SJ (A Child), Re (Habitual Residence: Application To Set Aside)

SJ (A Child), Re (Habitual Residence: Application To Set Aside)

The English court's declarations on habitual residence and wrongful retention stand; there is no basis to set aside as the judge was not misled and no material change in circumstances exists. Appeal is the only proper route. S remains habitually resident in England; the Spanish court ceded jurisdiction to England. Article 11(8) BIIR is not engaged unless refusal of return was on discretionary grounds. Transfer of jurisdiction to Spain is rejected as not in the child's best interests.

Parties
Applicant Mother: Ms J. Moseley; Respondent Father: Mr M. Jarman
Jurisdiction
England and Wales
Judgment Date
22 January 2014
Procedural Posture
Family / Application to Set Aside Declarations; Jurisdictional Review
Outcome
Application to set aside declarations refused; jurisdiction remains with English court; return application adjourned pending clarification from Spanish court.
Legal Topics
Habitual Residence, Jurisdiction, Hague Convention, Council Regulation (ec) No 2201/2003 (biir), Wrongful Retention, Return Orders
Family Law International Child Abduction Habitual Residence Jurisdiction Hague Convention Council Regulation (ec) No 2201/2003 (biir) Wrongful Retention Return Orders

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Parties

Ms J. Moseley

Applicant Mother

Mr M. Jarman

Respondent Father

Procedural Posture

Family / Application to Set Aside Declarations; Jurisdictional Review

Legal Issues

  1. 1 Whether the English court's declarations on habitual residence and wrongful retention should be set aside
  2. 2 Whether S is habitually resident in England, Gibraltar, or Spain
  3. 3 Whether the Spanish court's refusal to return S was based on consent or lack of wrongful retention

Ratio Decidendi

The English court's declarations on habitual residence and wrongful retention stand; there is no basis to set aside as the judge was not misled and no material change in circumstances exists. Appeal is the only proper route. S remains habitually resident in England; the Spanish court ceded jurisdiction to England. Article 11(8) BIIR is not engaged unless refusal of return was on discretionary grounds. Transfer of jurisdiction to Spain is rejected as not in the child's best interests.

Court Disposition

Application to set aside declarations refused; jurisdiction remains with English court; return application adjourned pending clarification from Spanish court.

Orders

  • Declarations of Judge Nathan and Theis J stand.
  • Return application adjourned for clarification from Spanish Liaison Judge on grounds for refusal.