England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE WOOD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th July 2012

Lord Justice McFarlane:

1. This is an appeal brought by a mother in proceedings which commenced in the High Court under the inherent jurisdiction in relation to her daughter, who I will refer to as T, who was born on 27 January 2007, and T is therefore now aged five-and-a-half. The proceedings were contested by T's father. The decision under appeal is that of Roderic Wood J made on 27 October 2011 and, at the conclusion of a hearing in which he heard oral evidence from the parties, he dismissed the mother's application. The primary issue before the judge related to T's habitual residence and a claim that the jurisdiction of the court in England and Wales could be founded upon T being habitually resident in England and Wales on the occasion of her removal from this jurisdiction by her father to Lebanon on 22 or 23 April 2010.
2. Roderic Wood J, having reviewed the evidence in the case, concluded that both parents and T had indeed been habitually resident in April of 2010 in England and Wales but that that habitual residence had subsequently changed, both as a result of the father and T's physical presence from that time on in Lebanon but also because the mother after April 2010 took herself to Lebanon and that there was a reconciliation between the parents for a time and that therefore from that stage onwards the parties were content for the family to reside in Lebanon and that habitual residence in England and Wales had ceased for T from that stage onwards.
3. It was not until after that time that the mother made her application to the High Court on 18 August 2011 and the conclusion therefore of Roderic Wood J was that at that time, the time of the application when the court's jurisdiction was first invoked, the child T was no longer habitually resident here.
4. Notice of appeal was filed by the mother on the 17 November 2011; permission was initially refused by my Lord, Thorpe LJ, on paper on 24 January 2012 but was subsequently granted following an oral hearing before Ward LJ on 23 May 2012. By that time the mother's case, which initially on appeal had been wide-ranging and sought to attack the judge's conclusion on habitual residence, had narrowed down. The grounds of appeal relating to habitual residence were effectively abandoned and one point was being taken, the point in short being that the court, irrespective of habitual residence or the physical presence of the child in this jurisdiction, nevertheless had jurisdiction under the High Court's inherent jurisdiction to make orders in relation to a child, who is a British subject, notwithstanding the fact that that child is now present and habitually resident in another jurisdiction.
5. In addition, a number of the factual matters that formed the basis of the landscape of the case before Wood J were, it was argued on behalf of the mother, now seen to be either erroneous or radically changed, and that there were grounds for the Court of Appeal looking at the matter again, and permission to appeal was therefore given on that limited basis.
6. Before this court the mother's case has been very fully, carefully and skilfully argued by Stephen Cobb QC; the father has acted in person and has submitted a detailed and, if I may say so, equally clear document in response.
7. We have heard the appeal and have concluded that the appeal should be dismissed, and the purpose of this short judgment is now to describe our reasoning.
8. The factual history of the matter, over and above the details that I have thus far given, can be shortly stated. T's father was born in the Lebanon in 1955, but he acquired British citizenship through his first marriage, and he therefore retains British citizenship as well as his original Lebanese citizenship. The father has, over the course of the years, had a substantial connection with the United Kingdom, attending Dundee University and settling in Wales having a business there, and indeed he has had relationships with ladies who have gone on to be the mother of children of his who in turn reside in this jurisdiction. The mother was born in Thailand in 1967 and her only nationality is as a Thai national. She and the father met in 2005 and they formed a relationship, but for the early years of that relationship, both before and after the birth of T in 2007, their time was spent variously in different jurisdictions, and it was only in September 2009, according to the findings of Wood J, that the family came to settle in the United Kingdom, and it was at that stage that T began to be habitually resident in England and Wales. The father and the mother married in December 2009 and therefore both parents now have parental responsibility for T.
9. As I have indicated, the time together as a family in the United Kingdom was not long because, only seven months after the mother and T came to live with the father here, the father abducted T to the Lebanon. I use the word "abducted" because another of the findings of Wood J was that the father's removal of T from the mother's care and from England and Wales in April 2010 was wrongful, being in breach of her rights of custody and removing the child from what was then state in which she was habitual residence.
10. The subsequent history, in terms of its detail, is not necessary for the purposes of consideration in this appeal because of the view that I have formed in relation to the jurisdiction of the court. I have summarised it. Plainly there are difficulties in the face of a mother who has no Lebanese nationality, who is here in the United Kingdom without a sound and settled immigration status and, if her child is in Lebanon and proceedings are necessary to gain contact with the child and have other orders made in the mother's favour in relation to the child, the mother plainly needs to be able to engage in a process in the Lebanon by going over there, being allowed entry to the country and being able to litigate.
11. All of those details were before Wood J and it is the case that, as his judgment shows, he heard evidence from the father and, putting it in low-key terms, was basically impressed with the father in his evidence and seems to have relied upon assurances that the father gave, both as to the continuing existence of any criminal charges against the mother relating to an alleged assault against the father by the mother, the ability of the mother to come to the Lebanon and the willingness of the father to help to facilitate contact between the mother and T.
12. Some of those matters were recorded in recitals to the order:

"(a) He wishes the Applicant mother to have regular and frequent contact with the child, [T];

(b) He will, subject to consulting his Lebanese lawyer, assist in the mother obtaining visa(s) to go to Lebanon;

(c) He will consider withdrawing the charges lodged against the mother and her son [K] on 26th January 2011"

Whilst mentioning the approach that the learned judge had to the two parents and the evidence they gave, it is regrettably necessary to record that the judge formed an adverse view of the credibility of the mother. He decided against her on the key factual account she gave relating to matters concerning habitual residence and he found that she was a lady who was capable of seeking to make tactical advantage wherever she may find the opportunity in relation to proceedings against the father.

13. On the basis of the case before him, therefore, Wood J concluded habitual residence was not in England and Wales by the time the proceedings were commenced, but he nevertheless went on to consider whether he should exercise the inherent jurisdiction of the High Court and make orders with respect to T. In the conclusions to his judgment he said this at paragraph 64 and 65:

"64. I have, as is already clear, come to the firm conclusion that T was habitually resident in the Lebanon when the mother issued her proceedings here in August of this year, and accordingly decline jurisdiction to determine issues of T's welfare.

65. But I must and do go on to consider, this being a case under the inherent jurisdiction, whether or not on welfare grounds, if I am thought to be wrong (or even right) about the habitual residence of T, I should in my discretion accept jurisdiction in relation to welfare issues."

14. The judge then went on to refer to the adverse findings that he made about the mother and about the way the family had interacted with each other after the departure of T from England and Wales to conclude that he would decline to exercise jurisdiction on that basis, and he also observed that by the time he was dealing with the case T had spent 18 months in the Lebanon and was now well settled there.
15. In mounting this appeal Mr Cobb distils the question that he primarily puts before this court into these terms:

"Can the inherent jurisdiction properly be used to found jurisdiction with regard to a child who is habitually resident abroad where the provisions of the Brussels IIR regulation and the Family Law Act do not apply?"

16. Mr Cobb's subsidiary question is that if that jurisdiction does exist, how can it be used? He accepts that any answer to that question will inevitably include the word "exceptionally", and probably that word would be preceded by the word "very".
17. There are substantial difficulties, in my view, in Mr Cobb mounting the argument that he seeks to put before this court. It is well settled that the grounds for jurisdiction provided by statute, namely the Family Law Act 1986 and the Brussels IIR regulation, limit the jurisdiction of this court, so far as it is based on black letter law, to cases where a child either is habitually resident in this jurisdiction and/or physically present here. A further line of jurisdiction is opened up via prorogation on the basis described by the Supreme Court in the case of Re R (a child) (Contact Application: Jurisdiction) [2009] UKSC 10, and again Mr Cobb accepts that the parameters within which that decision is based do not apply to this present case.
18. His submission therefore has to go back to first principles, the principles being that the inherent jurisdiction is a wide jurisdiction, and indeed has been described as one without limit or indeed without a limit that can or should be defined; that the jurisdiction is there for the protection of those who seek the protection of the Crown and that therefore in a proper case (he says this is one such case) the High Court should make orders in the best interests of children, notwithstanding that the facts of the case fall outside the various jurisdictional structures that I have described.
19. In response to the court's question, and indeed in anticipation of it in the course of his skeleton argument and assembly of past authorities, Mr Cobb points to a number of authorities. Some are now of historical interest rather than active jurisprudential impact, one such being Re P (GE) [1964] 3 All England Reports 977, a decision of the Court of Appeal with Lord Denning giving the main judgment. As Thorpe LJ observed during submissions, anything said in that judgment is now 'the voice of history talking' and of no real impact upon the considerations of this court.
20. More recently the key authority would seem to be that of this court in the case of Al Habtoor v Fotheringham [2001] EWCA Civ 186. There an English mother had a child by a citizen of Dubai, and the question for the court was whether the English court should exercise its jurisdiction. Primarily the argument was based upon the child having habitual residence here, but a subsidiary argument was based upon the inherent jurisdiction. It is not necessary for me to descend to a description of the facts of the case for the purposes of this judgment today; however, the key section of Thorpe LJ's judgment in the main judgment in the case is set out at paragraph 42:

"I therefore reject Mr Swift's attempt to establish jurisdiction by dependency and turn to his final submission to the effect that, whatever may be the restrictions introduced by the Family Law 1986, the court retained an inherent jurisdiction, derived from the fact that Tariq is a British national, at least to grant the declaration that Tariq was and is unlawfully detained within the United Arab Emirates. There are a number of things to be said of this submission. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction. Finally, and most relevant, Mr Swift's submission is unsupported by authority. The case of Re P (GE) (An Infant) [1965] 1 Ch 568 does not assist the argument any more than does the more recent decision in Re S (A Minor) (Custody: Habitual Residence) [1997] 3 WLR 597. I accept Mr Everall's submission that the decision nearest in point is the judgment of Ward J in F v S (Wardship: Jurisdiction) [1991] 2 FLR 349. In that case Ward J held that where the court in wardship did not have jurisdiction under the Family Law Act 1986 to make an order in relation to a child's care and control it should not assume inherent jurisdiction to make an order for the recovery of the child. In his judgement he categorised such an order as 'a devious entry to the court by the back door where parliament has so firmly shut the front door'. Although his judgment was subsequently reversed on the facts, his conclusions on jurisdiction were not criticised. In my opinion by analogy there is equally no jurisdiction to make a declaration of wrongful detention in similar circumstances. In appealing to the court to find some inherent jurisdiction in relation to Tariq Mr Swift naturally emphasises the mother's sense of entrapment and injustice. He disputes the apparent agreement apparently concluded on 25 January. He asserts that the mother and Neil were subjected to threats, even of death, and to great duress through the termination of Neil's employment and the withholding of his passport and the impounding of Tariq's. These submissions were founded not only on the evidence of his clients but also of his instructing solicitor, Mrs Robinson, who visited Dubai in February 2000 and swore an affidavit in April. The judge clearly attached importance to this affidavit. However I read it as a questionable extension of the liberty to introduce hearsay in family proceedings. Essentially she describes her impressions, records her investigations and attempts to introduce the evidence of a number of potential witnesses who declined to be involved. It is not surprising that the affidavit attracted a strong protest from the father who had little practical opportunity to challenge the contents where disputed. Whilst fully recognising the extent to which the mother was disadvantaged, she nevertheless was provided with independent legal advice and she instructed her lawyer to conclude an agreement which contained a number of provisions that were of value to her. Paragraphs two and three of the agreement obliged the father to provide private education and tuition for Tariq. Paragraph four required the father to pay the mother 12,000 UAE Dirhams (about £2,250 at the current rate of exchange) per calendar month from 1 January 2000 until Tariq attains the age of 18. Paragraph five provided visitation in one of the father's houses in Dubai for up to two weeks duration and up to four times per annum. Additionally that clause provided for two days a week visiting access during Tariq's future visits to the United Kingdom. Paragraph six obliged the father to pay business class air fares for the mother and two of her other children for the four visits per annum to Dubai. By clause seven the father accepted responsibility for the suitable accommodation costs of these visits. Finally the mother directly authorised the application to the court to approve the order in compromise of the proceedings initiated by the father. She took no steps to countermand her instructions or the power of attorney between her return on 26 January and the making of the consent order on 23 February, although of course she had initiated her competing proceedings in this jurisdiction on 10th."

21. The effect of my Lord's judgment at that point is to acknowledge the possibility of the inherent jurisdiction, as it were, on an intellectual level being available but expressing the clear opinion that the jurisdiction should be used with extreme circumspection in assuming any jurisdiction in relation to a child physically present in some other jurisdiction where the exercise of jurisdiction by the English court is founded purely on the basis of the child's British nationality.
22. The conclusion in the case of Al Habtoor, which is set out at paragraph 45 of the judgment, is in clear terms:

"But the hard question, did this court have jurisdiction on 10 February 2000, must be answered in the negative."

I am persuaded that that clear statement related to the principal issue in the case which was whether habitual residence had been established and is not, as it were, the final word attaching to what is said about the inherent jurisdiction in paragraph 42.

23. More recently there is a High Court decision of particular note which Mr Cobb understandably prays in aid of his argument before this court. It is a decision of Hogg J in a case Re B; RB v FB and MA [2008] EWHC 1436 (Fam). There the court was concerned with a girl who was born and raised in Pakistan, was a Pakistani citizen, but who had British citizenship through her father. The young person had never been to the UK. Following the father's death it was said that arrangements were being made for this girl who was then aged 15 to marry a man in Pakistan. The girl had managed to get herself to the British Foreign and Commonwealth Office in Islamabad and had sought assistance. Arrangements were made to put her in touch with well known solicitors in this country dealing with matters related to forced marriage, and thus it was at a without notice hearing with counsel instructed by that solicitor, Mr Teertha Gupta, who was instructed to seek orders from the High Court designed to protect and assist this young person, albeit that she was outside this jurisdiction and in Pakistan. In the course of a short judgment Hogg J acceded to that application and made orders. Hogg J referred to the judgment of this court in Al Habtoor but went on to conclude:

"I came to the view that in these very dire circumstances the tentacles of this court should stretch towards Pakistan to rescue this child from the circumstances she found herself in."

24. The judge went on to deal with the facts, then at paragraph 10 also said this:

"Of course, each case will turn on its own circumstances and potentially there will be cases in the future where the circumstances are not sufficiently dire and exceptional when orders would not be appropriate."

25. Mr Cobb points to the decision in Re B as evidence of the fact that the inherent jurisdiction will be deployed in cases where a young person's only connection with this jurisdiction is that of British nationality. Here in this case he points to the fact that T has been in this jurisdiction from a time in the past and was habitually resident here, albeit only for seven months between 2009 and 2010. He also points to the fact that T has half-siblings here through the father's earlier relationships and that the father himself has a substantial connection with this jurisdiction.
26. The case of Re B was considered, albeit in passing, in a more recent Court of Appeal decision namely that of H v H [2011] EWCA Civ 796. Again the facts of that case do not need to concern this court unduly. The point before the court was whether or not there was jurisdiction in relation to a child who had not, and had never, been habitually resident or present in the country in circumstances where both the parents did not concede jurisdiction. The case was determined on its own facts and the conclusion of the court was that on the facts of that case there was no jurisdiction over that child. Mr Cobb points to this decision because in the course of submissions, and then in the course of Thorpe LJ's judgment, the decision of Hogg J in Re B is referred to but the reference is only in passing, and all that can be said, but it is what can be said, is that this court did not criticise or seek to detract from the exercise of the jurisdiction that Hogg J deployed in that case.
27. Mr Cobb therefore argues that the jurisdiction exists, and Wood J accepted that it did, and that is evidence of the fact that the High Court Family Division judges will act in cases which fall outside the strict black letter strictures governing jurisdiction.
28. For my part, it is not in my view necessary to go into the authorities in any more detail than I have done. I make no observation one way or the other as to the legality of the approach taken by Hogg J in the case of Re B. It is, and has long been, accepted that the parameters of the inherent jurisdiction are not definitively set down; it is a jurisdiction the limits of which are not defined, and it would be wrong to say that there will never be a case to which a particular category of facts can be applied with the inherent jurisdiction coming into play.
29. It seems to me that if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum. Hogg J spoke of very dire circumstances justifying what Thorpe LJ in Al Habtoor was rightly concerned should be a very careful exercise of the jurisdiction if it is to be exercised at all. In Re B the dire circumstances referred to were the circumstances of the 15-year--old young person concerned, who had thrown herself on the mercy of the British authorities and the British authorities had sought orders from the High Court to assist their ability to protect her.
30. Here the facts of this case are very far removed from the dire circumstances described in Re B. That is the case, even after taking into account the factual matters of which we are now aware, which indicated that the mother's position is more "dire" than was apparently the case before Wood J.
31. As Sullivan LJ has observed during submissions, difficult and hard though the facts of this case may be for the mother in particular, they are not outwith what might be described as ordinary, or expected, circumstances in a case where an international family, where the parents have come from different states and have a child for whom they are both responsible, but who then separate and find themselves split between two jurisdictions. The difficulties are typical of a case where one of the jurisdictions involved is outside the Hague Convention and does not have any extant arrangements for mutual respect of orders between the family court here and the family court there. These are difficult cases, but the difficulties here are that of the mother, and the circumstances of the child do not, in my view, come near the very exceptional category that might justify the High Court in looking carefully at the question of whether or not it did have jurisdiction to act for her protection. I accept Mr Cobb's submission that it is a detriment to a child not to have ready, easy and normal contact with both of her parents. I accept that T, on ordinary welfare grounds, is likely to be experiencing the loss of contact with her mother and that will be to her detriment; but those facts do not come outside the ordinary facts of a case of this nature, and I therefore conclude that niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case.
32. I therefore take the view that it is not necessary to look afresh at the factual matters that were before Wood J and see how these matters may or may not have changed as life has been played out in the nine months since he came to his conclusion. If the court should not be exercising its inherent jurisdiction in this case because the facts do not come into any recognised exceptional category, then it should not be exercising its jurisdiction, and the changes in the factual matrix that we have been told about do not, in my view, change the character of the case.
33. So, whilst I have substantial sympathy for the mother's position and understand the reasons why this appeal has been brought, I am afraid the clear conclusion to which I have come is that it must be dismissed.

Lord Justice Thorpe:

34. I agree.

Lord Justice Sullivan:

35. I also agree.

Order: Appeal dismissed