SJ (A Child), Re (Habitual Residence: Application To Set Aside)

A first-instance family judge may vary or revoke an order only within the limits of the procedural power relied on. Reconsideration on the same material, or an attempt to correct alleged legal error, is ordinarily a matter for appeal. Habitual residence is assessed by examining the child’s integration in a social and family environment, including the duration, regularity, conditions and reasons for the stay. A unilateral or wrongful removal, followed by delay or non-cooperation, does not itself establish habitual residence in the new state. Article 11(8) of Council Regulation (EC) No 2201/2003 is engaged where return is refused on a discretionary article 13 ground, not where the court finds no wrongful removal or retention under article 3 of the Hague Convention.

The child was the subject of proceedings in England and Spain. The English court had declared that she was habitually resident in England and Wales and had been wrongfully retained after being taken from Gibraltar to Spain. The mother applied to set aside those declarations, alleging inadequate opportunity to present evidence and legal error. She alternatively sought a current reassessment of habitual residence.

The father sought orders concerning the child’s return, residence and contact, together with relief under article 11(6)–(8) of Council Regulation (EC) No 2201/2003. The Spanish court had refused return under the Hague Convention. The issues included whether the English declarations could be revisited and whether the article 11(8) mechanism was engaged.

1. Application to set aside refused. Rule 4.1(6) of the Family Procedure Rules 2010 gives power to vary or revoke an order, but the jurisdiction is limited. The court may revisit an earlier order where there has been a material change of circumstances or the judge was materially misled. A party cannot use the power to re-argue the earlier application on material or submissions available at the original hearing. Alleged legal error is for the Court of Appeal. The declarations therefore stood.
2. Judge Nathan was entitled to determine habitual residence at an inter partes hearing without oral evidence. Habitual residence is commonly decided on the papers, and the mother participated by telephone and answered the judge’s questions.
3. The relevant inquiry was whether the child was integrated into a social and family environment. Relevant circumstances included the instability of the mother’s arrangements, the conditional nature of the father’s agreement, changes of school, the mother’s changing plans, and the absence of family, linguistic, cultural or historical connections with Gibraltar or Spain. The child’s presence in Spain for more than a year during the proceedings did not, by itself, establish Spanish habitual residence.
4. The child’s father had parental responsibility and a right to be consulted about relocation. The unilateral and surreptitious move, followed by retention after a request for return, could not be treated as generating habitual residence merely through delay. The court rejected the suggestion that the Spanish judgment implied a finding of Spanish habitual residence.
5. Article 11(8) was not engaged if the Spanish court had found that the child was not wrongfully removed or retained under article 3 of the Hague Convention. It could be engaged if return had instead been refused on a discretionary article 13 ground. The return application was adjourned so that the Spanish court’s basis for refusal could be clarified.
6. Transfer to Spain under article 15 was exceptional. The court was not satisfied that Spain was better placed to hear the case or that transfer served the child’s best interests. The application was rejected and the matter was to be relisted on the return issue.

Earlier declarations were made by HHJ Nathan at Guildford County Court on 14 December 2012 and by Theis J on 7 February 2013. The present court refused to set them aside and stated that appeal, subject to any extension of time, was the proper route of challenge. The father’s appeal against the Spanish judgment remained undecided.