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ABDUCTION: Re A (Custody); HA v MB [2007] EWHC 2016 (Fam)

Date:24 AUG 2007

(Family Division; Singer J; 24 August 2007)

The court issued procedural guidance in respect of applications under Art 11 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II Revised) for a return order, pending the coming into force of the revised Family Proceedings Rules 1991 (SI 1991/1247). Cases in which a parent sought an order for return to England and Wales after an earlier foreign Art 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) non-return order should be transferred to the Family Division in London for hearing before a judge of the Division. Where the English court had not been seised of issues concerning the child before the wrongful removal, so that Art 11(7) of Brussels II Revised applied, the parties had 3 months after having been notified of the non-return order by the English court or central authority, 'to make submissions to the court ... so that the court can examine the question of the custody of the child'. The obligation of the court to carry out that examination arose as a matter of indirect jurisdiction; it was at least questionable whether it could be encompassed within the remedies envisaged in the Children Act 1989. If the application were treated as a simple Children Act application, there was a risk that it would proceed in the wrong court. Therefore, in an application made using Children Act forms and procedures the parties should alert judges and court services staff to the nature of the application by marking all forms and other documents lodged in connection with the application 'In the Matter of the Children Act 1989 and/or in the matter of an application pursuant to Art 11(7) of the Brussels II Revised Regulation for the return of the child[ren] from [the member state in question]'. Internal procedures should be put in place to transfer the application at the earliest opportunity from the court of issue to the Family Division. Where Art 11(7) did not apply, because the English court had been seised by one of the parties prior to the removal, the appropriate procedure was to make the application for a return order in the existing proceedings, and to the issuing court, seeking 'directions in the light of the order made in [member state] on [date] declining in reliance upon Art 13 of the Hague Convention on Child Abduction to order the return of the child[ren] to England and Wales'. Such proceedings should then be transferred to the Family Division in London, if the case was not already being heard there.