International Family Law Matters
In situations where one parent decides to change their country of residence and, without the consent of the other parent, takes the child with them, the issue arises as to which country’s courts have jurisdiction to hear matters concerning the child. In other words, which country has jurisdiction.
The applicable legal act governing jurisdiction, recognition, and enforcement of judgments in family matters—including parental responsibility and cross-border child abduction—is Regulation (EU) of 25 June 2019. The aim of this Regulation is to provide more effective protection for children and parents in cross-border family disputes, including custody issues, contact with the child, and child abduction. It should be noted that this Regulation applies in all EU Member States, with the exception of Denmark. Therefore, it does not apply to cases involving the United Kingdom. In such cases, the jurisdiction of a foreign court regarding matters concerning the child must be assessed in accordance with international legal standards, and in particular:
- The 1996 Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter referred to as the "1996 Hague Convention"),
- Brussels II bis Regulation (for situations predating Brexit) and currently the UK Private International Law (Implementation of Agreements) Act 2020, implementing the 1996 Hague Convention as the primary instrument,
- UK domestic legislation, namely the Family Law Act 1986 and the Children Act 1989.
Pursuant to the above framework, the sole and decisive criterion for determining jurisdiction is the habitual residence of the child at the time the proceedings are initiated (Articles 5 and 8 of the 1996 Hague Convention). The absence of habitual residence within a given country precludes that country’s courts from having jurisdiction.
Habitual Residence of the Child as a Condition for Jurisdiction
The 1996 Hague Convention grants jurisdiction in matters of parental responsibility exclusively to the courts of the State in which the child has habitual residence (Article 5(1)). This jurisdiction arises automatically upon the transfer of habitual residence, without the need for formal recognition. Furthermore, Article 5(2) excludes the possibility of “dual jurisdiction”—only the courts of the child’s habitual residence are materially competent. Article 7 of the Convention allows for the retention of jurisdiction by the courts of the previous habitual residence only in cases of wrongful removal—which does not apply in the present case, as no custodial rights of the other parent were violated.
Additionally, under the case law of the Court of Justice of the European Union (CJEU) and English courts:
“Habitual residence is determined based on the integration of the child in a social and family environment. Physical presence and permanence of intention are decisive.”
— Re A [2009] UKSC 60, Re B [2016] UKSC 4
The absence of habitual residence in England on the date proceedings were initiated—i.e., where the child was not present in the United Kingdom at the time the initial application was filed—means that the child’s habitual residence was in another country (e.g., Poland). This excludes the jurisdiction of English courts pursuant to Article 5(1) of the 1996 Hague Convention.
Special Case: No Parental Responsibility
A particular case arises where, at the time of the child’s departure from the UK, the father did not possess parental responsibility (e.g., not named on the birth certificate, no court order, no agreement with the mother), and no British court had issued an order prohibiting the child’s removal, change of residence, or any protective measures.
Under Article 7(1)(a) of the 1996 Hague Convention, for the previous State to retain jurisdiction, the removal must be “wrongful”—i.e., it must breach the custodial rights of the other parent being exercised at the time. If the father did not hold such rights, the removal of the child cannot be deemed wrongful.
This position is supported by case law and legal commentary, for example:
“A person without parental responsibility cannot invoke Article 7 of the Hague Convention 1996 as a basis to retain jurisdiction.”
— Re D (A Child) [2019] EWHC 2305 (Fam)
“The jurisdiction of the family court cannot be limited by the decision of a foreign court if, at the time of adjudication, there is no real and existing connection between the child and that country.”
— Prof. M. Andrzejewski, Family and Custodial Law, 2023
Similarly, the CJEU (Case C-499/15) emphasized:
“Jurisdiction of the court is based on the place of the child's habitual residence, not on an arbitrary designation by a party to the proceedings.”
Exceptional Jurisdiction – Urgency or Forum Conveniens
Courts of a given State are required to assess whether conditions exist to invoke exceptional jurisdiction as provided in:
- Article 11 of the 1996 Hague Convention, under which:
“In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present shall have jurisdiction to take any necessary protective measures.”
(jurisdiction in situations of immediate necessity to protect the child)
- Article 8 of the Convention, under which:
- Exceptionally, an authority having jurisdiction under Articles 5 or 6 may, if it considers that an authority of another Contracting State would be better placed in the particular case to assess the child’s best interests:
- either request that authority, directly or through the central authority of that State, to assume jurisdiction to take such protective measures as it considers necessary;
- or suspend proceedings and invite the parties to apply to that authority.
- The States to which such requests may be made include:
a) the child’s State of nationality;
b) the State in which the child’s property is located;
c) the State where proceedings for divorce, legal separation, or annulment of the marriage of the child’s parents have been initiated;
d) the State with which the child has a substantial connection.
- The interested authorities may exchange views.
- The authority addressed may assume jurisdiction if it considers this to be in the child’s best interests.
(so-called “forum conveniens” rule)
Consequences of Lack of Jurisdiction
The absence of material jurisdiction of a court renders all its judgments null and void by operation of law (nullity for want of jurisdiction in English legal terminology).
Pursuant to Article 9 of the 1996 Hague Convention:
- If the authorities of the Contracting States referred to in Article 8(2) consider that they are better placed to assess the best interests of the child in a specific case, they may:
- request permission from the competent authority in the State of the child’s habitual residence to assume jurisdiction in order to take necessary protective measures; or
- invite the parties to submit such a request to the authority of the State of habitual residence.
- The relevant authorities may exchange views.
- The requesting authority may assume jurisdiction only if the competent authority in the child’s State of habitual residence consents to it.