SH v HH

In wardship proceedings, habitual-residence jurisdiction cannot be founded on a child’s parents intending that the child will live in England and Wales, or on a parent’s British nationality, where the child has never been in the jurisdiction.

Jurisdiction under Article 12(3) of Brussels II Revised requires unequivocal acceptance. A party who persistently challenges jurisdiction has neither accepted nor acquiesced in its exercise. In the absence of habitual residence, presence, or valid prorogation, the wardship must be discharged.

SH was born in Afghanistan and had remained there throughout his life. After his mother came to England, wardship proceedings were issued when SH could no longer be located in Afghanistan. The father consistently disputed the English court’s jurisdiction.

His Honour Judge Cliffe, sitting as a judge of the High Court, held that SH was habitually resident in England because both parents intended that he should live there, the father was British, and the mother had become habitually resident here. He made orders requiring the father to bring SH to England, backed by a penal notice.

The father appealed, contending that SH had never been habitually resident or present in England and Wales, and that he had not accepted jurisdiction under Article 12(3) of Brussels II Revised. The central issue was whether the court had jurisdiction to continue the wardship.

1. Appeal allowed unanimously. Judge Cliffe’s finding of habitual-residence jurisdiction could not stand. SH had never been in England and Wales and had never been habitually resident here. The parents’ settled intention that he should later live here, and the father’s British nationality, could not establish that jurisdiction.
2. There was no alternative jurisdiction by prorogation under Article 12(3) of Brussels II Revised. The father had challenged jurisdiction from the first hearing on notice and maintained that challenge on 31 March and 8 April. He had not accepted jurisdiction, even implicitly, and there was no acquiescence or agreement. The requirement of unequivocal acceptance identified in Re I [2009] UK SC 10 was not met.
3. The father’s separate complaint of procedural unfairness and breach of Article 6 was rejected. Although his representative faced serious funding and preparation difficulties, he represented the father throughout, did not seek an adjournment or object to determination, and obtained an interpreter when requested. The judge was not to be criticised for addressing the factual and legal dispute robustly.
4. The orders of 8 April 2011 were set aside. Wardship of SH was discharged for want of jurisdiction. Wardship of SH’s sister was also discharged because any necessary orders concerning her could more properly be made under the Children Act 1989. The father’s passport and documents were to be released and the port alert discharged.

• Court of Appeal (Civil Division) — Allowed the father’s appeal and set aside the High Court orders: [2011] EWCA Civ 796.
• High Court of Justice, Leeds — On 8 April 2011, His Honour Judge Cliffe held that SH was habitually resident in England and Wales and continued the wardship, making orders requiring the father to bring SH into the jurisdiction.