SS v MCP

Jurisdiction in parental-responsibility proceedings must be established under Council Regulation (EC) No 2201/2003 or the applicable statutory scheme. Habitual residence is a factual question determined by the child’s integration in a social and family environment. Parental intentions are relevant facts but are not determinative, and habitual residence does not require permanence or a minimum period of residence.

Where jurisdiction is said to arise by prorogation, unequivocal acceptance must exist no later than the time the proceedings are instituted. Later procedural recitals cannot retrospectively establish that acceptance. The inherent jurisdiction and wardship cannot be used to circumvent statutory limits or create an additional jurisdictional basis.

The father sought orders for the return of his three-year-old daughter from India and for contact. The mother had taken the child to India, where she had lived for most of the relevant period with her maternal grandmother. The mother had earlier applied for a declaration concerning the child’s habitual residence, but that application was misconceived.

The father’s application was made under the High Court’s inherent jurisdiction. The mother disputed the court’s jurisdiction. The central issues were whether jurisdiction arose from habitual residence under article 8, prorogation under article 12, or retained jurisdiction in an abduction case under article 10 of Council Regulation (EC) No 2201/2003.

1. The mother’s application was dismissed as misconceived. The father’s application could succeed only if jurisdiction was established under Council Regulation (EC) No 2201/2003 or sections 1–3 of the Family Law Act 1986. The latter provisions added no jurisdiction on the facts.

2. Under article 8, habitual residence was assessed factually. The child had lived in India for about 22 months, apart from two weeks in the United Kingdom, and was integrated into an Indian social and family environment. She was therefore habitually resident in India. The mother’s use of the word temporarily did not alter that factual conclusion.

3. Article 12 did not apply. Any acceptance of English jurisdiction had to be unequivocal by 26 August 2020, when the father’s proceedings were issued. The later recitals in court orders had an unclear origin and could not operate retrospectively. Nor did the mother’s earlier application amount to unequivocal acceptance of jurisdiction over all parental-responsibility issues.

4. The territorial scope of article 10 was legally unclear. Its literal wording suggested a mechanism addressing jurisdictional competition between Member States. The Court of Appeal had adopted a global interpretation in Re H (Abduction: Jurisdiction), but the relevant conclusion was obiter. The Court of Justice had indicated that articles 9, 10 and 15 necessarily involved potential conflicts between Member States, although that aspect was also obiter.

5. The inherent jurisdiction could not be used to bypass the statutory scheme. Wardship formed part of the inherent jurisdiction and created no additional power to make the orders sought. An urgent preliminary reference was therefore made to the Court of Justice concerning the territorial reach of article 10, and the proceedings were stayed pending its answer.

Not stated in the judgment.