Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The mother and father, both Slovakian, moved to the UK when the mother was pregnant and just 16 years old. She had been resident at a children's home in Slovakia at a unit for underage mothers from where she ran away and entered the UK with the father on false papers.
Care proceedings were initiated after several mother and baby placements broke down. The child, now 10 months old, was living with foster carers and having weekly contact with the parents. As yet, prospective adopters had not been identified. The guardian reported that the baby reacted negatively to contact with the parents.
The Slovakian authorities wrote to the local authority in England: seeking the return of the mother and child claiming that both remained habitually resident there; claiming that the mother was subject to an order issued by the Slovakian courts which was entitled to recognition and enforcement in this jurisdiction; that this was a case where a request should be made pursuant to Art 15 of Brussels II Revised for a transfer to the Slovakian courts of the proceedings relating to the child. If the mother and child were returned the plan remained for them to return to the mother and baby unit at the children's home the mother absconded from.
It was undisputed that the mother remained habitually resident in Slovakia given the facts that she was subject to a Slovakian care order; she entered the UK on false papers, and that she intended to return. However, the child had not spent a day in Slovakia. Applying the binding authority of ZA and PA v NA (Abduction: Habitual Residence)  EWCA Civ 1396, the child could not be habitually resident in Slovakia and the judge was not satisfied that he had acquired habitual residence in England and Wales either and therefore, this was one of the rare cases where he had habitual residence nowhere, which was expressly contemplated by Art 13. If the baby was not habitually resident here then the court had jurisdiction by virtue of Art 13 of BIIR.
All the requirements of Art 15 were satisfied on the facts of the case and a transfer request would be made.