H (A Child), Re [2009] EWHC 2280 (Fam) (11 September 2009)

H (A Child), Re [2009] EWHC 2280 (Fam) (11 September 2009)

The English court retains jurisdiction under Brussels II Revised to make welfare and contact orders for the child, as jurisdiction has not passed to the Spanish courts. The mother's evasion of service and non-participation do not prevent the court from proceeding. Further delay is contrary to the child's best interests. The court will adjourn to allow the mother a final opportunity to participate, but absent her engagement, orders for direct contact are likely to be made in her absence.

Citation
[2009] EWHC 2280 (Fam)
Parties
Applicant: H; Respondent: M; Respondent: H (a child) (by her Guardian ad litem, Sarah Vivian)
Jurisdiction
England and Wales
Judgment Date
11 September 2009
Procedural Posture
Family Law Child Abduction / Parental Responsibility Under Brussels II Revised / Final Hearing (judgment Delivered, Matter Adjourned for Further Submissions)
Outcome
Adjourned for further submissions; likely order for direct contact if mother does not engage.
Legal Topics
Brussels II Revised, Hague Convention 1980, Parental Responsibility, Habitual Residence, Contact Orders, Jurisdiction, International Judicial Cooperation
Family Law International Law Child Abduction Brussels II Revised Hague Convention 1980 Parental Responsibility Habitual Residence Contact Orders +2 more

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Parties

H

Applicant

M

Respondent

H (a child) (by her Guardian ad litem, Sarah Vivian)

Respondent

Procedural Posture

Family Law Child Abduction / Parental Responsibility Under Brussels II Revised / Final Hearing (judgment Delivered, Matter Adjourned for Further Submissions)

Legal Issues

  1. 1 Whether the English court retains jurisdiction under Brussels II Revised to make welfare/contact orders after a Spanish non-return order under Article 13 Hague Convention 1980
  2. 2 Whether further delay in making welfare/contact orders is inimical to the child's best interests
  3. 3 Whether the Spanish court's Article 13(b) reasoning and delay breached ECHR Article 8 rights

Ratio Decidendi

The English court retains jurisdiction under Brussels II Revised to make welfare and contact orders for the child, as jurisdiction has not passed to the Spanish courts. The mother's evasion of service and non-participation do not prevent the court from proceeding. Further delay is contrary to the child's best interests. The court will adjourn to allow the mother a final opportunity to participate, but absent her engagement, orders for direct contact are likely to be made in her absence.

Court Disposition

Adjourned for further submissions; likely order for direct contact if mother does not engage.

Orders

  • Proceedings adjourned, strictly reserved to the judge, to enable the mother to engage and provide welfare information.
  • Request to International Liaison Judges and Central Authorities to assist with service and facilitate an effective hearing on the next date.