London, United Kingdom (PRWEB UK) 11 April 2014
*FQ v MQ (Jurisdiction – Forum - Habitual Residence)  EWHC 441 (Fam)
Family division, Mrs Justice Hogg, DBE, 7th February 2014
Full Case Judgement can be found here.
According to the Case Judgement, upon the Father’s application, Mrs Justice Hogg, DBE was asked to make a declaration as to Habitual Residence of the children and the courts jurisdiction to deal with the welfare concerns of the parties’ minor children.
At the Applicant Father’s behest an application was made contesting the jurisdiction of the UK Courts to deal with the welfare issues concerning the 2 children of the family. Despite the Judge’s decision in the previous judgement in respect to the child abduction proceedings, the Applicant Father did not agree that the UK Courts did have jurisdiction or that the children’s Habitual Residence was now England and Wales.*
Duncan Lewis Family Solicitors represented the Respondent Mother in this application and although the Father conceded the issue of jurisdiction, the Respondent Mother still required the Court to make declaration as to jurisdiction in dealing with the welfare issues relating to the children.
The judgement states that the Judge was satisfied that with the evidence before her that the English Courts had jurisdiction.* She determined that the children had been in the country since August 2012, she had declined to return them to the USA at the end of the Hague Convention proceedings because she had found that the defence of settlement had been made out, the children had strong preferences not to return to the US as they had “unhappy memories” and that they had made allegations against the Applicant Father.*
Although she did not accept that their objections as under the Hague Convention, she confirmed that they were certainly strong preferences.* The Judge stated she accepted that the children were settled here psychologically, educationally, and physically and therefore declined to return them back.*
On that basis, as the Judge accepted that the children were settled here and as that was one of the requirements of Section 3 of the Family Law Act 1986, the Judge determined that the UK Court was the best to deal with any welfare issues which may be raised by either parent and that it is in the best interests of the children to remain in this jurisdiction.* She accepted that the evidence to their current welfare was here and that the most appropriate jurisdiction and forum to hear the matters related to the UK.*
The Judge reaffirmed the position after considering the evidence presented on behalf of the Respondent Mother, that it was in the interests of the children that they both remain here, that the Courts in England and Wales are the appropriate jurisdiction to determine the children's welfare or in connection with Parental Responsibility and she declared that the children were habitually resident in England and Wales and that there had been a certain amount of integration and considered the tests set out by the Supreme Court case.*
In view of the Applicant Father’s litigation conduct, the Respondent Mother made an application for her legal costs in defending his application.* The Judge noted the attempts that she had made on the last occasion, and the Father positioned that he wished to challenge the jurisdiction of England and Wales.* Father was allowed some opportunity to consider his position and on 10th January he confirmed through his solicitors that he wish to dispute jurisdiction. Duncan Lewis prepared the case, lodging the appropriate documentation at Court and instructing Queen’s Counsel to deliver a Skeleton Argument.*
All the documents were filed and served on the Court and also on the Applicant Father by email.*
Upon receipt, the Applicant Father then sought to request an adjournment without “giving good reason.”* The Judge indicated that she was not granting an adjournment but provided for the Applicant Father to attend the Hearing via videolink. The Applicant Father informed his former solicitors that he was not now pursuing jurisdiction in relation to the children.*
The Judge was satisfied that the Father’s application in respect of jurisdiction was unnecessary as the Court had made it clear that the Court to deal with the issues of welfare was in the UK.*
The Applicant Father was given an opportunity to reflect and the night before the Hearing that he conceded his position. The Judge accepted that the Respondent Mother could not afford any additional fees but had to prepare the case and had incurred legal costs in dealing with the application.* The Judge therefore made cost order against the Applicant Father in relation to these proceedings.*
The Respondent Mother had instructed Mrs Savita Sharma, Head of the Family Department at Duncan Lewis to represent her within these proceedings and was successful in resisting the Father’s application for return in relation to child abduction proceedings and also secured English jurisdiction in respect of any welfare issues to deal with the children and the declaration that the children’s habitual residence was the UK. She also successfully obtained a cost order within Children Act proceedings which was indicative of the work undertaken on her behalf.
Mrs Savita Sharma, the conducting solicitor said, “This was a complex and fast moving case with a number of underlying legal and practical issues which made the preparation of the case and the gathering of evidence some what fraught. In the end, all the preparation and evidence secured a positive result for the Respondent and most importantly, the children of the family who are happy and thriving in the England and Wales.”
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