COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice McFarlane
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE ELIAS
| Barbara Mercredi
|- and -
Henry Setright QC and David Williams (instructed by Messrs Bindmans LLP) for the Respondent Father
Hearing dates: Wednesday 16th February 2011
Crown Copyright ©
Lord Justice Thorpe:
i) Did the judge have jurisdiction to make orders in relation to Chloé, the infant child of the parties to the appeal?
ii) If yes, were the orders that he made in the exercise of his discretion plainly wrong?
"The Hague Convention to be engaged in order to begin the process for Chloé to be returned and these matters to be addressed."
"And upon the court finding and declaring in the exercise of the court's inherent jurisdiction and for the purposes of Article 15 of the Hague Convention that;".
And there then followed no less than 15 separate declarations going to habitual residence, parental responsibility, rights of custody and wrongful retention.
The judgment below
"3. The father, upon discovering that the mother had left her accommodation, and no doubt fearing that she had indeed gone abroad, took steps on Friday 9th October 2009 to issue an urgent application initially in local County Courts and then by using the emergency out-of-hours facility in the High Court, he achieved a Location Order and orders requiring Chloe to remain in the jurisdiction from Mr Justice Holman. Those orders were reconsidered at a hearing on the following Monday, 12th October 2009. On that occasion, the father issued various applications for residence and other s.8 orders. The court made orders requiring Chloé to be returned to this jurisdiction. As I will record, in due course, there have been proceedings in La Réunion – the effect of which is that the father's application under the Hague Convention for Chloé to be returned has been dismissed by the French Court in La Réunion. That court is now seised of an application as to Chloé's long-term welfare which is to be heard in the coming weeks. The father's application before this court today is for declarations and orders designed to achieve Chloé's repatriation to this jurisdiction.
4. The father is represented by counsel, Mr. David Williams, today who has mounted a forceful and varied array of legal arguments. Before I turn to those, it is right to record that the matter has proceeded on the basis that the mother is not present at the hearing or represented before this court today."
"In the light of these conflicting submissions it is plain that the central issue – that goes to the core of both the primary case of the father and that of the mother – is whether or not Chloe was habitually resident in England and Wales on the evening of 9th October 2009 when Mr Justice Holman made his initial orders."
"The consequence of this finding is that: First of all, Chloé was still habitually resident in England at the moment that both the English court and the father achieved rights of custody in relation to her and the English court made orders requiring Chloé to remain in this jurisdiction or be returned here; secondly the father therefore asserts that as at that date Chloé was still habitually resident here and that, therefore, this court has jurisdiction under Articles 8, 10 and 19 of Brussels II Revised to make continued orders in her favour. In relation to Article 8, it is in attractively short and plain terms:
'The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.'
The court was seised of Chloé's welfare on the evening of 9th October 2009. I have found that she was still habitually resident here at that time and this court in England and Wales, therefore has jurisdiction for her. It is not necessary for me to refer to the details of Articles 10 and 19, but I find that they also apply.
Therefore, on the basis that I have just described and subject to fine-tuning, I will approve the various declarations and orders that Mr. Williams invites the court to make. I am satisfied in doing that – on the basis of the decision of Mr Justice Bodey in the case of A v B  I FLR 1253 that it is appropriate and, indeed, necessary for the English court to have a jurisdiction to make declarations of this sort in the absence of an expressed request from a foreign court where a parent has removed a child unilaterally from the jurisdiction – I therefore accept that I have jurisdiction and accept that the facts of this case make it desirable for such declarations to be given.
This judgment will no doubt, in due course, be translated and despatched to La Réunion. I hope that all who read it there will understand, and accept that the process that I have undertaken today has been one that has had respect for and accepted the jurisdiction that was purported to be exercised by the court in La Réunion. The court has had before it a far greater array of evidential material than is likely to have been before the court in France. I have tried to summarise that in as much detail as possible so that those in La Réunion who may read this judgment will understand the overview that I have been able to be given today from all that material. I hope the court in La Réunion will also understand and respect the decision to which this court has come as a matter of law for the reasons that I have given. I hope also that the court in La Réunion will hear what this court has said about the emotional undercurrent (as it were) as to the merits of the case. The letters that this father wrote to the mother asking for her to agree to parental responsibility being granted to him were (as I have said) unremarkable, non-confrontational and totally appropriate. Equally, what the mother says about the father in the card that she wrote to him and the warm terms – such as they are in a short text message – that she expresses about their earlier times together are such that indicate that this is a case where these two parents, each have a valuable contribution to make to the life of this child. How they do it, where they do it, where she is and what the detailed arrangements will need to be determined by a court in due course. As a result of the decision that I have made today it is my view that that court should be the court in England and Wales and that Chloé needs to be returned to this jurisdiction with the mother, so that she (the mother) can engage fully in the process of working out just what those arrangements should be. The only yard stick the court will take in coming to that decision is to place Chloé's welfare as its paramount consideration. That is my judgment."
i) The judge wrongly regarded the case as one of child abduction when it was, in reality, a case of lawful removal.
ii) In determining Chloé's habitual residence as at 9th/12th October 2010 the judge applied the wrong test: a test drawn from old authority in the House of Lords rather than the test propounded by The Court of Justice.
iii) Even if the judge possessed jurisdiction derived from Chloé's habitual residence on 12th October 2010 he was wrong to make a declaration under Article 15 of the Abduction Convention and to order summary return.
iv) Again if there was such jurisdiction the judge was wrong not to transfer the case to France under Article 15 of Brussels II Revised.
i) On the crucial issue of habitual residence the judge properly directed himself in law and arrived at an unimpeachable conclusion having weighed the relevant factors.
ii) In the present case there had been not a lawful removal but a wrongful retention once the order for return was breached.
iii) As to Article 15 a transfer had not been sought and should not be considered by an appellate court lacking relevant evidence.
1. The courts of a Member State shall have jurisdiction in
matters of parental responsibility over a child who is habitually
resident in that Member State at the time the court is seised.
2. Paragraph 1 shall be subject to the provisions of
Articles 9, 10 and 12.
Continuing jurisdiction of the child's former habitual
1. Where a child moves lawfully from one Member State to
another and acquires a new habitual residence there, the courts
of the Member State of the child's former habitual residence
shall, by way of exception to Article 8, retain jurisdiction
during a three-month period following the move for the
purpose of modifying a judgment on access rights issued in
that Member State before the child moved, where the holder of
access rights pursuant to the judgment on access rights
continues to have his or her habitual residence in the Member
State of the child's former habitual residence.
2. Paragraph 1 shall not apply if the holder of access rights
referred to in paragraph 1 has accepted the jurisdiction of the
courts of the Member State of the child's new habitual
residence by participating in proceedings before those courts
without contesting their jurisdiction.
Transfer to a court better placed to hear the case
1. By way of exception, the courts of a Member State
having jurisdiction as to the substance of the matter may, if
they consider that a court of another Member State, with
which the child has a particular connection, would be better
placed to hear the case, or a specific part thereof, and where
this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the
parties to introduce a request before the court of that
other Member State in accordance with paragraph 4; or
(b) request a court of another Member State to assume
jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State
with which the child has a particular connection, in
accordance with paragraph 3.
A transfer made of the court's own motion or by application
of a court of another Member State must be accepted by at
least one of the parties.
Seising of a Court
1. A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings
or an equivalent document is lodged with the court,
provided that the applicant has not subsequently failed to
take the steps he was required to take to have service
effected on the respondent;
(b) if the document has to be served before being lodged with
the court, at the time when it is received by the authority
responsible for service, provided that the applicant has not
subsequently failed to take the steps he was required to
take to have the document lodged with the court.
Lis pendens and dependent actions
1. Where proceedings relating to divorce, legal separation or
marriage annulment between the same parties are brought
before courts of different Member States, the court second
seised shall of its own motion stay its proceedings until such
time as the jurisdiction of the court first seised is established.
2. Where proceedings relating to parental responsibility
relating to the same child and involving the same cause of
action are brought before courts of different Member States,
the court second seised shall of its own motion stay its
proceedings until such time as the jurisdiction of the court
first seised is established.
3. Where the jurisdiction of the court first seised is
established, the court second seised shall decline jurisdiction in
favour of that court.
In that case, the party who brought the relevant action before
the court second seised may bring that action before the court
"That finding is not invalidated by the fact that, if steps are not taken by such a father in good time to obtain rights of custody, he finds himself unable, if the child is removed to another Member State by its mother, to obtain the return of that child to the Member State where the child previously had its habitual residence. Such a removal represents the legitimate exercise, by the mother with custody of the child, of her own right of freedom of movement, established in Article 20 (ii)(a) TFEU and Article 21 (i) TFEU, and of her right to determine the child's place of residence, and that does not deprive the natural father of the possibility of exercising his right to submit an application to obtain rights of custody thereafter in respect of that child or rights of access to that child."
i) That the father's Hague application was doomed since he could not possibly satisfy the provisions of Article 3 of the Convention.
ii) The judgment of the French court of 15th March was principled.
iii) As a matter of comity and the collaboration of courts within the European Union the London judge had an obligation to support the proper conclusions of the French court or, at the least, not to enter into a litigation strategy to undermine the order.
"It must be observed that the referring court proceeds from the premise that it was 'seised', within the meaning of Articles 16 of the Regulation on 12th October 2009 at the latest. It is for that court to determine that matter as necessary."
"Accordingly, it was only on 12th October 2009, subject, as made clear in paragraph 26 of this judgment, to the referring court's determination that Mr Chaffe did not subsequently fail to take the steps he was required to take to have service effected on Ms Mercredi, that the High Court of Justice of England and Wales is deemed to be seised."
i) The mother was habitually resident in France, had no intention of returning to this jurisdiction and orders for her return were likely to continue unenforced.
ii) Chloé was habitually resident in France and equally unlikely to resume habitual residence in this jurisdiction.
iii) The mother and Chloé were French nationals by virtue of which, in addition to their habitual residence, they had a strong connection to the French court.
iv) The French court had embarked upon the welfare investigation and had set a time table which gave the strongest indication that final orders would first be achieved in France.
v) Whilst both courts were equally qualified to rule on welfare issues the French court had the advantage of the child's presence within the jurisdiction, facilitating investigation as to home circumstances, standards of care and any issues surrounding education and health.
vi) Concurrent proceedings in two jurisdictions investigating and determining the same issues are inevitably wasteful and counter to the European concept of a European area of freedom of movement and justice.
vii) These considerations together required consideration of an Article 15 transfer of the courts own motion if not requested, to avoid either a race or a fight between the two courts.
Lord Justice Elias: