Or to put it another way, when a UK residency order was granted in my favour, for my daughter to live with me, did that effectively transfer jurisdiction to the Swiss authorities ?
To cut a long story short, I would much prefer the jurisdiction over my Daughter who stays with me, and not her Mum in the UK, to be transferred to Swiss Courts. Is there anyone out there with any relevant experience ?
No it didn't, especially since the residency order was for your daughter to live with you, rather than for her to live in Switzerland. Currently she has little to no real connection to Switzerland, her domicility is going to be evidently British due to her ties there etc. The below case is relevant only to Brussels II/Europe but the likelihood of changing jurisdiction is greater in this case. In my opinion it's highly unlikely that jurisdiction can be changed, but that until there's something else to go to court about, you won't be able to do anything anyway.
A case in 2008 highlights the difficult issues of jurisdiction relating to children. In this particular case the parents were English and had a child, both parents worked in the Netherlands but the mother moved to London with the child, joined eighteen months later by the father and for eighteen months they lived as a family in Scotland, thereafter moving back to the Netherlands where the child attended a local school. It was then that the marriage broke down and the mother started divorce proceedings in England and the father started proceedings in The Hague so the child could live with him in the matrimonial home in the Netherlands. The mother’s application was made one day after the husband’s and the two applications commenced separately, the divorce to the Decree Nisi. The wife wanted the proceedings in The Hague to be transferred to England, the husband did not. The mother’s application was not successful Munby J. ruled The Hague Court would have to make a decision on the matter although an English Court could apply to The Hague Court for a transfer but The Hague Court would either have to invite the parties to put the matter before the Court in England or make an order referring the matter to the English Court. To do this and exercise its powers under Article 15.1 of Brussels II, The Hague Court would have to decide on three questions: -
1. Whether the child had a particular connection with the relevant other Member State (England).
2. Whether the English Court was better placed to hear the case or part of it, looking at all the circumstances of the case.
3. Decide if the transfer was in the best interests of the child in all the circumstances of the case.
If all three conditions were met The Hague Court would have discretion to transfer the case even though the discretion will be limited.
The Hague Court had already decided that it was the appropriate Court to hear the matter and had been asked by the Court to reconsider its decision, as there were significant changed circumstances. However the Court was not persuaded that those circumstances were such as to entirely change the aspect of the case as to make it highly probable that The Hague Court could justify changing its decision it would have to decide that the changed circumstances were likely to be decisive and in this case this was not so. This was a stringent test, which in most circumstances would be unlikely to succeed.
Thanks. Nice reply.
Just to add weight to my belief, the court order states that she is to live with me in Switzerland. The term used is " ...granted permission to live with him in Switzerland outwith the jurisdiction of the Courts of England and Wales. "
"outwith" means "outside; beyond:"
Therefore it is my interpretation that the English Court has passed on/over Jurisdiction.
Ah. With this new information, yeah it seems that they've specifically given Switzerland the jurisdiction over your daughter.
...and now the spanner in the works. The direction starts with...
"Until further order of the court..."
So the order could be ambiguous, even flawed.
Well this is interesting. I can't see the full order but it might infer or even specify certain aspects of her care or other aspects which they've transferred, but have retained global jurisdiction over the case. They might have transferred every day jurisdiction/visitations etc but reserved the right to take it back.
I think I need to get a Barrister.
Or a biomedical researcher (I'd go for a solicitor myself)
I think one of the best options for you would be to contact Citizens Advice in the UK, and run it by them - nearly all court orders start with the 'until further' clause, this is just a catch all as all circumstances are subject to change.
Or you could ask your solicitor who originally advised you to run over the CO with you and advise accordingly, yes it'll cost but....
When the residency order was originally applied were you resident in Switzerland?
I'd suspect that the jurisdiction remains with the UK Family Court, but will liaise with Swiss system, i.e. if you turn out to be a rampaging axe murderer in Switzerland they will be obliged to notify the UK Family Court.
The original matter was England and Wales jurisdiction and still does until your daughter becomes 18 imho, although you live here if you relocate you may need to contact the UK system to grant another residency order to your new place of residency.
The order was applied for , and made after I had moved to Switzerland.
The key is "Jurisdiction" , or who has say. I tend to believe a UK court cannot dictate to me whilst I remain in Switzerland, and that I yield to the Swiss courts. Whatever I argue, the UK would have to go through the Swiss courts anyhow if I refuse to return my daughter should a new order be made. Then the UK Home and Foreign Office would get involved. The Hague convention deals with and favours habitual residence, and I can clearly argue that my daughter is habitually resident with me in Switzerland. The crux of the matter is, have the English courts lost Jurisdiction, thus can they make an effective order now that my daughter is habitually resident in Switzerland ? I can chew the cud on this, but whatever I believe or fight for, I am going to end up in a Swiss court.
Until further order implies that the UK Judiciary has not lost jurisdiction and has merely allowed her to stay with you ( in Switzerland as you have so stated ). It also implies that the parties may appeal to the UK Courts and vary or set aside the prevailing order , if they can convince the presiding judge.
A local lawyer might advise you better about registering the order in your canton within CH, if at all it is possible.
Just my 2 rappen ( from someone who did the other kind of www - wives, wills and wrecks a long time ago ).
I have some experience in this area. Please take the advice of a English solicitor. This question is too difficult to be answered in a public forum. We do not have full disclosure of your facts and circumstances in any case.
My professional opinion is as follows: it depends. I would need to know all of your specific facts and circumstances. Switzerland is a signatory to the Hague Convention so the jurisdiction of the English courts is not a problem in Switzerland. It is just a matter of time, and is quite routine. If you wish to escape the jurisdiction of the English courts you will have to go to a country which is not a signatory to the Hague Convention (for example, many countries in S America). If you wish to get legal advice on an issue affecting the custody of your daughter you cannot afford to skip seeking professional legal advice, but not from the citizen's advice bureau, but from an experienced solicitor who works in this field.
PM if you want me to help you search for a suitable professional.
You have a residency order, but do you have permission from the child's mother to remove her from the jurisdiction of England and Wales?? Residency is one thing, but to remove your child from the country you need a "leave to remove" order if the other parent refuses to give permission.
I have one and it was a long, bitter and expensive battle because my daughters father refused to "give" his permission, even though we weren't married and he did not support his child.
Anyway, to try and shorten my waffle, we have been out of the country for 2.5 years. After my "leave to remove" order was issued by the UK courts, I have been reliably informed by solicitors that after a 3 month period it automatically reverts to the courts of the country for which you have permission to reside in.
It is also relevant to the country where the child is "habitually resident". If you left the UK without the relevant order then your ex can pursue you. However, all the courts will look at what is in the "child's best interest", if she has been out of the country for a certain period of time and is at school, has a regular routine, friends and is settled it will be extremely difficult and unlikely that she would be returned to the UK. It will also be a costly process for your ex to follow up and it is very unlikely that she will get legal aid as the legal aid system look at what the likelihood is that they would win a case. (if she is unable to fund her own legal council)
To clarify your specific situation I suggest the following. Google search some International family law firms based in the UK, and ring them up. You generally get some free information just by speaking to the solicitor. I have done this many times, I am still fighting with my ex, but there is sod all he can do about it now and he must go through the French system.
Feel free to PM me if I can be of more help....been there and got the T-shirt.
Good luck.
Habitual Residence ( EU )
( CH is not yet in the EU )
UK Courts decided in 2009 that habitual residence is in Spain
i'm not sure what scenario you are contemplating. if your daughter is with you in Switzerland and neither of you return to the UK, what mechanism do you see being used that could compel you to do anything?
It's true, if these things happen (staying put) I can't see a scenario/order taking place that would compel you to act.
Were I the wife, I'd use the Hague Convention in the UK and claim abduction to have CH enforce and order against the spouse domiciled in CH.
Her mother is always changing her mind. The loss of child benefit and tax credits etc may cause her to change her mind yet again. I need to get things stable here, and set my daughters future up until she leaves school, I find it unacceptable that the courts allow residency to be changed willy nilly. I am fully convinced that Switzerland is best for my daughter, but UK Courts pay scant attention to the wishes and feelings of the Father.
If I had a Swiss order in my favour...
if custody has already been granted, then i can't imagine an abduction claim could be entertained.
Given that her Mum put her on the plane and sent her to me, and that she did not contest the residency application, abduction just simply didn't occur.
I tend to think that the HC works in my favour and against the Mother if I can prove 13b and /or habitual residence.