ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
MR JUSTICE PETER JACKSON
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE VOS
|RE H (JURISDICTION)
Respondent not present
Ms Deirdre Fottrell, Ms Eleri Jones & Mr Mike Hinchliffe (instructed by Cafcass Legal) for the Childrens Guardian
Mr James Roberts & Ms Jennifer Perrins (instructed by Dawson Cornwell) appeared on behalf of the Intervener 'Reunite'
Hearing date : 24th June 2014
Crown Copyright ©
Lady Justice Black:
Joinder of the children as parties and the intervention of Reunite
The issues arising
i) Ground 1: Is there still a 'rule' (hereafter "the 'rule'") that where two parents have parental responsibility for a child, neither can unilaterally change the child's habitual residence?
ii) Ground 2: How does Article 10 of the Council Regulation (EC) No. 2201/2003 (hereafter "Brussels IIR") operate where a child has been wrongfully removed from a Member State where he was habitually resident to a non-Member State or wrongfully retained in these circumstances?
iii) Ground 3: Was Peter Jackson J wrong to decline to exercise the parens patriae jurisdiction?
iv) Ground 4: Was the judge wrong to conclude that had he exercised his jurisdiction, he would not have made the orders that the father sought?
Ground 1: the "rule"
"39. ….the English courts have been tempted to overlay the factual concept of habitual residence with legal constructs. The most important of these is the 'rule' that where two parents have parental responsibility for a child, one cannot change the child's habitual residence unilaterally….
40. ….It is worth noting that the "rule" has not been universally adopted: see, for example, Mozes v Mozes 239 F 3rd 1067 (9th Circuit 2001); SK v KP  3 NZLR 590. Nor is there a hint of it in the European jurisprudence. It would not inevitably be a charter for abduction. Both the 1986 Act and the Regulation contain provisions designed to retain jurisdiction in the country where a child was formerly habitually resident for at least a year after his wrongful removal or retention: see 1986 Act, s 41 (albeit that it has been held that this does not apply as between the United Kingdom and other countries: Re S (A Child: Abduction)  EWCA Civ 1941,  1 FLR 1008) and Regulation, article 10….. As Lord Hughes points out, article 10 provides a good reason why the courts of England and Wales retain jurisdiction over the three older children in any event. The Hague Child Abduction Convention is concerned with wrongful removal or retention of a child from the country where he was habitually resident immediately before that wrongful removal or retention: see article 3. As Lord Hughes also points out, the "rule" is more relevant in retention than removal cases, but the answer may lie in treating the unilateral change of habitual residence as the act of wrongful retention, even if it takes place before the child was due to be returned. The matter may therefore require fuller consideration in another case, but it is not necessary for us to express a concluded view."
"It may well be that the correct view is that unilateral acts designed to make permanent the child's stay in State B are properly to be regarded as acts of wrongful retention, notwithstanding that the scheduled end of the child's visit has not yet arrived. Such a conclusion is not, to my mind, in any way precluded by the decision of the House of Lords in Re H (Minors) (Abduction: Custody Rights)  2 AC 476, which holds no more than that a specific act of retention must be identified, and it is consistent with the decision of Wall J in In re S (supra). The significance of the point here is simply twofold. First, Brussels II Revised is, notwithstanding that in the event of conflict it prevails over the 1980 Hague Convention (see Article 60), clearly meant to co-exist consistently with that Convention remaining effective – see for example Articles 10 and 11 – and it ought to be construed wherever possible with that very important objective in mind; in particular the concept of habitual residence needs to be construed similarly in each of the two instruments. Second, providing this approach is adopted, it is unlikely that even in this situation it is necessary to formulate a rule of law that a child's habitual residence cannot unilaterally be changed by one parent where two parents both have parental responsibility." (§78)
"22. Both Lord Hughes and I also questioned whether it was necessary to maintain the rule, hitherto firmly established in English law, that (where both parents have equal status in relation to the child) one parent could not unilaterally change the habitual residence of a child (see In re S (Minors) (Child Abduction: Wrongful Retention)  Fam 70, approved by the Court of Appeal in Re M (Abduction: Habitual Residence)  1 FLR 887). As the US Court of Appeals for the Ninth Circuit pointed out in In re the application of Mozes, 239 F 3d 1067 (9th Cir 2001), at 1081, such a bright line rule certainly furthers the policy of discouraging child abductions, but if not carefully qualified it is capable of leading to absurd results (referring to EM Clive, "The Concept of Habitual Residence"  Juridical Review 137, at 145). The court continued:
'Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its [sic] habitual attachment to a place even without a parent's consent. Even when there is no settled intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if 'the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place' [referring to the Scottish case of Zenel v Haddow 1993 SLT 975].'
23. Nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence."
"I do not consider that these children were habitually resident in this jurisdiction on 4 February 2013, regardless of the circumstances in which they remained in Bangladesh in August 2008. Taking account of all factors and applying the test adopted by the European Court, on no sensible analysis could this country be regarded as 'the place which reflects some degree of integration by the child in a social and family environment'. The children left the United Kingdom at the age of about 14 months and 6 weeks old, and by the time the proceedings were issued, they had spent nearly 5 years in Bangladesh. Even if (taking the father's case at its highest) they have been unlawfully retained in that country by the mother, they have as a matter of fact long since ceased to be habitually resident in this country."
Ground 2: Article 10
"Does the Regulation apply where there is a rival jurisdiction in a non-Member State?
30. The Regulation deals with jurisdiction, recognition and enforcement in matrimonial and parental responsibility matters. Chapter III, dealing with recognition and enforcement, expressly deals with the recognition in one Member State of judgments given in another Member State: see article 21.1. But there is nothing in the various attributions of jurisdiction in Chapter II to limit these to cases in which the rival jurisdiction is another Member State. Article 3 merely asserts that in matters relating to divorce, legal separation or marriage annulment "jurisdiction shall lie with the courts of the Member State" in relation to which the various bases of jurisdiction listed there apply. Article 8 similarly asserts that the courts of a Member State "shall have jurisdiction in matters of parental responsibility . . ." Furthermore, article 12.4 deals with a case where the parties have accepted the jurisdiction of a Member State but the child is habitually resident in a non-Member State, thus clearly asserting jurisdiction as against the third country in question. Hence in Re I (A Child) (Contact Application: Jurisdiction), this Court held that article 12 did apply in a case where the child was habitually resident in Pakistan. There is no reason to distinguish article 12 from the other bases of jurisdiction in the Regulation."
"93. There can be no doubt about the jurisdiction of the English court in relation to the elder siblings. This is not because of any rule of law which prevents one of two parents from unilaterally altering the habitual residence of a child. It is because as the 1980 Hague Convention requires, in the case of abduction, whether removal or, as here, retention, the acid test is habitual residence immediately before the event. They were resident in England. They went to Pakistan only for a three week holiday. There they have been wrongfully retained. For the same reason, Article 10 of Brussels II revised maintains the jurisdiction of the English court." (my emphasis)
"40……As Lord Hughes points out, Article 10 provides a good reason why the courts of England and Wales retain jurisdiction over the three older children in any event."
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
Parens patriae jurisdiction
The exercise of the Article 10 jurisdiction
"It would therefore be unwise of us to express a view on the position in children's cases, which might well require us to make a reference to the Court of Justice."
"There are many conclusions which the court hearing this case might reach. Among them is an order that it would be better for the child to make no order at all: section 1(5) of the Children Act 1989. But this is not a refusal of jurisdiction (cf Owusu v Jackson (Case C-281/02)  QB 801). It is a positive conclusion, reached after the court has exercised its jurisdiction to hear and determine the case, that in all the circumstances it will be better for the child to make no further order about his future."
"§14 …..In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may …decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
§15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further."
"Order is given for residing [the mother] with [the father] and maintaining of free relation as husband – wife looking after those minor children under custody of [the father] and for talking to each other and taking care of them. And [another family member] is restricted not to make prevention [the mother] and taking care to her minor children and coming to the house of [the father]." (sic)
It can be seen that it appears to contemplate the parties living together with the children rather than the children being entrusted to the care of the father which appears to be what he seeks.
Lord Justice Vos:
Lord Justice Richards: