Opinion of the Advocate General — ECLI:EU:C:2021:126
Date: 2021-02-23
Language of the case: English
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: United Kingdom

summary return of 
P issued on 26 August 2020. It is also listed to consider the mother’s application for a 
specific issue order issued on 26 November 2019. I address the exact nature of both 
applications below. A preliminary issue as to whether this court has jurisdiction has 
arisen. I therefore reserved judgment on this preliminary issue. This is my judgment.  
3. The parents are former partners. They had a religious ceremony, but it appears no legal 
marriage was solemnised.  
4. Both parents are Indian citizens. The father has discretionary leave to remain in the UK 
until 2021. The mother has indefinite leave to remain in the UK.  
5. The father was named on the birth certificate and therefore has parental responsibility 
for P.  
6. The father asserts that until the removal of his daughter to India in October 2018 he was 
her primary carer, her mother going out to work. He says that he consented to the mother 
and P travelling to India for one month only in November 2017 in order to visit the 
maternal family. However, the mother and child stayed until April 2018. He also says 
that he further consented to the mother and child going to India for one month in 
October 2018 for Diwali. When the mother returned to the UK without P he says the 
fallout caused them to argue and eventually to separate in December 2018.   
7. The mother gives a very different account. She denies that the father was P’s primary 
carer or indeed that he had very much involvement in her life at all. For her part she 
says that she is surprised by the father’s application given the lack of interest the father 
had shown P since her birth. She says that the date of separation was much earlier than 
December 2018; rather, it was around June/July 2018.   
8. Further, the mother says that the father was abusive towards her and the child during 
the course of the relationship. A Scott Schedule of allegations has been prepared and 
replied to, but has not yet been considered at a fact-finding hearing. Due to the alleged 
domestic abuse, the mother says she fled to India in November 2017 for a period of 
four months as she had no support in the UK. Following further alleged domestic abuse, 
she says that she fled definitively with P to India again in October 2018.  
9. The father further asserts that he travelled to India between March and May 2019 to 
look for P but was told by the mother not to visit the child. The mother says that she 
was aware of the father’s trip but that he showed no interest in P during this time. He 
says that when he went to India, the mother brought P back to the UK and that when he 
returned to the UK the mother took P back again to India. This is disputed by the mother 
who says she brought P temporarily back to the UK in April 2019 for just under two 
weeks. This was done because P was not permitted under Indian immigration rules to 
stay in India for more than 180 days.  
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10.  It is not disputed that P has not seen the father since 2018. The mother asserts that P 
has been continuously in India since April 2019, a period of 18 months, and that in that 
period has not set foot in England.  The father does not know if this is true but has not 
been in a position to dispute it. 
11.  The father has since married another woman and had another child. He would like P to 
live with him, alternatively to have contact with her. The mother remains in England. 
She would like P to remain for the foreseeable future in India with the maternal 
grandmother. In the longer term she would like P to spend extended periods in India 
but also to spend time in England. In any event she says that because of the ongoing 
global health crisis P should remain in India.  
12.  Even making full allowance for the mother’s case, it is strongly arguable that her 
conduct amounted to a wrongful removal of P to, and/or retention in, India. 
13.  On 26 November 2019 the mother applied to the Family Court at Chelmsford using 
Form C100 for a specific issue order for “permission to change jurisdiction of the 
child”. This was an unusual form of words, but it is evident that what the mother was 
asking for was a declaration that P was habitually resident in India. She had been told 
by immigration authorities in India that she needed such a declaration or order before 
the immigration status of P in India, a British citizen, could be regularised. Within the 
application form the mother raises the issue of habitual residence writing: “the father is 
an Indian national and the child is temporarily in India on a visa. The mother seeks to 
allow her to remain”.     
14.  The father says he had no notice of the mother’s application until 5 August 2020. There 
was a hearing on 16 December 2019. The order from that hearing records that the court 
was satisfied that it had jurisdiction based on habitual residence. I questioned counsel 
as to how that view could have been formed when the child had been living in India for 
over a year (save for two weeks in April 2019). It seems probable that the circuit judge 
was not alerted to this issue because the mother’s application notice states that “the 
mother is the only person caring for the child” and of course the mother was in the 
jurisdiction. This statement was significantly inaccurate because the child was in fact 
being cared for by the maternal grandmother in India.  
15.  There was a further hearing in the mother’s application on 7 August 2020. The order 
further compounds the mischaracterisation of the mother’s application as an application 
for permission to temporarily remove P from the jurisdiction.  
16.  On 26 August 2020 the father filed his application in the High Court for orders under 
the inherent jurisdiction in Form C66. In Box 3 of the application, where the applicant 
sets out what he wants the court to do, the father wrote: 
“1. To bring back the child to the UK from India who is a British 
citizen or any other country where the child is confirmed to be 
in. 
2. For the applicant (the father) to know whereabouts of the child 
and to have contact with the child. 
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3. If the mother is also in India or elsewhere then make an order 
for the mother to return to the UK jurisdiction along with the 
child. The mother is a permanent resident in UK and having full-
time employment in UK.” 
Thus, the father did not in his application seek that the child be made a ward of court. 
He sought, in effect, an inward return order and a contact order. His application for an 
order that the mother be made to return to the United Kingdom, if she were not already 
here, was not legally tenable and I need say no more about it. 
17.  At a hearing on 7 September 2020 P was made a ward of court. I do not know if this 
was of the court’s own motion or if the father made an impromptu application for this 
at the hearing. I do not know what attention was paid to the question of the jurisdiction 
of the court to entertain the father’s application. The position statement prepared in 
advance of the hearing by counsel then representing the mother runs to only two pages 
and does not raise the issue of jurisdiction although counsel reserved her “position to 
amend her positions” (sic).  
18.  The order as made by the court recites the parties’ apparent agreement that England and 
Wales is the correct jurisdiction. It says: 
“Jurisdiction 
H.  It has been accepted by both parents that the courts of 
England and Wales have jurisdiction in matters of parental 
responsibility over the child” 
However, the agreed order submitted jointly to the court by counsel for both parties did 
not recite this agreement. Rather, it recited the court’s satisfaction that it had 
jurisdiction. It said:  
“9.  The court was satisfied on the basis of the evidence presently 
filed which was not disputed that: …  
(b) The parents and child were habitually resident in the 
jurisdiction of England and Wales” 
It is unclear why the agreed draft filed by the parties and the order made by the court 
were so materially different in this respect.  
19.  The mother has subsequently sought permission to appeal the order making P a ward 
of court. The grounds of appeal make clear that the mother disputed that the child is 
habitually resident in England and Wales and that this court has jurisdiction. The 
decision of the Court of Appeal regarding the grant of permission is awaited.  
20.  The order from a further hearing on 16 September 2020 again recites the parties’ 
acceptance that England and Wales is the correct jurisdiction. Again, I do not 
understand how that came to be. In counsel’s position statement for the hearing on 16 
September 2020 the mother emphatically disputed the court’s jurisdiction to make 
substantive orders.  
 
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Jurisdiction   
21.  Jurisdiction in this case is governed by two pieces of legislation namely Council 
Regulation (EC) No 2201/2003 (“Brussels 2”) and sections 1 – 3 of the Family Law 
Act 1986. Brussels 2 has direct superior effect, at least for the next two months, and is 
the first port of call (see Re A (Children) [2014] AC 1 at [20]). Brussels 2 confers 
jurisdiction on a member state in matters of parental responsibility in a number of 
circumstances, of which, for the purposes of this case, the following are relevant: 
i) Article 8: where the child is habitually resident in the member state at the time 
that the court there is seised; 
ii) Article 12: where jurisdiction is prorogued by the parties in favour of a member 
state; and  
iii) Article 10: where jurisdiction is retained by a member state in cases of child 
abduction. 
22.  Sections 1 – 3 of the Family Law Act 1986 do not add any possible additional 
jurisdictional grounds on the facts of this case. On the facts of this case the father must 
prove jurisdiction under Brussels 2, articles 8, 12 or 10. If he does not do so his 
application should be dismissed. The mother accepts that her application was entirely 
misconceived, both in the absence of jurisdiction to make it, and in the nonsensical 
relief that it sought, and that it should therefore be dismissed. 
Article 8: habitual residence 
23.  I therefore turn to article 8 and the question of habitual residence. There have been at 
least three decisions of the Court of Justice and five from the Supreme Court about the 
extremely simple concept of habitual residence. At the end of the day all the learning 
always comes back to paragraph 56 of the decision of the Court of Justice in Mercredi 
v Chaffe [2012] Fam 22, where it is stated:  
“The concept of habitual residence … must be interpreted as 
meaning that such residence corresponds to the place which 
reflects some degree of integration by the child in a social and 
family environment.  To that end, where the situation concerned 
is that of an infant who has been staying with her mother only a 
few days in a Member State -- other than that of her habitual 
residence -- to which she has been removed, the factors which 
must be taken into consideration include, first, the duration, 
regularity, conditions and reasons for the stay in the territory of 
that Member State and for the mother’s move to that State, and, 
second, with particular reference to the child’s age,  the mother’s 
geographic and family origins and the family and social 
connections which the mother and child have with that Member 
State.  It is for the national court to establish the habitual 
residence of the child taking account of all the circumstances of 
facts specific to each individual case.” 
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24.  I make the following observations: 
i) The exercise is factual from first to last. 
ii) The intentions of the actors are facts, just like any other facts. They are not 
determinative. Habitual residence can be established notwithstanding the mental 
opposition of the actors or some of them. There are many situations where 
circumstances will dictate habitual residence contrary to the wishes and 
intentions of the person in question.  I note the reference to Napoleon Bonaparte 
and Robinson Crusoe by the full court of the Family Court of Australia in the 
abduction case of Zotkiewicz v Commissioner of Police No. 2 [2011] Fam CA 
FC, 147 at [117]. 
iii) Habitual residence must be distinguished from mere temporary presence (see 
Mercredi v Chaffe at [51]). In the explanatory report to the 1996 Hague 
Convention at paragraph 40 Mr. Lagarde states: 
“Thus … the temporary absence of all the child from the place 
of his or her habitual residence for reasons of vacation, of school 
attendance or of the exercise of access rights, for example, did 
not modify in principle the child’s habitual residence.” 
However, there is no requirement of permanent residence, as Lord Reed 
explained in AR v RN (Scotland) [2016] AC 76 at [16] where he said: 
“It is therefore the stability of the residence that is important, not 
whether it is of a permanent character. There is no requirement 
that the child should have been resident in the country in question 
for a particular period of time, let alone that there should be an 
intention on the part of one or both parents to reside there 
permanently or indefinitely.” 
25.  At the time that the father made his application on 26 August 2020 P had been in India 
for 22 months living with the mother’s own mother. In that period, she spent two weeks 
in the United Kingdom in April 2019. Since then she has not set foot in this country. 
26.  Even allowing for the father’s opposition to this state of affairs it simply cannot be 
disputed that as at 26 August 2020 P was fully integrated in an Indian social and family 
environment. Citizenship apart, her concrete factual connections with England were 
non-existent. The use of the word “temporarily” by the mother in her misconceived 
application of 26 November 2019 does not alter the concrete factual situation. 
27.  I find as a fact that on 26 August 2020 P was habitually resident in India and that there 
is therefore no jurisdiction in this case under article 8. 
Article 12: prorogation 
28.  I turn to article 12. Although neither counsel referred to this in their principal position 
statements it seemed to me that it was potentially relevant in the light of the recitals 
contained in the orders of 7 September 2020 and 16 September 2020. 
29.  So far as is material to this case article 12 states: 
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“(3) The courts of a Member State shall also have jurisdiction in 
relation to parental responsibility in proceedings …where:  
(a) the child has a substantial connection with that Member State, 
in particular by virtue of the fact that one of the holders of 
parental responsibility is habitually resident in that Member 
State or that the child is a national of that Member State;  
and  
(b) the jurisdiction of the courts has been accepted expressly or 
otherwise in an unequivocal manner by all the parties to the 
proceedings at the time the court is seised and is in the best 
interests of the child.”  
30.  In Re I (A Child) [2010] 1 AC 319 the Supreme Court held that article 12 was not 
confined to a claimed prorogation in favour of another member state; rather, there was 
no territorial limitation on its application. Therefore, it was possible for the parties to 
prorogue jurisdiction in favour of a non-member state. It was further held that 
notwithstanding the literal meaning of article 12(3)(b) it was possible for the 
unequivocal acceptance of the jurisdiction of the courts of the other place to have 
occurred after the court of the member state had been seised: see Lady Hale at [35] and 
Lord Collins at [59].  
31.  However, in L v M (R intervening) [2015] Fam 173 the Court of Justice stated: 
“55. According to the actual wording of article 12(3)(b) of 
Regulation No 2201/2003, the jurisdiction of the court chosen 
must have “been accepted expressly or otherwise in an 
unequivocal manner by all the parties to the proceedings at the 
time the court is seised”. Article 16 of that Regulation states that 
a court is deemed to be seised, in principle, at the time when the 
document instituting the proceedings or an equivalent document 
is lodged with the court. 
56 The clear wording of that provision, read in the light of article 
16, thus requires the existence to be shown of an agreement, 
express or at least unequivocal, on the prorogation of jurisdiction 
between all the parties to the proceedings, at the latest at the time 
when the document instituting the proceedings or an equivalent 
document is lodged with the court chosen.” 
32.  Therefore, the father must show, as at 26 August 2020, that the mother unequivocally 
accepted the jurisdiction of the English court. Now, it might be said that the recitals in 
the orders of 7 and 16 September 2020 provide compelling evidence that, at least at that 
time, the mother accepted the jurisdiction of the English court. However, as I have 
explained above, the origin of these recitals is extremely unclear, and it would not be 
justifiable for me to rely on them to fix the mother with an unequivocal acceptance of 
the English jurisdiction. On the contrary, it is clear that at the time she was contesting 
the jurisdiction of the English court. In my judgment those recitals cannot be used by a 
process of relation-back to fix the mother with unequivocal acceptance of the English 
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jurisdiction on 26 August 2020. Neither can the fact that the mother applied for some 
kind of declaration on 26 November 2019 be taken as an unequivocal acceptance by 
her of the jurisdiction of the English court to deal with all child arrangements and 
specific issues in relation to P. I have explained above how her application was 
completely misconceived. At its highest it was for a declaration of some type. 
33.  I find as a fact that at no time up to 26 August 2020 did the mother unequivocally accept 
that the English court had jurisdiction to deal with parental responsibility issues 
concerning P. 
Article 10: child abduction 
34.  I turn to article 10. This provides: 
“Jurisdiction in cases of child abduction  
In case of wrongful removal or retention of the child, the courts 
of the Member State where the child was habitually resident 
immediately before the wrongful removal or retention shall 
retain their jurisdiction until the child has acquired a habitual 
residence in another Member State and:  
(a) each person, institution or other body having rights of custody 
has acquiesced in the removal or retention; or  
(b) the child has resided in that other Member State for a period 
of at least one year after the person, institution or other body 
having rights of custody has had or should have had knowledge 
of the whereabouts of the child and the child is settled in his or 
her new environment and at least one of the following conditions 
is met:  
(i) within one year after the holder of rights of custody has had 
or should have had knowledge of the whereabouts of the child, 
no request for return has been lodged before the competent 
authorities of the Member State where the child has been 
removed or is being retained;  
(ii) a request for return lodged by the holder of rights of 
custody has been withdrawn and no new request has been 
lodged within the time limit set in paragraph (i);  
(iii) a case before the court in the Member State where the 
child was habitually resident immediately before the wrongful 
removal or retention has been closed pursuant to Article 
11(7); (iv) a judgment on custody that does not entail the 
return of the child has been issued by the courts of the Member 
State where the child was habitually resident immediately 
before the wrongful removal or retention.” 
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35.  A literal interpretation of these provisions, uninfluenced by commentary or precedent, 
clearly suggests that the article is addressing a jurisdictional competition between two 
member states. In a case of abduction the original member state will retain jurisdiction 
until, first, the child has acquired habitual residence in the second member state to 
which she has been taken or kept; and second,  that there is either proof of acquiescence 
by the left behind parent, alternatively proof of inaction by him for at least a year after 
he knew where the child was. The article by its terms provides a legal machinery for 
the bringing to an end of the retained jurisdiction of the original member state in favour 
of the second member state where the child is habitually resident. The literal language 
of the article clearly confines its territorial scope to the member states of the European 
Union. 
36.  This interpretation is reflected in the Brussels 2 Practice Guide issued in 2014 by the 
European Commission.  At para 4.2.1.1 it states: 
“Courts of the Member State of origin to retain jurisdiction 
To deter parental child abduction between Member States, 
Article 10 ensures that the courts of the Member State where the 
child was habitually resident before the unlawful removal or 
retention (“Member State of origin”) remain competent to decide 
on the substance of the case also thereafter. Jurisdiction may be 
attributed to the courts of the new Member State (“the requested 
Member State”) only under very strict conditions” 
37.  Another reason for interpreting this article to confine its territorial scope to the member 
states is that were one not to do so it would leave the retained jurisdiction in the original 
member state extant indefinitely. This is because it would simply say, in a case where 
the abduction was to a non-member state: 
“In case of wrongful removal or retention of the child, the courts 
of the Member State where the child was habitually resident 
immediately before the wrongful removal or retention shall 
retain their jurisdiction.” 
38.  Therefore, the original state would be in a stronger position jurisdictionally vis-à-vis a 
non-member state than a member state. This is very difficult to understand. 
39.  However, an interpretation which favoured a global reach of article 10 was adopted by 
the Court of Appeal in Re H (Abduction: Jurisdiction) [2014] EWCA Civ 1101, [2015] 
1 WLR 863, [2015] 1 FLR 1132 at [38] –[53] per Black LJ. In that case the children 
had been in Bangladesh for nearly 6 years. The Court of Appeal held that while the 
English court retained jurisdiction under article 10, that jurisdiction would nonetheless 
not be exercised and the application for a return order would be dismissed. It can 
therefore be seen that strictly speaking the decision as to the existence of a retained 
jurisdiction in England under article 10 was obiter dicta.  
40.  The global reach interpretation has not been favoured by the Court of Justice. In UD v 
XB (Case C-393/18 PPU) Advocate General Saugmandsgaard Øe delivered an opinion 
on 20 September 2018 where he said at Footnote 4: 
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“By contrast, certain provisions of the Brussels IIa Regulation 
dealing with jurisdiction refer specifically, as their wording 
indicates, to potential conflicts of jurisdiction between the courts 
of several Member States (see Articles 9, 10, 15, 19 and 20 of 
that regulation). Moreover, the provisions of the Brussels IIa 
Regulation on recognition and enforcement are applicable only 
to judgments delivered by the courts of the Member States (see 
the order of 12 May 2016, Sahyouni (C‑281/15, EU:C:2016:343, 
paragraphs 19 to 22), and the judgment of 20 December 2017, 
Sahyouni (C‑372/16, EU:C:2017:988, paragraph 27)). It is also 
common ground that the application of Article 11 of that 
regulation, dealing with the return of the child, assumes that the 
removal or retention of the child occurs from one Member State 
to another. In sum, it is germane to enquire, not about 
geographical scope of the Brussels IIa Regulation in its entirety, 
but about the applicability of each of its provisions.” 
41.  On 17 October 2018 the Court of Justice delivered a judgment where they agreed with 
this aspect of the Advocate General’s opinion. At [33] the court said: 
“As the Advocate General observes in points 23 and 25 of his 
Opinion, it follows that, unlike certain provisions of Regulation 
No 2201/2003 concerning jurisdiction such as Articles 9, 10 
and 15, the terms of which necessarily imply that their 
Application is dependent on a potential conflict of jurisdiction 
between courts in a number of Member States, it does not follow 
from the wording of Article 8(1) of that regulation that that 
provision is limited to disputes relating to such conflicts.” 
42.  It is tolerably clear, therefore, that both the Advocate General and the Court of Justice 
interpret article 10 as applying only to a jurisdictional dispute between member states. 
However, this aspect of their rulings was not strictly necessary for the decision in hand, 
namely the scope of article 8, and can therefore also be characterised as obiter dicta.  
Wardship 
43.  At this point I divert to deal with the wardship. The father’s application was made to 
the High Court pursuant to the inherent jurisdiction although it sought no more than a 
specific issue order (namely the return of the child) and a contact order. It did not seek 
wardship. In Re N [2020] EWFC 35, following the Supreme Court decision of  Re NY 
(A Child) [2019] UKSC 49, I held at [9] that an applicant seeking an inward return order 
would need to demonstrate strong reasons of exceptionality to justify applying to the 
High Court to exercise its inherent powers rather than applying to the statutory Family 
Court to exercise its statutory powers. I observed that it was hard to conceive of 
circumstances where approaching the High Court would be justified. It has not been 
explained to me what the exceptional circumstances are that justify approaching the 
High Court. At all events, approaching the High Court did not create any additional 
ground of jurisdiction. Even if the father had confined his application to no more than 
a bare order for the return of his daughter that would have been covered by Brussels 2: 
see Re A (Children) at [29].  
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44.  In Re B (a child) [2016] AC 606 the Supreme Court considered whether the High Court 
could exercise its inherent powers in respect of a child who was a British citizen but in 
respect of whom jurisdiction could not be established under either Brussels 2 or sections 
1- 3 Family Law Act 1986. At [85] Lord Sumption (who was not in a minority on this 
point) stated: 
“[The] inherent jurisdiction should not be exercised in a manner 
which cuts across the statutory scheme. If, as Lady Hale and 
Lord Toulson suggest, the use of the inherent jurisdiction is not 
reserved for exceptional cases, the potential for it to cut across 
the statutory scheme is very considerable. I have no doubt that it 
would do so in this case. In the first place, it would fall to be 
exercised at a time when the child will have been with her mother 
in Pakistan for at least two years, and will probably have become 
habitually resident there. Secondly, it seems plain that if an 
application under the inherent jurisdiction had been made by, 
say, an aunt or a sister of the respondent, there could be no 
ground for acceding to it. It is necessary to make this point in 
order to remind ourselves that it is to protect her relationship with 
the child on the basis that she should be regarded as a co-parent 
that the appellant is invoking the inherent jurisdiction of the 
court. The real object of exercising it would be to bring the child 
within the jurisdiction of the English courts (i) so that the court 
could exercise the wider statutory powers which it is prevented 
by statute from exercising while she is in Pakistan, and (ii) so 
that they could do so on different and perhaps better principles 
than those which would apply in a court of family jurisdiction in 
Pakistan. Thirdly, this last point is reinforced by the 
consideration that the appellant’s application in the English 
courts is for contact and shared residence. This is not relief which 
the statute permits to be ordered under the inherent jurisdict ion, 
in a case where there is no jurisdiction under the Council 
Regulation or the 1996 Hague Convention. I do not accept that 
the inherent jurisdiction can be used to circumvent principled 
limitations which Parliament has placed upon the jurisdiction of 
the court. For these reasons, in addition to those given by the 
judge and the Court of Appeal, I do not think that an order for 
the child’s return could be a proper exercise of the court’s 
powers.”  
45.  In my judgment, it would be wholly unprincipled, and a wrong exercise of the court’s 
powers, for me to make orders on the father’s application pursuant to the High Court’s 
inherent powers in circumstances where he has not established jurisdiction under either 
Brussels 2 or sections 1 – 3 Family Law Act 1986. 
46.  Wardship does not take the matter any further. FPR PD12D para 1.3 states: 
“The court's wardship jurisdiction is part of and not separate 
from the court's inherent jurisdiction. The distinguishing 
characteristics of wardship are that:  
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(a) custody of a child who is a ward is vested in the court; and 
(b) although day to day care and control of the ward is given to 
an individual or to a local authority, no important step can be 
taken in the child's life without the court's consent.” 
47.  It is hard to understand what practical, as opposed to symbolic, power the court can 
exercise in relation to this ward of court in circumstances where the child is in India 
and has been for nearly two years. 
48.  At all events is clear that the wardship does not endow the court with any additional 
power to make the orders that the father seeks. 
Jurisdiction: conclusion 
49.  Accordingly, it is my judgment that the jurisdiction of the court depends on the 
territorial reach of article 10. The legal position is unclear. Therefore, it is appropriate, 
in my judgment, for the following question to be referred to the Court of Justice for an 
urgent preliminary ruling pursuant to article 19(3)(b) of the Treaty of the European 
Union, article 267 of the Treaty of the Functioning of the European Union, and Article 
107 of the Rules of Procedure of the Court of Justice: 
“Does Article 10 of Brussels 2 retain jurisdiction, without 
limit of time, in a member state if a child habitually resident 
in that member state was wrongfully removed to (or retained 
in) a non-member state where she, following such removal 
(or retention), in due course became habitually resident?” 
50.  Pending receipt of the answer to the question the proceedings will be stayed. 
51.  That is my judgment. 
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