England and Wales Family Court Decisions (other Judges)

IN THE WEST LONDON FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A(7) AND B (5)

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JUDGMENT ON THE ISSUE OF JURISDICTION

The Application

1. On 17 June 2016 the local authority issued care proceedings in respect of two little girls, A (7) and B (5), who had arrived in the UK from Ghana on 21 May 2016. The girls, British citizens, had been placed with their father in Ghana by an English court in 2014. Their mother has been an inconsistent figure in their lives. Neither parent was with the girls on arrival in the UK, and both are living in Ghana.
2. The girls have been in foster care since being accommodated directly from Heathrow Airport. They are having indirect contact with their father. Their mother flew to the UK and the girls had one session of supervised contact with her. This was not considered to be especially successful, and the mother very soon returned to Ghana.
3. The father has given different accounts of his reasons for sending the girls to the UK with an unknown adult female:-

a. Initially the father said that he sent the children to the UK to renew their British passports, to see his [their?] nephew A, for a change of environment and for fun and sightseeing;

b. Subsequently he indicated that he wished his children to remain in the UK until Ghana is politically stable. He wishes to reunite with the children in the UK and seek a future here if the political instability remains;

c. The father indicated that he intended the children to live with his step daughter Miss O. She has told the authorities, however, that she is unable to care for the girls and does not wish to be considered to care for them. She said that the plans were for the girls to live with an auntie, who does not actually have blood ties with the girls;

d. In his position statement dated 29 July he asserts that

i. He arranged for the children to travel with a family friend;

ii. His intention is for the children to remain in the UK;

iii. He had made a clear arrangement for the children to stay with his step daughter;

iv. His reasons for sending the girls were that the children should be able to see British relatives, that their passports were due to expire, and that there is political uncertainty in Ghana.

4. This judgment deals with the issue of whether this court has jurisdiction to make orders in respect of the arrangements for the care of the girls.

Position of the parties

5. The local authority’'s initial case was that the children were still habitually resident in Ghana at the relevant date of 17 June. The court could acquire jurisdiction exercising the inherent jurisdiction of the High Court, but should do so only with extreme circumspection, for the reasons set out in the case of Re B (A Child) [2016] UKSC 4. As the local authority processed information more recently provided by the father, who instructed solicitors at the end of last week, it considered that if the court concludes that the children actually lost habitual residence in Ghana when they left Ghana, a matter the local authority leaves to the court to decide, then the court might now assume jurisdiction on the basis of the children’'s presence in the UK, pursuant to Brussels II Revised Article 13.
6. The mother was neither present nor represented. The social worker has attempted to engage her, however this attempt was unsuccessful. It appears that similarly in the previous proceedings concluding in 2014 the mother also failed to engage in the court process although it appears that she has had sporadic contact with the girls in Ghana from time to time.
7. The father’'s primary contention is that the children have acquired habitual residence in the UK. He has arranged for them to leave Ghana and proposes that they remain in England given political uncertainty and instability in Ghana. He did arrange for the children to stay with his step daughter and could not have foreseen that she would withdraw once the authorities started to intervene to investigate the children’'s circumstances. The children are British citizens and are now integrated in UK life by being accommodated in foster care. The father’'s fall back position is that even if the children have not acquired habitual residence here, the court has jurisdiction pursuant to Article 13, and does not need to consider the use of the inherent jurisdiction.
8. The Guardian submits that on arrival in the UK the children were still habitually resident in Ghana. At the relevant date they had been in the UK for just 27 days and had at best minimal integration into UK life. The court is invited to exercise its jurisdiction under the inherent jurisdiction of the High Court on the basis that the children are British nationals, present in the jurisdiction. This is in any event the more convenient and appropriate place for the proceedings to be heard. In oral submissions the Guardian also considered that Article 13 is a real possibility based on the father’'s evidence.
9. The local authority were to liaise with the Ghanaian consular authority and to “"invite them to attend the next hearing or to file a document by 28.07.16 setting out their position in this matter, including how the girls may be repatriated and what action they will take regarding the girls’' care if the court determined that it does not have jurisdiction in relation to them”". This has been done however whilst the Ghanaian consular authority asked for – and was supplied with – more detail of the case, no document has been forthcoming and I was told that despite the local authority following up the invitation, no further response was forthcoming. All parties invited the court to proceed to resolve the issue of jurisdiction and to do so on submissions, notwithstanding the factual uncertainty around the father’'s reasons for sending the girls to the UK.

The law

10. With thanks and to avoid delay in this ex tempore judgment, I adopt [and set out below] the law as set out in the skeleton argument on behalf of the children.

JURISDICTION

11. The court is referred to Re F (A Child) [2014] EWCA Civ 789 in which the President made the following observations at paragraph 10:

a. The jurisdictional reach of the Courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.

b. The rule which has been developed by the Judges of the Family Division is that the Court’'s jurisdiction is normally established in care cases by the child either being habitually resident or actually present in England and Wales at the relevant time (Re R (Care orders: Jurisdiction) [1995] 1 FLR 711; Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham LBC -v- D (Criteria for Territorial Jurisdiction in Public Law proceedings) [2008] 2 FLR 1449. However, this is modified by Brussels II Revised.

c. It has been established by decisions of the Supreme Court that Brussels II Revised applies to determined the jurisdiction of the English Court in care proceedings, irrespective of whether the other country is a member state of the European Union (A -v- A and another (Children: Habitual Residence) (Reunite International Child Abduction centre and others intervening) [2013] UKSC 60 and Re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75.

12. At paragraph 11 of Re F, the President sets out the following consequences of those presumptions:

d. The starting point in any care proceedings case with a foreign dimension should be an inquiry into where the child is habitually resident. The basic principle in Article 8(1) of BIIa is that jurisdiction is dependent upon habitual residence. As it has already been established that BIIa applies to care proceedings, it follows that the Courts of England and Wales do not have jurisdiction to make a Care Order simply because a child is present in England and Wales.

e. In determining habitual residence, the Court should apply the principles in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1.  The key principle in this case was that the test of habitual residence is “"the place which reflects some degree of integration by the child in a social and family environment”".  In considering this, it is necessary to assess the integration of anybody the child is dependent upon in the social and family environment of the relevant country.

f. Jurisdiction under Art 8(1) depends upon where the child is habitually resident “"at the time the court is seised”".

g. It is imperative that the issue of habitual residence, and thus the Court’'s jurisdiction, is addressed at the outset of any care proceedings with a foreign dimension.  This should be when the proceedings are issued and at the Case Management Hearing (Nottingham City Council v LM and others [2014] EWCA Civ 153, paras 47, 58).

a. In any case with a foreign element, the Court should set out explicitly in both its judgment and order the basis upon which it has either accepted or rejected jurisdiction, in accordance with the relevant provisions of Brussels II Revised (Re E, paras 35, 36). 

h.

i. Judges must raise the issue of jurisdiction even if it has been overlooked by the parties (Re E, para 36).

13. The only EU member state involved in this case is the UK. If the children are not habitually resident in the UK and if the provisions at Articles 12 and 13 do not apply, jurisdiction is to be found outside of Brussels IIa: Per Lady Hale in A -v- A [2013] UKSC 60 at paragraph 59, “"Article 14 applies where no court of a Member State has jurisdiction under articles 8 to 13. No other Member State is involved in this case. Either the courts of England and Wales have jurisdiction under article 8 or no court of a Member State does so. In that case, the jurisdiction of England and Wales is determined by the laws of England and Wales”".
14. A -v- A was an appeal from a decision that a baby who was present in Pakistan, was nevertheless habitually resident in the UK. The Supreme Court having determined that the child was not habitually resident in the UK, the question of what alternative sources of jurisdiction were available in the circumstances were considered. Similar to Ghana, Pakistan is neither an EU member state nor a signatory to the 1996 Hague Convention.
15. Lady Hale stated that in those circumstances, “"The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was”" (paragraph 60). She went on to say “"However, in Al Habtoor v Fortheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be “"extremely circumspect”" and “"must refrain from exorbitant jurisdictional claims founded on nationality”" over a child who was neither habitually resident nor present in the UK”". She set out factors that were pertinent to the question of whether the court should exercise its inherent jurisdiction at paragraph 65 of her judgment and the case was remitted to Parker J, who concluded that she could exercise such a jurisdiction in the circumstances.
16. In the case of Hillingdon v DS, PS, C and G [2016] EWHC 1858 (fam), a case helpfully forwarded to me at the conclusion of the oral submissions, Theis J considered the issue of jurisdiction over unaccompanied minors in care proceedings. She concluded that in circumstances similar to those in this case the court has jurisdiction pursuant to Article 13 as, in the unusual circumstances of that case, neither child’'s habitual residence could be determined.

Discussion

17. The represented parties agree, and I find, that in the period when the children returned to Ghana and lived in the care of their father, they were habitually resident in Ghana.
18. The father and the Guardian submit that the children lost their habitual residence in Ghana when they were sent to the UK by their father. The local authority had submitted the opposite on the basis of the father’'s initial account that he had sent the children to England, however given the father’'s inconsistent accounts they now leave this issue to the court. I find that the children did lose their habitual residence in Ghana when they left. The evidence points strongly to the children’'s journey being one way rather than the start of a sightseeing holiday. In particular, they arrived on one way tickets and the father has not sought their return to Ghana despite the inability of the children’'s step sister to care for them. I conclude that the father intended them to leave Ghana permanently or at least for the foreseeable future and to live in the UK.
19. The local authority and Guardian submit that the children have not acquired habitual residence in the UK since their arrival on 21 May 2016; the father submits that they have. I find that the children had not acquired habitual residence here at the relevant date:

a. At the start of these proceedings the children had only been in the UK for some 27 days;

b. They have been in foster care from the day of their arrival, no successful plans having been made for their care;

c. No family member in the UK has sought to care for them;

d. Their future is uncertain.

I reject the contention that habitual residence arises because the children are British citizens, the father signed a s20 agreement, the children are in foster care and the father intended the children to live in the UK. Citizenship is a separate issue. The father’'s intention alone is not enough. There needs to be “"some degree of integration by the children in a social and family environment”". Manifestly there was no such integration in this case.

20. I find myself therefore in the position described as follows by Theis J in the case of Hillingdon v DS (above):-

“"41. Whilst I have very much in mind the observations of Lord Wilson in Re B (ibid) that it is unusual for a child not to have a habitual residence, it was recognised that such a situation was not inconceivable. In my judgment at the time when this court was seised, on the exceptional facts of this case, these children had not acquired habitual residence here. Although by December 2015 they had been placed with foster carers for nearly three months and had been at school for two months, the LA were still making essential enquiries to establish the circumstances in which they had arrived here and what, if any, proposals were being made for them to return to Pakistan, or elsewhere. Their intention to come here needs to be considered in the context of the lack of any arrangements being made for them following their arrival. It was not until after December 2015 that the allocated social worker was able to speak to the mother about hers and the children’'s circumstances, or establish any contact with the father. The children had no identified relatives here and their placement could have been terminated in the event the mother withdrew her consent. Apart from being British Citizens, these children had no other real connection with the UK; they had not been here before, and had no link with any relatives who may be here. Those who these children were dependent on prior to their departure from Pakistan could not be said to be integrated in a social or family environment in the UK. Whilst the circumstances in which they left Pakistan were such that they lost their habitual residence there by the time this court was seised, they had not put down sufficient roots here by December.”"

21. I conclude, as did Theis J, that as neither child’'s habitual residence can be established at the time the court was seised in June 2016, this court has jurisdiction under Article 13.
22. In the circumstances I do not need to consider the need to invoke the inherent jurisdiction.

HHJ Rowe QC

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