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PATERNITY: SH v MM and RM [2011] EWHC 3314 (Fam)

Date:19 JAN 2012

(Family Division; Hedley J; 13 December 2011)

The case concerned a one year old child who had been living in Italy with her maternal grandmother since June 2011. Her mother was married at the time of the child's birth and conception and her husband was named on the birth certificate. The mother asserted he was the biological father. Another man (F) asserted that he was father. F made applications for parental responsibility, contact and a prohibited steps order (PSO), but not for a declaration of parentage nor for permission to bring the Children Act proceedings. The district judge made an order prohibiting the child's removal from the jurisdiction, set a return date and made further directions including for samples to be given for DNA testing. The mother took the child to a friend in Belfast and he took the child from Dublin to Italy to the maternal grandparents. The mother held only a Russian passport so could not take the child herself. The court found that the order was properly served on the mother before the removal. The mother wanted to move to Italy to live with the child and her parents and her husband (from whom she was no separated) consented to that. The issue for determination was the effect of the order and whether there had been a wrongful removal.

Absent the order, the mother had been entitled to act as she did - F did not have parental responsibility and had no rights in respect of the decision as to where the child should live. It was arguable that if the removal was lawful, the child's habitual residence would now be Italy.

The District Judge was entitled to make the prohibited steps order in order to hold the ring until the return date. The issue of permission could be dealt with at the return date. At the moment of service, the order was a valid and effective PSO of which the mother was ostensibly in manifest breach.

The effect of the PSO once served was to restrict the mother's parental responsibility and to deprive her of the right to decide where the child should live outside the jurisdiction. The removal was therefore wrongful and pursuant to Art 10 BIIR the child remained habitually resident in this jurisdiction and under the jurisdiction of the English court. This was the case even if BIIR did not apply to the paternity issue.

The mother had to be heard on the issue of F's permission to apply. If permission was refused, that would be an end. If granted then the direction for samples to be taken should be implemented. An order for the return of the child was made to maintain jurisdiction but the order could be stayed and the child could remain in Italy pending the outcome of DNA testing. The return order would also only be appropriate if permission was granted under s10 Children Act.