In [2024] EWHC 1373 (Fam), the High Court of Justice, Family Division, presided over by Mr. Justice MacDonald, dismissed an application by parents seeking a "voluntary return order" for their child, Y, who is currently in the care of Swedish authorities. The court ruled that it lacked jurisdiction, as Y has never been present in England and is not habitually resident in the UK. The decision also noted concerns regarding the child's welfare, including allegations of neglect and the death of a sibling in Finland. The parents' arguments, based on their intention to bring Y to the UK, were insufficient to establish jurisdiction.
Case Overview:
Case Name: [2024] EWHC 1373 (Fam)
Court: High Court of Justice, Family Division
Judgment Date: 9 May 2024
Judge: Mr. Justice MacDonald
Keywords: Child Jurisdiction, Habitual Residence, Family Law, Swedish Authorities, Parental Responsibility
Legal Issues:
Jurisdiction Based on Habitual Residence:
The court had to determine whether it had jurisdiction to make orders concerning Y, a child who has never been in the UK. The parents argued that Y's habitual residence should be considered in England based on their intentions and circumstances that prevented her from traveling. The court ultimately found that Y's integration in the UK was insufficient to establish habitual residence.
Concerns of Child Welfare:
The court highlighted serious concerns about Y’s welfare, including allegations from Swedish authorities about parental neglect and the unresolved circumstances surrounding the death of Y's sibling in Finland. These factors further complicated the jurisdictional question.
Court’s Analysis:
Habitual Residence Determination: The court emphasized that habitual residence is a factual inquiry centered on the child’s circumstances. Despite the parents’ intentions, Y’s lack of physical presence and integration in the UK precluded a finding of habitual residence.
Lack of Jurisdiction: The court concluded that it lacked jurisdiction to make any orders concerning Y under the inherent jurisdiction of the High Court because Y is neither present in the UK nor habitually resident.
Judgment Summary:
The High Court dismissed the parents' application for jurisdiction over their child, Y, who remains under the care of Swedish authorities. The court determined that Y was not habitually resident in the UK, thus the court lacked jurisdiction to make any orders regarding her care or return. The decision underscores the complexities of cross-border child custody and jurisdictional issues in family law.
Implications:
This case highlights the challenges of asserting jurisdiction in international family law disputes, particularly when a child has never been present in the jurisdiction in question. It also reinforces the importance of factual analysis in determining habitual residence and the limitations of parental intention in establishing jurisdiction.
References:
Family Law Act 1986
1996 Hague Convention
Re A (Children) [2013] UKSC
Re B (A Child) [2016] AC 606
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