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P v P (Divorce: Jurisdiction) [2021] EWHC 2306 (Fam)

Cobb J considers the test to be applied when deciding whether the English Family Court should exercise or decline jurisdiction in divorce proceedings where proceedings had been issued in another jurisdiction during the Brexit transition period.

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The parties were both Romanian. H had acquired UK nationality and W had permanent leave to remain. They had a child C who was a ward of court. While on a visit to Romania in 2019 the husband and wife separated. H withdrew his agreement to C leaving Romania. W, issued wardship proceedings seeking an order that H signed consents allowing M to bring C back to England. H disputed jurisdiction on the basis that C was habitually resident in Romania. W filed a divorce petition in England on and H then issued proceedings in Romania. At the time the divorce petitions were issued in 2020, H was living in England in the parties property and working for the NHS.

By the time of this hearing separate and subsequent proceedings in Romania issued by W about C's welfare were well advanced and Cobb J agreed that the issue of habitual residence of C should first be considered by the Romanian court [14].

However, because the test for the habitual residence of a child for welfare purposes ("the place which reflects some degree of integration by the child in a social and family environment") and that for an adult for establishing jurisdiction for divorce ("centre of interests") are different, he was able to consider the question of the divorce petitions without affecting the decision making of the Romanian court in relation to C's welfare [19-21, 42]

Cobb J decided that the W's proceedings were "lodged" [Art16 and 19 BIIR] when submitted electronically to the English Family Court and not when issued. Therefore, the English Family Court was therefore first seised of the divorce issue. [24-29, 36-37].

He then considered that H (as respondent to the petition) was habitually resident in England as on the facts that was where his "centre of interests" were (work, home and residence of 10 years) and rejected H contention that this was moving to Romania in early 2020 [43-46].

Accordingly, he lifted the stay on W's petition and gave leave to amend it to rely on H's habitual residence to found jurisdiction.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII