Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL |
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B e f o r e :
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KD |
Applicant |
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- and - |
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AM |
1st Respondent |
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- and - |
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T (Through his Children's Guardian) |
2nd Respondent |
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Ms Nicola Martin (instructed by Turpin Miller) for the 1st Respondent
Ms Jasbinder Dail (instructed by Rowberry Morris) for the 2nd Respondent
Hearing date: 8th August 2018
Judgment: 10th August 2018
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
Relevant Background
3.And the mother and father agreeing and the court declaring that the court of England and Wales are the courts with primary jurisdiction to consider matters relating to the exercise of parental responsibility in respect of T on the basis that (i) T is habitually resident in England and Wales and (ii) the Courts of England and Wales are best placed to make decisions about T's upbringing and welfare;
4.And upon the court declaring that the mother and father both have rights of custody in relation to T for the purposes of Articles 3 and 5 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction'
11.Not to initiate or issue proceedings in any court in [X US State] or elsewhere in the United States of America in relation to T.
12.Not to challenge (and will not seek to challenge before any court in [X US State] or elsewhere in the United States of America) the fact that T lives in the jurisdiction of England and Wales
13.To return T, or cause the return of T, to the jurisdiction of England and Wales forthwith on or before 6.3.18 with liberty to apply to court of England and Wales, no later than 6.2.18, to extend the time if permission from the applicant father is not given.
Legal Framework
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 (Brussels IIA) (or the 1996 Hague Convention); or
(b) the Council Regulation (Brussels IIA) does not apply but:
(i) the question of making the order arises in or in connection with matrimonial proceedings and the condition in section 2A of this Act is satisfied or
(ii) the condition in section 3 of this Act is satisfied.''
. In I (A Child) [2009] UKSC 10 Lady Hale noted at para 15: 'if Brussels II Revised applies, it governs the situation. If some other EU country (excluding Denmark for this purpose) has jurisdiction under the Regulation, then this country does not. But if Brussels II Revised applies and gives this country jurisdiction, it will give jurisdiction even though the residual jurisdictional rules contained in the 1986 Act would not. Only if Brussels II Revised does not apply at all will the residual rules in the 1986 Act come into play'.
Re I (supra) is authority for the proposition that the 'other' country need not be a member state itself where considering the issue of prorogation under Article 12. It is sufficient that this country is a member state. This is further clarified in respect of the wider ambit of BIIR's application in the Supreme Court decision In the matter of A (Children) (AP) [2013] UKSC 60 in particular paragraphs 20, 25, 30 & 31.
"(i)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 habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (Re A (children), adopting the European test);(ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (Re A (children), Re KL (a child));
(iii) In common with the other rules of jurisdiction in BIIA, its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned' (Re A (children) (para [80](ii)); Re B (a child)6 (para [42]) applying Mercredi v Chaffe at para [46]);
(iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R sub nom AR v RN (habitual residence));
(v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC (children) (no 2)). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focussed. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration.
(vi) Parental intention is relevant to the assessment, but is not determinative (Re KL, Re R and Re B);
(vii) It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one (Re B);
(viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B6 –see in particular the guidance at para [46]);
(ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of a child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi v Chaffe);
(x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R, AR v RN) (emphasis added);
(xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIA envisaged within 3 months). It is possible to acquire a new habitual residence in a single day (Re A; Re B). In the latter case Lord Wilson referred (para [45]) those 'first roots' represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move;
(xii) Habitual residence was a question of fact focussed upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. (Re R, AR v RN)
(xiii) The structure of Brussels IIA, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; as such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" (Re B).'
Prorogation of jurisdiction1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child…
3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.'
'(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; or
(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'.
Submissions
'(i) not attenuated but is limited to a review of best interests on the issue in question (that of whether to assume jurisdiction) and not a pre-emptive review of the potential outcomes available;(ii)not to assume that one member state is better able than another (or in this case the US) to consider the child's welfare interests (save for the exception in respect of non-Hague Convention countries under Article 12.4).
(iii)an appropriately comprehensive consideration of the fact-specific issues on examining whether prorogation of jurisdiction is in the best interests of the child. That is, as a matter of logic, a comparison of whether actual litigation here or potential / proposed litigation (for none has been issued) in the US would be in the best interests of the child. It is accepted that this court must factor into that exercise as relevant matters: (i) the fact that the parents have to date acceded to the exercise of this court's jurisdiction and (ii) that there is no litigation in the States as yet. Additional matters such as availability of assessments, funding, access to lawyers will fall to be considered.'
'a) fly in the face of the orders of the courts both here and the USA;b) sanction and permit the mother to breach the orders of the court and her undertakings given to the court;
c) leave T in potential limbo given the orders made here and in the USA stating that habitual residence remains here and the courts in this country should deal with this issue; and
d) leave a situation where T is being alienated from his father with little realistic recourse for the father who lacks the funds to pursue a case in the US (M asserts the availability of pro bono legal services for F in US but this is unsubstantiated) where there would be no recourse to legal aid for either of the parties.'
Discussion and Decision
(1) Whilst recognising that T's father remains here the reality for T's day to day life is that he is integrated in the social and family environment in the US and that is where his stability lies.(2) Weighed in the balance is the fact that the leave to remove was time limited, but it was expressly open to the mother to apply to extend it, which she did.
(3) T's connection with this jurisdiction largely focuses on his father and his connection with him, whilst important, has to be weighed with other aspects of his life.
(4) It is factored in that the intention of the parents in March 2017, as recorded in the recital, was that T's habitual residence then was England and Wales. The recital is expressed in the present tense, perhaps recognising the reality that it is probably not possible to bind in an unlimited way what is essentially a fact-based inquiry at the relevant time when the court is later seised. As the relevant authorities have repeatedly made clear it is not necessarily the length of time that determines habitual residence, but the determination is guided by factors such as the stability and the degree of integration.
(1) Between December and May the mother unconditionally acceded to the court's jurisdiction. Whilst it is recognised she was a litigant in person during much of that time she was legally represented by previous counsel in February and had the benefit of legal representation from 25 June 2018.(2) There is a structure in place here, the applications have been ongoing for over six months, detailed statements have been filed and all parties have the benefit of public funding and experienced legal representation.
(3) There is no litigation on foot in the US, there is no guarantee of legal representation, neither parent have the financial resources to fund it and there would inevitably be further delay in reaching any decisions regarding T's welfare.
(4) It is recognised that the analysis of the home environment and wider family support available in the US may be better assessed within proceedings there, but the same would apply in reverse to some extent in relation to the father if the proceedings were in the US. The reality of this case is whichever jurisdiction is involved there will need to be significant enquiries made in the other jurisdiction.
(5) The impact on the mother of recent events has been considered, but she has the advantage of the availability of the support of her family and the benefit of experienced legal representation here.
(6) There appear to be funding and practical arrangements in place here that can be put in hand for any assessments of T and/or the adults the court considers to be 'necessary'. With the benefits of electronic and other communication it will be possible for this court to understand what support and services are available locally in the US.