H (A Child), Re

Under Brussels II Revised, a court of the child’s former habitual residence retains jurisdiction after a non-return decision under the Hague Convention 1980 until the Article 10(b)(iv) condition is satisfied. Delay, where not attributable to the applicant or child, does not reduce that jurisdiction to a merely technical status. The court must determine welfare issues promptly and may use international judicial cooperation to facilitate service and participation. Where there is no adverse welfare information about the absent parent, the court is likely to promote direct and meaningful contact, while allowing the other parent a final opportunity to provide welfare information. A parent who deliberately avoids service cannot complain if orders are made in their absence.

The father applied under Articles 11 and 40 of Brussels II Revised concerning his daughter, who had been retained by the mother in Spain after a holiday. Spanish Hague Convention proceedings resulted in a non-return decision under Article 13(b), after substantial delay. The father then invoked Article 11(7) in England for a welfare determination and orders for contact.

The mother did not participate despite repeated attempts at service. The central issues were whether the English court retained jurisdiction, whether the delay affected that jurisdiction, and what procedural and welfare steps should follow before jurisdiction was ceded to Spain.

1. Jurisdiction. The court retained jurisdiction to determine the father’s welfare application. Under Articles 8, 10 and 11(6)–(8) of Brussels II Revised, jurisdiction does not pass to Spain until the condition in Article 10(b)(iv) is met, namely that a custody judgment not entailing the child’s return has been issued by the court of the child’s former habitual residence.
2. Effect of delay. Delay not caused by the father or the child did not make the court’s jurisdiction merely technical. The delay was unacceptable, particularly given the urgency inherent in child-abduction proceedings and the potential effect on the child’s relationship with the left-behind parent. The court relied on the approach to delay under Article 8 of the European Convention in Iosub Caras v Romania [2007] 1 FLR 661 and Carlson v Switzerland (11 August 2008).
3. Welfare determination. There had been no welfare determination by either the Spanish or English courts. Subject to receiving adverse welfare information, general principles concerning separated parents supported facilitating shared residence arrangements or direct and meaningful contact. There was no adverse information about the father, and the court indicated that it was likely to make an order for direct contact.
4. Procedure and cooperation. The proceedings were adjourned, strictly reserved to the judge, to give the mother a final opportunity to engage and provide welfare information to the court and the Guardian. The International Liaison Judges and Central Authorities were asked to assist with service and cross-border cooperation under Article 55.
5. Absence of the mother. The mother had been served, or deliberately avoided service, through numerous mechanisms. If she continued not to participate, she could not complain if the court made an order in her absence. The judgment was to be translated and communicated to the relevant Spanish authorities and the mother.