London, United Kingdom (PRWEB UK) 10 April 2014
*Re SJ (Habitual Residence: Application to Set Aside)  EWHC 58 (Fam)
(Family Division, Parker J, 22 January 2014)- Abduction- Habitual Residence - Forum -Application to set aside Full Judgement Here
Duncan Lewis Family Solicitors represented the Respondent Mother in child abduction/ return proceedings and in her application to set aside the High Court Orders that declared the Child was habitually resident in the UK at the time of Applicant’s Father’s original application for the return of the UK to the child. Upon this application, Parker J was asked to re-examine the issue of habitual residence.*
According to the judgement handed down from the case, the mother moved to Gibraltar with the child, with the father’s consent in September 2011.* The Mother later moved to Spain with the child. Upon Mother’s case, the father was aware of the move and had provided his consent. The father’s case is that Mother did not seek his consent for the move, which he says he had no knowledge of until after the fact.* The father further stated that he agreed to the move to Gibraltar for a limited time period of 1-2 years’ only. The father subsequently made an application to Court for the return of the child in November 2012.*
Furthermore, the father made his application for a specific issue order for the return of the child from Spain under s.8 of the Children Act 1989, rather than pursuing an appropriate application under Hague Convention for a summary return of the child.*
Due to her being unable to obtain legal advice on this complicated area of national law, the mother was self-represented for 2 hearings. The father was legally represented throughout.
Proceedings in the county court commenced by the Court making a deciding on whether the Court of England and Wales had jurisdiction to hear this matter.* Mother’s position was such that given that the child was living out of the UK of over two years, the child’s habitual residence had been transferred to Gibraltar and subsequently Spain. The county court proceedings in December 2012 made a declaration that the child was habitually resident in England and Wales and therefore with a conclusion that that the English Court had jurisdiction to hear this matter, without the Court ever having heard evidence.*
Duncan Lewis Solicitors were instructed by Mother to represent her in these proceedings. At the time Mother was residing in Spain; therefore Duncan Lewis Solicitors obtained Mother’s instructions and advised her on a remote basis. Mother had limited means; therefore an urgent application had to be made to the Legal Aid Agency for funding which was later secured.
According to the case judgement, at this time, Mother raised allegations that Father had sexually assaulted the child and made a without-notice application to the Spanish Courts for precautionary measured.& Criminal proceedings were also commenced in Spain in respect of Mother allegations. Meanwhile, HHJ Nathan transferred the proceedings to the High Court in Guildford in February 2013.*
At the hearing in February 2013, Theis J declared that the child was wrongfully retained by the mother. In April 2013, further declarations were made by HHJ Nathan including that, as England was first seised, the Spanish proceedings should be stayed. Later that month, Mother’s application for precautionary measured was dismissed in Spain.*
The mother successfully obtained Legal Aid funding in April 2013, therefore, she was able to be fully represented therein after.
The father eventually made an application under Hague Convention for a return order. In May 2013, Fathers Hague application for a return order was refused but the Hague judgement seemed to concede jurisdiction to the English Courts.* Father appealed the refusal to return however at the date of the hearing before Parker J, the appeal remained undetermined. Although subsequently father’s appeal failed in the Spanish courts. The child therefore remained in Spain with Mother.*
The mother subsequently applied for the declarations made by the English Courts to be set aside based on the fact; that when habitual residence was declared Mother was not represented at the hearings, and that she had not been given the opportunity to provide evidence; and on the basis that and based on the fact that the child habitually resident had been transferred to Gibraltar and later Spain. Father simultaneously made an application under Article 11 for the return of the child
to the UK.*
This application came before Parker J. Mother’s application for set aside was refused on the basis that there had been no error in the Judge’s application of the correct principles and on the basis that the decision was one he was entitled to reach in all the circumstances. Parker J set out that to challenge that decision; the mother would need to seek the permission of the court to appeal.*
Parker J also set out in her judgement her decision in relation to the father's application for a return order under Article 11, that the father’s application for return would be adjourned pending communication with the Spanish Liaison Judge as to whether their refusal of Father’s Hague application was based upon the child not being wrongfully removed or retained or because the father had given consent. Accordingly the return application was adjourned pending a response from the Spanish Liaison Judge.*The Mother was also refused permission to transfer proceedings to Spain in what Parker J states was a “blatant case of forum shopping.”*
Mrs Savita Sharma, the conducting solicitor and Head of the Family Department states; "This case was a clear judgement from the Court warning that forum shopping and unilaterally removal or retention of a child outside of the jurisdiction where the child is habitual residence will not be tolerated by the Court in England and Wales.
It further clearly demonstrates the increasing problems faced by international families and the free, almost unrestricted movement of citizens within European Union and the importance of how expert legal advice is crucial at the outset of any legal proceedings and had mother secured legal advice at the start, these proceedings may well concluded differently in respect of habitual residence and jurisdiction”
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