High Court rules in favour of jurisdiction in residence dispute

Family|August 12th 2014

The High Court has declared that it does have jurisdiction in the case of a two year-old girl taken to Poland by his mother.

In ED (A Child), the child was born to an English father and a Polish mother, in late December of 2011. However, by the time she was born, the relationship had already broken down. Following allegations of domestic violence, magistrates made a restraining order against the father. However, the father claimed that it was actually the mother who had been argumentative and violent towards him.

She registered the baby’s birth in her name only, so the father did not have parental responsibility for the baby and he only saw his daughter occasionally.

Under English law, unmarried fathers must be listed on the children’s birth certificate or they will not hold parental responsibility and thereby have the legal status of parents.

In April 2012, the father applied for parental responsibility and also for a ‘prohibited steps’ order which would forbid the mother from taking the girl, referred to as ‘E’, out of the country. He said the mother had mentioned the possibility of returning to Poland. He was granted the prohibited steps order.

At a later hearing, the mother applied for permission to travel back to Poland for a holiday. At one point the father said he planned to drop the proceedings, before later changing his mind. At a subsequent hearing, the mother said he would return E to England after a holiday in her native country, and the father withdrew his objections to the “temporary removal”.

The father once again asked for the case to be discontinued, expressing concern for the upset he believed he was causing the mother, before, again, seeming to change his mind.

Shortly afterwards the mother returned to Poland with her daughter.

Not long afterwards she launched legal proceedings in Poland, seeking the equivalent of a residence order specifying that the girl should live with her permanently. She said she had no intention of returning to England and had only said she would do so because she was intimidated.

The mother wrote to the court stating that she was now living under Polish jurisdiction and the father was advised to seek legal advice as a matter of urgency. He filed an application for the return of his daughter under international treaty the Hague Convention on the Civil Aspects of International Child Abduction. But his claim was rejected because he did not have “rights of custody”. The father appealed but this was also dismissed.

The father then sought legal advice. Eventually he filed an application within the English courts for the mother to be committed to prison for contempt of court after breaching her earlier undertaking to return E. He also sought to revive his earlier application, under the Children Act 1989, for contact with his daughter and parental responsibility.

His application came before the High Court in the first instance for a ruling on whether the English courts still held jurisdiction in the case, given the fact that the mother and E have now been living in Poland for a number of years.

Mr Justice Baker concluded that they did. He considered the wording of Brussels II Revised, an EU regulation which governs family law when more than one member state is involved in a case. Article 12.3 defines jurisdiction (legal authority) in such cases.

The judge said:

“…E’s father remained habitually [legally] resident in this country at 28th May 2012. E was, and is, herself a national of this country. Plainly therefore, she had, and has, a substantial connection with this country within the meaning of Article 12.3.”

He added:

“I therefore declare that this court has jurisdiction to make an order for parental responsibility and a child arrangements order.”

Introduced by the Children and Families Act 2014, child arrangement orders set out where children will live and how they will see parents or parental figures living elsewhere.

Last year, in a similar parental dispute, a mother took her son back to Poland without the father’s permission.

Read the full judgment here.

Photo of Krakow, Poland by FotoCavallo via Wikipedia under a Creative Commons licence

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