A family was stranded in Brazil by the double blow of the Covid-19 pandemic and the British government placing Brazil on its travel red list. Each of the parents then brought court proceedings, including filing for divorce and interim orders regarding the children.

This article considers the judgment in JC v PC [2021] EWHC 2305 (Fam), a case in which Jenny Bowden and Toby Atkinson of Stewarts acted for the applicant father.

Background

The parties are Brazilian nationals and were married in 2001. They moved to England in 2004, purchasing property in London and being granted citizenship in 2010. They have two children, now aged thirteen and six. They have lived in England since 2004 (save for approximately 12 months when they temporarily returned to Brazil before returning to England in early 2016). Both children are privately educated in England, speak English as their first language and have limited Portuguese. The parties accepted that the family was habitually resident in England before the events leading to this court application.

The family were due to travel to Brazil for the Christmas holidays in mid-December. The mother (M) travelled alone in early November while the father (F) cared for the children in England before travelling with them later that month. Accordingly, the family had been together in Brazil since the end of November 2020.

Due to the pandemic, their pre-booked return flights were cancelled; England then placed Brazil on the red list, preventing direct flights. Thus, the family was stranded in Brazil, and (unbeknownst to F) M sought family law advice in Brazil in early February. In mid-March, F was served with Brazilian court proceedings (divorce, finances and children) and removed from the holiday home the parties were occupying.

Court proceedings

F immediately sought advice in this jurisdiction and, with our assistance, applied under Section 8 of the Children Act 1989 for an order seeking the immediate return of the children to England. He sought to pursue this avenue in circumstances where his daughter (aged 13) was experiencing significant mental health problems and the federal court in Brazil could take one and a half to two years to make an initial decision on the return of the children.

It is as part of F’s Children Act application that this judgment has been reported.

In Brazil, M pursued a divorce, financial claims and interim orders regarding the children. F also initiated proceedings in the Brazilian Federal Courts under the 1980 Hague Convention on child abduction.

Judgment

The purpose of the hearing in August was to determine whether the English court had jurisdiction to hear F’s application, and if so, whether it should exercise that jurisdiction. That question hinged on an assessment of the children’s habitual residence. A key question for the court to consider was when that assessment ought to be made.

On behalf of M, it was submitted that the relevant date to consider habitual residence was “the date of any given hearing in England”. That submission relied on section 2 of the Family Law Act 1986 and Article 5 of the 1996 Hague Convention. M argued that section 3 of the 1986 Act wasn’t engaged. This argument, if successful, would allow the court to consider ongoing attempts to integrate in Brazil by M, as opposed to crystallising the circumstances at the date of F’s application in March.

Conversely, F argued that his primary route to jurisdiction was conferred on the court by section 3 and section 7(c) of the 1986 Family Law Act. The judge accepted that argument. On that basis, the judge determined that 24 March 2021 was “the relevant date” (when the English proceedings were issued). It was that date to which the judge’s consideration of habitual residence would apply.

The judge concluded that the children were habitually resident in this jurisdiction at the date of F’s application and that the court should exercise that jurisdiction. A further hearing was listed to determine F’s substantive application.

Application/summary

Partner Toby Atkinson, who is instructed in this case, says of the judgment: “It recaps several principles established in earlier child abduction cases and provides a useful framework for considering the question of habitual residence. It also demonstrates the different routes to jurisdiction (both domestic and international).”