01 March 2011

In October 2009 a mother took her two month old daughter to Reunion Island, the mother's country of origin, to live there permanently. The father, who had separated from the mother shortly after the child's birth and who did not have parental responsibility for his daughter, not being married to the mother or registered on the birth certificate, found out two days later. This set the scene for applications by both parents in England and in France; first the father seeking the return of the child to England, parental responsibility, shared residence etc; then the mother seeking sole parental responsibility and a declaration of habitual residence in France. The mother's removal of the child had been lawful since the father did not have rights of custody at the time, but the English court ordered the child to be returned to England while the father's applications were determined. The French court made a non-return order on the Father's Hague application and made orders in the mother's favour.

The Court of Appeal sought a preliminary reference from the (European) Court of Justice to clarify (1) the habitual residence test, (2) whether the court could be an ‘institution or body' with ‘rights of custody' under the regulation, and (3) the effect of a non-return order under the Hague Convention in one Member State where another Member State was already seised with proceedings.

The European Court's response in Mercredi v Chaffe Case C-497/10, was that in relation to (1) the habitual residence test for an infant will be by reference to their primary carer's integration in their social and family environment. In respect of (3) there will be no effect, so here where the English court was first seised, the French court's non-return order and subsequent French orders on the mother's applications had no effect on any orders yet to be made by the English court. So far, so predictable. 

Frustratingly however the European Court refused to answer the second question, which was what really interested me. The English Court has traditionally held that rights of custody can be attributed to the court when an application is made which raises matters of custody within the Hague Convention. The European Court could not understand why the question was being asked since it was common ground that the removal of this child had been lawful and the reference to an institution or body appears in Articles 10 and 11 which apply where there has been an unlawful removal or retention. It therefore concluded that the point did not need to be addressed.

So why would the Court of Appeal have asked the question if it wasn't relevant? Personally I think it is relevant: if the English court has rights of custody resulting from the father's application and makes a return order, then surely the mother's refusal in the face of that order will be a breach of the court's rights of custody, and the retention of the child will be unlawful. Even if my assessment of this is wrong, would it have taken the European Court that long to have addressed the issue, perhaps asking the Court of Appeal for more of an explanation if it felt necessary? Clearly the international judicial communication and cooperation so often encouraged in the interests of saving time and cost (not to mention plain common sense) doesn't apply to the European Court. If this issue comes up again, will a further reference be made with all the delay and additional cost that entails? Perhaps our intelligent and experienced judiciary will be less inclined to ask for a ruling, or perhaps they will spell out their request and their reasons for it in words of one syllable. Presumably for now we are as we were, and the English court will continue to assume it has rights of custody where it has been seised with such matters.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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