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International Family Law

The leading authority on international family law

09 JUL 2013

BRUSSELS II REVISED, ART 15: Re HJ (Transfer of Proceedings) [2013] EWHC 1867 (Fam)

(Family Division, Sir J Munby P, 2 July 2013)

The mother's older two children were removed from her care and made subject to final care orders. During the pregnancy with the third child the mother and father fled the jurisdiction for Ireland where the child was born. The Health Service Executive of Ireland was granted and emergency care order and the parents returned to England. The HSE applied under Art 15 of Brussels II Revised for proceedings to be transferred to the English jurisdiction.

The judge found that the child had a particular connection with England due to the parents' habitual residence as well as the fact that the child was an English national and, therefore, found the English court would be best placed to determine matters in the best interests of the child. The judge made an order pursuant to Art 15(1)(b) requesting the English court to assume jurisdiction and pursuant to Art 15 (1)(a) for the HSE to be at liberty to introduce a request to the English court.

The request was accepted. The designated local authority had already accepted the case without the need for a court ruling. The President noted that an inter partes hearing was not always necessary in these circumstances dependant on the reasons put forward as justifying the contention that the transfer should not take place. If there appeared to be some arguable merit in the point, then an inter partes hearing may be appropriate. But if the reasons put forward for opposing the transfer were lacking in any arguable merit, or could properly and fairly be dealt with by the judge on paper and without a further oral hearing, then they should be dealt with accordingly. The delay and expense which was the inevitable consequence of a further hearing should be avoided wherever this can be done whilst still enabling the court to dispose of the matter fairly and justly.

The President took the opportunity to highlight that the use of the words ‘In the inherent jurisdiction of the High Court' in case headings was a solecism which ‘must now stop'. The purpose of ‘In the matter of... heading was either to identify the subject matter of the proceedings or to identify the legislative provision that founded the jurisdiction of the court. As the inherent jurisdiction was inherent in the court it did not need to be inserted into the headings of the case.

 

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