E8H Elisa Gimenez Basalo, 2076570

Davina Ramtiane Edwards 2074720

In the District Court

The Family Division of the High Court of England and Wales Registry

In the matter of international child abduction and the petition of sole parental
responsibility.

Between: Marc
(Claimant)

And: Isobel
(Defendant)

Statement of Defence

Filed by Isobel, the Defendant in person.

Word count: 1998

The claim for the return of Nora
1. Statement of the facts
This case concerns Marc (Claimant), Isobel (Defendant), and their daughter Nora. Marc is a Canadian
citizen, while Isobel is a citizen of the UK. They met in Australia, got married, and stayed there for over
three years. Isobel studied drama and worked as an administrative assistant at a theatre and was
contemplating a career on stage and screen. Marc worked in finance. The former couple have a daughter
Nora, who was born in 2020.
In the summer of 2021, Marc is offered a job position in Zurich, he convinces an anxious Isobel to move.
In Zurich, Marc chose to be away from home as much as possible, leaving Isobel the task of raising their
daughter and taking care of the household. Moreover, Marc was unsupportive towards Isobel and was
verbally abusive to her, even in front of their daughter.
Isobel desperately in need of a break, leaves with Nora for the UK to visit her parents. Marc himself
books the plane tickets with an open return date.
While in the UK, Isobel seeks therapy for mental health issues which include post-natal depression and
psychological damage from bullying. She is taking good care of her daughter with the support of her
grandparents. Nora is going to a local nursery group and has weekly swimming lessons.
It took Marc 10 days and a cowoker to ask about his child and wife, for him to realise that they had not
returned yet.

2. Characterization of the nature of the claim

The Claimant characterises this case as one of international nature. Considering the facts and the
nationalities of the parties, the Defence agrees.

2.1 Private International Law question

The private international law question is on the law applicable in this case.

2.2 Relevant legal sources

An international legal source relevant to this case is the Hague Convention on Child Abduction 1980.1
Thus, the Defence agrees with the Claimant, as there is no concurrence by the Brussels II regulation.2 The

1
The Hague Convention on the Civil Aspects of International Child Abduction [1980]
2
Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial
matters and the matters of parental responsibility, and on international child abduction (2019) OJ L178

1
Defence also wants to add the Hague Convention on Parental Responsibility and Protection of Children
1996.3

2.3 Scope of the Convention

The Defence agrees with the Claimant that the substantive, geographical, and temporal scopes are met,
based on Articles 1, 2, and 4 of the convention.4 The Defence recognizes that this case deals with a child
under the age of 16, who is currently a habitual resident in a contracting state and therefore agrees.
Defence allows for the use and application of the Hague Convention on Child Abduction.

3. Response arguments
3.1 Wrongful retention
The Claimant claims that there is a basis for the wrongful retention of Nora, the Defence disagrees.
Although article 3 of the Convention5 gives ground for the wrongful retention of Nora, Article 13 of the
Convention6 allows certain exceptions. There are two circumstances under which the State is not bound to
order the return of Nora. These exceptions include when the person having care of the child consented to
the retention or there is a grave risk that upon return, the child would be exposed to psychological harm or
place the child in an intolerable situation. In this case, both exceptions can be argued in favour of the
Defendant. The Claimant virtually consented to the retention of Nora when he bought plane tickets with
an open return. This indicates that the Claimant allowed the Defendant to choose a return date. Moreover,
the return of Nora to Switzerland would expose her to psychological harm and an intolerable situation.
The Claimant is not only accused of causing psychological harm to the Defendant but he is also accused
of work-place bullying and gender-based discrimination. In addition, the Claimant is not in the position to
take care of Nora considering he has never done so and does not have the time to. Thus, there is no
wrongful retention of Nora.

3
Hague Convention on Parental Responsibility and Protection of Children [1996]
4
HCCA 1980, art 1, 2 and 4
5
Ibid, art 3
6
Ibid, art 13(a)(b)

2
3.2 Rights of Custody
The Claimant claims that he has rights of custody, the Defence agrees. The Defence recognizes that Marc
holds the rights of custody over Nora. However, as argued above, that alone is not sufficient to claim that
his rights have been breached. Marc’s behavior and abusive traits towards the mother of his child and his
former coworkers, shows that it is dangerous for Nora to be under his care.

3.3 Habitual Residence

The Claimant claims that Nora’s habitual residence is in Switzerland and that the national laws of that
country should apply, the Defence disagrees. The HR for Nora has changed, her center of interests, as
described in case C-497/107, is in the UK. It is where she has a sound support system and where the
Defendant intends to stay with her for the foreseeable future. In Switzerland Nora has no support system,
since her father is not available to take care of her. This means that Nora’s HR has changed under Article
5(2) of HCPC 1996.8

4. Conclusion on the first claim

Based on Article 13 of the Hague Convention on Child Abduction, the retention of Nora cannot
be considered wrongful. Moreover, while Marc has rights of custody, his rights have not been
breached by this retention as it is a lawful one. Lastly, Nora’s habitual residence is in the UK,
therefore, there are no grounds to hear the case in Switzerland.

7
HvJEU, Barbara Mercredi v Richard Chaffe, 22 december 2010, C-497/10, paragraph 51
8
Hague Convention on Parental Responsibility and Protection of Children [1996] , art 5(2)

3
Isobel’s petition for sole parental responsibility
1. Statement of the facts
The former couple had Nora in October 2020 in Australia, after Isobel suffered a miscarriage in 2019.
However, Isobel was depressed after her miscarriage but Marc was dismissive of her trauma and
impatient with her with her slow recovery. During the pregnancy check-ups and at the delivery Marc was
absent and even voiced that he had hoped for a boy.
Isobel, after giving birth and being a first-time mother, felt overwhelmed and upset because she was left
to take care of Nora and the household duties alone. Marc did not assist Isobel, even after concerns were
raised that his wife might be struggling with post-natal depression.
Moving to Zurich proved challenging for Isobel. She was lonely, without any support. She had a language
barrier and Marc made little effort for her to integrate. He was verbally abusive and did so in the presence
of their daughter.
While his wife and daughter were in the UK, Marc only realised that they had not yet returned after one of
his colleagues asked about their whereabouts.
Isobel is having therapy and finally doing better and do not want to have any contact with Marc.
Subsequently, Marc left several increasingly belligerent and threatening voicemails to her .
Further information from Marc’s previous employment in Sydney, indicated that formal warnings were
signed by the latter based on accusations of bullying and gender-based discrimination.

2. Characterization of the nature of the claim

The Defence agrees with the Claimant that the present case has an international aspect.

3. Private international law question

The Defendant agrees with the Claimant on the private international question

4. Relevant legal resources

The international instruments that is considered in this assessment are the HCPC 19969 will be used since
the UK and Switzerland are Contracting Parties. Therefore, the Defence agrees with the Claimant on that
issue.

9
Hague Convention on Parental Responsibility and Protection of Children [1996]

4
4.1 Scope of the Convention
Regarding the assessment of the scope of applicability; the substantive; the temporal; the geographical,
the Defence agrees with the Claimant’s contention. The Defence further claims that regarding the
applicable law, Art 20 has a universal scope and it is to be used along with Article 1510. Hence, The
Defence agrees that there is no concurrence.

5. Response arguments
5.1. Jurisdiction and Habitual residence
In applying the HCPC 1996 to Isobel’s case, Art 5(1) is clear that the country of habitual residence(HR)
has jurisdiction in the issue of parental responsibility. And that is to the exception in Art 5(2), whereby a
change in HR will lead to a change in jurisdiction to the new HR. Hence, the Defence affirms that the new
HR of Nora is the UK following C-497/10 (Mercredi)11 consideration of ‘centre of interests’. Thus, based
on the fact that Nora attends a nursery and swimming lessons, and has her grandparents in a country
where the language spoken is familiar to her, meets the definition set above. The Defence further contends
that Isobel, against the statement of the Claimant, did not agree to the visit to the UK being solely for
vacation purposes and visiting her parents, since Isobel had already contacted nurseries in the UK and was
requesting application information for Nora’s attending primary school in the year 2023/24 and 2024/25.

6. Applicable Law.
6.1 Based on Jurisdiction
When assessing the applicable law, Art. 15, dealing with the status of parental responsibility will be used
against Art 16 suggested by the Claimant. Art 15(1) states that in exercising their jurisdiction, the
Contracting Party should use their own law. Thus, the affirmation of the Claimant that Switzerland’s law
is to be applied in the determination of the sole parental responsibility claim over Nora does not stand,
following the previous reasoning whereby it has been clearly demonstrated that the UK has jurisdiction in
the issue at hand and subsequently UK’s law should be applied.

10
Hague Convention on Parental Responsibility and Protection of Children [1996], art 15, 20
11
HvJEU, Barbara Mercredi v Richard Chaffe, 22 december 2010, C-497/10, paragraph 51

5
6.2 Substantial connection.
If the exception provided in Art 15(2) is to be applied, substantial connection to the UK is supported by
the fact that although the family moved to Switzerland the previous year, Nora has not attended any
nursery there; Isobel and Nora do not speak the language; and they are not integrated into any expat
group. Meaning that apart from her mother being the main caregiver and her father Marc being mostly
absent, Nora does not have any social connection that could amount to substantial connection to
Switzerland. Furthermore, the abusive character of Nora’s father towards her mother and his
unwillingness to integrate her into his working expat community, further substantiates the argument of no
substantial connection. However, compared to living in Switzerland, Nora has her grandparents in the UK
and a routine.

6.3 Change in habitual residence

Contesting the statement made by the Claimant that the exceptions do not apply where Art 15(3) states
that a change in HR will lead to the law of the new HR being applied. The Defence contends that it does
apply based on the application of Art 5 of the HCPC 1996 as dealt with previously, where we have
demonstrated that the new HR is the UK, thus the applicable law is that of the UK.

7. Conclusion on the second claim.

Based on the HCPC 1996, the Defence contends that under Art 5 and Art 15, the UK has jurisdiction over
the matter as well as the use of its own laws in assessing Isobel’s request for sole parental responsibility.

6
 Date: 08/05/2023

Signature: (

Name: Elisa Gimenez Basalo & Davina Ramtiane Edwards

This document is filed by the Defendant in person. The address for service of the Defendant
is 29 Ramsgate Rd in Devon.