In BT & WS [2024] EWHC 1373 (Fam), the High Court, presided over by Mr. Justice MacDonald, dismissed an application by parents seeking jurisdiction over their child, Y, under the inherent jurisdiction of the High Court. The parents, who had fled to England after their child was taken into care by Swedish authorities, argued that Y was habitually resident in England. The court found that Y, who had never been in England and remained under care in Sweden, could not be considered habitually resident in this jurisdiction. The court emphasized that jurisdictional requirements were not met, and it lacked the authority to issue the "voluntary return order" sought by the parents.
Case Overview:
Case Name:Â BT & WS [2024] EWHC 1373 (Fam)
Court:Â High Court of Justice, Family Division
Judgment Date:Â 9 May 2024
Judge:Â Mr. Justice MacDonald
Keywords:Â Habitual Residence, Child Jurisdiction, Inherent Jurisdiction, Hague Convention, International Child Abduction
Legal Issues:
Jurisdiction and Habitual Residence:
The key issue was whether the court had jurisdiction to make orders concerning Y based on her alleged habitual residence in England, despite her never having been present in the jurisdiction. The parents argued that Y’s absence was due to exceptional circumstances beyond their control, invoking the principle that habitual residence can be established without physical presence.
Inherent Jurisdiction of the High Court:
The parents sought a "voluntary return order" for Y’s return to England, arguing that the High Court could compel local authorities or ICACU to facilitate this. The court considered whether it had jurisdiction under the 1996 Hague Convention or the Family Law Act 1986, ultimately determining that Y was not habitually resident in England, thus the court had no jurisdiction.
Court’s Analysis:
Habitual Residence:Â The court applied established legal principles, determining that Y, who remained in care in Sweden and had never been in England, lacked the necessary degree of integration in a social and family environment in England to establish habitual residence.
Jurisdictional Limitations:Â The court emphasized that, even if it had jurisdiction, it lacked the power to issue the type of order sought by the parents, including compelling a local authority to act outside its jurisdiction.
Judgment Summary:
The High Court dismissed the parents’ application, ruling that it had no jurisdiction to make orders concerning Y, as she was not habitually resident in England and Wales. The judgment highlights the stringent requirements for establishing jurisdiction in international child abduction cases and the limitations of the court’s powers in cross-border child protection matters.
Implications:
This judgment underscores the challenges in asserting jurisdiction in international child abduction cases where the child has never been present in the jurisdiction and the importance of the child's factual circumstances in determining habitual residence.
References:
Family Law Act 1986
1996 Hague Convention
Re A (Children) [2013] UKSC
Re B (A Child) [2016] AC 606
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