Mother disputes jurisdiction in dispute over daughter

Family Law|January 7th 2015

A mother who left her daughter living with relatives in Germany has successfully disputed the jurisdiction of the English courts.

In Re LR, the girl in question had reached the age of nine. She had spent the first six years of her life living in the UK, before being taken to Germany by her mother to live with members of her family. Two years ago, the mother returned to the UK, leaving ‘LR’ behind in Germany living with her grandparents (the mother’s parents), as well as her aunt. The following year, the family began living across the border in Luxembourg during the week because LR was attending school in the country, only returning to their home in Germany at the weekends.

Later in 2013, LR returned to the UK to visit her father. He subsequently made an legal application in relation to her daughter in the English courts. As a result, the question arose as to whether the English courts had jurisdiction to hear the case given the fact that LR lived in Luxembourg and Germany. Jurisdiction across member states is governed by the EU regulation No 2201/2003, commonly known as Brussels II Revised.

A court ruled that the English courts did have jurisdiction, on the basis of the Article 8 of Brussels II Revised. This states that:

“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised [the point at which proceedings begin].”

The judge found that the girl has remained ‘habitually resident’ [resident for legal purposes] in the UK, despite the move to Germany, and that the mother had also accepted the jurisdiction of the English courts by participating in legal correspondence with the father. In addition, said the judge, acceptance of the jurisdiction of the English courts was the in child’s best interests.

The mother appealed and Sir James Munby, the most senior family law judge in the country, ruled in her favour. In a Court of Appeal ruling, he concluded that LR had not in fact been habitually resident in England and Wales since 2012 when she moved to the continent.

He also disagreed with the earlier judge on the issue of the mother’s legal correspondence.

“With all respect, I do not see how this correspondence begins to demonstrate an “unequivocal” (or, indeed, any) acceptance of the jurisdiction by the mother in 2013, particularly at a time when no proceedings had yet been begun and, not least, bearing in mind that when the proceedings were begun it was at the suit of [had been initiated by] the father and not the mother.”

It was in LR’s best interests for the case to be heard in the countries where she now lived, the judge added.

The earlier ruling was set aside and replaced with a new one stating the English courts did not the legal authority to rule on the father’s application.

Read the full judgement here.

Image of the flag of Luxembourg by Kim Tyo-Dickerson via Flickr

Author: Stowe Family Law

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