SH v MM & Anor

A prohibited steps order may validly be made at an ex parte hearing before permission to apply for a Children Act 1989 order has been determined, provided the matter is listed for a return hearing. Once served, the order may restrict a person’s exercise of parental responsibility, including the right to decide where a child should live. Removing the child in breach of that restriction is wrongful for the purposes of Article 10 of Brussels (II) Revised. The child remains habitually resident in the jurisdiction from which the wrongful removal occurred, notwithstanding the passage of time after removal.

The applicant alleged that he was the biological father of a child born in September 2010 and sought permission to pursue orders under the Children Act 1989. The mother, who held parental responsibility with her husband, removed the child first to Belfast and then to Italy after a district judge had made and served a prohibited steps order preventing removal from the jurisdiction.

The court first found that the mother knew of the order before the removal. It then considered whether the order was valid and enforceable despite permission to apply for a section 8 order not having been determined, and whether breach of the order made the removal wrongful so that jurisdiction remained in England under Brussels (II) Revised.

The court held that the district judge was entitled to make the prohibited steps order at the ex parte hearing. The judge had to fix a return date, and the mother would then have the opportunity to be heard both on the substantive application and on permission to apply. The district judge’s failure expressly to determine permission did not invalidate the interim order. The order was intended to hold the ring until the return date and, once served, was a valid and effective prohibited steps order.

1. The order lawfully restricted the mother’s exercise of parental responsibility. During its currency she had no right to determine whether the child should live outside England.

2. The removal to Belfast was therefore wrongful because it breached the order. Under Article 10 of Brussels (II) Revised, the child remained, for the purposes of the Regulation, habitually resident in England and subject to the jurisdiction of the English court. The same conclusion would follow even if paternity issues were excluded from the Regulation by Article 1(3)(a), because parental-responsibility issues were also raised.

3. The outstanding applications required a further hearing. Permission to apply under the Children Act 1989 had first to be determined. If permission were refused, the proceedings would end.

4. The court noted that the mother and her husband could not be compelled to provide samples for scientific testing, although a sample could be taken from the child if that served her interests. An unjustified refusal might support an adverse inference. The court was provisionally minded to order the child’s return to maintain jurisdiction, but considered that the order might be stayed pending DNA testing. A return order would not be appropriate unless the applicant obtained the necessary permission under section 10 of the 1989 Act.