Habitual Residence of Child Determines Which Court Has Jurisdiction

With ever increasing global travel, child custody cases which have an international aspect are becoming more common. These in turn can raise questions as to which country’s legal system should assume the responsibility for deciding the issues.



A recent case involving a child whose parents were Spanish and English respectively illustrates the sort of issues that can arise. The child was born in Spain and lived there for the first six years of his life. His parents separated in 2009 and his father brought him to England in 2010. The hearing regarding the child’s place of residence originally took place in the Spanish court, but shortly thereafter both parents agreed in writing to his remaining resident in England with his mother. The agreement also covered contact arrangements.



The Spanish court approved the agreement and this also brought to an end the earlier application for a residence order by the boy’s father.



Later, the mother applied for a residence order in England in respect of the child. She also wished to obtain a variation to the contact order that the couple had agreed.



The question was whether the English court had jurisdiction to decide the matter, or whether matters concerning the child should still be dealt with by the Spanish court, despite there being no ‘live’ issues in Spain. If the latter were the case, the English court would have to apply for a transfer of jurisdiction.



The High Court ruled that it did have jurisdiction to decide the matter, because the child had become habitually present in England.



This case will come as a relief to parents in similar circumstances as had the decision been made that jurisdiction still rested with the Spanish court, the question of how long a foreign court would remain responsible for children no longer resident abroad would have become an open issue.