QD (Habitual Residence) (No.2) [2020] EWCOP 14

​Proceedings relating to the P were adjourned for several months because of the Covid-19 pandemic which meant that he could not return to his habitual residence in Spain.

The P who suffers from Dementia in Alzheimer's disease was wrongfully removed from Spain to the UK by his adult children without the knowledge of the P's second wife with whom the P lived. At a hearing in 2019, the UK court declined primary jurisdiction in accordance with the provisions of Schedule 3 of the MCA 2005, and said that they should yield to the jurisdiction of the Spanish Court because the P remained habitually resident in Spain. Further the UK court held that it would not be appropriate for them to assume jurisdiction based on 'urgency' (per Schedule 3, para.7(1)(c) MCA 2005); exercise of jurisdiction based on para.7(1)(c) would be justified only where substantive orders were necessary in order to avert an immediate threat to life or safety, or where there was an immediate need for further or other protection. While it was important that decisions were made in the P's interests as soon as possible, there was no 'urgency' about the need for substantive orders. However, the Spanish proceedings could not progress whilst the P remained in England. Even if the court did make an order that the P should return to Spain, this was impossible because of the Covid-19 pandemic.

The court declined to make an 'in principle' decision and adjourned the main application to a date to be fixed for further review in 3-4 months. Even if the court were to make an ‘in principle’ decision now, such a decision would have to be subject to a further welfare review/enquiry of some kind as/when the pandemic has passed, in order that the court could then be satisfied that the P remained fit for travel abroad, and that this would not be contrary to his best interests.​

​Read the full text of the judgment on Bailii