New Judgment: Re A Child [2013] UKSC 60
09 Monday Sep 2013
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On appeal from: [2012] EWCA Civ 1396 and [2013] EWCA Civ 232.
The Court considered whether the High Court has jurisdiction to order the ‘return’ to this country of a small child who had never been present in the country, on the basis that he was habitually resident here or that he had British nationality. The Court of Appeal by a majority allowed the father’s appeal, on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country.
The Supreme Court unanimously allowed the mother’s appeal. Under art 14 of the Brussels II revised Regulation) the common law rules as to the inherent jurisdiction of the High Court continued to apply if the child was not habitually resident in a Member State. The Crown retained the ancient power as parens patriae over those who owe it allegiance as British nationals. Jurisdiction under article 8 of the Regulation depended on where the child was habitually resident. The CJEU had ruled that habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors including the reasons for the family’s stay in the country in question. Four of the Justices held that presence was a necessary precursor to residence. A child could not be integrated into the social environment of a place to which his primary carer had never taken him.
For judgment, please download: [2013] UKSC 60
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII
2 comments
Robert said:
19/09/2013 at 12:33
The question then arrises as to what is a “British national”, given that the “United Kingdom of Great Britain” is not a nation, but a block of nations under treaty agreements. And the question arises as to the de jure status of the “Supreme Court” per se, given that under treaty agreement English law must be observed in England and Scottish law in Scotland. Under English law like it or not the House of Peers are the highest of Her Majesty’s courts, it is Her Majesty’s Great Council, and they must judge according to the ancient laws of England. The only supreme power above them would be a plebiscite of the commonalty of the realm, the representatives of the commonalty are restricted to the common and constitutional law of England regardless of their wishes, by treaty and oath. So if the “Supreme Court” is de facto, then are the judgements de facto? political combinations have tended to believe their own lies, that the United kingdom parliament has “unlimited power”. This is a very dangerous road to travel, the claiming of the Uk parliament as a tyranny bound by no laws, when they are bound by oath and treaty. My allegiance is to the de jure throne of England, I am a subject of the realm, could the British “Supreme Court” throw me out of England? Ultimately I answer only to the people of England, and ultimately so does the British “Supreme Court”, if my allegiance is to the throne of England I can come and go as I like, it has nothing to do with the British “Supreme Court” or Her Majesty’s Parliament, which are both further bound by the coronation oath. Is there any point in debating “Supreme Court” judgements? when the institution may be “contra legem et consuetudinem Angliae” as expressed in ancient warrants. And “magis est ut res valeat quam pereat”, which if interpreted right indicates that all statutes must be compliant with the constitution”. There can be no contempt of court which itself is in contempt of the constitution, if anyone sees it different, please feel free to explain so, it would be interesting to hear, but it might also be treason against Her Royal Majesty, so be carefull.
Anthony Fairclough said:
17/10/2013 at 08:05
Thanks for your thoughts.