private International Law (Implementation Agreements) Act 2020

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The parents of a two-year-old child, Y, applied under the inherent jurisdiction of the High Court for an order intended to secure her return from Sweden to England and Wales. Y had been taken into care by the Swedish authorities and had remained in Sweden after her parents moved to England. She had never been physically present in England and Wales. The court held that jurisdiction was governed principally by Article 5 of the 1996 Hague Convention and depended upon whether Y was habitually resident in England and Wales. Although the parents argued that their intention had always been to bring Y to England and that their own integration here should be attributed to their young child, MacDonald J rejected that argument. Y no longer shared her parents' social and family environment, but was living with substitute carers in Sweden, where her needs were being met. She had no practical connection or durable ties with England and Wales. The court therefore held that Y was not habitually resident in England and Wales and dismissed the application for want of jurisdiction.

Application dismissed for want of jurisdiction. The court held that Y, who remained in care in Sweden and had never been present in England and Wales, was not habitually resident in England and Wales. The English court therefore had no jurisdiction under Article 5 of the 1996 Hague Convention or any alternative domestic basis of jurisdiction to make the orders sought.

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