In SS v MCP  EWHC 2971 (Fam), Dr Charlotte Proudman represented the Mother in a child abduction case in which the Father had applied for the immediate return of the child from India to the UK. The Mother opposed the Father’s application. The court found that the child is habitually resident in India having spent around two years there. However, the court held that the legal position in respect of whether the court retains jurisdiction to make orders in respect of the child was unclear due to the ambiguity of the territorial reach of article 10 of Brussels 2. As such, the court referred the case to the Court of Justice for an urgent preliminary ruling.
The court held:
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.
The Judgment can be found here: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2971.html
Related barristers: Dr Charlotte Proudman