SS v MCP

SS v MCP

The court found as a fact that the child was habitually resident in India at the relevant time, and that neither habitual residence nor prorogation nor child abduction under Brussels II Regulation conferred jurisdiction on the English court. The court cannot exercise inherent jurisdiction or wardship powers absent statutory jurisdiction. The territorial reach of Article 10 in cases of abduction to non-member states is unclear and requires a preliminary ruling from the Court of Justice.

Parties
Applicant: SS; Respondent: MCP
Jurisdiction
England and Wales
Judgment Date
06 November 2020
Procedural Posture
Parental Responsibility / Child Abduction (inherent Jurisdiction, Specific Issue Order) / Preliminary Issue Judgment on Jurisdiction
Outcome
Proceedings stayed pending preliminary ruling from the Court of Justice on the territorial reach of Article 10 of Brussels II Regulation.
Legal Topics
Jurisdiction, Habitual Residence, Child Abduction, Wardship, Brussels II Regulation
Family Law Private International Law Jurisdiction Habitual Residence Child Abduction Wardship Brussels II Regulation

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Parties

SS

Applicant

MCP

Respondent

Procedural Posture

Parental Responsibility / Child Abduction (inherent Jurisdiction, Specific Issue Order) / Preliminary Issue Judgment on Jurisdiction

Legal Issues

  1. 1 Whether the English court has jurisdiction under Brussels II Regulation or Family Law Act 1986 to make orders regarding a child habitually resident in India
  2. 2 Whether habitual residence of the child is in England or India as at the date of the father's application
  3. 3 Whether Article 10 of Brussels II Regulation applies to abductions to non-member states

Ratio Decidendi

The court found as a fact that the child was habitually resident in India at the relevant time, and that neither habitual residence nor prorogation nor child abduction under Brussels II Regulation conferred jurisdiction on the English court. The court cannot exercise inherent jurisdiction or wardship powers absent statutory jurisdiction. The territorial reach of Article 10 in cases of abduction to non-member states is unclear and requires a preliminary ruling from the Court of Justice.

Court Disposition

Proceedings stayed pending preliminary ruling from the Court of Justice on the territorial reach of Article 10 of Brussels II Regulation.

Orders

  • Question referred to the Court of Justice for urgent preliminary ruling on Article 10 Brussels II Regulation jurisdiction in cases of abduction to non-member states.
  • Proceedings stayed pending receipt of the answer.