England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(MR RECORDER CLOVER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 April 2012

Lord Justice McFarlane:

1. This is an appeal brought by the mother of a child (a girl who I will refer to by the initial of her first name), A, who was born on [a date in] 2004 and therefore now eight years of age. A's parents were married in 2001, but separated a year or so after her birth in 2005.
2. The child's father was having contact, but that abruptly came to an end in March 2006 when the mother unilaterally removed A from her home in the south of England to Scotland. She did that without the knowledge and consent of the father and he, not unnaturally, swiftly issued proceedings in the Southend County Court on 22 March 2006, seeking orders for residence and contact and in due course other orders designed to trace the whereabouts of the child and the mother in Scotland where they had set up home. Eventually, tracing of the mother was achieved in August 2006 and proceedings between the two parents continued in Southend.
3. In April 2008 a residence order was made in favour of the mother. It is the case that A had continued to reside with her mother in Scotland from the time of her removal in 2006 and the order in 2008 effectively cemented A's residence with the mother in Scotland.
4. The mother and the child's passports were returned to the mother, and it is accepted before us today, as is inevitable, on behalf of the father that from sometime in or around 2006 A became habitually resident in Scotland and that remains her habitual residence to the present day.
5. There was a hearing before HHJ Dedman on 11 March 2009 in the Southend County Court and a detailed order for contact was the end product of that process. We have it at page 332 of the bundle. It provides for contact to be supervised and to take place between A and her father on a total of six times each year, three of those visits being in Scotland and three in Southend.
6. A had been represented, at least in the latter stages of the proceedings by what was then a rule 9.5 guardian. The appointment of the guardian was discharged by paragraph 3 of the order. The order made no provision for any further court process in Southend and, in particular, no date was provided in the order for the further review by the court of the contact arrangements.
7. So far as the procedural chronology is concerned, matters rested there until some 15 months later when, on 15 July 2010, the father issued a fresh application for "the variation of the order dated 11 March 2009", in order to provide for unsupervised contact and a claim to have one half of each of the school holidays. The father also issued a separate application on the same date for the enforcement of the March 2009 order.
8. Dealing with the enforcement application in short terms, having mentioned it, in my view that application was erroneous. It purported to be an application under the relatively recently introduced provision section 11L of the Children Act 1989 requiring, if breach of the order were proved, the mother to undertake unpaid work in the community similar to that of a criminal community punishment order. It is plain from section 11K(4) of the 1989 Act that such an order is not available against someone who is not habitually resident in England and Wales, that being the mother's position. The father therefore had no possibility of achieving a s11L enforcement order against the mother.
9. Returning to the chronology, the mother herself issued an application to discharge the March 2009 order in the Southend County Court on 28 July 2010. Matters proceeded and a Consent Order was made at a hearing on 22 February 2011, which, indeed, provided for the variation of the March order. The 2011 order made a Family Assistance Order and provided for the further review by the court in Southend in September 2011. It is also of note that on that occasion both parents gave undertakings to the court as to their behaviour in relation to matters affecting the child.
10. The father shortly thereafter in June 2011 applied for a Residence Order and applied to vary that Consent Order. The matter was set down for a two-day hearing and it was that hearing which came on before Recorder Clover on 15/16 September 2011. For the first time the question of jurisdiction was expressly raised on behalf of the mother at that hearing. From the paperwork it appears that on the eve of the hearing counsel for the mother submitted a position statement which sought to refer to the Brussels II (Revised) Regulation as having an effect on the matter. It is now common ground before us, as it was by the time the Recorder came to give his judgment, that reference to Brussels II (Revised) is of no relevance to the present case. The issue of jurisdiction that fell for the Recorder to determine was between England and Wales and, on the other hand, Scotland, but both of those jurisdictional entities are part of one member state, namely the United Kingdom, and Brussels II (Revised) therefore is to no effect.
11. Notwithstanding that erroneous early mounting of the argument on behalf of the mother, counsel, Ms Christine Dooley, who appeared below and now appears before us, refocused her submissions to the Family Law Act 1986, which is relevant and does govern the determination of matters of jurisdiction as between Scotland and England and Wales. The learned Recorder gave a judgment on the point and we have considered that. The learned Recorder rightly identified the area for judicial determination as being that of identifying what the "relevant date" was in relation to the various applications before him.
12. I will turn in a moment to the detailed structure of the 1986 Act, but for the purposes of summarising the issue before us it is only necessary to record that the judge, having set the ground, found that the relevant date for determining the court's jurisdiction was the beginning of the whole process, namely the applications made by the father in 2006, and that the case had carried on, effectively continuously, before the Southend County Court since that time, and that therefore at the time that the proceedings commenced A was not habitually resident in Scotland and/or that the English court retained jurisdiction and that therefore the English court, even in 2011 at the hearing before him, was still the appropriate court under the 1986 Act. It is against that determination that the mother now appeals.
13. Having set the factual background, it is necessary to look at the relevant provisions of the 1986 Act. This was an Act designed to clarify and fix issues of jurisdiction as between the respective constituent parts of the United Kingdom. By section 1(1)(a), a section 8 order made under the Children Act is "a Part 1 order" to which the relevant provisions apply. The question of jurisdiction is described in section 2 in the following terms:

"(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless –

(a) it has jurisdiction under the Council regulation, or

(b) the Council regulation does not apply but –

(i) the question of making the order arises in or in connection with matrimonial   proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or

(ii) the condition in section 3 of this act is satisfied."

14. Pausing there, it is of note that the wording in the first line of that section is in imperative terms. A court in England and Wales "shall not" make a section 8 order "unless" one of the provisions applies. The relevant provision here, because the Council Regulation that is Brussels II (Revised) does not apply, is that set out in section 3 of the Act:

"(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned –

(a) is habitually resident in England and Wales, or
(b) is present in England and Wales and is not habitually resident in any part  of the United Kingdom or a specified dependent territory,

and, in either case, the jurisdiction of the court is not excluded by subsection (2) below.

(2) For the purposes of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, matrimonial proceedings are continuing in a court in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 19A(4) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling Part I proceedings with respect to the child concerned to be taken in England and Wales, and that order is in force."

15. The provision relates to habitual residence, and jurisdiction is conferred on the court if the child concerned is habitually resident in England and Wales or present here but not habitually resident in any part of the United Kingdom. Thus, in relation to A, jurisdiction before the court in Southend, she not being physically present in England and Wales, must be tied to the question of her habitual residence.
16. The "relevant date" to which I made reference is defined in section 7(c) in these terms:

"'the relevant date' means in relation to the making or variation of an order –

(i) where the application is made for an order to be made or varied, the date of the application (or first application, if more are determined together), and
(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order"

The key therefore in determining jurisdiction is to consider the child's habitual residence on "the relevant date".

17. One further provision requires reference and it is section 41 of the 1986 Act:

"41 Habitual residence after removal without consent, etc.

(1) Where a child who—

(a) has not attained the age of sixteen, and

(b) is habitually resident in a part of the United Kingdom, becomes habitually resident outside that part of the United Kingdom in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise.

(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom in which he was habitually resident before his change of residence—

(a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom, the right to determine where he is to reside, or

(b) in contravention of an order made by a court in any part of the United Kingdom.

(3) A child shall cease to be treated by virtue of subsection (1) above as habitually resident in a part of the United Kingdom if, during the period there mentioned—

(a) he attains the age of sixteen, or

(b) he becomes habitually resident outside that part of the United Kingdom with the agreement of the person or persons mentioned in subsection (2)(a) above and not in contravention of an order made by a court in any part of the United Kingdom."

18. Section 41 applies to A's case in that she is a child who was removed from the jurisdiction of England and Wales without the agreement of her father. It follows that England and Wales retained jurisdiction to entertain proceedings in relation to her for a period of one year beginning on the date of her removal. It follows, in my view, that the father's application, made promptly after her removal in March 2006, were made within that window of time and that the relevant date relating to those applications is governed by section 41 and that, notwithstanding her physical presence and her mother's determination for future residence in Scotland, the Southend court had jurisdiction in relation to her case by reason of the application of section 7, varied as it is for her by section 41.
19. Reference to section 41, however, is also informative in that the period of one year is precisely measured. It is a limited and discrete exception to the otherwise blanket and automatic application of section 2(1), which provides that the English court "shall not" have jurisdiction unless habitual residence is established here.
20. The 1986 Act is one that has been criticised by commentators and indeed in these courts as lacking clarity in a number of respects. However, in my view, the structure established by section 7, and the other sections to which I have made reference, does go a long way to providing a statutory scheme for clarifying and then fixing which of the various constituent parts of the United Kingdom will have jurisdiction in relation to a private law children case from time to time.
21. How do these matters apply to the case before us? The learned Recorder -- and in making the observation I now make I have great sympathy for him -- was faced with this legal nicety really from a standing start and without, it seems, the assistance of position statements and skeleton arguments filed by each side well in advance of the hearing on the point that he was to determine. He, as I have indicated, correctly identified the issue for determination before him related to the relevant date. It is submitted on behalf of the mother that as a matter of law his conclusion, namely that the 2006 date is the relevant date and everything ran on from there, is unsustainable. With respect to the Recorder, I agree with the mother's submissions. In my view, the proceedings were validly constituted in 2006 and that the process thereby commenced ran its course until the Residence Order was made in the mother's favour in 2008 and, finally, the orders of HHJ Dedman were pronounced on 11 March 2009. Those proceedings came to an end on that date. There was no provision for review; the guardian was discharged, and it was to all effects a final order made by the Southend court.
22. What then happened some 15 months later was that the father applied for "variation of the order dated 11 March 2009". The question of variation of an order is expressly dealt with in section 7(c). The relevant date is to be determined in relation to an application to vary an order and section 7(c) makes it plain that the date of the variation application is "the relevant date". I cannot contemplate any contrary reading of that provision and certainly cannot see that the reading that the Recorder gave to it -- no doubt for pragmatic and sympathetic reasons -- is tenable.
23. In my view, any proceedings before the Southend court after the final order was handed down on 11 March 2009 were without jurisdiction. I come to that conclusion, notwithstanding the fact that the mother herself made further applications to the Southend court and, indeed, joined in a Consent Order and gave an undertaking to that court in February 2011. Because of the strict wording of the 1986 Act, it was not within the mother's gift, any more than it was within the gift of the various judges at that court to attribute jurisdiction to Southend County Court. As a matter of law the jurisdiction rested with the courts in Scotland after Judge Dedman's order of 11 March 2009.
24. I would therefore allow this appeal and set aside any orders made by the court in Southend after 11 March 2009. In stating that conclusion it must follow that the order of 11 March 2009, including the detailed provisions for contact that it contains, remains in force. The principle of contact has been established and endorsed by the court. Matters that took place before the Southend court after that time may be referred to in evidence in any proceedings in Scotland.
25. Also, it is obviously open to the father now to seek to enforce the order of 11 March 2009 in the court in Scotland through the process of registration and enforcement described in sections 27 to 29 of the 1986 Act.
26. It is also open to either of the two parties to make applications in relation to A should they wish to do so before the court in Scotland.

Lord Justice Hughes:

27. I agree.

Lord Justice Thorpe:

28. I also agree with my Lord and with the orders that he proposes.
29. One of the principal aims of the 1986 Act was to resolve conflicts of jurisdiction within the United Kingdom. It can be said 25 years later that it has hardly been successful in achieving that objective. The provisions dealing with jurisdiction are difficult and complicated and have not prevented conflicting decisions concerning the same child being made in different jurisdictions within the United Kingdom. These conflicts have resulted sometimes from factual ignorance and sometimes from misapplication of the Family Law Act 1986.
30. Accordingly, I have every sympathy with the practitioners and with the Southend Recorder in arriving at conclusions and in making orders that are without the jurisdiction of the court. However, the essential focus this afternoon is upon section 7(c) of the 1986 Act. It is free from the complications that have bedevilled other areas of the Act. It is simple in its terms and it is simple to apply. The relevant date is the date of the application for order or variation. Alternatively, if there be no application and the court is minded to make an order of its own motion, that eventuality is covered by section 7(c)(ii).
31. The learned Recorder approached the problem with which he was faced at short notice impeccably. I only differ from him in his choice of the relevant date. On the proper application of section 7(c) his choice of the date in 2006 is hardly explained in his brief judgment, but, as my Lord has said, almost certainly it reflects his sympathy with the father's application and his desire to see effective delivery of contact between father and child.

Order: Appeal allowed