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Baby is not a resident of any country, court declares

In an unusual case, the High Court has declared that a baby born in the UK to Slovakian parents is not ‘habitually resident’ in either country.

In Re T, a 16 year-old girl from the eastern European country had been placed in a mother and baby unit within a children’s home after becoming pregnant. She fled and travelled to the UK with the baby’s father, using false documents.

After the birth the mother struggled to settle and the baby was taken into care and placed with a foster carer. The mother and father visited the baby regularly but the youngster did not respond well to their presence, according to his foster carer.

Authorities in Slovakia applied for the return of the mother and child under Brussels II Revised, an international convention which governs jurisdiction in family law cases relating to more than one country. They said the pair’s ‘habitual residence’ was still Slovakia and insisted that a care order in that country relating to the mother should be enforced. The authorities planned for the pair to return to the children’s home from which they had absconded.

Sitting in the Family Division, Mr Justice Mostyn said that despite the mother’s presence in the UK, her legal ‘habitual residence’ remained Slovakia as she planned to return and had entered the UK using false documents. However, he concluded, the baby was habitually resident in neither country from a legal point of view, using the precedent established by ZA and PA v NA. The baby had been born in the UK and had never been taken to Slovakia. With no habitual residence in the UK, the court had jurisdiction under Article 13 of Brussels II Revised to make decisions.

Mr Justice Mostyn also concluded that all the requirements for transferring legal proceedings regarding the child to the Slovakian courts had been met.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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