England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE,
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		10th March 2011

MRS JUSTICE PARKER:

1. KC, a boy aged 12 born [DOB] and AC, a girl aged 9 born [DOB], are wards of Court. I will explain what 'wardship' is later in this judgment since it seems likely that a transcript of this judgment will go to the United States of America.
2. This hearing relates to whether the English Court has, or if it has, should exercise jurisdiction over the children so as to make welfare based decisions as to their contact (access) to their mother.
3. The childrens' parents are the mother, JK, a Polish national, the plaintiff in these proceedings, and the father KC, who is American, the defendant to these proceedings. The children have dual Polish/United States nationality.
4. The mother is represented in these proceedings by Mr Teertha Gupta of counsel. The father is not present and has not been served. I am told that initially it was not possible to serve him with notice of these proceedings, although attempts were made to do so, because his whereabouts were not known, and by previous recent orders of this Court he has not been served with notice of recent hearings including this one.
5. The children are both represented by the legal department of Cafcass (Children and Family Court Advisory and Support Service), a government body, one of whose functions is to provide representation for children in family proceedings in England and Wales. The children's guardian for the purpose of this litigation is Lillian Odze but the children have not been seen by Cafcass and no contact has been made with them. Mr Hinchliffe of the Cafcass legal department, who appears today, has told me frankly that his representations have been made on behalf of Cafcass and/or alternatively, the public generally rather than on behalf of these children.
6. The parties met and married in New York. They are still married although separated. Shortly after the marriage they moved together to Poland where the children were born. In February 2006 the mother, father and the two children moved to England. AK, the mother's son by a previous relationship, joined them later that year. On 17^th July 2007, about 17 months after their arrival, the father, the mother, AK and AK's girlfriend were arrested on suspicion of the murder of an elderly lady for whom the mother and perhaps also the father had been caring. The two children went into foster care with the local authority on an emergency basis. The mother, AK, AK's girlfriend and I think another individual were charged and remanded in custody; the father was released without charge.
7. The representatives presently before me do not dispute that at the time of the parents' arrest the parents and the children were all habitually resident in England and Wales. The father's position on that is unknown.
8. Shortly after his release without charge in July 2007, the father collected the children from foster care and took them out of the jurisdiction and they entered the United States on the 24^th July 2007. The mother says that this was without her agreement; I do not know whether the father accepts this.
9. Social Services' investigation whilst the children were in foster care indicated that there were no concerns about the care which the children had been receiving from their parents prior to arrest.
10. The precise whereabouts of the children have not been disclosed since and I am told that although from time to time they have been located, they have always moved on. Recent orders, as I have said, have not been served on the father by order of this Court for fear of onward abduction.
11. Whilst on remand in prison, the mother made an application for the return of the children under the Hague Convention to the UK Central Authority to be transmitted onwards to the United States but it could not proceed because the father and the children could not be found. On the 11^th of February 2008 the mother made the children wards of Court. In her originating summons, (the application or initiating process by which the children are made wards of Court), she sought continuation of the wardship and return of the children to this jurisdiction.
12. On the 28^th of February 2008 she was convicted of murder and ordered to serve a life-term of imprisonment for a minimum term of 20 years. AK was convicted of a lesser offence of being an accessory to the murder and sentenced to four years' imprisonment. He has now been released and is living in Poland. The mother seeks to appeal her conviction; I have no inkling of the prospects of success.
13. There has been a series of orders in these proceedings. McFarlane J appointed Cafcass legal to represent the children to consider investigation of their circumstances. The children were joined as parties and at that point Mrs Odze was appointed as their guardian on 3^rd November 2008.
14. In January 2010 the mother amended her originating summons in wardship to seek contact (access) only. She wishes to be able to keep in touch with the children and seeks an order here which she hopes will be enforceable under Article 21 of the Hague convention in the United States. She seeks indirect contact only, subject to her appeal being successful. She does not seek the children's immediate return to this jurisdiction.
15. In November 2010 the mother located a lawyer to act for her pro bono in the United States. On the 15^th November 2010 that law firm asked the mother's English solicitors (attorneys) to restore proceedings for a welfare inquiry to be completed in preparation for the Article 21 application. On the 11^th February 2011, the last hearing before this, heard by Hogg J, Cafcass through Mr Hinchliffe raised the issue of whether this Court should exercise/retain jurisdiction. The order of Hogg J of that date recites that the matter be listed, 'for the issue of continuing jurisdiction to be considered by the Court'.
16. That matter came before me on the 3^rd March 2011. At the end of the argument I adjourned for further inquiries to be made of the mother's American lawyer and to see whether a liaison judge in the United States might be able to assist me to understand the position, and I contacted the office of Lord Justice Thorpe, Head of International Family Justice and liaison judge in this jurisdiction.
17. I am told that in the previous almost three years during which this litigation had been progressing through this Court, none of the Judges of the Family Division of the High Court who have dealt with this matter had ever queried jurisdiction, neither did Cafcass raise the issue.
18. The mother says that she has not heard from the children or the father since their departure. It is now possible or perhaps likely that the children have again been located. It is extremely important, Mr Gupta submits, that the father should not be put into such a state of mind that he feels compelled to move again. I agree with Mr Gupta that transmission of information to the father in the United States must be dealt with sensitively and, if I am to exercise jurisdiction, that the Court should move cautiously and slowly in relation to these children.
19. In addition to wishing to have indirect contact with the children, by which she means letters, cards, presents, and perhaps some form of electronic or telephonic communication, the mother wants to know that the children are safe. She also thinks, a view with which I have some sympathy, that they must be worried about her. She submits that the first step is for the children to be seen either by Mrs Odze or by a representative of Children and Families Across Boarders (CFAB), formerly International Social Services.
20. The mother wishes to reassure the father that she does not seek anything other than indirect contact at the moment but does not of course know anything about the circumstances of the children. She reserves her position as to the children remaining in the United States of America for the longer term if it were to turn out that there are serious concerns about their welfare there. Of course, she hopes that that is not the case. If it is necessary she sees a possibility that they could live in Poland with their brother AK.
21. The mother does not accept that the children have lost their habitual residence here and /or are now habitually resident in the United States of America. She does not know whether they have in fact been living there since throughout the period since their removal and whether they can be said to be there as part of their settled order of existence, even if only on a temporary basis. Mr Gupta submits that as at the date of their removal in late July 2008 the children were habitually resident within this jurisdiction, the jurisdiction of England and Wales. He submits that the mother has rights of custody as their mother (she has in English terminology, 'parental responsibility' for them) and she did not consent to their removal, and if she did not consent the children's removal, therefore, was wrongful within the meaning of the Hague Convention. Mr Hinchliffe does not disagree with that formulation.
22. Mr Gupta also at the outset asked me to consider the issue of whether the mother's imprisonment either as a matter of law or as a matter of practice should lead her to be considered either as someone who no longer has parental responsibility or someone who should not be permitted to exercise it for any reason including welfare grounds.
23. Mr Gupta has referred me to authorities within this jurisdiction and also to decisions of the European Court of Human Rights in Strasbourg. Firstly, he refers me to Re A (Abduction: Rights of Custody: Imprisonment) [2004] 1 FLR 1. In that English decision it was established that parental responsibility is not suspended by the parent being imprisoned. Custody may curtail the practical impact of parental responsibility but the plaintiff mother is still entitled to consent to or to refuse the removal of her children from the jurisdiction. The President of the Family Division, Dame Elizabeth Butler-Sloss, then the senior family judge in this jurisdiction, made it clear that the imprisonment of a parent did not in any way prevent that parent from having the right to object to the removal of the child out of the jurisdiction. The point was also confirmed by Mr Justice Bennett, a very senior judge of the Family Division, in Re L (A child) [2006] 1FLR 843, 'Imprisonment of a parent does not extinguish or suspend his or her rights of custody'.
24. There are Strasbourg decisions which make it clear that imprisonment does not or should not create 'civic death'. The European Court of Human Rights has stated that prisoners should not lose their right to vote and the European Prison Rules, recommendation number R(87)3, Council of Europe 64 states that:

'Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regime shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.'

It is therefore submitted by Mr Gupta that there is no public policy argument that this mother is not in principle entitled to have contact with her children by reason of her imprisonment.

25. In A v L (Contact) [1998] 1FLR 361 Mr Justice Holman, another very senior judge of this Division said in relation to a parent who was in prison that:

"The Court of Appeal has said many times that it is very important, if at all possible, for a child to grow up with some knowledge of and some contact at least with his natural father. This is a fundamental right of a child and it is ordinarily very much in the welfare of the child to grow up having some contact at least with both his parents."

Mr Justice Holman was extremely concerned in that case about a decision of a lower Court which had taken the view that the father's imprisonment meant that the father should not have contact with his child.

26. From my own perspective, I consider that the only question which arises is whether it is in these children's interests to have contact with their mother. At their present ages, their wishes and feelings also may need to be taken into account as the mother recognises. Where children have not seen or heard from a parent for many years then they may need some professional help or other guidance as to the benefits or otherwise of resuming contact with an absent parent. Furthermore, it seems to me that notwithstanding the very serious background here, and however reprehensible the mother's crime may be (and I know nothing about the detail of it), it does not necessarily mean that these children should not see her. Furthermore, it seems to me highly likely that they will need to have some information about her in order to come to terms with this very significant aspect of their family history. I say that without in any way prejudging the way that I or another Judge might look at this case when or if the merits come before the Court.
27. Mr Gupta also argues, and I accept, that the mother and, indeed, the children, have a right within the law of this jurisdiction to respect for their family life pursuant to Article 8 of the European Convention of Human Rights which forms part of our domestic law.
28. On these points Mr Hinchliffe in principle accepts Mr Gupta's submissions. They have both submitted very detailed skeleton arguments to me and referred to a number of authorities. I apologise in advance if I do not refer to each of those authorities in this judgment. Some, after the debate that we have had about the issues in this case, are no longer of relevance, some I do not need to refer to specifically because the principles are subsumed elsewhere.
29. Mr Hinchliffe has sought to persuade me that the children's habitual residence has changed because of the passage of time and therefore, that this Court no longer has jurisdiction as a matter of law. He also says, not as a matter of law but on the facts of the case, that this is now a wholly United States case: the father has made up his mind, he has left and is not going to return and the reality is that the children's lives will now be spent in the United States of America and this is a case which is American through and through. It is significant, he says that the mother has now accepted that, subject to the perhaps distant prospect of the children living in Poland, they will remain in the United States of America. He argued also that the mother's decision not to pursue their return means that they are now habitually resident in America.
30. Mr Hinchliffe is concerned as to the cost and burden on Cafcass of having to investigate this case. He submitted to me that the English authorities have no role and that as a matter of public policy this Court should not continue to exercise jurisdiction in this US case, and that it is invidious for Cafcass to have to commit the British public's resources to it. He asked me to dismiss the Originating Summons or at least not to continue these proceedings.
31. Mr Gupta submitted that there had been no change in the children's habitual residence because they have been wrongfully removed from this jurisdiction. He said that considerations of cost should not deprive the mother of her undoubted right to seek contact with her children in the jurisdiction in which they are still habitually resident, and when she has no realistic chance of bringing or maintaining proceedings in the United States of America, not least because she is a serving prisoner here, and that there is no public policy reason for this court not to exercise jurisdiction.
32. I was extremely doubtful at the outset in any event as to my power to dismiss the originating summons at this stage by way of a quasi strike-out. I thought that there was no basis for me to conclude that the mother's case could be decided on a minimal or truncated inquiry, assuming that this court has jurisdiction in relation to the children. The mother's case is not unarguable. If 1) this Court has jurisdiction 2) the children are habitually resident here and 3) they have been wrongfully removed, the issue is one of forum conveniens. Therefore I concluded that in realty I was being asked to stay proceedings pursuant to Section 5 of the Family Law Act 1986 ('FLA 1986'), with which I will deal later in this judgment.
33. Neither Mr Hinchliffe nor Mr Gupta had addressed me in detail on the jurisdictional provisions of the FLA 1986, so we looked at these together during the hearing, since my view was that the first, preliminary, question that I needed to determine was whether this Court has jurisdiction.
34. It is common ground between these parties that the children were habitually resident in England and Wales as at July 2008 at the point of their removal. I say again that the father's position on this is unknown. Mr Gupta submits and Mr Hinchliffe accepts that they must still have been habitually resident in England and Wales as at the date of the issue of the wardship proceedings on the 11^th February 2008, just under eight months after their removal and when the mother had sought to invoke the Hague Convention. That proposition may or may not be accepted by the father.
35. Jurisdiction in family cases in England and Wales is governed by Part 1 of the FLA 1986. At the time the provisions were enacted, the principal focus was jurisdiction as between the three UK jurisdictions which confusingly for non-UK citizens have different primary legal systems.
36. In Re S (Residence Order: Forum Conveniens [1995] 1FLR 314 ("Re S [1995]") Thorpe J, as he then was, stated at 321A;

'The principle objective of Part 1 seems to me to be to avoid difficulties and conflicts created by the fact that there are three separate legal jurisdictions operating within our State. Where the conflict crosses State boundaries, as in this case, it is not at first sight clear whether ss1, 2 and 3 of the 1986 Act are indeed intended to apply. However, I am in no doubt that they are …' .

37. Sumner J referred to Re S [1995] and reasserted that statement of the law in Re L (Residence: Jurisdiction) [2007] 1FLR 1686 (a case involving conflict of jurisdictions between England and Wales and the Republic of Panama).
38. Lowe, Everall & Nicholls in International Movement of Children [2004] also state that the principal aim of the 1986 Act was to resolve conflicts of jurisdiction within the UK but that it is now subject to the European agreement, Brussels II and Brussels II Revised, but that the 1986 Act provisions have more general application.
39. In Re S (A Child: Abduction) [2003] 1FLR 1008 ("Re S Abduction [2003]"), Lord Justice Thorpe commented on the difficulty of interpretation of the FLA 1986, a comment with which I align myself.
40. The primary rules as to jurisdiction, recognition and enforcement of decisions on parental responsibility within the European Union are now governed, since 1^st March 2005, by Council Regulation (EC) 2001/2003 of 27^th November 2003 Concerning Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Proceedings and in Matters of Parental Responsibility. In the FLA 1986 it is referred to simply as, 'The Council Regulation', but I shall refer to it as 'Brussels II Revised' in order to distinguish it from the preceding Council Regulation (EC) 1347/2000 of 29^th May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for children of both parties to which I will refer as 'Brussels II'. Brussels II was repealed by Brussels II Revised.
41. Both Brussels II and Brussels II Revised provide for a common jurisdictional code in family cases between signatory states of the European Union. Different rules apply between jurisdiction in divorce and children cases. Brussels II concerned only divorce cases and the children of the parties to those cases. Brussels II Revised extended the code to include the children in what it describes as 'non-matrimonial' cases. A non-matrimonial case is one where there are no matrimonial (i.e. divorce or nullity) proceedings. If the litigation relates only to the children it is non-matrimonial even though the parties may be married to one another. This is a non-matrimonial case.

Jurisdiction under Brussels II Revised

42. Section 2 of the Council Regulation Brussels II Revised is headed 'Parental Responsibility'. Article 2 of Brussels II revised is headed, 'General jurisdiction' and provides that:

'(1) 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. Article 8(2) provides that paragraph one should be subject to the provisions of Articles 9, 10 and 12.'

43. Article 16 of Brussels II Revised deals with the concept of 'seisin'. It provides:

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, providing 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. (this deals with a case where a document needs to be served before being lodged, this is not relevant here).

44. Seisin is thus the point at which an application is made to the Court. Seisin can take place unilaterally. Seisin must take place at a particular moment in time "when the document initiating the proceedings is lodged with the Court" (see Re I [2009] UK SC10 [2010] AC 319 Paragraph 23 per Baroness Hale of Richmond) but the Court will not actually be seised if the applicant does not take the steps required to serve the Respondent.
45. The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 SI 2005/265) is the statutory instrument (subordinate legislation) which introduced the relevant amendments into the Family Law Act. The explanatory note to the statutory instrument states that the purpose of the Regulations was to amend domestic law:

'So as to make it consistent with and clarify its relationship to Brussels II revised…… the changes effected by these Regulations are limited to those necessary to amend inconsistent provisions of national law."

46. The explanatory note continues that the amendments also make it clear that when considering the jurisdiction in England and Wales, Scotland and Northern Ireland that the Court needs to consider first whether there is jurisdiction pursuant to Brussels II Revised before considering the domestic rules as to jurisdiction. Lowe, Everall and Nichols (Supplement to International Movement of Children, 5.20) state that "jurisdiction can be taken under the new Brussels II , or if it does not apply, under jurisdictional rules relating to the existence of matrimonial proceedings between the parents of the children concerned, or on the basis of the child's habitual residence" .

The Family Law Act 1986

47. The FLA 1986 has been twice amended to incorporate the important common jurisdictional rules within the European Union to which England and Wales have become subject. These amendments have not altogether clarified matters as Lord Justice Thorpe hoped they might in Re S Abduction [2003]. The Brussels provisions have been grafted onto the FLA 1986 but the match is not perfect.
48. Part 1 of The Family Law Act 1986 is headed, "Child Custody". Section 1 provides:

'1. Orders to which Part 1 applies;

(1)Subject to the following provisions of this section, in this Part 'Part 1 order' means –

(a) A section 8 order made by a court in England and Wales other than an order varying or discharging such an order;

………………………….

(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children;

(i) so far as it gives care of a child to any person or provides for contact with or the education of a child; but

(ii) excluding an order varying or revoking such an order;

………..'

49. A Section 8 order includes an order for residence (formerly called custody) and contact (access).
50. I said above that I would explain briefly what wardship is. It is a status of historical antiquity which has been preserved in England and Wales after child law was codified in the Children Act 1989. It is based on the duty of the sovereign to provide protection for his subjects, the parens patriae jurisdiction,
51. Wardship is a way in which the 'inherent jurisdiction with respect to children' (i.e. the parens patriae jurisdiction) may be exercised. Once a child is a ward of Court, that child is under the continuous protection of the Court, even after a final order has been made determining the issues in respect of that child. Once a child is a ward of Court that child's place or country of residence or school cannot be changed without court order. The Court can make various orders providing for the care of the child and access/ contact and orders for the protection of the child. The Court can order the return of the child to this jurisdiction. Orders to the same effect can be made pursuant to s 8 of the Children Act 1989, but the Court does not continue to exercise control once the final order has been made.
52. The mother sought an order in the wardship proceedings for access/contact and return of the children to this jurisdiction. Therefore she has applied for a Part 1 order within the meaning of s 1 (1) (d) FLA 1986, but the court also has power to make Section 8 Children Act 1989 orders (i.e. orders within the meaning of s 1 (1) (a) FLA 1986) in the wardship proceedings even if no specific application has been made under the Children Act 1989.
53. Wardship proceedings are initiated by a court document called an 'Originating Summons' which has to be issued out of the court office.
54. The main heading to Chapter II of Part I of the FLA 1986 'Jurisdiction of Courts in England and Wales' and then the sub-heading is '2 Jurisdiction: general'. Section 2 (1) provides that :

'(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. (This relates to matrimonial proceedings, it is not relevant here) or;

c. the condition in section 3 of this Act is satisfied.

55. Section 2 (3) of the FLA 1986 provides that

'(3) A court in England and Wales shall not make a Section 1(1)(d) order unless;

(a) it has jurisdiction under the Council Regulation;

(b)the Council Regulation does not apply but –

i. the condition in Section 3 of this Act is satisfied or;

ii. the child concerned is present in England and Wales on the relevant date and the Court considers the immediate exercise of its powers is necessary for his protection.'

56. Section 3 of the Family Law Act 1986 provides that:

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

(a) is habitually resident in England or Wales or;

(b) is resident in England and Wales and is not habitually resident in any part of the United Kingdom…'

57. Section 2(1)(b) in conjunction with s 3 (1) (a) clearly provides that the Court has jurisdiction to make a Section 1(1)(a) order, (in other words a Section 8 order) in a non-matrimonial case where the condition in Section 3 (habitual residence or presence of the child) is satisfied.
58. Within s 3 FLA 1986 there is no provision stating what is the condition referred to in section 2 (3) which gives the Court jurisdiction to make a section 1 (1) (d) / inherent jurisdiction order. However the only sensible interpretation in my view is that the condition referred to in Section 2(3) of the Act is the habitual residence/presence condition in S 3 (1). There is no other condition in Section 3 set out in Section 3. That is the way in which has been consistently interpreted by the Courts here. In any event, as set out above, under in wardship and the inherent jurisdiction the Court has power to make a Section 8 order, i.e. a Part 1(1)(a) order.
59. Mr Hinchliffe submits that jurisdiction pursuant to Section 3 only relates to jurisdictional conflicts between England and Wales, Scotland and Northern Ireland, but that was not the view of the Court of the Appeal in Re S [1993], or Mr Justice Sumner, nor the authors of Lowe, Everall and Nicholls.

Jurisdiction in this case

60. Habitual residence is the only basis upon which this Court in this case could have jurisdiction either under Brussels II Revised or the residual domestic jurisdiction because the children were not present in this jurisdiction when the mother instituted her proceedings.
61. Whether prima facie there is jurisdiction under Brussels II Revised depends on whether the children were habitually resident in England and Wales at the time the court was seised. Seisin depends on service. In this case I am told that attempts have been made to serve but the father has evaded service. This may not be sufficient to establish seisin.
62. If the Court is not seised there is no jurisdiction under Brussels II Revised. In that event the court must consider whether it may exercise jurisdiction based on the habitual residence of the child pursuant to Section 3 of the Family Law Act 1986. There is no service requirement in Section 3 FLA 1986. Section 7 (c ) (i) Family Law Act 1986 provides that the "relevant date" is the date of the making of the application. Therefore, if the court does not have jurisdiction pursuant to Brussels II Revised, there is prima facie jurisdiction pursuant to Section 3, providing that the children were habitually resident in England and Wales on the date of the issue of the mother's originating summons (11 February 2008).

Can the child's habitual residence be changed, and if so does this affect jurisdiction?

63. In English law as, indeed, under the Hague Convention, it is trite law that a child's habitual residence cannot be changed unilaterally by one parent without the other parent's consent subject to arguments about the rights of minor children who have reached a degree of autonomy and have sufficient understanding of the issues to determine their own residence. I doubt that is relevant here since the children were, I think, 9 and 6 at the date of removal.
64. The rationale is summarised in a recent decision of the English Court of Appeal, Re P – J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051. At paragraph 20 of the judgment Lord Justice Ward, giving the leading judgment, approved the formulation of the President of the Family Division at first instance in dealing with this case, that;

'Where both parents have equal rights of custody/parental responsibility, neither can unilaterally change the habitual residence of the child.'

65. It is on this basis that Mr Gupta submits and Mr Hinchliffe accepts that the children were habitually resident as at the date of the issue of the originating summons, both having accepted that the children were undoubtedly habitually resident as at the date of their removal. If the mother did not consent to their removal, then that removal was wrongful and cannot change their habitual residence. Providing that the children were habitually resident as at the date of the issue of the proceedings, this Court will have jurisdiction.
66. Mr Hinchliffe says that that their habitual residence may have changed now as a result of effluxion of time and that the children are now habitually resident in the United States of America. He relies on Re B (Abduction: Children's Objections) [1998] 1 FLR 667. A mother had removed children to Ireland and disappeared with them and the father did not locate them for 17 months, at which point he started Hague Convention proceedings. The argument addressed to the judge in Re B was that by failing to bring earlier proceedings the father had assented to or acquiesced in the change in the children's residence. Stuart White J said:

'it is not possible for one parent with parental responsibility unilaterally to change the habitual residence of the child by removing them from ... another country wrongfully and in breach of another's rights'.

....

'I do not go so far to say that in cases more extreme than this one such a thing can never happen. In argument there was canvassed the hypothetical case of a parent abducting a young baby and after being ordered to return it and failing to do so and going successfully to ground, perhaps with a new name and identity, for many years. One can imagine in such a case a powerful and perhaps even successful argument being adduced that it would be an affront to common sense to hold that habitual residence of a child perhaps of 10 to 12 years of age was other than in the country in which he had spent virtually the whole of his life, but this is not such a case.'

67. Article 10 of Brussels II revised provides that where a child is wrongfully removed from one Brussels member state to another, if no application is made for the child's return within 12 months of removal, and providing that the child's whereabouts were not known to the parent during that period of time, the child becomes habitually resident in the state to which it has been removed. This is equivalent to what Mr Gupta tells me is referred to as the 'tolling provision' in the United States of America. It does not apply where the removal is to another Brussels jurisdiction and is not relevant here.
68. Section 41 of the FLA 1986 provides that a child unlawfully removed may acquire habitual residence in a new jurisdiction after 12 months, but this relates only to removals between the constituent part of the UK, see again Re S (Child Abduction) [2003].
69. I can see the argument that the mother's agreement that the children should remain in the USA now, albeit not necessarily on a permanent basis, means that they have now become habitually resident there. But I do not accept that if there has been a change in habitual residence the English Court no longer has jurisdiction. The Court's jurisdiction can be relinquished by agreement, 'prorogation', including in favour of a non European Union jurisdiction pursuant to Article 12 of Brussels II Revised (see Re I, above) but here there is no agreement which could constitute prorogation. By Article 15 the Court can, exceptionally, relinquish jurisdiction and transfer to a 'Court better placed to hear the case' but this relates only to the Court of another Member State.
70. Under the FLA 1986 the only power in the Act to dismiss summarily is pursuant to Section 5(1) which gives power to the Court to refuse an application for a Part 1 order where the matter has already been determined outside England and Wales. The only other power is to stay the proceedings (or to transfer to another Brussels jurisdiction under Article 15 of Brussels II Revised) pursuant to s 5 (2) Family Law Act 1986. I adhere to my original view that it would not be possible (let alone appropriate), and would probably be in breach of this mother's human rights, for me to attempt to dismiss these proceedings summarily without some merits based enquiry.
71. As at the end of the discussion, Mr Hinchliffe accepted that jurisdiction was established as at the date of seisin (per Brussels II Revised), or at the date of issue of the proceedings (pursuant to Section 3 FLA 1986), and that the proceedings can only be dismissed summarily under the FLA 1986 if there has been a decision of a court in a competing jurisdiction pursuant to s 5(1) FLA, or stayed pursuant to s 5(2) FLA 1986. There is no power to stay proceedings under Brussels II (Revised). That power is only exercisable where the competing jurisdiction is a Member State.
72. The father has not participated in these arguments and I do not want in any way to cut him out of the process. It is important for me not to rule conclusively at the moment in relation to jurisdiction for that reason. At today's hearing it has been for Mr Hinchliffe to satisfy me that I do not have jurisdiction, a jurisdiction until recently accepted by all. Providing that the children were habitually resident, as the present parties concede that they were, as at the 11^th February 2008, the courts of England and Wales have jurisdiction to make orders in wardship proceedings or pursuant to the Children Act 1989 in respect of these children. So, for the moment, I have no alternative but to continue to exercise this jurisdiction and in any event it seems to me right that I should do so.
73. I turn now to consider whether I should grant a stay of these proceedings pursuant to Section 5 Family Law Act, 1986.
74. No formal application has been made for a stay. I doubt whether Cafcass has locus standi to apply for a stay, particularly since Cafcass represents the children with whom no cafcass representative has been in contact, and Mr Hinchliffe does not have the role of amicus to the court. I am not going to rule formally on the question of a stay, since the father may wish to apply for a stay. I think it will be helpful, however, for me to set out the general principles upon which a stay may be granted.
75. Section 5 of the FLA 1986 is headed, 'Power of the court to refuse application or stay proceedings'. Section 5(1) (power to dismiss) does not apply. Sub-section 5(2) provides:

'Where, at any stage of the proceedings on an application made to a court in England and Wales for a Part 1 order or for the variation of a Part 1 order other than proceedings governed by the Council Regulation, it appears to the court –

(a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales or;

(b) that it would be more appropriate for those matters to be determined to be taken outside England and Wales….

…the Court may stay the proceedings on the application'.

76. There has been some difference of view in various English decisions as to whether the welfare of the children is the paramount consideration in issues of forum conveniens, or simply an important factor. The habitual residence of the children is a relevant factor but is not conclusive. The overall rule is that the Court needs to look at the balance of convenience. In a recent decision in the Scottish Courts, RAB v MIB [2008] CSIH52 [2009] 1FLR 602 the Court of Session ruled that the test for forum conveniens, which I find a persuasive formulation, was:

"not one of the practical convenience of witnesses but whether the alternative forum contended for is one in which the 'case may be tried more suitably for the interests of all the parties and the ends of justice'."

77. I summarise the conclusions of Mr Justice Waite in H v H [1993] 1FLR that the considerations for the Court are :-

a. the procedures in the two competing jurisdictions,

b. whether it is necessary for the children to be present in the jurisdiction of the Court which hears the dispute,

c. the rights of representation of the parties,

d. the prospects of an early hearing under each system,

e. the financial practicability of achieving professional representation for the non-resident parent in the courts of the other jurisdiction: whether or not there is public funding available may be a relevant factor,

g the practicability of the non-resident parent litigating in the other jurisdiction,

f. the availability of a guardian ad litem to present the children,

h. the extent to which litigation has already been conducted in the Court of the competing jurisdiction.

i. no single factor is conclusive.

78. I asked or some information for the USA about the likely approach of the US court to an English order. A letter was sent on joint instructions to Stephen Cullen Esq of the mother's US lawyers. Stephen Cullen was asked, in the event that an English judge makes an order for contact, what is the likelihood of it being enforced in the United States under Article 21 of the 1980 Hague Convention. He responded that the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) requires that all 'child custody determinations' from foreign countries be recognised and enforced unless such orders 'violate fundamental principles of human rights'. English 'child custody determination' could not violate fundamental principles of human rights. An English order will be recognised and will be enforced as long as three statutory elements are satisfied (1) the English Court had jurisdiction to make the order (2) notice and an opportunity to be heard was provided to the father and (3) the order has not been subsequently modified prior to registration and enforcement. The US liaison judges can assist in the process pursuant to the UCCJEA. He has experience of foreign orders being enforced pursuant to Article 21; there are few reported cases but there are many cases at trial level where this happens. Voluntary organisations such as International Social Services ('ISS') could provide an assessment. The fact that the mother is serving a life-term for murder would not affect the prospects of enforceability. Since there are only the three limited defences as described above, the procedure under Article 21 for registration and enforcement of an English order is reasonably swift in that as soon as the English order is registered, then the father is notified by the Court and has 20 days from the date of notification to file and contest the registration. The matter is set on an expedited calendar and resolved extremely quickly and he would anticipate it would be resolved in a matter of months. The fact that neither the UK nor USA has as yet ratified the 1996 Hague Convention, although each has signed it, has no relevance. If the English judge stayed these proceedings and the mother was compelled to start proceedings in New York State:

a. It would be almost impossible to arrange for the mother to participate in any meaningful way in proceedings because she is a life-term serving prisoner, whereas her participation is not necessary or required under the UCCJEA Article 21 approach,

b. There is no legal aid or state funding for family law cases in the United States,

c. There are no arrangements for video link in the State family law system when such a matter will be heard and Article 21 cases cannot be heard in a Federal Court,

d. If the mother were compelled to litigate in the United States she would be unlikely to get any access to her children whatsoever; because it would be almost impossible to get her testimony before the Court and also the Court would take the view that it was not in the children's best interest to have contact,

e. Although there is provision for separate representation through a guardian ad litem the problem is payment since the mother would have to pay 50% and this is expensive.

79. He states that the only other approach would be through ISS (CFAB). There is no scope for psychiatric examination unless the mother has the ability to pay for it. At the moment there is no merit in contacting the US liaison judge via Lord Justice Thorpe; there is no other agency which might otherwise assist other than the ISS and there is no social worker or similar available in New York State to support the process of contact after an English or US order.
80. Mr Hinchliffe submits that there are public policy reasons why the English Court should not rule in this case because it is now a US case, but the contrary argument is that the Courts of this jurisdiction have international obligations in a case of wrongful removal. Even if the children are now habitually resident there (and as I have said I can see the argument as to the effect of the mother's decision not to seek their return) then this is one factor of the many which have to be considered. I do not accept Mr Hinchliffe argument that there is no substantial connection with England and Wales since the mother is here and, indeed, Article 12(3) of Brussels II Revised (in the context of prorogation), defines "sufficient connection" to include the fact that one holder of parental responsibility is habitually resident in the country in which jurisdiction is sought to be exercised. As the Supreme Court said in Re I there are many examples of cases where the country of jurisdiction and the country of the children's habitual residence may be different.
81. In my judgment, on a stay application the considerations which the Court would have to balance are that the father and the children have been living outside England and Wales for over two-and-a-half years and the mother now accepts certainly for the time being they should remain there. On the other hand, the mother's case is that she did not agree to the children being removed. The argument against a stay, of course, is that the mother's proceedings have been extant now in this jurisdiction for over three years and although little progress has been made, the mother has public funding, an established specialist team on board, and Cafcass represent the children, even though so far they have been able to do little. An order made pursuant to Article 21 is prima facie and swiftly enforceable. There is no way in which the Court in the United States can, and I say this without criticism, provide the kind of professional input which is possible in this Court. Most importantly, there are presently no proceedings in the United States of America and it is in effect, impossible for the mother to litigate in the United States of America, a jurisdiction which she has not chosen but in which it appears the father has chosen to live.
82. To conclude my decision therefore:

1. On present information there is nothing to persuade me that I do not have jurisdiction either under Brussels II or Section 3 of the Family Law Act.

2. No formal application has been made for a stay under Section 5 FLA 1986 and this issue is not listed before me. I am doubtful whether Cafcass has locus to apply for a stay. I am not satisfied in any event that I should grant a stay on present information.

3. It must be for the father to raise any issues with regard to a stay and to apply for a stay if he wishes.

4. The father must have the ability to argue the jurisdiction issue, if he wishes.

5. I shall therefore, give him liberty to apply for either determination or for any other relief for which he may wish to apply.

6. Father must be served with the proceedings; this is proposed to be done by Mr Cullen; the solicitors must write an explanatory letter to the father to be approved by me.

83. A draft order has been submitted with a number of proposed recitals indicating the mother's present position and that the father has not been present or represented.
84. I will invite the father to take part in the proceedings in this Court so that the future best interests of his children including any contact to the mother can be considered.
85. By a previous order the father was asked to produce an affidavit containing a very large amount of information. For the moment Mr Gupta is prepared to restrict that inquiry to the children's school reports, what the children's understanding is of the mother's whereabouts and circumstances, whether the father will cooperate with professional assessments by Cafcass and if required, an ISS/CFAB representative visiting him to ascertain the children's welfare; and his proposals for indirect contact between the children and their mother, for example, video link and post via Cafcass, telephone or photographs. I shall order that, until further order, he do not remove the children from New York State, New York or their current address to live elsewhere.
86. All other orders and provisions of orders in these proceedings not specifically referred to are discharged with liberty to the father to vary or discharge the terms of this order on 48 hours notice to the mother and the children's guardian. Any application is to be made by email in the first instance to the judge, through my clerk copying in the other parties. The matter is to be listed for one hour for further directions on a date before me in April 2011 and I agree that I shall order a transcript on an anonymous basis.
87. I have spoken briefly this morning to Lord Justice Thorpe and he confirms my view that there is no purpose in my speaking to the New York State liaison judge at the moment and it is too soon bearing the approach which I approve which the mother asked me to adopt, for me to decide whether I should direct Cafcass to investigate or whether ISS/CFAB should undertake this task or, indeed, any investigation should take place.