Mercredi v Chaffe

In proceedings concerning parental responsibility within the European Union, jurisdiction generally depends on the child’s habitual residence when the court is seised. Loss of habitual residence in one state does not require the simultaneous acquisition of habitual residence elsewhere.

Even where an English court has jurisdiction, it must consider whether a court in another Member State is better placed to hear the case under Article 15 of Brussels II Revised. The relevant considerations include the child’s connection with that state, the location of the child and evidence, existing proceedings, the child’s best interests and the need to avoid wasteful concurrent litigation. Courts dealing with the same cross-border family dispute should communicate and collaborate.

The mother lawfully moved with her infant daughter from England to La Réunion. The unmarried father then commenced English proceedings for parental responsibility and the child’s return. He also sought summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980, but the court in La Réunion dismissed that application because he had not shown that he was exercising rights of custody immediately before the removal.

McFarlane J subsequently held that the child remained habitually resident in England when the English court was seised. He made declarations under Article 15 of the Hague Convention, granted the father parental responsibility, ordered the child’s return and retained the English court’s control over future welfare proceedings.

The mother appealed. Following a reference in the same litigation to the Court of Justice of the European Union, the principal issues were jurisdiction, the legal effect of the lawful removal, the propriety of the Hague Convention declarations and whether the welfare proceedings should be transferred to France under Article 15 of Brussels II Revised.

1. Appeal allowed. Both members of the court agreed that the order below should be set aside without depriving the father of the parental responsibility granted to him.

2. The judge was entitled to find that the child had not lost her English habitual residence by 12 October 2009. Although he had wrongly suggested that French habitual residence had to be acquired before English habitual residence could be lost, that error did not affect his conclusion. A child may cease to be habitually resident in one state before acquiring habitual residence in another.

3. The mother’s departure was lawful. She had sole custody, the father lacked parental responsibility and no residence order engaged section 13 of the Children Act 1989. A lawful removal can nevertheless become a wrongful retention if a return order made by the court of the child’s habitual residence is not obeyed. That issue should have been pursued in the French proceedings rather than through competing English relief.

4. The declarations purportedly made for the purposes of Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 were inappropriate. The French court had already dismissed the Convention application, no French judicial or administrative authority had requested assistance, and the English relief tended to undermine the French decision.

5. Per Elias LJ, adopting Thorpe LJ’s relevant analysis, even if the English court possessed jurisdiction under Article 8 of Brussels II Revised, it should have considered of its own motion whether to transfer the parental-responsibility proceedings to France under Article 15. The child and mother were habitually resident in France and were French nationals. The French court had begun its welfare investigation, the child and relevant evidence were there, and parallel proceedings would be wasteful. France was therefore better placed and transfer was in the child’s best interests.

6. Thorpe LJ additionally concluded that the October applications were no longer truly live and that the operative English application was the wardship summons issued in January, by which time the child was habitually resident in France. Elias LJ expressed reservations about deciding the appeal on that procedural basis. The common ground of decision was the failure to transfer under Article 15.

1. Court of Appeal (Civil Division): The mother’s appeal was allowed in [2011] EWCA Civ 272. The order below was set aside without depriving the father of parental responsibility.

2. Court of Justice of the European Union: On the Court of Appeal’s reference, the court clarified habitual residence in the case of an infant, held that the removal was lawful, and stated that refusal of Hague Convention return did not affect earlier pending proceedings in another Member State.

3. High Court: McFarlane J held that the child remained habitually resident in England when the English court was seised. He made declarations, granted the father parental responsibility, ordered return and retained control of the welfare proceedings.

4. Courts of La Réunion: The father’s Hague Convention application was dismissed. The mother was subsequently granted sole parental authority, and appellate proceedings in France remained pending.