COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Cliffe
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LADY JUSTICE BLACK
THE RIGHT HONOURABLE SIR HENRY BROOKE
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Mr Teertha Gupta (instructed by Messrs Dawson Cornwell solicitors) for the Respondent
Hearing date: 20th May 2011
Crown Copyright ©
Lord Justice Thorpe:
"It must be accepted that there is a valid jurisdictional question in this case that must be determined."
"For further directions upon, and if possible determination of, the following issues:
(a) the ongoing wardship of the subject children and, if appropriate, what, if any, further orders the court may wish to make in its exercise of its inherent jurisdiction, informed by the evidence of the parties, in seeking to ascertain the location of the child SH and to secure his return to the jurisdiction of England and Wales."
"Judge Cliffe: I know that he is not accepting it in this case.
Mr Fox: He is not.
Judge Cliffe: I accept that he is not accepting it. I need to look at the issue of habitual residence. What is the habitual residence of this child and where does he get it from?"
"He had one parent habitually resident in England, one parent wanting to be habitually resident in England and both parents with parental responsibility agreeing that he should live in England."
"My Lord, no. I sense the way the wind is blowing in relation to this matter."
"This, it seems to me, goes to the central issue of determining the habitual residence of SH. He was born in Afghanistan to parents who were married and therefore, according to English law, had parental responsibility for him. He was born at a time when it was the settled intention of both parents that he should reside in England with them. He was born to a father who had British nationality and a British passport and to a mother whose settled intention, as I have indicated, was to live in England and become habitually resident in England and who now can properly say that she is habitually resident in England. The child took his habitual residence as a result of those circumstances and it is absolutely clear that in considering those matters he was habitually resident in England, notwithstanding the fact that he had never been here. There is no other person who has any say in the matter who could have argued differently and that, in my view, gives this court the jurisdiction to continue to consider the application for wardship and what arrangements might be made to secure this child coming to England, which is actually what both parties want, and that is again confirmed to me today."
"There will be a penal notice attached to that order because, as I have found, he is a man who can make sure that that happens. If he fails to do it he will be in contempt of court and the matter will be listed for further directions in the week commencing 3rd May. If the child is not then back in England I shall deal with the father's contempt. What HH needs to understand is that the court is not going to be hoodwinked by these stories. The court has now made an order based on hearing evidence. The order will be complied with or HH will be sent to prison. 2pm, 3rd May. The case will be heard in Leeds."
"It seems to me that if Charles J's proposition cited above, if taken out of the context of his particular case, run the very risk against which the Court of Appeal have repeatedly warned namely confusing a legal and a factual proposition. If Charles J is asserting as a matter of law that a baby takes the habitual residence of his parents then that is to confuse domicile with habitual residence and I would have to respectfully disagree. If what he asserts is a proposition of fact, then, by definition, it cannot be good for all cases. Each one must stand alone."
"The issue of jurisdiction was not on the 'agenda' for the hearing on 8th April."
That statement can only be justified by a construction of paragraph 6(a) of the order of 31st March which is not tenable.
Lady Justice Black: I agree.
Sir Henry Brooke: I agree.
UPON hearing counsel for the Appellant father and counsel for the Respondent mother
IT IS ORDERED THAT:
1. Permission to appeal is granted.
2. The appeal against the order of His Honour Judge Cliffe on 8th April 2011 is allowed.
3. The wardship in respect of SH (born [a date] 2009) and MH (born [a date] 2010) is discharged.
4. The parties' names are to be anonymised in any law report of the judgment of the Court of Appeal herein.
5. The Tipstaff shall forthwith release to the father's solicitors for onward release by them to the father his passport and any other documents held by them pursuant to the orders of the High Court Family Division.
6. The port alert in relation to the Father is hereby discharged.
7. There shall be no order as to costs save detailed assessment of the parties' publicly funded costs.
20th May 2011