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BRUSSELS II REVISED: Re G (Jurisdiction: BIIR) [2013] EWHC 4017 (Fam)

Date:5 FEB 2014
Law Reporter

(Family Division, Mostyn J, 13 December 2013)

The Italian mother and father were married in Italy and had a child together who was now 5 years old. They moved to England but the marriage broke down shortly after. A decree absolute was granted and the mother sought a residence order and an order granting her permission to take the child to Qatar for 14 months. She also sought a prohibited steps order preventing the father from removing the child from her home apart from scheduled contact periods.

A prohibited steps order was granted and the father opposed the mother's application to remove the child from the jurisdiction and cross applied for a residence order. The parents agreed by consent that they would have shared residence of the child and that the mother would be permitted to remove the child from the jurisdiction for a limited period.

Thereafter the mother and father both returned to work in Italy. The father claimed they reconciled while the mother claims her stay in Italy was temporary. When the father removed the child from school and failed to return him after contact the mother initiated abduction proceedings in the Italian court. She further applied to the Italian court seeking permission to relocate with the child to Finland. The Italian court ordered the child to be returned to the mother but refused her relocation application.

The father obtained orders from the Italian court to locate the child and prevent the mother from removing him from the jurisdiction but it was not possible to serve the orders on the mother. The mother shortly after applied to the English court to vary the previous order and permit her to relocate with the child. The English court took the view that it was seised of matters of parental responsibility and granted injunctions preventing the father from further litigating in Italy, removing the child from the mother's care and made an order permitting the mother to relocate.

In circumstances where the Italian court might have jurisdiction as to the substance of the matter it had to be for the Italian court to determine whether it was seised and if so, to determine the issue of jurisdiction. Pursuant to Art 19(2) of BIIR the proceedings were stayed pending a hearing in the Italian court